{"id":50668,"date":"2015-12-31T16:23:24","date_gmt":"2015-12-31T22:23:24","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=50668"},"modified":"2015-12-31T09:15:27","modified_gmt":"2015-12-31T16:15:27","slug":"the-upcomingcommunalist-constitution-and-the-newly-formed-tamil-peoples-council-the-plot-thickens","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2015\/12\/31\/the-upcomingcommunalist-constitution-and-the-newly-formed-tamil-peoples-council-the-plot-thickens\/","title":{"rendered":"THE UPCOMING\u2019COMMUNALIST CONSTITUTION AND THE NEWLY FORMED TAMIL PEOPLE\u2019S COUNCIL: THE PLOT THICKENS"},"content":{"rendered":"

\u00a0DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

A number of Tamils headed by C. V. Wigneswaran the Northern Province Chief Minister have launched a front called the Tamil People\u2019s Council (TPC) whose purported purpose is to submit proposals from the Tamil Community to be considered when drafting the new Constitution.\u00a0 (Daily Mirror<\/em>, 29 December 2015.)<\/p>\n

In my view, the purpose of the said front is quite different.\u00a0 It is a critical ingredient in the long-term plan of Tamil separatists to demand a separate state by invoking the international law concept of self-determination (and have the international community endorse such demand).\u00a0 It is therefore essential that members of the public pay close attention to this latest maneuver by the separatists, and do what is necessary to thwart it.<\/p>\n

THE PLAN<\/strong><\/p>\n

In my view, to understand the plan of Mr. Wigneswaran and his cohorts (and this obviously includes Sampanthan and the rest of the lot in the TNA, although for the moment the two sides are pretending to be at odds with each other) it is necessary to understand the judgment of the International Court of Justice in the case, Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 22 July 2010<\/em>.<\/p>\n

I have discussed this case in a previous article published in lankaweb<\/em>, titled, \u2018The ICJ\u2019s ruling on Kosovo Independence and its significance to the Eelamists\u2019 game-plan in Sri Lanka\u2019 (3 August 2015) and refer the reader to that article for more details.\u00a0 But, in gist, the facts and judgment in that case are as follows.<\/p>\n

After the NATO-led intervention in 1999, Kosovo was administered under a UN mandate by something called the Assembly of Kosovo\u201d.\u00a0 The terms of the mandate called for a gradual relinquishing of control over Kosovo to Kosovans, but with input from Serbia, before any final status agreement is reached.<\/p>\n

In 2008, a group of Kosovans, including members of the Assembly, calling themselves the Democratically elected leaders of our People\u201d issued a unilateral declaration of independence.\u00a0 The United States and a number of other countries them promptly accepted the declaration as valid, and the new nation of Kosovo officially came into being.<\/p>\n

Serbia, understandably enraged by the above developments, went before the International Court of Justice and asked for an Advisory Opinion on the legal validity of the said declaration of independence.\u00a0 The court ruled that, since the declaration was issued by a group that was outside the constitutional framework in operation of the time, there was nothing in international law to prevent such a group from declaring independence, so, in effect, it was in accordance with international law.<\/p>\n

To put it another way, what the court said was that if the \u2018Kosovo Assembly\u2019 had declared independence, it would have been illegal (because the constitution did not permit such a thing) but since it was done by a different group, with no constitutional recognition, it was okay.<\/p>\n

Obviously, from Serbia\u2019s point of view, the technical or semantic distinction was no consolation:\u00a0 the practical reality was that a new nation had been created (in territory that Serbia considered to be its national territory) without Serbia being consulted, or having an opportunity to provide input, an opportunity it had been promised earlier.<\/p>\n

Let\u2019s now turn to our own set of separatists.\u00a0 The TNA will negotiate for \u2018maximum devolution\u2019 which means that, under the new Constitution, the Northern and Eastern Provinces will be more or less autonomous states, linked to the center by some very weak constitutional link.<\/p>\n

I suspect \u2018maximum devolution\u2019 will involve setting up a confederation<\/em> (though it will be called a \u2018federal system\u2019 for political convenience) which will either explicitly or impliedly recognize a right of secession either by action of the state or provincial government, or a referendum of the residents of those provinces.\u00a0 Nevertheless, the point is that, under that arrangement, the TNA will pledge they will never separate.<\/p>\n

Once the above system is put in place, however, Wigneswaran and his outfit will start rattling the cage, claiming that the Tamils still have \u2018grievances\u2019 that have not been addressed.\u00a0 From there, it\u2019s a small step for them, claiming that they, rather that the TNA (which they will accuse of colluding with the government) speak for the residents of their respective provinces, to issue a unilateral declaration of independence.<\/p>\n

They will say that, with respect to the said declaration, international law is on their side, and unfortunately they will be correct.\u00a0 If the United States, India, and a few other countries recognize the declaration, a new nation called Tamil Eelam will come into being.\u00a0 If, on the other hand,\u00a0 the United States and those other countries, for their own reasons, choose not to recognize the new nation, that\u2019ll be okay with the separatists also.<\/p>\n

The separatists will threaten to continue issuing declarations until one is accepted, and using that as leverage, squeeze whatever remaining concessions they want out of the central government, so that they can run a de facto<\/em> state in the two provinces in question.\u00a0 Either way, the Sri Lankan State, especially the Sinhala people, will be left holding the proverbial bag, as usual.<\/p>\n

RECOMMENDATIONS<\/strong><\/p>\n

Given the constraints of time, I shall limit myself to just one recommendation.\u00a0 The primary trick that the separatists are playing to allay the fears of \u2018moderate\u2019 Sinhalese, or to give rhetorical ammunition to the enemies of the Sinhalese to bludgeon said \u2018moderates\u2019 into submission, is that they (the separatists) have now reformed themselves and given up separatism.<\/p>\n

In my view, the best way to pull the rug from under the feet of the separatists is to ask them two different questions, and they stem from the statement of objectives they have put down in one of their foundational documents.\u00a0 As a result of a case now being heard in the Supreme Court (Case No. SC\/SPL\/03\/2014) there is now an English translation by the government translator, of the Constitution and Amendment to same of the Illangai Tamil Arasu Kadchi (ITAK).<\/p>\n

The ITAK is the main constituent of the TNA, and Wigneswaran, Sampanthan, and the rest of that lot all hold office as a result of being elected under the ITAK banner.\u00a0 So, the Constitution of ITAK can be taken as their official credo.<\/p>\n

The statement of the objectives of the ITAK is clearly set out in the Constitution and related Amendment as follows:<\/p>\n

\u2018The objective of the party is to achieve political, economic and cultural liberation of the Tamil speaking people in Sri Lanka by establishing an autonomous Tamil state and autonomous Muslim state in accordance with the policy of the right to self determination as part of the Federation of United Sri Lanka.<\/p>\n

Absolute guarantee shall be provided to the right to freedom of religion and the right to language of the minority nationalities who live in the autonomous state to be established within the Tamil motherland.\u2019<\/p>\n

I draw the reader\u2019s attention to two points in the above passages.\u00a0 First, the proposed Tamil and Muslim autonomous states are to be established according to the right to self determination.<\/p>\n

Second, the minority nationalities<\/em>\u2014by which I suppose is meant the Sinhalese\u2014living in the Tamil motherland are to be guaranteed their rights to religion, language and so on:\u00a0 in other words, ITAK sees the Sinhalese as a different nationality<\/em>, i.e. inhabitants of a different nation, as opposed to say, a different ethnic or linguistic group inhabiting the same<\/em> nation.<\/p>\n

So, the two questions that the separatists should be asked, whenever they say they have given up separatism and are willing to sign affidavits or go to any other lengths to prove their sincerity is, one, will they sign an affidavit renouncing the right to self determination?\u00a0 And two, do they consider that Sri Lanka is composed of two nations, one Tamil and the other Sinhala, or one nation comprising different ethnic and linguistic groups, each with equal rights to the entire territory of the country?<\/p>\n

In my view, the separatists will sign a thousand affidavits, or any other device, pledging that that they will never separate, because they know that once the separation in fact occurs, no court in \u2018Sri Lanka\u2019 will have jurisdiction over them.\u00a0 So they can never be held accountable.<\/p>\n

On the other hand, if they sign an affidavit renouncing the right to self-determination, or admitting that they consider themselves one among a number of ethnic and linguistic groups with rights in this country, they can\u2019t invoke self-determination before the international community, and get the latter to accept it, which is really what they are after.<\/p>\n

So, as soon as the motion to convert Parliament to a Constitution Assembly or some such thing is put on the 9th<\/sup>, what the Opposition should do is, among other things, immediately ask the Tamils to answer the above two questions, and say that unless clear answers are give to both questions, absolutely no discussions on purported solutions to the \u2018national issue\u2019 will be pursued.<\/p>\n

Dharshan Weerasekera is an Attorney-at-Law.\u00a0 He is the author of two books:\u00a0 The UN\u2019s Relentless Pursuit of Sri Lanka (2013), and, The UN\u2019s Subversion of International Law:\u00a0 The Sri Lanka Story (2015)<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

\u00a0DHARSHAN WEERASEKERA A number of Tamils headed by C. V. Wigneswaran the Northern Province Chief Minister have launched a front called the Tamil People\u2019s Council (TPC) whose purported purpose is to submit proposals from the Tamil Community to be considered when drafting the new Constitution.\u00a0 (Daily Mirror, 29 December 2015.) In my view, the purpose […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[12],"tags":[],"class_list":["post-50668","post","type-post","status-publish","format-standard","hentry","category-forum"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/50668","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=50668"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/50668\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=50668"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=50668"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=50668"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}