[N.B. The editor apologises for posting this article late due to an email glitch.]
The biennual conference of the British Commonwealth scheduled to be held in Colombo the capital of SriLanka from 15-17 November 2013 has drawn significant international attention. The momentum for raising protest against the decision to hold the conference in Colombo is growing day by day not only from the Tamil people but also from international community. Mr Harper, the prime minister of Canada has declared that he would not attend the conference due the failure of Rajapaksha’s regime to improve the human rights situation in the host country and denying accountability for allegations of war crime and crime against humanity. Mr David Cameron, the prime minister of Britain has vehemently criticised the human rights situation and told media that he would attend the conference to demand for accountability against the allegations during the time of the war. The prime ministers of India and Mauritius have declined to attend the conference. International media including Channel 4 has brought out the atrocities committed against the Tamils during the last stages of the war in May 2009. Robin Pagnament a reporter of The Times wrote an article from Colombo on 2 November 2013 titled ‘Cover –up’ over phosphorous attack haunts SriLanka talks which exposes and confirms the use of chemical weapons against the Tamil civilians.
In the light of the above background, this article argues why the Sovereignty claim of the Tamil nation should be recognised by the Member States of the Commonwealth relying on the principles and jurisprudence of international law.
As the history of the Tamil and Sinhala speaking people is intertwined with the British colonial history, and politics, the British Commonwealth is the most suitable organisation for delivering remedial relief and solution to the question of the Tamil speaking people of SriLanka who are the victims of colonial and post colonial rule. Above all, the Member States have experienced the impact of the British rule and they were decolonised by Britain in different periods of time since the formation of the UN in 1945. The Charter of the UN imposes obligation on colonial powers to grant independence to colonial people. Therefore Britain was under the obligation of the Charter to decolonise the colonies they governed. Further, it has moral and legal duty to look into the demands of the Tamil nation and its victimisation, denial of due rights and justice. The Head of States are compelled due to fact that there is huge anti campaign and protests for Colombo as venue of this conference, to take into consideration as to how the Tamil nation has been made as an oppressed nation which has under gone serious and systematic violations of rights since the decolonisation. In addition, the Members have to consider whether the decolonisation of 1948 replaced the Tamil nation under the local colonial rule.
Historical facts and the regimes of the UN very clearly recognise that the sovereignty claim of the Tamil nation of SriLanka is not a “domestic matter” or “minority” question. Even the brutal conclusion of the war at Mullivaikal has international dimension due to the fact that the forces of many states took part and were involved in committing atrocities to the Tamil civilians. The Report of the Panel of Experts of the Secretary General recommended for international investigation. However, many states by undermining the report, call for solution recommended by the “kangaroo committee” [ LLRC].
The sovereignty claim of the Tamil nation cannot be confined within the walls of “temple tree” or Kotte parliament. Regional and international actors are duty bound to honour this fact and make sure that the entitlements of the Tamil people are not contaminated with geo political interests or guaranteeing high returns for any one’s investments or trade concessions.
In 1796, according to the Armenian Treaty, the British East India Company became the ruler of the Maritime Provinces of Ceylon which were ruled by the Dutch who ruled the Tamil and Sinhala territories separately. At the time of this change, there were two independent native kingdoms namely Vanni and Kandy which existed in the island of Ceylon. British administration considered that these native kingdoms, which were ruled, respectively by Panadra Vanniyan and Kirthi Sri Rajasinghe were obstacles for the expansion of their rule to the rest of the territory. These original kingdoms and their rulers were conquered in 1804 and 1815 respectively.
It is a historical fact that when the British took the control of the island of Ceylon it was divided as various territories and governed separately. The British consolidated culturally, religiously, linguistically and racially different territories under one single highly centralised administration. History shows that it helped them to be successful in divide and rule. The decolonisation continuously keeps the Tamil nation under local colonialism.
It is vital important to recognise the applicable inter-temporal law at the time and identify whether the subsequent political and constitutional events that took place during the British administration in compliance with or breach of the law. If any inconsistencies and breaches are identified the Members of the British Commonwealth have no choice other than supporting the sovereignty claim of the Tamil nation for remedial secession which is permitted by the regimes of the contemporary international law and its jurisprudence.
The crises experienced by the colonial governor in Colombo warranted requesting the colonial office to reorganise the administration of the island in order to gain more revenue than expenses. Britain as a capital exporting country to its colonies also needed modern administration to serve trade and commercial sectors in general and banking and plantation sectors in particular. Relying on the ground realities, the colonial office dispatched a delegation to report and make recommendations for addressing the concerns of the governor in Colombo. The royal commission comprising Colebrook and Cameroon came to SriLanka in 1829 and made recommendations in 1831 which brought the Tamil and Sinhala territories under one umbrella to be ruled by the British governor in Colombo.
Jaffna Judicial District:-
Since the introduction of the Colebrook and Cameron recommendations in 1833, British Colonial administrators recognised the existence of two language speaking belts and two home lands which had been established by the Tamil and Sinhala nations. Therefore the colonial administrators created Jaffna judicial district spanning control over the Northern and Eastern provinces and it was one of the five districts of the island of Ceylon. Although for a long period of the British rule, Jaffna judicial district remained as an important entity particularly in the administration of justice, it was not strengthened in the constitutions adopted in the latter periods particularly in 1931and at the time of decolonisation in 1948
The conference of the British Commonwealth has to give priority to consequences of the atrocities committed by the regime of Rajapaksha, particularly during the last stage of the war in May 2009 rather than falling into the trap of investment forum. It has to be mentioned that many governments were supportive to war effort taken by Rajapaksha and his team although it is claimed as “gotha’s war”. The countries that supported the regime should have known that brutal and heavy handed activities of the government of SriLanka particularly by ordering the international NGOS and the UN agencies to leave Vanni territory which was under the de-facto administration of the LTTE. Now the complete failure of the UNO has been recognised by Mr Ban Ki Moon when he addressed the General Assembly in September 2013 stating that, “UNO has failed in SriLanka”. This statement was made in front of president Rajapaksha. Although Rajapaksha gave assurances that he would be held accountable to the UN when the Secretary General visited SriLanka, shortly after the brutal end of the war which took the lives of 70,000 innocent people, he has not complied with his undertaking to date. Following the end of the war, he improperly used the proceedings of the UNHRC by unduly and under false premises influencing member states for adoption a resolution for congratulating his government. The Panel of Experts of the Secretary General specifically identified this misuse of procedure and they called on member states which supported the resolution to re-assess the situation relying on the findings of their report.
The Heads of the Commonwealth also compelled to take into account of the post decolonisation experiences of the Tamil nation. The first parliament of Ceylon disfranchised the Tamil people of Indian origin who were brought to the island by the British to work in the plantation sector. The sufferings and their socio –political conditions are more or less forgotten tragedy. The safeguards enshrined in the Soulbury constitution, which was introduced by Britain at the time of decolonisation in 1948, were systematically breached. Due to defects of the constitutional institutions, affected Tamil people were left without any remedies.
The post-colonial constitutions of 1972 and 1978 were proclaimed without the consent of the Tamil nation. Since 1956, the Tamil nation had evolved and formulated a demand for constitutional settlement by way federal rule and it was completely denied by the majority. The improper decolonisation carried out in 1948 is the fundamental cause of the contemporary conflict in SriLanka. Relying on the colonial and post –colonial experiences, the Tamil United Liberation Front in 1976 resolved the Vaddukodai Resolution which was overwhelmingly mandated by the Tamil nation in the general election held in 1977 for restoration of the lost sovereignty. The events took place and the atrocities committed against them since then, clearly grant and empower the Tamil nation for the right to remedial secession which was interpreted by the Canadian Supreme Court in the Quebec sovereignty referral case and by the International Court of Justice in the case of legality of the unilateral declaration of Kosovo which was referred by the General Assembly for advisory opinion.
Appeal to the Commonwealth Heads of States:-
- 1. Recognise that the decolonisation took place on 4 February 1948, did not grant relief and independence to the Tamil people of Ceylon, instead it replaced them under the local colonialism.
- 2. Since the decolonisation, the Tamil people and their political representatives had involved in achieving negotiated political and constitutional settlement relying on internationally recognised democratic norms including federalism, self-rule and autonomy. However, the dominant group and its politicians vehemently opposed these without realising their responsibilities.
- 3. As a last resort, the Tamil people were compelled to invoke armed resistance in order to escape from extinction and for self preservation which is common in many parts of globe including Bangladesh and Kosovo. These armed struggles were embraced and recognised by international community and granted them final remedial relief. The treatment given to the Tamil people is amounting to indifference and discriminatory practice in international affairs.
4. Further the leaders of the commonwealth states are requested to identity that the Sinhala and Tamil speaking people of SriLanka are secondary subjects of international law while the state of Srilanka is a primary subject which has to be constituted according to the principles and regimes of the UN and international law. It is apparent that the Sinhala nation is unduly monopolising the entire sovereign powers of the state and thereby maintaining oppressive conditions for the Tamil people which is the weaker nation.
5. The heads of the Commonwealth states are pleaded to consider the following:-
The contemporary crises and suffering being experienced by the Tamil speaking people require a full investigation as recommended by the panel of experts appointed by the Secretary General of the UN. Although the last two Resolutions of the Human Rights Council demanded SriLanka for accountability measures in accordance with international standards it has completely failed to comply with and ignored demands underlined in these Resolutions. Therefore the British Commonwealth is duty bound to take appropriate action for granting relief and remedy to the Tamil nation which was unable to regain its lost sovereignty at the time of the decolonisation of Ceylon.