by P K Balachandran, Hindustan Times, November 15, 2004
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One of the basic reasons for the conflict between the Liberation Tigers of Tamil Eelam (LTTE) and the rest of the world is the difference of opinion on whether ‘group rights’ should take precedence over ‘individual rights.’
This conflict is a major factor stalling the peace process in Sri Lanka. The LTTE and the Sri Lankan government (the latter backed by the international community) are on opposite sides of the fence, showing no signs of finding common ground.
While the LTTE wants the rights of the Tamils ‘as a group’ to be given primacy, the democratic world, led by the West and including Sri Lanka and India, wants ‘individual liberty’ to be given primacy.
That this is a critical issue comes out clearly in a paper presented by Prof. M Sornarajah, a key member of the LTTE’s panel of constitutional advisors, at the International Tamil Foundation in London in June 2000.
Prof. Sornarajah, who teaches law at the National University of Singapore, had played a major role in drafting the LTTE’s controversial proposal for an Interim Self Governing Authority (ISGA) for the North Eastern Province (NEP) in Sri Lanka.
Like other nationalistic or sub-nationalistic movements, the LTTE believes that it is futile and meaningless to talk about the individual rights or the individual liberty of the Tamils in a situation where the Tamil people ‘as a group’ are denied the right to realise their political aspirations such as the founding of a ‘Tamil Homeland’ in the North East of Sri Lanka which will enjoy a large measure of autonomy from the central government in Colombo. The LTTE believes that the rights of the collectivity of Tamils have to supersede claims to individual liberty, at least at this critical juncture in the political history of the community.
But the democratic world of today thinks very differently. It believes that group rights are meaningless without individual rights. This is clear from the pronouncements of the leaders of the West, Sri Lanka and India, in regard to the LTTE. They have said many times that any solution of the ethnic question in Sri Lanka should ensure democracy, pluralism and human rights. And in the political lexicon of the West, democracy and human rights essentially mean individual rights.
That the Tamils have a collective problem, that they have a notion of their collective rights and that their entire political movement since 1948 has revolved round the notion of Tamils as a collectivity, have not been given due importance by the international community. The fact that the LTTE is dictatorial and terrorist has clouded the collective problems of the Tamils.
As a result of this, the pressure on the Sri Lankan state and polity to deliver on the legitimate collective demands of the Tamils is much less than the pressure on the LTTE to conform to Western standards of democracy and human rights, which essentially revolve round individual liberty.
That the West treats the Palestinian problem in the same way was evident in the interaction of US President George W Bush and the British Prime Minister Tony Blair with the media in Washington last week. Neither leader talked of the collective problem or the collective rights of the Palestinian people vis-à-vis Israel. The pronouncements were entirely on the need to bring Western-style democracy to the Palestinian state. For the two leaders, this was the panacea for the ills of the Palestinians.
Israel was not seen as a problem at all. According to Prof. Sornarajah, a major philosophical impediment to the acceptance of the right to self-determination of a people, of which secession is an extreme form, has been the Western political theory relating to human rights. As per the Western liberal tradition, if individual civil and political rights are protected, ethnic and racial rights will also be protected because these groups are composed of individuals.
The Canadian Supreme Court rejected the French speaking Quebec’s right to secede from Canada on the grounds that there was no evidence of discrimination against French Canadians as such, in Canada.
The Sri Lankan state also claims that it does not discriminate against the Tamils, and has managed to convince the West that this is so. But Prof. Sornarajah disputes this claim on the grounds that accommodation of individuals cannot be used to hide what is being denied to the Tamils as a collectivity.
‘They (the Sri Lankan government) have had human rights commissions which have not remedied violations, and commissions of missing persons which are shams. They have tried but never convicted soldiers who have killed and raped,’ he points out.
Drawing extensively from Prof. Michael Roberts’ latest work Sinhala Consciousness in the Kandyan Period 1590-1815, the well known Tamil political commentator, D Sivaram, writes in Virakesari, that the Sinhalas have traditionally looked upon the Tamils as the quintessential ‘other’ or the ‘intruder’ into an essentially ‘Sinhala Buddhist’ island of Sri Lanka.
Sivam thinks that the Sinhalas, as a group, will never accept the Tamils, as a group, as equals, and that the Tamils will find it hard to realise their collective rights in a united, Sinhala-dominated Sri Lanka. It is the group or collectivity which is critical for Sornarajah, Micheal Roberts and Sivaram.
Origin of self-determination
Tracing the evolution of the conflict between ‘group rights’ and ‘individual rights’, Prof. Sornarajah says that the concept of group rights is related to the concept of ‘self-determination’, which was articulated for the first time at the end of the First World War. The concern then was to redraw the borders of the European states to ensure that there was some coincidence between the ethnicity of the states and their boundaries, he says.
But the notion of self-determination was not extended to the peoples in Asia and Africa who were under imperial or colonial rule. Self-determination came here much later. It was only in 1947, when India became free, after a long and arduous struggle, that it became an accepted doctrine for these parts of the world. Self-determination then became part of ‘decolonisation’, which was sanctioned by the UN General Assembly Resolution on the Granting of Independence to Colonial Peoples.
However, the newly independent African and Asian states ‘feared the very doctrine that led to their creation,’ Prof. Sornarajah observes. These states were the creation of imperialism which often brought together peoples of wide ethnic and religious diversity for its convenience, ‘without regard to history, culture or region,’ as he puts it.
Faced with movements for freedom from groups within them, these new states argued that self determination had lost its validity in international law after decolonisation. But Prof. Sornarajah counters this by saying that self-determination had nothing to do with states. On the other hand, it had everything to do with peoples, and was founded on justice. Therefore,
current borders need not be deemed sacrosanct, he argues.
He points out that despite the ‘sanctity’ of existing borders and the vigorous efforts to maintain them, peoples’ right to self determination has not always been quashed or denied. For example, India was partitioned on the basis of the Muslims’ right to a Homeland, and Bangladesh was allowed to secede from Pakistan on the basis of the Bengalis’ right to self determination.
‘There was a lingering view that ethnicity did matter, particularly if it was the basis of discrimination or destruction of culture and life. Bangladesh and Eritrea, which seceded from Ethiopia, accelerated the idea that the old law on the subject had to be rethought,’ Prof. Sornarajah says.
Primacy of individual rights on the wane
Though the accent is still very heavily on the primacy of individual rights, Prof. Sornarajah says that the Western liberal tradition emphasising individual human rights is on the wane. This is because it is increasingly realised that there is a case for protecting the rights of linguistic and religious groups within existing states. He points out that the 1991 Proposal for the European Convention on the Protection of Minorities clearly acknowledges the collective dimension of the rights of ethnic groups.
As Western societies become multi-ethnic, the emphasis on individual rights continues to remain, but there is also an increasing awareness that ethnic rights have to be protected,’ he says.
According to him, the dilemma in modern international law is how to maintain the present state system with guaranteed territorial integrity, while ensuring that the rights of the ethnic and other minorities are protected. The Resolution on Friendly Relations between States does ensure territorial integrity but this is subject to the proviso that all peoples living within the state are treated equally, Prof. Sornarajah points out.
Pointing to the break up of the Soviet Union and the unification of Germany in the recent past, the LTTE’s constitutional expert says that these two divergent cases prove one thing, and that is, borders of states ‘do not exist for themselves but to fulfill the desires of people within them.’
Though an unabashed votary of an independent ‘Tamil Eelam’ as far as Sri Lanka is concerned, it is clear that Prof. Sornarajah will accept that if the Sri Lankan state accepts the collective rights of the Tamils vis-à-vis the state, there will be no need for secession. He does say that not all multi-ethnic states need fear secession.
‘A state like India need never fear secession as it ensures through its federal structure as well as through meaningful equality guaranteed by a vigorous Supreme Court, a system of individual, collective rights that are the envy of any state,’ he points out.
LTTE keeps its options open
The LTTE’s stand as regards group rights and individual rights accords with Prof. Sornarajah’s. Even as the world lectures to it about the need to ensure individual liberty and rights, the LTTE harps on the collective rights of the Tamil people vis-à-vis the Sri Lankan state. For it, putting individual rights before collective rights will be putting the cart before the horse.
The world wants the LTTE to commit itself to the principles enunciated in the international conferences held at Oslo and Tokyo in 2002 and 2003 respectively. These demand that the LTTE agree to find a federal solution within a united Sri Lanka and ensure democracy, pluralism and human rights (as per internationally accepted Western norms.)
But the LTTE has refused to give an explicit commitment on these. Its spokesman, Anton Balasingham, has made it clear that the organisation reserves the right to go for secession of the Tamil-speaking North East if, through the current peace process, it is not able to find a federal solution that will meet the collective aspirations of the Tamil people.
(PK Balachanddran is Special Correspondent of Hindustan Times in Sri Lanka.)
Hindustan Times