Historical, political and legal justification of Tamils’ right of self-determination

By

Thambu Kanagasabai

The UN covenant on civil and political rights, which came in to effect in 1966, lays down the right and principle of self-determination under Article 1 as follows:-

‘All people have the right of self-determination. By virtue of that they freely determine their political status and thereby pursue their economic, social and cultural development’.

The UN adopted this principle bearing in mind the countries whose people were ruled by repressive dictators or colonial masters. This provision in addition targets “all people” living in all countries offering them the choice to exercise this right without any political hindrance from the rulers of those countries.

The recognition of self-determination rights was first applied successfully in the 1960s to several countries ruled by colonial powers, particularly in Africa. Since then several other countries like East Timor, Kosovo, and South Sudan exercised this right and earned the international endorsement and recognition. As such, this principle now is firmly established as an international legal principle.

The scope of this UN Article thus covers people who are victims of state discrimination, racially or religiously massacred, genocide or facing a slow and steady extinction due to overt and/or covert measures of the governments in power.

The non-application or denial of these rights of self-determination to the Tamil people in Sri Lanka who have been subject to an agenda of genocide since independence in February 1948 is deeply disappointing and defies reasoning. This Article goes on to point out the historical, political and legal justification for the Sri Lankan Tamils to exercise this right as a matter of legal principle.

Historical reasons

Legends of Sri Lanka mention the ‘Yakshas’, ‘Rakshas’ and Nagas as the original inhabitants of Ceylon [now Sri Lanka] living in all parts of the country. Chronicles of Sri Lanka however point to the existence of Nagas in the periods before BC 500. Sri Lanka was then called ‘Naga Land’ and in confirmation one can mention names and various places commencing with the alphabets ‘Naga’ like ‘Nagar Kovil’  ‘Nagamunai’, Nagalingam, Nagamma, etc. Nagas also inhabited various parts of India where names of places like Nagpur and Nagapattinam still exist. Nagas worshipped the snake Nagam or Cobra which practice is still followed by both Sinhalese and Tamils. Nagas in the process embraced Saivaism and continued the observance until Buddhism was introduced during the Devanampiya Tissa’s rule in BC 247. While Nagas in the south became Buddhists, and later Sinhalese speaking Sinhalese language which attained its full form, with a mixture of Pali, Sainskrit, Prakit and Tamil as Mudaliyar’s comments in his lecture in Colombo in 1918 stated “Sinhalese which came from nowhere had its origin in Ceylon and was built up with Tamils as its framework and Sinhalese is the child of Pali and Sainskrit.” Many Tamils in the North also became Buddhists and, with the rise of Saivaism in South India during the 7^th century, Tamil in the South India, Tamils in Sri Lanka concentrated in the North East and West embraced Saivaism, and have remained so.

As Professor Paul. E. Peiris stated in 1917 [Nagadipa and Buddhist remains in Jaffna  JRAS Journal No. 70  p12 – 18]: “I suggest that the north of Ceylon [now Sri Lanka] was a flourishing settlement before Vijaya was born.” According to Mahavamsa, 58 kings ruled Ceylon from BC 483 to AD 352 and out of these eight were Tamil Kings and seven Naga Kings. The Tamil Chiefs were also ruling the East with Batticaloa as the capital. The Tamils continued their rule until 1833 when the British got rid of the rules by Kings in the North and East, and brought under the control of Colombo based British officials and Governors, thus ended the sovereignty of Tamils in the North and East of Sri Lanka.

With the independence of Sri Lanka, Sri Lankan successive Governments embarked on a programme of discrimination, marginalization, Sinhalisisation and Buddhisisation on aiming at assimilation, disintegration and ultimate disappearance of Tamils as a race and nation in Sri Lanka. History of Sri Lanka carries the rules and existence of Tamils for more than 3000 years and so their right to self-rule is not whimsical, illusory or fanciful.

Political justification

Communalism and the concept of Sinhala domination in the politics of Sri Lanka was set in motion from 1921 when ”the pledge given by Sinhalese leaders James Peiris and Edmund Samarawickrema to the Tamil Leaders that a parliamentary seat would be reserved for a Tamil Representative, Sir Ponnambalam Arunachalam in the western province was broken” which heralded the rift between Sinhalese and Tamils which led to the formation of Tamil Mahajana Sabai in August 21 headed by the cheated Sir Ponnambalam Arunachalam who promoted the “union and solidarity of ‘Tamil Akam’ the Tamil Land.” Tamil Nationalism and Sinhala Nationalism thus began to grow menacingly and is now well rooted and firmly entrenched in the politics of Sri Lanka.

The following discriminatory legislations, pogroms, and violent acts directed against Tamils from 1948 to 2009 form part of the agenda of Buddhistsation, Sinhalisation and Militarisation being carried out by successive Sinhalese governments since independence.

[1] Citizenship Act 1948, Indian Pakistani Residence Act 1948 which snatched the citizenship and voting rights of Indian Tamil, thus weakening the political voice of Tamils.

[2] The initiation of Sinhala colonization by the United National Party Government in 1949 in the Eastern province to change the demographic pattern. From then on the Sinhala colonization schemes have been continuing unhindered and have now been extended to Northern Province.

[3] Buddhisisation is accompanying the colonization with buildings of Buddhist Viharas in Tamil areas and erection of huge Buddha statutes in Tamil areas where hardly any Buddhist worshipers exist. Building Buddhist Viharas and Buddha statutes adjacent to the ancient Hindu Easwaram Temples to belittle their sanctity and historical importance; eg. Katargamna, Thiruketheeswaram, Munneswaram, etc. A move is underway to erect a 61 feet Buddha statute in Nainativu [Northern Province] to demonstrate it as a landmark of Sri Lanka being a Buddhist country.

Militarization: Out of a total of 200,000 strong Army, 150,000 are stationed in the north, 30,000 in the east and the rest for the other seven provinces. The security forces are in control of 6740 acres of private land in the north, only 700 acres released so far after 2015. The process of seizure of lands is still continuing and 118 sites are now located to be seized for the use of security personnel. With a government of good governance in action and a country free from terrorism, with peace said to be prevailing, one wonders as to the need for the said heavy military presence in Tamil areas. Answer is – this forms part of the ‘Sinhalization’ agenda, and keeping the Tamils under check and surveillance.

The entrenched culture of impunity enjoyed by state and security personnel, only a handful convicted since 1958, makes ‘accountability‘ a dirty word in Sri Lanka.

The Sinhala only act of 1956 and the Standardization Act of 1972 further relegated the Tamil language with the Tamil students being denied admissions to universities on merit, leaving them angry, frustrated and resorting to militancy. The 1956, 1958, 1971, 1977. 1983 massacres directed against the Tamils in all parts of the Island by the Security forces with state blessing and support and support were aimed to make them feel as unwanted inferior citizens or aliens in their own country.

The crushing of non-violent agitations with brutal force during 1960s proved the determination of Sri Lankan Governments to nip in the bud any form of resistance. The disruption of Tamil Research Conference in Jaffna in 1974 and the burning of Jaffna Public Library [One of the best Library in the East – with volumes of old scripts in leaves of Palmirah] in May 1981 were acts of cultural genocide to obliterate the Tamils of their culture, learning and proud history.

The war between Liberation Tigers of Tamil Eelam [LTTE] and the Sri Lankan armed forces from 2006 to 2009 provided the opportunities to wipe out as many Tamil civilians as possible, and the war harvested about 146,679 lives of innocent Tamils fully fulfilling the requirements of the crime of genocide. In the advancement of Buddhisisation, the constitution of 1972 guaranteed Buddhism as the foremost religion, and imposed the duties to project and foster it on the state, as statutory duties. This provision has thus enabled the Buddhist Monks and state to take whatever steps in the name of Buddhism with no questions asked, enjoying the state patronage.

The draconian Prevention of Terrorism [PTA] Act of 1979 and the sixth amendment to the constitution in 1983 were acts targeting the Tamil youths and Tamil political agitations which blanketly licence the arbitrary exercises of powers by state personnel keeping the rule of law at bay and striking at the fundamentals and basics of judicial process and review.

The bitter experiences of Tamils from 1958 to 2004 at the hands of Sinhala political leaders, who exhibit good political will at first and then succumbing to chauvinism, are many. Breaches of Pacts, Accords and Agreements like Banda-Chelva pact, Dudly-Chelva Agreement, Premadasa-LTTE and Chandrika,Ranil-LTTE Accords, besides various peace talks held in various cities in and outside Sri Lanka until 2006.

The Prevention of Terrorism Act of 1979 specifically targeting the rebelling Tamil youths and the sixth amendment which was enacted after the mayhem in 1983 were aimed at the Tamil polity to silence their voices for equal rights and justice and thus further alienated the Tamils from national and mainstream politics.

All the above recorded political events were calculated deliberate acts committed by state and its security forces along with the supporters against the Tamils only with the objective to ensure the severance and gradual disappearance of an ancient race and nation in Sri Lanka.

The Tamils are thus now left to ensure their existence with no other alternative but to resort to the right of self-determination granted in the UN Covenant. The Universal Declaration of Human Rights 1948 has its preamble even endorsed the right to rebellion against tyranny and repression, so that human rights should be protected by the ‘rule of law’.

The legitimacy to call for self-determination is further buttressed by the commission of the crime of genocide by the Sri Lankan Governments with acts of commission and commission inflicted since independence as part of the agenda of genocide involving culture, language, religion and history.

Genocide as defined in the UN Convention covers any of the following acts committed with intent to destroy in whole or part of a national ethnical or religious group which includes;

1. Killing members of the group or

2. Causing serious bodily or mental harm to members of the group or

3. Deliberately inflicting on the group conditions of the life calculated in whole or in part.

Without any iota of doubt, Tamils are falling within the ambit of the above provisions, namely Tamils are members of an ethnical group who have been killed and are victims of serious bodily and mental harm. In addition they also suffered intolerable conditions of life during the war causing destruction of their lives, like blockade of food and medical supplies to more than one hundred thousand in the last stages of war. The whole world witnessed the genocidal war, but closed their conscience and mouths to speak out and so far has not recognized it as ‘genocide’, despite the USA calling massacres in Sudan, Bosnia, Rwanda and Cambodia and even ISIS killings of Yazidis as genocide.

The calls for justice for and self-determination for Tamils are just and lawful which need to be addressed without delay. Exercise of this right does not mean only secession but could opt for confederation, Union of Regions or even Federalism.

Tamil National Alliance has called for self-determination, as also has the Tamil People’s Council. The Labour Party Leader of the opposition in England as well as the political leaders in Canada have also recently endorsed the right of self-determination.

The Tamils in the 1977 general election gave the mandate for self-rule. The INDO-Sri Lanka Accord of 1987 [signed by the then Prime Ministers of India and Sri Lanka] recognized the North and East of Sri Lanka as the historically habituated traditional homelands of Tamils.

Ranil Wickremesinghe – Prime Minister during the period when the 2002 Peace Accord was signed with LTTE recognized and demarcated the boundaries of North and Eastern Provinces in the 2002 peace accord recognizing the de facto Tamil State of LTTE. Tamils have ruled the Island in BC 177 with Senan and Guttikan as Kings until AD 295. 14 Tamil Kings ruled Sri Lanka at different periods. From AD 1240 to AD 1618 Twenty Tamil Kings ruled the North as Kingdom of Jaffna until the entry of Portuguese while various Tamil district rulers also remained at the helm in the Eastern province.

With all options of struggles unarmed and armed snuffed out by the Sri Lankan Security Force, the only option is to agitate for the right of self-determination. The UN and International community will be discarding their duties and responsibilities, if they fail to call for the exercise of this right of self-determination to the Tamils who otherwise are doomed to be written off as a chapter in the history of Sri Lanka.

Call for referendum to determine the political status of people based on self-determination is not an infringement of the provisions of the sixth amendment which only prohibits  political agitations calling for a separate state. A Nation which is a victim of pre-programmed genocide is hoping for justice from the UN and International community to ensure its survival and preservation of its culture, language, history and religion in Sri Lanka.

Thambu Kanagasabai

Thambu Kanagasabai LL.M (London) – Former Lecturer in Law, University Of Colombo, Sri Lanka