Customary law of stateless nations: some observations on the question of who can reform the Thesawalamai, the customary laws of the Tamils in Sri Lanka
Despite the definitive trend towards consolidating the Sri Lankan state as a Sinhala Buddhist state in the post colonial context, the legal system was left intact in its plural character. In fact, the current constitution seeks to even prevent fundamental rights provisions in the constitution from overriding customary law principles in the event of clash. However, there have been calls for reform, which have focused mainly on enacting a uniform civil code. This project of uniformization advertently or inadvertently aids the monist consolidation of the Sri Lankan state. This paper argues that the Sri Lankan Parliament and courts lack political legitimacy to amend the Thesawalamai, which the paper characterizes as pre state law, leave alone abolishing it and enacting a uniform civil code. The legitimacy deficit of Sri Lankan institutions is built on the long history of brutal repression of the Tamil struggle for self determination. The paper suggests that a viable, politically legitimate process for reforming the Thesawalamai can only be put in place if the national question is settled to the satisfaction of the Tamil community in Sri Lanka. It further suggests that placing the responsibility of amending the pre state law of the Tamils in the hands of institutions which they consider to be politically legitimate and representative is the best path to reforming the Thesawalamai.