KAMALIKA PIERIS

The Eelam war was never  a terrorist war.   LTTE   engaged in regular  military warfare using modern weapons. It had a trained army, dressed  in uniform. It attacked the state army where ever it could and concentrated on taking  territory.       Dayan Jayatilleke  observed  that  LTTE was not a terrorist cell, or a branch of an international terrorist network,  It was a secessionist army. [1]

In his   Heroes Day speech of November 2002, Prabhakaran said If self-determination is denied and the demand for self-rule is rejected, the Tamil people will have no alternative other than to secede and form an independent state.

HL de Silva  in  his book Sri Lanka a Nation in conflict” , discussed  the issue of secession. He stated that  two UN  declarations, Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations”(1970) and  ‘World Conference on Human Rights,’ Vienna, 1993  confirmed  that a state whose government represents the whole people, is entitled to the protection of its territorial integrity. Sri Lanka conforms to this and therefore Sri Lanka can resist secession, he said.

H.L. de Silva  stated that Sri Lanka could not entertain secession in any form. Sovereignty of the people is inalienable.  Any surrender of   an inalienable right is an act that is legally null and void. The people of Sri Lanka do not have the freedom to decide on separation.  They  cannot consider secession either.  A sovereign  people cannot pass laws  affecting sovereignty.   

They cannot break up a country through a referendum  either, they do not have that right, continued H.L .de Silva.   Nor can they do so through Parliament  or a Constituent assembly.  These two bodies do not have the legal power to tamper with   Sovereignty. They  cannot support the truncation of a state.

H.L.  de Silva  stated that the Constitution of Sri Lanka  does  not permit separatism.   The first five articles of the Constitution are basic political values which are not created or conferred by the Constitution. They are pre-existing values which precede and transcend the Constitution. The  Constitution does not permit any ethnic group to declare that they no longer owed allegiance to state either ,  he said.

The five articles of the Constitution are: 1 Sri Lanka (Ceylon) is a Free, Sovereign, Independent and Democratic Socialist Republic 2 The Republic of Sri Lanka is a Unitary State. 3  Sovereignty  is  in  the People and is inalienable. 4 Sovereignty of the People shall be exercised as follows legislative-  Parliament,  executive – President ,  judicial  -courts. 5 The territory of the Republic of Sri Lanka shall consist of the 25 administrative districts set out in the First Schedule and   its    territorial waters. 

HL de Silva said these matters are declared in the Constitution to enable the Constitution to be under stood as a legal document   and to ensure that what follows does not violate these basic principles. And that they are interpreted in the light of these principles. They are eternal , they cannot be disputed and cannot be compromised by understanding reached by negotiators or anybody else.  

H.L. de  Silva  stated that Section 27/3 of the Constitution says the State shall safeguard the independence, sovereignty, unity and the territorial integrity of Sri Lanka. Section  157A says (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.

Further, the 6^th amendment  to the Constitution expressly prohibits  a  person or political party  from promoting  a separate state within Sri Lanka . [2]  The 6^th amendment 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.

 The Penal Code  is  also very  clear on this matter. Whoever wages war against the Republic, shall be punished with death, or imprisonment said   Section 114. It  is an offense to deprive the People of the Republic of Sri Lanka of their Sovereignty  or  conspires to overawe by means of criminal force any of the organs of Government said  Section 115 . It is  an offense  to collects men, arms, ammunition, or otherwise prepare to wage war against the Republic ( Section 116),  to conceal the existence of a design to wage war against the Republic ( Section 117) or attempt to excite feelings of disaffection to the Government  (Section 120).

LTTE   was attempting to  overthrow a  legitimate   government which  had a strong presence in the north and east. An  attempt to overthrow  a government is  considered ‘treason.’ Taking arms against the state   is  considered ‘high treason’,   a criminal act of the highest order. The demand for the creation of a separate state should   be treated as high treason with penal sanctions, said anti-Eelamists.  The demand for self determination must also be made a criminal offence. It is intended to lay the foundation for a separate state they said.   Tamil Separatist Movement ‘s    declaration  that it is also for an undivided Sri Lanka is  made  to avoid the charge of treason.

This brings us to the  matter  of Sedition. Any conduct or  speech   inciting people to rebel against the authority of a state  is considered sedition. Any   party demanding self determination or separation can also  be treated as sedition.

Critics wants to know why there is no law against sedition in Sri Lanka. In the west, countries  have enacted  laws against sedition.   The government should pass a Sedition act to charge and prosecute any one supporting separatism, said Rohan Guneratne. [3]   Sri Lanka  Parliament must pass legislation spelling out what would constitute sedition. 

On May 21, 1976  ITAK leader A.  Amirthalingam, along with Federal Party MPs  V.N.Navaratnam, K.P.Ratnam, K.Thurairatnam  were delivering leaflets in Jaffna , regarding a political event, when  they were  arrested by the Jaffna police on the charge of possessing and distributing seditious literature. Sivasithamparam was released but the others were taken to Colombo  to be tried for sedition.

When the case came up on  December 10, 1976, Attorney General Siva Pasupati   said that  the Government will not be proceeding  with the case against the four FP leaders relating to the possession and distribution of seditious literature.  After retirement, Pasupati moved to Australia and served as a legal advisor for the LTTE .[4]

Separatism has to take into account the provisions of International law. International law does not support separatism. There is no legal right in international law for a sub national group of a sovereign state to   achieve unilateral secession by wresting territory from the state, said HL de Silva.In  the case of Quebec the law courts ruled that    Quebec did not enjoy a right in international law to secede from Canada unilaterally.  

But it is possible  for the separatist state to obtain recognition if the government concerned does not  fight the secessionists successfully, observed HL de Silva.    Once a secessionist movement  succeeds in defeating the armed forces of a state and is in occupation and control of territory, leaving no room for government to operate inside it,   there comes into existence a de facto  separate state ,  which can then advance to becoming a  de jure state, with help of other countries.

 UN is extremely reluctant to admit a seceding entity to membership against the wishes of the government of that state. But it can  be achieved by a  friendly country nominating the new state to the UN General Assembly, said analysts.

Since the  first step toward the creation of statehood  is   control of territory by a rebel group, itis up to the  government   to make  sure that that does not happen. It is up to the state to ensure  that secession is not successful,  said HL de Silva.  Sri Lanka has a long tradition of achievement which would help provide enormous reserves of inner strength and moral courage to withstand Eelam, concluded HL de Silva. [5] ( continued)

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[1] Dayan Jayatilleke Long war cold peace’  rev edition 2014 p 211

[2] HL de Silva. Sri Lanka A nation in conflict. p 41, 73,74,259, 268, 311

[3] Interview with Rohan Gunaratne, Daily News 10.12.13 p 9 

[4] https://sangam.org/g-g-ponnambalam-1902-1977-his-power-and-plight-as-a-tamil-leader/

[5] HL de Silva. Sri Lanka A nation in conflict. p 38, 41, 78, 80, 81, 82, 86