Feature Article

Nationhood, Self-Determination non-negotiable: V.T. Thamilmaran in 2003

[TamilNet, Saturday, 31 January 2015, 21:01 GMT]
“The nationhood of Tamils and their right to self-determination are non-negotiable. Any political solution that might emerge out of the on-going peace process can't go below these,” opined V.T. Thamilmaran, 12 years ago in January 2003, just a few days after the so-called Oslo Declaration (Dec 2002). The international community, by volunteering to back the Internal Right to Self-Determination based solution, is duty-bound to extend its support for future Tamil struggle, he said in 2003: “It would impose on them a moral duty to extend their support for any further struggle by the Tamils.” Five years after 2009, the IC needs to be reminded again of this moral duty as it failed to protect the nation of Eelam Tamils from a brutal genocide, comment youth activists of the Tamil National Alliance in the North. The IC should now respect Tamils Right to External Self-Determination, they said.

“The historical fact that the democratic right of the Tamils to participate in the process of governance has been denied, pushed them to demand for the external right of self-determination,” Thamilmaran argued in his article, implying that those who intervene to resolve the conflict should be aware of their future responsibility when they ask Tamils to stick to experiment ‘internal self-determination’ once again.

“If internal self-determination had been granted to the Tamils there wouldn't have been any violence in this country. But it is unfortunate that even today some outside forces demand concrete proof for this,” Mr Thamilmaran said in 2003.

[Now, after facing the Mu'l'livaaykkaal Genocide and the accelerated structural genocide, Tamils are again being advised by the intervening parties to drop their demand for Right to Self-Determination and to look once again at non-descript ‘internal’ models. After 2009, the TNA was instructed by the outside forces to denounce secession citing the so-called Oslo Declaration. Now, the same Colombo-centric sections within the TNA are advocating for dropping the mention of Right to Self Determination and Federal solution according to their ‘point 1 understanding’ of the so-called Singapore Principles of 2013.]

Thamilmaran was also looking at constitutional models from other parts of the world that recognised the Right to Self-Determination including the right to secede in a symmetric federal arrangement as well as asymmetric federal options with international guarantees such as in the case of Åland Islands assuring de-militarisation of the Party claiming State sovereignty over the territory in question.

The Sri Lankan unitary constitution was a major hurdle in breaking the deadlock to arrive at any viable model to solve the conflict, he observed while delivering the third Kumar Ponnambalam Memorial Lecture in Jaffna on January 5, 2003.

“Our struggle is for nothing but democracy. It is for our existence as a group. It is for the recognition of our rights as a group. There are suitable mechanisms available around the world to address such problems. Look at the Constitution of Ethiopia. Its Article 39 recognises the right of every constituent states' right to secession. This is also a federal arrangement,” Mr Thamilmaran said.

V.T. Thamilmaran LL.B. (Hons.), M.Phil (University of Colombo) and Attorney–at-Law of the Supreme Court of Sri Lanka is currently the Dean of the Faculty of Law at the University of Colombo.

Full text of Northeastern Herald's translation of the Third Kumar Ponnambalam Memorial Lecture by V.T. Thamilmaran, delivered in Tamil on January 5, 2003, is reproduced below as it appeared in the January 10, 2003 (Vol 1, 24) edition:

Political solution - another mirage?

The greatest tribute one can pay to Mamanithar Kumar Ponnampalam is to continue the struggle for the right to self-determination of the Tamil people. Among the so-called moderate Tamil leaders, it was Kumar who accepted the leadership of the LTTE and proclaimed fearlessly that they are the true and the sole representatives of the Tamils. This remarkable and courageous political stand upset many in the south because the then leadership of the Sri Lankan government was dreaming that it could drive a wedge between the Tamil people and the LTTE.

By portraying the LTTE as a band of terrorists and by luring the Tamils through quislings in Colombo, the former government thought that it could impose half-baked solutions on the Tamils.

But, the roaring Kumar had demolished their castle of dreams. That is why he was killed.

Why didn't the government indict the suspected perpetrators of the shameful killing of Kumar under the PTA?

A respected leader of a political party, a senior counsel who defended the innocent Tamil boys and girls, and above all a strong critic of the government was shot dead in the heart of the city in broad daylight.

If the PTA was not applied in this instance to indict the offenders, then for whom is it meant? Is it only for applying against a particular community?

The nationhood of Tamils and their right to self-determination are non-negotiable. Any political solution that might emerge out of the on-going peace process can't go below these.

Thousands of lives lost so far and the destruction of property worth of billions of rupees and the shocking level of atrocities committed against the Tamil population have brought the Tamils of this country to believe that there is no salvation for them unless they are ruled by themselves. The territory of North-east is part of the identity of the Tamils of this country. We don't need historical proof for this. We firmly believe so and we consider our selves as belonging to this part of the island. Our identity can't be dictated to us by others.

It is forged by us.

We don't need anyone's recognition or consent to exercise our right of self-determination. It is the birth right of each and every nation.

However, the historical fact that the democratic right of the Tamils to participate in the process of governance has been denied pushed them to demand for the external right of self-determination. If internal self-determination had been granted to the Tamils there wouldn't have been any violence in this country. But it is unfortunate that even today some outside forces demand concrete proof for this.

Hence is the on-going peace process.

The international community has voluntarily accepted the task of supporting our claim for internal self-determination. It would impose on them a moral duty to extend their support for any further struggle by the Tamils. But, be sure, the exercise of the right to external self-determination has nothing to do with what other parties say about the struggle. There is no legal barrier to exercising this right.

We are at critical juncture today. We must play our cards very carefully. Our struggle is for nothing but democracy. It is for our existence as a group. It is for the recognition of our rights as a group. There are suitable mechanisms available around the world to address such problems. Look at the Constitution of Ethiopia. Its Article 39 recognises the right of every constituent states' right to secession. This is also a federal arrangement.

What are the possibilities of successfully negotiating a federal solution for this country?

Is there a legal framework under which a settlement could be realised in legal terms? There are many hurdles.

Article 2 of the present Constitution says that Sri Lanka is a unitary state. This provision can't be amended without a two-third majority in Parliament and the approval by the people in a countrywide referendum.

Under the existing proportional electoral system it is not possible for a single party to get such a 2/3 majority in Parliament. Further, is the southern polity politically matured enough to vote for federalism at a referendum?

This is a polity that voted at the referendum of 1982 that it didn't want elections for another six years. Will it vote for a federal solution to the ethnic conflict?

Since serious doubts are entertained over the possibility of adopting the constitutional method for amending the Constitution, some experts say that we can try the method adopted in 1972.

Here, you go for a Constitutional Assembly outside Parliament and draft a new Constitution after obtaining the necessary mandate from the people at a general election.

But, there is a legal barrier to adopting this method now. Unlike in 1972, this time one has to overcome the constitutional barrier under Articles 75 and 76 of the present constitution. These provisions stipulate that it is the sole right of Parliament to legislate either to amend or even replace the Constitution.

In addition, Parliament, even if it does want to, cannot delegate or devolve its legislative power to any other institution. Any one can petition to the Supreme Court and get orders preventing the formation of a constituent assembly.

The only option available is to go for revolutionary method adopted in some African and Latin American countries. But this acid test heavily depends on the mass-mood demanding change.

When you try to restructure all three organs of the government including the judiciary there would be anarchy, if the three refuse to accept the change. It would lead to a total collapse of the state machinery.

Above all, federalism demands political maturity. The people of Namibia, South Africa, Austria and Belgium have recently demonstrated this political maturity.

The negotiating parties to the on-going peace process in this country have been tirelessly encouraged to learn more and more on the positive aspects of federalism in order to come to an understanding on how to share governmental powers between them in an amicable manner.

They have been, as I understand, already briefed of the successful working of the Swiss and the Canadian model of power sharing. Whatever the mechanism that is envisaged, effectively guaranteeing a sort of autonomy or self-rule would be the goal of these models. In this context, there are other models as well, which should attract the attention of those who are committed to find a lasting solution to the ethnic crisis of this country.

Autonomy is a means for diffusion of powers in order to preserve the unity of a State while respecting the diversity of its population. It is often suggested as a solution to ethnic conflicts. While rights of minority to autonomy are recognized in principle in international law, minority groups have only been granted autonomy in exceptional cases. The exceptional situations might elevate the minority into the category of people and thereby entails them the right to self-determination.

In its broadest sense, autonomy refers to self-rule. But, a distinction must be made in case of the 'peoples right' between territorial autonomy, personal or cultural autonomy and sovereignty. Prof. Ruth Lapidoth, in his book 'Autonomy: flexible Solutions to Ethnic Conflits' (1996), explains that “a territorial political autonomy is an arrangement aimed at granting to a group that differs from the majority of the population in the State, but that constitutes the majority in a specific region, a means by which it can express its different identity”.

When a group, in addition to its different language, ethnicity, religion and culture, constitutes as majority over a particular area of territory, then that area itself forms part of the identity of that group and it must be recognized in terms of its right to self-rule or autonomy.

The arrangement made for the autonomy of Aland Islands with the help of the international community as far back as 1921 still deserves to be considered a viable and well-suited model of settlement for resolving ethnic conflicts that have territorial implications as one of the fundamental issues.

The Ethiopian Constitution of 1995 contains an exceptional provision, which recognizes the right to self-determination of the constituent states of the Federation of Ethiopia. Article 39 of the Constitution expressly provides for the exercise of the right to secede by virtue of the principle of self-determination as enunciated in the Preamble to the Constitution. The drafters of the Ethiopian Constitution clearly identified that the positive development of federalism is to be found neither in the extent of the powers to be devolved to the regions nor in the flowery phrases used in decorating the document but in the principle of self-determination. This principle is meant for measuring the effective functioning of the successful federal system. In addition, the Constitution includes the necessary rights associated with realising what is meant by self-determination in the Preamble. Art. 39(4) details out the procedures to be followed in exercising the right to secession.

Political Solution - another mirage? — Third Kumar Ponnambalam Memorial Lecture by V.T. Thamilmaran
Political Solution - another mirage? — Third Kumar Ponnambalam Memorial Lecture by V.T. Thamilmaran
The 1993 the reform introduced two fundamental changes to the central institutions under the federal Constitution of Belgium. In matters affecting the interests of linguistic groups, a special legislative process is prescribed and this procedure demands a special majority in each parliamentary groups of Flemish and French. Art 53 of the Constitution provides for what is called as ' alarm-bell' procedure according to which a linguistic group can present a list with the signatures of three-quarters of its members and thereby put a halt to any legislative initiative, which in their opinion threatens groups relations.

Under the Austrian Constitution the Lander (states) have gone to the extent of establishing a hold over the foreign policy matters by effectively blocking Austria's entry into the European Union. Citing Art. 23 and 50 the Lander successfully argued that without their informed consent and approval Austria can't become a party to any international treaty that might in turn affect their autonomous status under the Constitution. This has happened in the case of Swiss Cantons as well in 1999.

The arrangement made for the autonomy of Aland Islands with the help of the international community as far back as 1921 still deserves to be considered a viable and well-suited model of settlement for resolving ethnic conflicts that have territorial implications as one of the fundamental issues. Let's look at some of the basic features of the system that has been in operation for more than a three-quarter of century.

All these things are to explain what is meant by political maturity. I would like end my talk to by quoting what Benjamin Franklin had said on federalism: “If we do not hang together we will all hang separately”. This is one of those occasions where pessimism can't be construed as cynicism.


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