THE ISLAND<\/p>
By Dharshan Weerasekera<\/span><\/p> \u00a0<\/p> In May 2021, the Legislative Assembly of Ontario adopted Bill 104. The stated purpose of the Bill is to, a) designate the week following May 18 each year as \u2018Tamil Genocide Education Week\u2019 and b) educate Ontarians about \u2018Tamil Genocide and other genocides that have occurred in world history.\u2019 The crucial question is, whether the charge of \u2018Tamil genocide\u2019 is true.<\/p> To the best of my knowledge, there has been very little substantive discussion of the above question in Sri Lankan or Canadian newspapers or academic journals in recent years and it is in public interest to begin such a discussion. Otherwise, there is a danger that the proposed \u2018Tamil Genocide Education Week\u2019 would turn out to be an exercise in\u00a0mis-education<\/i>\u00a0of Canadians, most of whom are relatively unfamiliar with Sri Lanka.<\/p> In my view, there is absolutely no factual basis for anyone to claim that Tamils have been subjected to genocide in Sri Lanka. In this article, I shall briefly summarise the arguments made in a case filed in the Court of Appeal in September 2014,\u00a0Polwatta Gallage Niroshan v. Inspector General of Police, Members of the Northern Provincial Council and others, CA\/writ\/332\/2014<\/i>. It is a public document. I was the Counsel in the case. The petitioner sought a writ of mandamus to compel the Attorney General to take action against members of the then Northern Provincial Council who had signed a letter (forwarded to the UN Human Rights High Commissioner) alleging genocide of Tamils in Sri Lanka.<\/p> Unfortunately, the Court declined to take up the case on technical grounds, namely, that the petitioner had failed to file a police complaint. The petitioner, a humble three-wheeler driver, did not have the financial wherewithal to pursue the matter further, but the case is very important in the present context because of two reasons: First, it shows that Sri Lankan citizens have rejected the allegation of Tamil genocide and even gone to the courts with regard to this matter.<\/p> \u00a0<\/p> Right of reply<\/b><\/p> Second, and more importantly, since the provincial legislature of a foreign country has asserted that Tamil genocide has happened, it is incumbent on the said legislature to provide a right of reply to all concerned Sri Lankans who reject the charge. Otherwise, one cannot expect the stated purpose of the Bill, education, to genuinely take place. In this regard, it is well to recall that natural justice, which includes the injunction \u201chear the other side\u201d is an overriding principle (jus cogens<\/i>) of international law.<\/p> Furthermore, one could argue that any funds allocated by the Ontario legislature, to advance the goals of the Bill, should be made available to members of Sri Lankan origin living in Ontario as well, who wish to tell their side of the story during the week in question. For all these reasons, the Sri Lankan case is important as a starting point for a substantive discussion of the charge of Tamil genocide. I give below the relevant portion:<\/p> \u201cThe 3rd\u00a0<\/sup>\u2013 35th<\/sup>\u00a0Respondents, 28 of whom are members of the Northern Provincial Council and five are members of the Eastern Provincial Council, are signatories to a letter sent to the former United Nations High Commissioner for Human Rights, Navinetham Pillay, titled, \u201cJoint letter by members of the Northern Provincial Council and Eastern Provincial Council, 17 August 2014.\u201d In the said letter the 3rd<\/sup>\u00a0\u2013 35th<\/sup>\u00a0Respondents request the former UN Human Rights High Commissioner to acquaint her successor, as well as the investigating panel presently investigating Sri Lanka, with the matters contained in the letter.<\/p> \u00a0<\/p> Petitiner\u2019s contention<\/b><\/p> The Petitioner contends that the said letter contains explicit statements capable of causing disharmony, ill-feeling and discord among the different ethnic groups of Sri Lanka, particularly the Sinhalese and the Tamils, that the 1st<\/sup>\u00a0and 2nd<\/sup>\u00a0Respondents have not taken any steps to investigate or prosecute the 3rd<\/sup>\u00a0\u2013 35th<\/sup>\u00a0Respondents for the said statements under Section 120 of the Penal Code (raising discontent or disaffection or feelings of ill-will and hostility among the people) and therefore the Petitioner has a right to request the court for a writ of mandamus to compel action.<\/p> The letter makes three requests of the High Commissioner, the second of which is: \u201cThe Tamil people strongly believe that they have been, and continue to be, subjected to genocide in Sri Lanka. The Tamils were massacred in groups, their temples and churches were bombed, and their iconic Jaffna Public Library was burnt down in 1981 with its collection of largest and oldest priceless irreplaceable Tamil manuscripts. Systematic Sinhalese settlements and demographic changes with the intent to destroy the Tamil Nation, are taking place. We request that the OHCHR investigative them to look into the pattern of all the atrocities against the Tamil people, and to determine if Genocide has taken place.\u201d<\/p> The Petitioner respectfully draws the attention of the court to two matters in the above passage:<\/p> i)\u00a0The assertion that Genocide has been practised against the Tamils in Sri Lanka.<\/span><\/p> ii)\u00a0That \u201cSinhalese settlements and demographic changes\u201d are being carried out with the \u201cintent to destroy the Tamil Nation.\u201d<\/span><\/p> The Petitioner is of the view that, the above two assertions are demonstrably false, and, as a citizen of Sri Lanka, is personally offended and angered by them, and considers that thousands of other citizens of this country feel this way also.<\/p> The Petitioner further considers that, false accusations regarding highly sensitive issues made directly to the United Nations High Commissioner for Human Rights urging her to investigate the purported offenses constitute an attempt to \u201craise discontent or disaffection amongst the People of Sri Lanka, or to promote feelings of ill-will and hostility between different classes of such people\u201d for the following reasons. The crime of genocide has a technical meaning in international law, and one can assess objectively whether or not that crime has been committed. The definition of genocide is set out in the Convention on the Prevention of Genocide (1948) and is as follows:<\/p> \u00a0<\/p> \u201c[Article 2] In the present Convention, genocide means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:<\/p> \u00a0<\/p> a)\u00a0Killing members of the group;<\/span><\/p> \u00a0<\/p> b)\u00a0Causing serious bodily harm or mental harm to members of the group;<\/span><\/p> \u00a0<\/p> c)\u00a0Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.<\/span><\/p> \u00a0<\/p> d)\u00a0Imposing measures intended to prevent births within the group;<\/span><\/p> \u00a0<\/p> e)\u00a0Forcibly transferring children of the group to another group.\u201d<\/span><\/p> \u00a0<\/p> From the above, it is clear that the crime of \u201cGenocide\u201d has two components: the\u00a0intention<\/i>\u00a0to destroy, in whole or in part, a national, ethnical, racial or religious group, and also the committing of one or more of the acts enumerated under points a \u2013 e. It is possible to objectively assess whether, in a given set of circumstances, each of those components is present. Similarly, the accusation regarding settlements and the claim that the intent behind these settlements is to destroy the \u201cTamil Nation\u201d can be objectively assessed.<\/p> The Petitioner asserts that, the Sinhalese people have\u00a0not<\/i>\u00a0committed genocide against the Tamil people, or imposed settlements to destroy the Tamil People, or any \u201cTamil Nation\u201d within this country, and that facts exist to prove these matters. In particular, the Petitioner wishes to draw the attention of the court to the following points: With respect to the accusation of genocide, the following facts are relevant:<\/p> \u00a0<\/p> Statistsics<\/b><\/p> Firstly, if the charge of \u2018Genocide\u2019 is with respect to the period from Independence to the start of the war, roughly 1948 \u2013 1981, then statistics are available regarding key economic factors such as income, production assets in agriculture and manufacturing, employment, access to education, and access to health services. ((The most recent island-wide census was in 2012 which is after the war. But there is a census for 1981.) If discernible discrepancies exist between the statistics for the Sinhalese and the Tamils with regard to the above factors, a reasonable inference can be drawn that the Tamils have been systematically discriminated against, which would support the contention that the Tamils have been subjected to a genocidal campaign.<\/p> The Petitioner is of the considered view that a comparison of the aforementioned factors will show no discernible differences between the Sinhalese and the Tamils, and draws support for this contention from the assessment of Professor G.H. Peiris, one of Sri Lanka\u2019s most respected scholars, who analyses the said factors in a chapter titled \u201cEconomic causes for ethnic conflict\u201d in his book,\u00a0Sri Lanka: Challenges for the new Millennium<\/i>\u00a0(2006). The said assessment is as follows:<\/p> \u201cTo generalize, the overall impression conveyed by these conclusions is that, except when the \u201cIndian Tamils\u201d of the plantation sector (who still suffer from various deprivations compared to other groups) are taken into account, up to about the third decade after independence, socio-economic stratifications\u2014variations in wealth, income, power and privilege, or dichotomies such as those of \u201chaves versus have-nots\u201d or \u201cexploiter versus exploited\u201d\u2014did not exhibit significant correspondences to the main ethnic differences in the country. And, there was certainly no economically \u201cdominant\u201d ethnic group.\u201d (p. 436.)<\/p> Secondly, if the charge of \u201cGenocide\u201d is with respect to the period of the war, census data exists which indicate that between 1981 and 2001 (the period of the war) there was a substantial increase in the Tamil population in the Sinhalese-majority areas due to the migration of Tamils from the North-East to that area. Such a movement of Tamils could not have occurred if the Tamils were being subject to genocide.<\/p> Also, one can consider the fact that throughout the 30-year civil war, the salaries of government workers in the North and East, large parts of which were under the de facto control of the LTTE, were paid by the Government. Medicine, food, and other essentials were also sent to those areas throughout the conflict. All this does not bespeak an attempt at genocide, rather, the exact opposite.<\/p> Finally, if the charge of \u201cGenocide\u201d is with respect to the last phases of the war, i.e. January 2009 \u2013 May 2009, the undisputed fact that the security forces were able to rescue approximately 350,000 Tamils who were held hostage by the LTTE indicates the absence of \u201cGenocide.\u201d The Petitioner therefore draws the natural inference suggested by all of the facts set out above, namely, that the Tamils have\u00a0not<\/i>\u00a0been subjected to genocide in this country.<\/p> \u00a0<\/p> Settlements<\/b><\/p> With respect to the accusation about settlements, the following facts are relevant. Firstly, if by \u201cTamil Nation\u201d what the signatories mean is a territorial unit, what are the boundaries of this unit, and by what law is it recognized? If answers cannot be provided to these questions, then no \u201cTamil Nation\u201d exists. If the existence of such a territorial unit cannot be established, the assertion that the intent behind the settlements is to destroy the \u201cTamil Nation\u201d cannot be sustained, since that which does not exist cannot be destroyed.<\/p> Secondly, if by \u201cTamil Nation\u201d the 3rd<\/sup>\u00a0\u2013 35th<\/sup>\u00a0Respondents mean the areas of the island where Tamils comprise the majority ethnic group relative to the Sinhalese and the Muslims\u2014i.e. the Northern and the Eastern Provinces\u2014it is true that a certain number of Sinhalese settlements were established in the course of various development projects. Nevertheless, statistics exist in the public domain that show Tamil settlements were established along with the Sinhalese settlements, and that, taken as a whole, the distribution of the settlements, when considered in terms of area, as well as development project, was done in an equitable and fair fashion. (See for example, Professor K.M De Silva\u00a0Separatist Ideology in Sri Lanka: A Historical Appraisal<\/i>, 2nd<\/sup>\u00a0ed. International Center for Ethnic Studies, 1995).<\/p> Thirdly, if the 3rd<\/sup>\u00a0\u2013 35th<\/sup>\u00a0Respondents are claiming that settlements are being systematically established at\u00a0present<\/i>, it is incumbent on the 3rd<\/sup>\u00a0\u2013 35th<\/sup>\u00a0Respondents to name what those settlements are, and to address the following matter: the Sri Lanka Constitution guarantees to every citizen, \u201cFreedom of movement and of choosing one\u2019s residence within Sri Lanka\u201d (Art. 14(h)) which means that anyone who claims that Sinhalese settlements are illegal or wrong must show that those settlements are being established in excess of, or in ways that contravene, the aforesaid right.<\/p> The Petitioner repeats that, facts related to the points enumerated above are in the public domain. Therefore, the claim by the 3rd<\/sup>\u00a0\u2013 35th<\/sup>\u00a0Respondents, that the Sinhalese are committing genocide against Tamils, and also imposing settlements to destroy the \u201cTamil Nation\u201d are deliberate falsehoods, unless they can present some evidence to justify and explain their claims.<\/p> The Petitioner is of the view that, deliberate falsehoods such as the ones mentioned above can have only one result: the promotion of feelings of ill-will and hostility between different groups in this country, in this case the Sinhalese and the Tamils, and that if the signatories cannot produce evidence to justify and explain their claims, those claims show an\u00a0ex facie<\/i>\u00a0intention to promote the said feelings of ill-will and hostility between Sinhalese and Tamil people.\u201d<\/p> \u00a0<\/p> Conclusion<\/b><\/p> The stated purpose of Bill 104 is to \u2018educate\u2019 Ontarians about Tamil genocide. However, there is a grave danger that this will result in \u2018mis-education\u2019 of Ontarians along with Canadians in general, about the issue in question leading to a possible break-down in good relations between Canadians and Sri Lankans which should be a matter of concern for the Canadian Federal Government. Therefore, a substantive public discussion about whether or not Tamil genocide has occurred is urgently needed and this must necessarily involve giving Canadians a chance to \u2018hear the other side\u2019 of the story. Polwatta Gallage Niroshan\u2019s case offers a good starting point from which to offer Canadians and other foreigners a glimpse into that \u2018other side\u2019.<\/p> \u00a0<\/p> (The writer is an Attorney-at-Law and consultant for the Strategic Communications Unit at the Lakshman Kadirgamar Institute.)<\/p>\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":" THE ISLAND By Dharshan Weerasekera \u00a0 In May 2021, the Legislative Assembly of Ontario adopted…<\/p>\n","protected":false},"author":4,"featured_media":4066,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_cbd_carousel_blocks":"[]","om_disable_all_campaigns":false,"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":"","_jetpack_memberships_contains_paid_content":false},"categories":[27,33,29,59,63,64],"tags":[],"yoast_head":"\n