Dilrook Kannangara

Sri Lankan/Indian and Tamil aspirations can never be at peace; they never were. In order to achieve Tamil aspirations, it is imperative that Sri Lanka/India is/are weakened and disintegrated. India is the preferred choice of Tamil aspirants who dream of a Tamil nation which they claim was in existence in the past. However, it is unthinkable to carve out a separate nation for Tamils in India especially after 1962. Unlike in Sri Lanka, the law relating to territorial integrity is applied strictly in India. That is the very reason why Tamil aspirations were pushed into the island.

The Sixth Amendment to the Constitution passed in August 1983 immediately after the July 1983 disturbances dealt a body blow to raging Tamil aspirations. TULF, TNA and its constituents have already violated section 157A on many counts. Whatever confusion they try to bring in to the apparent separate state objective, it is apparent they always supported a separate state within the territory of Sri Lanka. ƒÆ’-¡ƒ”š‚ 

In addition, party leaders of these parties are personally liable for their individual violations of section 157A.

ƒÆ’-¡ƒ”š‚ Individual Liability

Section 157A (2) states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-No person shall, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

ƒÆ’-¡ƒ”š‚ Party Liability

Section 157A (2) states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

http://www.priu.gov.lk/Cons/1978Constitution/Chapter_20_Amd.html

TNA MPs Have Taken the Oath of Affirmation

All TNA MPs have taken the required Oath of Affirmation.

“I …………………………………………….. do solemnly declare and affirm / swear that I will uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka and that I will not, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

http://www.priu.gov.lk/Cons/1978Constitution/Schedle_7_Amd.html

However, merely taking this oath does not guarantee anyone taking this oath will abide by it. In fact TULF, TNA, its constituents and members have not lived by this oath. Evidence as stated below goes to prove they have not lived by this oath.

In addition it does not in any way affect their political parties violating 157A(2) of the Constitution! There is a widespread misconception even among very senior politicians that taking the oath can absolve TNA MPs from being found guilty of violating 157A(1). ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

ƒÆ’-¡ƒ”š‚ This is the very reason why there are more than one subsection, including, 157A(1) and 157A(2) to net all culprits who may escape one.

TULF, TNA and its constituents have not specifically rejected the 1977 TULF election manifesto. They must be demanded to specifically reject the 1977 TULF manifesto and the 1976 Vadukoddai resolution in the Supreme Court. Their inability to reject these violations of the Constitution means TULF, TNA and its constituents cannot positively reject their aim of creating a separate state within the territory of Sri Lanka. That brings them to neutral territory on the issue of separate state between three possibilities ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” against a separate state, support a separate state and neutral between the above two. Thereafter they cannot rely on their limited manifestations of positively opposing the creation of a separate state to seek an escape route.

Separate State

Sixth amendment does not necessarily require the culprit to aim for a separate nation. Working for a separate state is sufficient to be guilty. A state can be a state within a nation like in India. For instance Tamil Nadu is a state within India. Advocating for a separate state as in Tamil Nadu is a sufficient crime to be punished.

It must be noted that the terms ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-within the territory of Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ can either mean within the territory of the island named Sri Lanka or within the nation called Sri Lanka. The latter interpretation makes it culpable even to aim for a federal structure within the territory of Sri Lanka. In other words even to have the aim of creating a federal state within the territory of the nation Sri Lanka violates section 157A. ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

ITAK that proposes a federal structure didnƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢t contest the elections of 1989 and 1994. It came back to the political scene with a new English translation of its name Tamil National Alliance instead of Federal Party in 2000. The near federal political package of 2000 made its comeback easy. The very name Ilankai Tamil Arasu Kachchi meaning Lanka Tamil State Party and its older twisted English translation Federal Party violate section 157A. ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

Even the 13A of 1987 does not espouse in anyway the creation of any state as in a federal structure. Therefore demanding a federal structure has no support in any form in the Constitution. It is still a violation of the Constitution. ƒÆ’-¡ƒ”š‚ 

TULFƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s 2010 election manifesto states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-The TULF during the past five years had been advocating for a solution under a Federal Constitution and have also offered to accept the Indian Model as the only alternative to a federal solution.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

http://transcurrents.com/tc/2010/03/election_manifesto_full_text_t.html

TULFƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s aim is to either have a federal setup or the Indian model which is also a federal model! Any federal model including the Indian model has separate states within the nation. Without creating separate states, there cannot be a federal system. Therefore TULF as recently as in 2010 has violated section 157A of the Constitution. It is in addition to a long list of violations it has to its name.

A Separate Nation is Also a Separate State

Alternatively, a nation can also be considered a state. The clever use of the word state in the Constitution catches all tricks of the TNA and TULF.

TNAƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s case is worse. TNAƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s 2001 manifesto states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Recognition of the Tamils of Sri Lanka as a distinct nationality.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

Tamils are not a distinct nationality in Sri Lanka; they are merely a group of people belonging to an ethnicity. Nationality is attached to nationhood. By claiming Tamils to be a distinct nationality, TNA indicates its aim to a separate nation within the territory of Sri Lanka.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Recognition of an identified Tamil homeland and guarantee of its territorial integrity.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

Only a state or a nation can have territorial integrity. Mere administrative divisions cannot have territorial integrity.

ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Based on the above, recognition of the inalienable right of self-determination of the Tamil nation.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

When the three (3) statements taken together clearly make out the aim of creating a separate (Tamil) state within the territory of Sri Lanka which is in violation of section 157A of the Constitution.

http://www.tamilnet.com/img/publish/2010/03/TNA_Election_Manifesto_2001.pdf

TNA reiterated its aim of creating a separate state within the territory of Sri Lanka in 2004. Its manifesto states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Find a political solution to the Tamil national problem based on the acceptance of the fundamental proposals regarding (Tamil NationƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s) Tamil homeland, Tamil Nation, TamilsƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢ right to self-government (autonomy).ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

A defined area which is called a Tamil homeland and a Tamil Nation indicates the objective of creating a separate state within the territory of Sri Lanka. ƒÆ’-¡ƒ”š‚ Tamil self-government claims further reinstate it.

http://www.tamilnet.com/img/publish/2010/03/TNA_Election_Manifesto_2004pdf.pdf

TNA manifesto also refers to the ISGA (Interim Self Governing Authority) proposals.

ISGA in no ambiguous terms states: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Noting that the Tamil people mandated their elected representatives to establish an independent sovereign, secular State for the Tamil people in the elections subsequent to the Vaddukoddai Resolution of 1976.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

http://www.tamilnet.com/img/publish/2003/11/proposal.pdf

A separate independent state for the Tamil people within the territory of Sri Lanka violates the Constitution.

TNAƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s 2010 manifesto continues its tradition of aiming for the creation of a separate state within the territory of Sri Lanka. Stated therein: ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-Power sharing arrangements must be established in a unit of merged Northern and Eastern Provinces based on a Federal structure, in a manner also acceptable to the Tamil Speaking Muslim people.ƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚

A federal structure by definition creates separate states within the territory of Sri Lanka. Federal India and Federal USA have states within their territories. It is a violation of the Constitution of Sri Lanka.

http://transcurrents.com/tc/2010/03/full_text_general_election_201.html

In addition to TNAƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s apparent manifestation of working to create a separate state, its membership and leadership have manifested in no uncertain terms its aim of creating such a separate state.

TNAƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s constituent parties have separately advocated for the creation of a separate (Tamil) state within the territory of Sri Lanka.

Election manifestos list down the aims and objects of political parties. It is admissible evidence in a court case of the aims and objects of a political party.

The Supreme Court cannot give a creative interpretation of the Constitution. It must identify the intention of law makers in August 1983 and uphold their spirit when they made the Sixth Amendment. The Supreme Court can only apply the law; certainly not create laws. In the applicable law, TULF, TNA and its constituents; and, members and leaders have on many counts violated section 157A of the Constitution.