By Usha S Sri-Skanda Rajah –

Usha S Sri-Skanda-Rajah

As the world marks both the 70th anniversary of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide, the current political fiasco in the island dictates a reaffirmation of some historical truths and a reassertion of our entitlements, as a people, under international law.

 Tamil rights are human rights. 

As the Sinhalese in the South rise up in protest against a threat to their democracy and constitution in the wake of a political crisis brought about by a power struggle between two feuding Sinhala parties in Sri Lanka, for Tamils, the subjugated race in the island, there is an urgency which necessitates the reiteration of some historical truths – that needs to be heard by the world, as it celebrates two landmark enactments that restated human rights principles like never before – that Tamil rights and freedoms are not to be trampled upon – that those rights and freedoms are rightfully theirs under international law – rights they have long been agitating for – rights that still elude them. 

The continuing crisis, another national shame for Sri Lanka is turning into a major catastrophe with the possibility of all essential services coming to a standstill – there is a real concern that government hospitals could run out of drugs and government servants and pensioners may not be paid. The country has no functioning government, has no working prime minister or cabinet; worse it has a president, who, in an act of downright betrayal of the trust Tamils placed in him, when they voted for him, when he ran as a common candidate against Rajapaksa, not only brings him back, appointing him Prime Minister, but behaves like a dictator, answerable to no one; it has a parliament that has turned violent and has shown a propensity for violence, that has shocked the world; a parliament that’s unable to conduct business, and whose speaker has lost his authority in parliament. 

Finance Minister, Mangala Samaraweera told it like it is:  As per article 148 of the constitution, parliament has full control over public finances and in the absence of a legitimate government, a grave situation has arisen..there’s no legal way to meet public expenditure and obligations of the state, from 2019. With the Central Bank chief warning of a fiscal slippage, with its credit rating downgraded by three agencies, Sri Lanka, is by definition, at the brink of being declared a failed state – if things don’t return to normal. As of writing the volatile situation hasn’t changed one bit. 

Paikiasothy Saravanamuttu summed it up in human rights terms: The constitutional crisis could lead to a return to the past where we had a widespread culture of enforced disappearances, self censorship, and extra-judicial killings.  

The only redeeming feature in this chaos seems to be the judiciary – with the Supreme Court expected to rule on whether the president’s actions to dissolve parliament was legal. The Appeals Court had earlier made an interim stay order restraining Rajapaksa from acting as prime minister, otherwise Sri Lanka had two prime ministers – one was Mahinda Rajapaksa, appointed by president Sirisena and the other Ranil Wickremesinghe who refused to vacate his post despite being sacked by him. The Rajapaksas and the SLPP – their political party, have vowed to appeal to the Supreme Court and are calling for a general election. In the mean time there is a move to impeach Sirisena, while he insists he would honour a new no confidence motion – but is not prepared to re-instate Ranil. I did express pessimism in Dec 2014 when plans were a foot to form a rainbow coalition and make Maithripala Sirisena a common presidential candidate to run against Mahinda Rajapaksa.

This is a critical time for Tamils. The time has come for Tamils to move forward with a new narrative, a new thinking and a new approach. As long as Tamil people’s destiny continues to be tied to Sri Lanka, Tamil rights become inconsequential – when during just normal days, Tamil issues get put in the backburner, how much more at this time.     

Undoubtedly the trajectories of the Sinhala and Tamil nations are poles apart. With their aspirations still not fulfilled, their entitlement taken from them, their fundamental rights not granted but violated, the needs of the Tamil nation are different, their grievances are different and therefore their demands are different.  

 “Two different nations, from a very ancient period, have divided between them the possession of the Island: the Sinhalese inhabiting the interior in its Southern and Western parts from the river Wallouwe to Chilaw, and the Malabars (Tamils) who possess the Northern and Eastern Districts. These two nations differ entirely in their religion, language and manners.” – Sir Hugh Cleghorn, British Colonial Secretary, June 1879.

“As to the qualification required in the knowledge of the native languages, the Portuguese and Sinhalese only being mentioned excludes one which is fully necessary in the Northern Districts as the Sinhalese in the South. I mean the Tamil language, commonly called the Malabar language, which with a mixture of Portuguese in use through all the provinces is the proper native tongue of the inhabitants from Puttalam to Batticaloa northward inclusive of both these districts.. Your Lordship will therefore, I hope have no objection to my putting Tamil on an equal footing of encouragement with the Sinhalese” – Sir Robert Brownrigg, Governor of Ceylon, 1813 Dispatch to the British Colonial Secretary of State, Reported in the Tribune, 12 January 1956)

These are two statements of fact from two high ranking British officials who said it like it was in pure, unadulterated, clear language, free from ulterior political motives, when describing the traditional habitats, demography and languages of the inhabitants of the island of Ceylon, as it existed, the way these officials found it, in the early and late 19^th century. 

They are historical truths that can neither be distorted nor disputed.

Fast forward to the 21^st century, we are now living in an era, where the, “Sinhalese nation has, since independence from Britain, systematically put in place an institutionalized ethnocracy – yes an ethnocracy – “a type of political structure in which the state apparatus is appropriated by a dominant ethnic group to further its interests, power and resources.” Despite strong opposition from the Tamil nation, the island underwent a name change from Ceylon to Sri Lanka, creating a republic, cutting political ties with Britain, producing two constitutions so far, all the while  purporting to deny equality of status to the Tamils, that which the Tamil nation is owed and entitled to. This the Sinhala nation did by essentially discounting and disregarding that which was envisaged and advocated by the two British officials – that the Tamil nation in the North and East and the Sinhalese nation in the South and West, “divided between them the possession of the island.” And that the Tamil language should be put on an equal footing of encouragement with Sinhalese. 

The grievances of these people need to be heard because their situation is dire. When Britain gave Ceylon its independence in 1948, Tamils acquiesced in the hope that they will be treated equally, fairly and justly. To the contrary, the Tamils were betrayed right from the start, slowly but surely they have been now relegated to 2^nd class and worse have had a genocide perpetrated on them.

It’s a sad irony, in the midst of this crisis, created by Sinhala politicians, the whole world has called on Sri Lanka to return to democratic values and to respect and abide by the constitution.   In actual fact those very instruments, expected to provide protection for the Tamil people, were utilized to crush them and deprive them of their fundamental human rights. The very same democratic institutions, the so called constitution of Sri Lanka and laws of the land, those instruments that are held sacred, in truth, violated their rights. 

Tamils stand stripped of the protection laid down by the Soulbury constitution – a constitution that the British colonial power left behind in the island. Incorporated into the Soulbury constitution, drafted by Sir Ivor Jennings, was section 29/2 – a safeguard provided for Tamils, the majority in the North and East, from the tyranny of the majority in the South. Section 29/2, a provision that was supposed to be entrenched, was removed in the new 1972 republican constitution. Furthermore, the 13^th amendment to the 1978 constitution that provides for provincial councils have no teeth, no fiscal powers, no land or police powers; while power was centralized these councils were tantamount to glorified municipal councils or worse (www.TamilNation.com). 

Sadly, a constitution that would guarantee the right to self determination for Tamils where they have control over their affairs, and create laws and policies in their best interest, would never materialize – as long as power to draft and facilitate its passage lies in the hands of a Sinhala Buddhist hegemonic nationalist parliament. Article 1 of the International Covenant on Civil and Political Rights (ICCPR) provides that – all peoples have the right of self-determination – by virtue of that right they are entitled to freely determine their political status and freely pursue their economic, social and cultural development. Furthermore the 6^th amendment is a flagrant violation of Articles 18 and 19 of the same ICCPR – the right to freedom of thought and conscience and freedom of speech. 

Again as long as the 6th Amendment which criminalises any and all advocacy for an independent state is not abolished, the Tamil people’s right to, “freely determine their political status,” would never be theirs. The fair and the right way forward is to conduct a referendum, sponsored by the international community, to determine what the people of the North and East including the Tamil diaspora, who have as much a stake, want – whether they want to stay subjugated in a unitary, united, undivided, indivisible Sri Lanka under a majoritarian stranglehold, or desire a federal system under a power sharing arrangement, or favour an independent state.   

In the case of the most critical of issues for the Tamil people, that of securing a political solution, it is imperative that major powers led by the UK, make the call for such a referendum, that’s monitored by the international community, to ensure ‘Tamil destiny is in Tamil hands’ – UK, which has a historical duty to put things right, as the last colonizer, which unified the three kingdoms in the island under one administration and left a unitary system in place.

Tamils need to be inspired by East Timor, South Sudan, Kosovo, Scotland and Catalonia to name a few who had huge challenges before them but still conducted referenda to get the views of their people and let them decide – some won independence, others aren’t giving up. The passion, commitment, dedication and sacrifice of the leaders and people who never gave up, and are not willing to give up, are the attributes that finally helped them, and will help them to emerge victorious, and will hopefully help us too.  

Tamils have been crying out for an independent international investigation for mass atrocities committed in Mullivaikkaal – international crimes that include war crimes, crimes against humanity and genocide – none of which Sri Lanka is capable of litigating, when the perpetrators are the Sri Lankan armed forces and senior political leaders in the government in power at the time. Despite co-sponsoring a UNHRC resolution providing for a domestic mechanism with foreign participation, Sri Lanka has not taken any action to towards establishing a war crimes court. Tamils knew a domestic mechanism was a non-starter when the president himself has said he would neither allow his soldiers to be prosecuted nor agree to any foreign participation – in fact he himself is an alleged war criminal. It was crystal clear Sri Lanka cannot be relied upon to prosecute its armed forces.

Tamils have a right to justice for such heinous crimes, under international law, provided under the Convention on the Prevention and Punishment of the Crime of Genocide – this year it’s 70 years since this enactment was adopted but sadly Tamils are unable to litigate these mass atrocities in an independent court – this is due to the fact that Sri Lanka has not signed on to the Rome statute of the International Criminal Court. The way forward to end impunity and make Sri Lanka accountable for the mass atrocities committed against the Tamil people, it is imperative for the UN Human Rights Council, led by the ‘Sri Lanka core group’ in March 2019, to ask the UN General Assembly to call on the UN Security Council to refer Sri Lanka to the International Criminal Court or to appoint a Special Tribunal for that purpose. At the 39^th session of UNHRC, the Sri Lanka core group made up of UK, Germany. Montenegro and Macedonia released a statement asking Sri Lanka to establish the national accountability mechanisms provided in resolution30/1 which it co-sponsored, expecting it to make progress towards delivering its council commitments with a time bound action plan, “prioritizing” and “driving forward implementation of resolutions 30/1 and 34/2 before  the council next considers Sri Lanka in March.” Suspects can also be prosecuted in individual countries, invoking ‘universal jurisdiction’.

This is also the year that the Universal Declaration of Human Rights was adopted at the United Nations. While the Tamil homeland is heavily militarized and occupied with the threat of check points coming back, with members of Sri Lanka’s armed forces involved in civilian activities and where strong surveillance operations by them are ongoing; while forensic testing of all the mass graves and the hundreds of skeletal remains that have been discovered are not undertaken by foreign firms accredited to the UN; while the remains of those who were summarily executed, and extra-judicially killed haven’t been handed over to relatives, while the truth of secret prison camps, known also as death camps or torture chambers where Tamil prisoners were subjected to torture and sexual violence are not revealed; while the Prevention of Terrorism Act is not abolished, where arbitrary arrests and imprisonment without charge are still taking place; while political prisoners incarcerated under the PTA are not released; while the families of the enforced disappeared don’t get answers to the whereabouts of their loved ones still missing; while the promised list of the disappeared hasn’t still been provided by president Sirisena; while the claim made by Ranil Wickremesinghe that they are all probably dead, without providing evidence is unacceptable; while lands are still not been returned to their owners; while the lives of journalists are in danger; while Sri Lanka fails to implement its transitional justice commitment; the rights of the Tamil people remain violated.

It is worrying that the Northern Provincial Council’s term has expired in September and elections haven’t been called yet. It’s feared that elections may only be forthcoming after the general elections or the presidential elections, whenever that is. At present there is no provincial administration in the hands of elected officials in the north. The Northern Province is being administered by Governor Reginald Cooray, a Sinhala Buddhist who is unelected, who is bent on trying to change the social, cultural and religious landscape of the Tamil north. The north, one of the bastions of the Tamil homeland, the other being the east, is without a provincial government, although it has lacked real teeth anyway; yet the NPC gave a semblance of authority in name, because of the stature of Chief Minister, Justice Wigneswaran, it was a means to facilitating foreign dignitaries to meet with him and members of the Council – that helped with the exchange of information. 

The unbridled expansion of the army, the state sponsored colonization of the traditional homeland of the Tamils, the Sinhalisation and Buddhisisation of Tamil areas, the erection of Buddhist shrines where there aren’t any Buddhists, the change in place names and historical sites in the Tamil homeland (for example changing Manal Aru to Weli oya), lack of translation facilities (for example Sri Lanka’s National Disaster Management Center does not post warnings in Tamil), the numerous errors in translation appearing in sign boards –  are all symptomatic of Sinhala Buddhist hegemony, leading to the obliteration of the Tamil language, systematic demographic engineering, the distortion of history, the extermination of Tamil culture and the extinction of the Tamil nation, affecting the Tamil people’s right to nationhood.   

The growing Chinese influence in Sri Lanka is ongoing while the Tamil people watch helplessly – having no power to prevent it from spreading to the North and East. While the South is pawned heavily to China, Sri Lanka is now caught up in what’s described as China’s ‘debt trap diplomacy’- a modus operandi China has embarked on, designed for China to grow its empire – that has left Sri Lanka to carry a huge debt burden it cannot service and won’t be able to pay off for generations to come. The Tamil people have to not only suffer the consequences of this bad alliance – the danger of China extending its tentacles to the North and East, a location strategic in the Indian Ocean is real; while Tamils have no say in such serious incursions into their independence, affecting their economic and security interests – the rights of the Tamil people in the island are seriously violated.  

Regardless of who’s in power, for Tamils the chances of securing their rights are nil. Rights that would improve their situation, making it favourable for them to flourish, prosper and thrive as a people. 

And while those human rights are in peril, international intervention becomes a necessity. This is the considered view of the former Chief Minister, Justice Wigneswaran:

“The World community will now be able to gauge if this is how peers and equals in Parliament are treated by our Parliamentarians most of whom belong to the majority community, how their soldiers would have treated the minority communities under their complete authority and power. The World community should now realise why we insist on International input into the war crimes’ inquiry..No Sri Lankan Government will grant anything to Tamils and the responsibility to solve the ethnic conflict lies with the International Community. The International Community should now act with greater responsibility knowing the type of people they are dealing with to place a proper war crimes’ investigation mechanism before the forthcoming UNHRC sessions in Geneva regardless of who is in power in Sri Lanka.” 

Tamils are very vulnerable, no matter who’s in power. Whoever wins this power struggle, the situation for Tamils won’t change – they would still wake up to a Sinhala president and a prime minister – neither self rule nor justice will be within sight. Tamils have gained nothing by holding the balance of power – it has never worked in their favour – never, it is purely illusory – It’s been the case, in times of crisis, in the event of a power struggle or at elections or after, Tamils are forced to align with one party or other, but end up being betrayed by them, only to be used and discarded, “like a disposable napkin.”

This opportunity brought about by the crisis in Sri Lanka would indeed be persuasive to convince the international community. This may be the best chance available for Tamils to force some urgent international action to win back their inalienable rights and freedoms. Tamil parties must prioritise the needs of the Tamil people and go forward with a new narrative, new thinking & a new approach, regardless of whether it will be acceptable to the South – Supporting Ranil Wickremesinghe may be a fait accompli, but it would be best not to go further and help prop him up without asserting our independence. Hence forward they must not compromise Tamil needs to fit in to the Sinhala Buddhist agenda. They must stop behaving like paid servants.  

Shakespeare’s words are so apt in these circumstances: There is a tide..which taken at the flood leads to fortune.. we must take the current when it serves or lose our ventures.

Tamil Rights Are Human Rights.