By Neville Ladduwahetty Courtesy Island

The former Government of Sri Lanka proscribed 16 Diaspora entities and 424 individuals under United Nations Security Resolution (UNSCR) 1373. UNSCR 1373 is implemented under UN Act No. 45 of 1968. Under terms of the text of this Resolution, the Council “decided that all States should prevent and suppress the financing of terrorism, as well as criminalize the willful provision or collection of funds for such acts. The funds, financial assets and economic resources of those who commit or attempt to commit terrorist acts or participate in or facilitate the commission of terrorist acts and of persons and entities acting on behalf of terrorists should also be frozen without delay”.

A report in The Island of December 1, 2015 states that the present government, having consulted the tri-forces, intelligence services, the Central Bank and all other relevant agencies as to whether any of the proscribed entities and/or individuals “were involved in raising, granting or channeling funds for any terrorist activities during the last three years,” decided to de-proscribe 8 entities and 269 individuals from the original list. The report also states that the former government had released 140 LTTE suspects on the eve of 2010 presidential polls and in February 2012 another 360 LTTE suspects. These released persons totaling 500 were all LTTE suspects. They were not part of the 424 originally proscribed under the provisions of UNSCR 1373. Therefore, individuals released in 2010 and 2012 are clearly in a separate category from those that were de-proscribed.

The fact that needs to be appreciated is that the entities and individuals that were proscribed engaged in activities proscribed by UNSCR 1373 with a purpose. That purpose was the creation of a separate state of Tamil Eelam. Terrorism was one of the many strategies adopted in the pursuit of the goal of creating a separate state. While the strategy of LTTE terrorism may not appear to be a threat at this time, the goal of creating a separate state is very much alive at this time, since it is based on the right of self-determination first articulated and resolved at the First National Convention of the Tamil United Liberation Front in Vaddukoddai on May 14, 1976. The pursuit of a separate State has been very much alive since then.

Right of self-determination

The current issue therefore is not terrorism but the threat of separation by exercising the right of self-determination. In fact, it is so much alive that the right of self-determination was part of the 2013 Manifesto of the Tamil National Alliance (TNA). It also is the avowed goal of the overwhelming majority of the Diaspora entities and individuals. Notwithstanding this fact while those that were de-proscribed were presumably those who were not visibly engaged in terrorist related activities they have been advocating separatism. Therefore, any persons who advocate and promote as well as finance separatism, should be charged for violating the 6th Amendment of the Sri Lanka Constitution.

Article 157A of the 6th Amendment of the Constitution states:

(1) “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”.

(2) “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”.

Consequently, there are two groups. One group, for instance the Transnational Government of Tamil Eelam (TGTE), openly advocates separation. Their goal as stated by its leader, V. Rudrakumaran is to “file a complaint with the Human Rights Committee of the UN that the 6th Amendment is a violation of freedom of speech, freedom of conscience and freedom of association” (Sunday Leader, November 29, 2015). The second group is only claiming a federal structure for the time being, based on the right of self-determination. Recognizing the right of self-determination in principle is an open ended proposition because the limits of what may be ultimately decided are boundless. It is dependent on what is determined at any given time. As is being proposed by the NA it could be federalism today, but con-federalism tomorrow with the prospect of eventual separation. Such incremental self-determinations cannot be overruled. Therefore, it appears that the first group is at least more forthright because they state their case without any duplicity; they are up- front and in your face. How the diaspora entities and individuals fit into this mixed bag is anyone’s guess. Therefore, it is only by initiating legal action against those that advocate separatism that Sri Lanka could hope to secure its territorial integrity.

Grounds for rejection of right of self-determination

The International instruments cited below demonstrate why the International Community does not recognize the right of self-determination for groups within a sovereign state.

INTERNATIONAL PERSPECTIVE ON SELF-DETERMINATION

1. Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations; 1970 states:

“The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people”.

Comment: Therefore, without first constituting a sovereign and independent State, the right of self-determination of a people within such a State cannot be exercised.

“Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Comment: Therefore, advocating separatism on grounds of self-determination despite possessing a system of Government where the President is elected by the whole nation, and a Parliament representing the “whole people” within the territory of Sri Lanka violates the provisions in the above Declaration.

The United States in its statement dated October 20, 1999 titled “Statement by the United States on Indigenous Self-determination” stated: “The United States has consistently stated its understanding that the “peoples” entitled to self-determination under International Law are the entire peoples of a state, or those that could constitute themselves as a sovereign independent state, and not particular groups within an existing state”.

Comment: Therefore, any entity that claims the right of self-determination could do so only if it constitutes itself into a separate state.

International Covenant on Civil and Political Rights: 1966.

Article 27 states: In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in communication with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language”.

Comment: All these rights have been enjoyed and continue to be enjoyed by ALL people within Sri Lanka whether they are minorities or not.

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The current strategy to establish a separate State is by claiming the right to self-determination. The right to self-determination has two components; external and internal. External self-determination cannot be exercised without first creating a free and independent State. On the other hand, internal self-determination has its own imperatives particularly because such rights cannot to be exercised by some and not others. And whenever one group exercises its right to internal self-determination the possibility exists that it could impact on the internal self-determination of others. Such limitations exist with the exercise of individual freedoms as well because the limits of an individual’s freedom stop at the boundary of another individual’s freedom.

The notion of a shared sovereignty is also fraught with its own brand of imperatives because Article 3 of Sri Lanka’s Constitution states: “in Sri Lanka sovereignty is in the People” meaning in ALL the people. Therefore, it is not divisible. This is so with self-determination as well. Whatever is determined is a collective determination of the entire polity. Such collective determinations apply to referenda because the Article 4 (e) states: the franchise shall be exercisable …at every Referendum by every citizen…” Therefore, any attempt to make a determination based on the outcomes of a referendum conducted among ONLY a section of the citizenry is unconstitutional.

Conclusion

The compulsion for the Tamil community to be separate and distinct from the rest of the Sri Lankans goes way back beyond Vaddukoddai. However, it was only at Vaddukoddais in 1976 that they articulated it as a resolution to establish a separate state based on the right of self-determination. It was this resolution that called “upon the Tamil Nation in general and the Tamil youth in particular to come forward to throw themselves fully into the sacred fight for freedom and to flinch not till the goal of a sovereign state of TAMIL EELAM is reached”. Therefore, the Tamil leadership that initiated the call “to flinch not till the goal of a sovereign state…was reached”, should take full responsibility for the death and destruction they unleashed on the whole nation, and in particular on their own community.

The “sacred fight” deployed terrorism as a means to achieve their goal of the sovereign state of Tamil Eelam. This led the former Government to proscribe 16 entities and 424 individuals on grounds of violating UNSCR 1373. The threat of terrorism may have receded only for the present but the spectre of separatism on the basis of a right to self-determination is rearing its head in the wake of terrorism having failed to deliver the goal of Tamil Eelam. Therefore, what is needed at this point in time is to take legal action against those who advocate separatism in violation of the 6th Amendment.

Such a measure would be interpreted by some as being racist and a fetter to reconciliation. They are paradoxically the same individuals who advocate the rule of law. Therefore, if their professed belief is that resorting to legal action in order to secure the territorial integrity at the present juncture would be inappropriate, they should take steps to repeal the 6th Amendment so that the Tamil community would be free to give expression to their claims without having to resort to duplicitous tactics. At least it would be more professional than casting baseless insults. However, the cost for such liberalism is very dear as was learnt by France recently.

America, too, fought a Civil war to prevent the break-up of their Union. However, even after the passage of 150 years reconciliation in America is a chequered experience. These shortcomings in their own backyard have not deterred the US from making recommendations as to how Sri Lanka should address reconciliation. The lesson from America is not to set the bar of reconciliation too high.

True reconciliation requires that the Tamil community re-visit whether it wants to be separate and equal with the rest in Sri Lanka or be an integral part of Sri Lanka as in America. If it opts for the former the bar for reconciliation should be security and stability above all else. If on the other hand, if the Tamil community opts for the latter, by unequivocally declaring that they are for the right to self-determination of all the people of Sri Lanka, then and only then would Sri Lanka have the potential to regain a peace with security and stability with which it was once identified.