CANADIAN COURT DECISION IN THE CASE OF LTTE ACTIVIST-A COMMENT

By Ambassador H.L. de Silva P.C., Permanent Representative of Sri Lanka to the United Nations.

On the 29th of August'97 the Ontario Federal Court Judge Max Teitelbaum after more than fifty days of hearings, held a certificate under the Canadian Immigrants Act, based on a Security Intelligence Report prepared by the Canadian Security Intelligence Service, issued under the hand of the Minister in charge of the subject and the Solicitor-General of Canada, to be reasonable on the facts and circumstances that transpired before him. The certificate was on the basis that there were reasonable grounds to believe that the detainee (Suresh) was a person falling within the statutory description that makes him "Inadmissible to Canada" (i.e. one whose admission into that State would be detrimental to the national interest).

The relevant limbs of the Section which were found applicable in the case of Suresh, as paraphased for convenience, were three pronged. He was alleged to be: (a) a member of an organization (viz the LTTE) in respect of which there were reasonable grounds to believe that it will engage in terrorism. (b) a person in respect of whom there were reasonable grounds to believe has engaged in terrorism and (c) a member of an organization (viz the LTTE) in respect of which body there are reasonable grounds to believe that it is or was engaged in terrorism. In short, the allegations were that Suresh himself had engaged in terrorism or that he was vicariously liable, by reason of his membership of the LTTE which was an organization that engaged in terrorism. The Judge held that the certificate naming Suresh as an "Inadmissible person" under the relevant provisions was "reasonable on the basis of the evidence and information made available to him in both the public and camera hearings held before him". Although the Judges Order of the 29th August does not make this clear it appears from a statement made by Suresh's Counsel, Ms Darbara Jackman to the Toronto Star that the Judge had found no evidence that Suresh himself had been involved in criminal activity but that he had, to use her own words, "propagandized for the LTTE".

The Judge in giving his verdict briefly stated his conclusions but refrained from giving the detailed reasons which were postponed, sine die, since as he said they were "going to require a lot of work" and "a good period of time". In view of the fact that the record of submissions made by Counsel is not yet available these preliminary comments are offered on the basis of the questions put to the witnesses called on behalf of the detainee and in the light of the final conclusion reached by the Court.

The determination by the Judge, after hearing evidence and submissions of Counsel, intermittently for nearly 18 months, confirms that there were reasonable grounds for the Minister and the Solicitor-General, two high level members of the Executive, to form the aforesaid conclusions on the evidentiary material placed before them. Accordingly the judge has rejected the objections of the detainee and the submission of his Counsel, based on a theory of the legitimacy of force when used in a struggle for national liberation making him liable to deportation. The judge's findings on the issue of reasonableness on the joint executive decisions is by implication at least, an affirmation of them and thereby acquire the added validity of a judicial imprimatur.

The horrendous nature of the acts of terror by the LTTE and the frequency of their commission are matters of such international notority that it would have been futile to deny their occurrence.

The evidence needed to establish the nexus of membership on the part of Suresh and the LTTE or a refutation of that allegation, would not have entailed such a long and protracted hearing or elaborate argument. They appear to be straight forward issue of fact capable of easy and simple ascertainment.

Nor would the inquiry have meandered on for so long a time had the case against Suresh rested solely on allegation (b) alone which involved his direct and personal complicity in acts of terror. He would probably have had to tend for himself and the LTTE would have given him a wide berth. Evidently there was incontrovertible evidence of his membership of the LTTE, despite the weak attempt at denial. A finding on (a) and (c) on the other hand would have had the most far-reaching consequences for the LTTE itself. Hence they strained every nerve to avert adverse findings on these allegations which would have serious repercussions on their activities in Canada and may even have dominos effect on their organizations in other countries which have similar immigration legislation.

The main plank of the defence appears to have been that the LTTE was a national Liberation Movement fighting the case of the Tamils of Sri Lanka for self determination and liberation from oppression and that the acts of force or violence attributed to the LTTE ceased to be terrorism by reason of this. Even assuming that the contention that the LTTE was engaged in national liberation had prevailed its viability as a defence would have had to depend on the further contention that national liberation of itself had some special efficacy - that it was some kind of holy water that laundered even terrorist acts! Faced with this dilemma the defence sought to contend that such acts when directed at civilians or non-combatants, may be "war crimes" but not acts of "terrorism" which was in effect a plea contesting the jurisdiction of the Court to inquire into so called "war crimes" as though the two categories were mutually exclusive. Furthermore, this contention assumes that Protocol 1 of the 1949 Geneva Convention applied as between the Sri Lanka Government and the LTTE and Professor Boyle called by the Defence, incorrectly asserted that the LTTE had acceded to it and assumed that the Government of Sri Lanka was already a High Contacting Party.

No proof was offered that the instrument of accession by the LTTE had been deposited with the Government of Switzerland which is the depository. Neither the Government of Sri Lanka nor the United Nations have been notified of any such accession.

Even conceding the application of International humanitarian Law the LTTE had violated several cardinal provisions of the Geneva Convention which itself recognises a category of acts regarded as acts of terrorism. The LTTE has violated Article 51.2 which prohibits attacks on the civilian population. It recruits children under 15 years to take part in hostilities in violation of Article 77.2. The LTTE has murdered some hundreds of Sri Lankan Policemen who were directed to surrender and thereafter taken prisoner in flagrant breach of Article 3.1. The Convention is quite clear that a party cannot assert rights and privileges under the Protocol while repudiating obligations thereunder. Apart from the provisions of the Convention the LTTE has a grisly record of murder torture and other barbarities inflicted on innocents which indelibly impose on them the stamp of terrorists.

The defence pleaded by Suresh also raised many seminal questions in regard to the nature of the right of self determination and in regard to the use of force in such struggles. In fact they are unresolved controversies in International law and could not have been confidently determined in favour of the detainee in a proceeding of this nature where the question in the final analysis turned on the reasonableness of an executive direction. It seems to have been an ill considered defence because the plea raised a multiplicity of collateral questions of some complexity in regard to which dubious propositions of law have been advanced by some scholars which no cautious judge would have accepted with alacrity having regard to the amorphous state of the law.

To mention just a few of them; what constitutes a people possessing a right of self-determination? This is pivotal to the defence because national liberation stems from this right. Is the right available to any ethnic or religious group within a State? Or is the right available only to an aggrieved majority living within a generally accepted political unit? Can the international status of a national liberation movement be granted by the international community to any group save one which is fighting for freedom from colonialism alien occupation or against a racist regime? This is the current state practice and the indications given by the pronouncements of UN bodies and States. If even States in the lawful exercise of the right to use force connot in any event violate International Humanitarian Law, how can non State entities like rebel groups arrogate to itself the right to have recourse to what are commonly recognized by all civilized beings as acts of terrorism? It is obvious that unless these controversies are finally and authoritively settled the pleaded defence could not have got off the ground let alone made to fly. The only reason why such a fragile defence was ever attempted was perhaps due to the incontrovertibility of the facts on which the Government of Canada relied.

In this setting it is regrettable that the Judge in the face of the enormous uncertainties that enfeebled the component elements all of which were integral to the whole defence plea taken on behalf of Suresh should have ventured to pronounce on the peripheral issue of discrimination when the real and substantial issue was whether there was in Sri Lanka institutionalised racism of such an oppressive nature as to warrant the use of force. All the more regrettable is the fact that such an obiter dictum was made without affording the Sri Lanka Government an opportunity of being heard on such allegations made by partisan witnesses called by the Defence before reaching an adverse finding. Even the most learned and experienced of judges sometimes overlook the cardinal rule of audi alteram partem.





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