Dharshan Weerasekera, Attorney-at-Law
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 “Tamil Genocide Education Week” and b) educate Ontarians about “Tamil Genocide and other genocides that have occurred in world history.” The crucial question is, whether the charge of “Tamil genocide” is true.
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 the public interest to begin such a discussion. Otherwise, there is a danger that the proposed “Tamil Genocide Education Week” would turn out to be an exercise in mis-education of Canadians most of whom are relatively unfamiliar with Sri Lanka.
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 summarize the arguments made in a case filed in the Court of Appeal in September 2014—Polwatta Gallage Niroshan v. Inspector General of Police, Members of the Northern Provincial Council and others, CA/writ/332/2014. 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 U.N. Human Rights High Commissioner) alleging genocide of Tamils in Sri Lanka.
Unfortunately, the court declined to take up the case on a technical ground, namely, that the petitioner had failed to file a police complaint. The petitioner, a humble trishaw 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.
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 “hear the other side” is an overriding principle (jus cogens) of international law.
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:
“The 3rd – 35th Respondents, 28 of whom are members of the Northern Provincial Council and 5 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, “Joint letter by members of the Northern Provincial Council and Eastern Provincial Council, 17 August 2014.” In the said letter the 3rd – 35th Respondents 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.
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 and 2nd Respondents have not taken any steps to investigate or prosecute the 3rd – 35th Respondents 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.
The letter makes three requests of the High Commissioner, the second of which is: “The 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.”
The Petitioner respectfully draws the attention of the court to two matters in the above passage:
- The assertion that Genocide has been practised against the Tamils in Sri Lanka.
- That “Sinhalese settlements and demographic changes” are being carried out with the “intent to destroy the Tamil Nation.”
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.
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 “raise discontent or disaffection amongst the People of Sri Lanka, or to promote feelings of ill-will and hostility between different classes of such people” 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:
“[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:
- Killing members of the group;
- Causing serious bodily harm or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.”
From the above, it is clear that the crime of “Genocide” has two components: the intention to 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 – 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 “Tamil Nation” can be objectively assessed.
The Petitioner asserts that, the Sinhalese people have not committed genocide against the Tamil people, or imposed settlements to destroy the Tamil People, or any “Tamil Nation” 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:
Firstly, if the charge of ‘Genocide’ is with respect to the period from Independence to the start of the war, roughly 1948 – 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.
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’s most respected scholars, who analyses the said factors in a chapter titled “Economic causes for ethnic conflict” in his book, Sri Lanka: Challenges for the new Millennium (2006). The said assessment is as follows:
“To generalize, the overall impression conveyed by these conclusions is that, except when the “Indian Tamils” 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—variations in wealth, income, power and privilege, or dichotomies such as those of “haves verses have-nots” or “exploiter verses exploited”—did not exhibit significant correspondences to the main ethnic differences in the country. And, there was certainly no economically “dominant” ethnic group.” (p. 436.)
Secondly, if the charge of “Genocide” 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.
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.
Finally, if the charge of “Genocide” is with respect to the last phases of the war, i.e. January 2009 – 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 “Genocide.” The Petitioner therefore draws the natural inference suggested by all of the facts set out above, namely, that the Tamils have not been subjected to genocide in this country.
With respect to the accusation about settlements, the following facts are relevant. Firstly, if by “Tamil Nation” 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 “Tamil Nation” exists. If the existence of such a territorial unit cannot be established, the assertion that the intent behind the settlements is to destroy the “Tamil Nation” cannot be sustained, since that which does not exist cannot be destroyed.
Secondly, if by “Tamil Nation” the 3rd – 35th Respondents mean the areas of the island where Tamils comprise the majority ethnic group relative to the Sinhalese and the Muslims—i.e. the Northern and the Eastern Provinces—it 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 Separatist Ideology in Sri Lanka: A Historical Appraisal, 2nd ed. International Center for Ethnic Studies, 1995)
Thirdly, if the 3rd – 35th Respondents are claiming that settlements are being systematically established at present, it is incumbent on the 3rd – 35th Respondents to name what those settlements are, and to address the following matter: the Sri Lanka Constitution guarantees to every citizen, “Freedom of movement and of choosing one’s residence within Sri Lanka” (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.
The Petitioner repeats that, facts related to the points enumerated above are in the public domain. Therefore, the claim by the 3rd – 35th Respondents, that the Sinhalese are committing genocide against Tamils, and also imposing settlements to destroy the “Tamil Nation” are deliberate falsehoods, unless they can present some evidence to justify and explain their claims.
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 ex facie intention to promote the said feelings of ill-will and hostility between Sinhalese and Tamil people.”
The stated purpose of Bill 104 is to “educate” Ontarians about Tamil genocide. However, there is a grave danger that this will result in “mis-education” 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 of the Canadian Federal Government. Therefore, a substantive public discussion about whether or not Tamil genocide has happened is urgently needed and this must necessarily involve giving Canadians a chance to “hear the other side” of the story. Polwatta Gallage Niroshan’s case offers a good starting point from which to offer Canadians and other foreigners a glimpse into that “other side.”
The writer is a consultant for the Strategic Communications Unit at the Lakshman Kadirgamar Institute.