By Veluppillai Thangavelu –

Dayan Jayatilleka (DJ) suffers from chronic anti-Tamil and federal phobia for no valid reasons. As the flag bearer of Sinhala-Buddhist racism and majoritarian, there is no surprise he is opposed to any form of power sharing. The allegation that the LTTE killed the greatest number of educated Tamil political personalities is old stuff. He is parroting such allegations for decades. He is simply shedding crocodile tears for the dead and not the living. The fact of the matter is war crimes committed by both the armed forces and LTTE should be investigated. That is exactly what Resolution 30/1 is demanding. However, in the eyes of the Tamil people, Prabhakaran is a war hero and continues to be venerated and celebrated cutting across party affiliation.

The irony is Dayan Jayatilleka has no tears or compassion for the thousands who perished when SLAF planes dropped cluster bombs indiscriminately. Even hospitals were not spared and Gotabhaya yelled that hospitals are legitimate military targets! He got the UN officials and NGOs out of the way to avoid eyewitnesses to the war. The Army for its part shelled the area knowing well there are hundreds and thousands of civilians in shelters!

Has DJ conveniently forgotten the fact that Rajiv Gandhi escaped death narrowly when sailor Vijitha Rohana Wijemuni attacked him with a rifle butt in 1987? This individual who has donned the robes of an Astrologer was in the news recently when he predicted the death of President Sirisena before January 26, 2018.

Prabhakaran was no Hitler since he never advocated the racial superiority of Tamils over Sinhalese. He stood for equality between the Sinhalese and Tamils. It is Mahinda Rajapaksa who eminently fits the personality of Hitler when he claimed:” I am a Sinhalese and this land belongs to the Sinhalese and Tamils should listen to what I say as a Sinhalese” in Kilinochchi in 2014.

As much as Prabhakaran by no means a Hitler so are Tamils are not Germans. When the victorious allied armies rolled into Berlin they were greeted with bouquets and flowers by the German people. But sadly there were no flowers or garlands for the Sinhalese armed forces, the so-called liberators according to DJ. Wherever the Sinhala army advanced the Tamil people fled to LTTE controlled area for safety. There is not a single occasion in which the Tamil people went over to the Army controlled area.

Nine years after the war the Tamils of Northeast hate the Sinhalese army who are still occupying large chunks of private land that belongs to the people. As I write the frustrated villagers sailed back to the island after tired of waiting. They attached white flags to the front of the dozens of fishing boats that were lined up and made their way towards the island. Wary of a heavy-handed military response, the white flags signalled the peacefulness of their demonstration.

The Iranativu island is located 6 Nautical Miles west of Nachchikuda and is made up of two islets, Iranativu North and Iranativu South covering an area of just 5.93 Sq.Kms. It comes under Poonakary Divisional Secretariat in Kilinochchi district. People from Iranativu were displaced in 1992 and settled down in Nachchikuda due to the military offensive. They have been living in Mulankavil for the past 26 years without any livelihood support and without any hope for the future. After the end of the war and following the resettlement from IDP camps in 2010, the residents made several attempts to move back to their own lands. On May 1, 2017, the residents of Iranativu began a peaceful protest calling for their lands to be released. Whilst permitting the villagers to stay, the Sri Lankan navy remains on the island, fuelling uncertainty about the residents right to live in their own lands. Thankfully, the Secretary to the Ministry of Resettlement who visited the island has agreed to release the lands and then help resettlement.

According to Presidential Secretariat, sources the armed forces continue to occupy 13,013.06 acres of land belonging to Tamil civilians. The highest occupation is in the Jaffna district where a total of 4,599 acres is under occupation by the Army. In Valikamam North out of a total of 6381.5 acres, only 2,475.6 (46.21%) acres have been released. The figures for Kilinochchi district is 1,515 acres, Mullaitivu district 1,150 acres, Vavuniya district 1,872 acres and Mannar district 2,391 acres. These figures are hotly contested by civil societies involved in resettlement.

There are large chunks of land still under occupation by the Army. The Army is using the occupied lands hotels, plantation, farming, horticulture etc.

DJ is repeating the canard that the Sinhalese armed forces liberated the Tamils from the clutches of LTTE which is a blatant lie. He is simply mimicking his political master Mahinda Rajapaksa. If this is a fact how come the Tamil people voted against Mahinda Rajapaksa and his party in all the elections held since the end of the war? Why did the Liberator of Tamils lose so ignominiously? Mahinda Rajapaksa was never ever the Liberator of Tamils. On the contrary, he was the most shameful and ruthless oppressor of the Tamil people.

In the Presidential elections held in 2010, Mahinda Rajapaksa polled only 72,894 votes (28.34%) as opposed to 184,244 (71.66%) votes polled by Sarath Fonseka. In the 2015 Presidential elections, Mahinda Rajapaksa fared even worse. He polled 108,831 (20.89%) as against 394,991 (75.82%) votes polled by Maithripala Sirisena in the North.

DJ always makes the mistake of telling the people that they should forget about federalism. He should understand that the Tamils under international law are a people and therefore entitled to self-determination. Within Sri Lanka, the Supreme Court has in a landmark judgment has determined that the advocacy of federalism is not tantamount to the advocacy of secession. In doing so, it has for the first time recognised the Tamil minority as a ‘people’ entitled to the right to internal self-determination.

It is a pity that DJ does not want to accept the interpretation of what is federalism by a 3 judge bench of the Supreme Court. Not that he doesn’t understand what federalism is, but being a Sinhala- Buddhist supremacist he does not want to accept a landmark ruling. .

Right to Self Determination relating only to former colonies is over long ago. By the Declaration on Friendly Relations and Co-operation among States of 1970 and the Helsinki Accord of August 1, 1975 it has been elaborated and currently even within a Unitary form of Constitution in a Sovereign State if section of the people are continuously oppressed and have no meaningful access to government (as in the case of Sri Lanka), they have the right to self-determination.

Though Prof. Peiris is singing a different tune now, he was completely supportive of the Oslo Communiqué issued in December 2002. In the press conference that followed he addressed, he stated that the LTTE had changed their position from separation to power-sharing within the framework of a united, undivided, indivisible Sri Lanka.

Speaking in Parliament on 22 February 2017 TNA leader R.Sampanthan made it clear that his party is for sharing power and not separation. “What we are asking now is for extensive power-sharing within the framework of a united, undivided, indivisible Sri Lanka to ensure that Sri Lanka is undivided and indivisible, indivisible in perpetuity. But lately, he has warned the government that if the right of Tamils for internal-self-determination is denied then they are entitled to exercise external self-determination.

The Tamil National Question has been internationalized as never before. Resolution 30/1 of October 2015 adopted at the UNHRC is hanging like a millstone around the neck of Sri Lanka. Of importance  is clause 16  which clearly says “Welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, encourages the Government’s efforts to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka;” I hope the message is clear and for the likes of DJ they  can only  ignore it at their peril.

I have posed this question before and I will repeat one more time for the benefit Colombo Telegraph readers.  Who is Dayan to claim that federalism is dangerous and it will lead to eventual separation?  What is his status? He is not even a member of the Pradesha Sabha. He is a lone wolf, not even admired by his fellow Sinhala-Buddhist extremists,

DJ should read and digest the historical judgment rendered by a 3 member bench of the Sri Lanka Supreme Court on 4th August 2017. In the case filed by  Hikkadu Koralalage Don Chandrasoma of Keleniya Petitioner

Vs.

Mawai S. Senathirajah

Secretary,

Illankai Thamil Arasu Kadchi,

30, Martin Road, Jaffna.

1(a) K. Thurairajasingam

Secretary, llankai Thamil Arasu Kadchi,

30, Martin Road, Jaffna.

(Substituted 1st Respondent)

The Supreme Court  determined that advocating for a federal form of government within the existing state could not be considered as advocating separatism.

The petitioner in the case alleged that ITAK stands for confederation and not a federation. But the Supreme Court of Sri Lanka ruled that federalism is not separation. Under international law “A state whose government represent whole of the people or peoples resident within its territory, on the basis of equality and without discrimination and respects the principle of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states”. But when there are bias and discrimination the people have a right to exercise self-determination. The SC went on to state” The labelling of states as unitary and federal sometimes may be misleading. There could be unitary states with features or attributes of a federal state and vice versa. In a unitary state if more powers are given to the units it could be considered as a federal state. Similarly in a federal state if the centre is powerful and the power is concentrated in the centre it could be considered as a unitary state. Therefore sharing of sovereignty, devolution of power and decentralization will pave the way for a federal form of government within a unitary state. The Thirteen Amendment to the Constitution devolved powers on the provinces. The ITAK is advocating for a federalist form of government by devolving more powers to the provinces within the framework of a unitary state. Advocating for a federal form of government within the existing state could not be considered as advocating separatism.

The SC went on to determine that “ITAK support or advocate the establishment of a federal State within united Sri Lanka. It does not, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka as envisaged under Article 157A of the Constitution. Therefore Petitioner is not entitled to a declaration under Article 157A (4) of the Constitution. Here are further extracts from the relevant historical judgment,

The Learned Counsel for the Petitioner referred to two covenants on human rights adopted by the United Nations in 1966. They are International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and both these Covenants proclaimed the right of self-determination in the Common Article 1 which reads as follows:

“All peoples have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development.”

The Learned Counsel for the Substituted 1st Respondent underscores the fact that it is “peoples” who are repositories under international law for the right to self- determination and thus the ITAK hold that the Tamil people are a “people” in terms of the above international covenants, and therefore, it is axiomatic that the Tamil people are also entitled to the right to self-determination.

The Petitioner and the Substituted 1st Respondent both referred to Canadian Supreme Court Judgment in ‘Reference re Secession of Quebec’ (1998) 161 DLR (4th) (385). In that reference, the main question that has to be determined is whether under the Constitution or under international law can the National State Assembly, legislature or the Government of Quebec effect the secession of Canada unilaterally? The following passage in the Judgment is relevant to the application before this Court.

‘The Court was also required to consider whether a right to unilateral secession exist under international law. Some supporting the affirmative answer did so on the basis of the recognized right to self-determination that belongs to “all peoples”. Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the “people” issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises the principle of self-determination of people at international law where “a people” is governed as apart of colonial empire; where “a people” is subject to alien subjugation, domination or exploitation; and possibly where “ a people” is denied any meaningful exercise its rights of self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represent whole of the people or peoples resident within its territory, on the basis of equality and without discrimination and respects the principle of self-determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states”.

In Federalism and Diversity in Canada by Ronald L. Watts published in Autonomy and Ethnicity – Negotiating Competing Claims in Multi-ethnic States” Edited by Yash Ghai, at page 48) it was stated:

“Where all the evidence points to the fact that, if there had not already been provincial autonomy, the movement for secession would have been much stronger, not weaker. It is not insignificant that referendum results and repeated recent public opinion surveys have persistently pointed to the fact that a large majority of Quebeckers want greater autonomy, but combined with continued association with the rest of Canada”

In the 2010 Kosovo Advisory Opinion delivered by the International Court of Justice, Judge Cancado Trindade in a separate opinion in page 184 held as follows:

“Recent developments in contemporary international law were to disclose both the external and internal dimensions of the right of self-determination of peoples: the former meant the right of every people to be free from any form of foreign domination, and the latter referred to the right of every people to choose their destiny in accordance with their own will, if necessary – in case of systematic oppression and subjugation – against their own government. This distinction challenges the purely inter-state paradigm of classic international law. In the current evolution of international law, international practice (of States and of international organizations) provides support for the exercise of self- determination by peoples under permanent adversity or systematic repression, beyond the traditional confines of the historical process of decolonization. The contemporary international law is no longer insensitive to patterns of systematic oppression and subjugation.”

Based on the above opinion the Substituted 1st Respondent submitted that it is clear that the right to self-determination has an internal dimension, in that it could be exercised within the country to the benefit of a “people” inside the country. Thus, the invocation of self-determination does not amount to a demand for a separate State, as the right is sometimes to be used internally within the territory of an existing State.

Right to Self Determination relating only to former colonies is over long ago. By the Declaration on Friendly Relations and Co-operation among States of 1970 and the Helsinki Accord of August 1, 1975 it has been elaborated and currently even within a Unitary form of Constitution in a Sovereign State if section of the people are continuously oppressed and have no meaningful access to government (as in the case of Sri Lanka), they have the right to self-determination.

So it is crystal clear that Tamils can advocate a federal form of government within the existing state and same is not considered as advocating separation.

Sri Lanka is facing crisis on many fronts, social, political and economic. The alarm bell is rung by no lesser person than the Governor of Central Bank that Sri Lanka is facing multiple problems. He has called Sri Lanka’s political leaders for a quick end to the political standoff triggered by the Local Government poll results before it affected growth, warning there was no scope for loosening fiscal policy. As the Governor of the Central Bank, he is apolitical role so his warning that the prevailing political situation is impacting on the market sentiments and investor aspirations. Both, if prolonged, would push economic growth further down.

He is reported to have clarified this point as follows: “For the country to have a better outcome, Sri Lanka needs political stability as quickly as possible. We have not really considered the political situation when making this decision on policy rates. How politics could affect is on sentiments which lead to a reduction in investment and growth. Clearly, one would need to loosen policy than to support growth, but you also have to look at what happens to fiscal policy. If the political situation leads to a loosening of fiscal policy, the Central Bank has to lean against that and tighten monetary policy”.

Unfortunately, learned Academics like of Dayan are pushing the country down the precipice in the name of Sinhala – Buddhist nationalism!