21st December 1997

Suresh, the LTTE and the Canadians

By H.L. de Silva PC

Sri Lanka’s ambassador to the United Nations, H.L.de Silva on the

advocacy of a hopeless cause

Justice Teitelbaum sitting in the Trial Division of Federal Court of Canada gave his detailed reasons on the 14th November 97 for the earlier order made on 29th August upholding the certificate jointly issued by the solicitor general of Canada and the Minister of Citizenship and Immigration under Section 40.1 of the Immigration Act, based on security or criminal intelligence certificates which has been considered by them. Under the Act with the issue of the certificate the person named therein is detained by the Immigration Authorities. The certificate was to the effect that Suresh not being either a Canadian citizen or permanent resident was a person who fell within the statutory description given under the relevant sub-paragraphs of section 19.

In brief, the effect to the certificate was that there were reasonable grounds to believe that Suresh was a member of the LTTE in respect of which there was reasonable grounds to believe that it is or was engaged or will engage in terrorism. Additionally, that Suresh was himself a person in respect of whom there were reasonable ground to believe has engaged in terrorism. On either basis Suresh became a person “inadmissible into Canada”. There is no specific holding in either of the two orders of Suresh himself being engaged in terrorism, nor on the other hand is there a finding in either order that negatives a belief in the existence of reasonable grounds of such culpable conduct. Although in the administrative order represented by the certificate the bases for its issuance may have been severable, the Judge had not thought it fit to quash any part of it on the ground of lack of evidence to support a reasonable conclusion. So despite what his counsel said out of court to a newspaper after the delivery of the earlier order on 29th August, that Suresh was not himself guilty of any criminal conduct, the judge has not in the order of the 14th November expressly exculpated Suresh of the charge of being enagaged in terrorism himself. Exfacie the certificates, which remains valid, Suresh has himself engaged in terrorism though the precise facts on which this inference is drawn do not emerge from the judgment Assuming the invalid part of the certificate was not severable the whole order would have had to be quashed. On the other hand, there are clear findings that there were reasonable grounds for holding (1) that Suresh was a member of the LTTE and (2) that the LTTE committed terrorist acts which were sufficient to bring him within the category of persons that were inadmissible into Canada.

Considering the well established principles governing judicial review of administrative action, in the context of the limitations explicit and implicit in the statute in question and judicial opinions already delivered by the Canadian courts in interpreting their Immigration Act the Judge could not be faulted for the brevity of his judgment, or the economy of his reasoning or the somewhat perfunctory consideration of the contentions advanced except in reasonableness of a statutory desertion, it is well settled that the scope or judicial review is very narrow. The threshold of challenge to such an administrative decision when made by a Minister of the Crown in the interests of national security is indeed high and the prospect of a successful attack, on the decision are correspondingly dim. On the other hand for the Tigers “red in tooth and claw” the prospect of being branded a terrorist organisation by a country reputed to be a strong advocate of human rights with no hope of appeal or review would no doubt have been most unwelcome. In the light of this the languishment of Suresh in gaol in the interim was a small price to pay if a miraculous quashing of the certificate could be worked. Considering the perilous situation in which the LTTE were it may safely assumed that Counsel for Suresh was mandated to set up any defence however slim the chances of success may have been.

This is perhaps the probable reason for embarking on this somewhat brash venture of seeking to obtain a pronouncement from the Canadian Federal Court that an ethnic group in another country, namely the Tamils of Sri Lanka, were an oppressed people entitled to the right of self-determination, that was being denied to them by a racist regime namely the Government of Sri Lanka, which it was argued in consequence gave the LTTE the right to launch armed attacks on the State and its People without being open to the charge of terrorism in International Law. How anyone expected to satisfy the Federal Court that it had jurisdictional competence to make such a determination and especially in proceedings to which the Government of Sri Lanka was not a party is passing strange. In the event, this is exactly what the Court found - that it had no jurisdiction. But why did the court permit this pantomime for eighteen months without stopping the proceedings when the basis on which the order was being impunged became clear? And why did Cousel for the Crown (Mr. Valliancourt) who made some half-hearted attempts to counter the attempt to undermine the charge of terrorism through the alleged claim of self-determination, not ask for a ruling from the Court on the question of the relevancy of the issue and seek to have it struck out as a defence. An adverse order on such an objection being taken may have been canvassed by way of an interlocutory appeal.

The danger in raising no objection to this issue at an early stage of the proceedings lay in the possibility that the judge may have in the final order erred on the question of jurisdiction and competence and gone on to find that armed attacks even on civilians were a legitimate exercise of the right of self determination and did not constitute terrorism and thus hold the certificate to be unreasonable. Such a determination once made under section. 40.4(d) could not have been the subject of appeal or review by any court by reason of section 40(6). If such an invalid order had been made in error, it would nevertheless have caused irremediable damage to the Government of Sri Lanka given the LTTE a tremendous boost and caused great confusion in the international arena as to the precise status of the ethnic conflict in Sri Lanka. No amount of legal argument that the Court did not have jurisdiction to make such a finding particularly without notice to the Government of Sri Lnaka would have been of much avail, given the potentialities of the LTTE propaganda machine and the susceptibility to deception of the vast majority of people. Looking back one begins to wounder whether the LTTE was taking a calculated gamble as they had nothing to lose and the possibility of a windfall had the judge fallen into irreversible error. In the event this disaster was narrowly averted as far as the Government of Sri Lanka was concerned.

I say narrowly averted for the following reasons. The Judge categorically states:

“.....the sole issue for me is to determine whether or not on the basis of the information and evidence placed before me it was reasonable for the Crown as being the Solicitor- General and the Minister of Employment and Immigration, to have issued the certificate ... On August 29, 1997, in my judgement I also stated I intended to issue detailed reasons to cover most, if not all of the issues that were presented to me by Suresh’s counsel.”

The judge does not say precisely what that other issues were and logically there cannot be any other relevant issue if as he says the sole issue was the question of the reasonableness of the certificate. Presumably he had in mind certain subsidiary issues which appear under various sub-head as “membership” of the LTTE and whether the LTTE was guilty of terrorism, all of which were subsumed under the head of reasonableness. The issue whether the Tamils of Sri Lanka were entitled to self-determination is not listed by him among the subsidiary issues he was obliged to consider to decide on the question of reasonableness of the certificate. The question whether the Tamil community was subject to such as degree of discrimination or oppression by a racist, alien or colonial regime would only arise if the issue of the right of self-determination was being considered as a relevant issue by the Judge. Now on that question the judge categorically states:

“I have now reviewed the evidence and the submissions made by the parties and I can state that most of the issues raised by counsel for the respondent (Suresh) need not be dealt with. I say this because most of the evidence was irrelevant to the issue before me.”

Obviously this would include the evidence on issue of self-determination and the collateral question of discrimination and later on he is quite explicit on the point.

......I will now state that need for the Tamils to establish their own homeland is an irrelevant issue ( i.e. the self-determination issue brackets supplied) as it relates to the one issue before me, the reasonableness of the certificate issued pursuant to section 40.1 of the Act. The issue of a homeland as I stated on August 29,1997 is a political issue not to be determined by a Federal Court of Canada judge sitting in Canada and conducting a hearing pursuant to section 40.1 of the Act and this, with respect notwithstanding the opinion of a law professor who believes that I have the jurisdiction to express such an opinion and which opinion would carry “weight’ in the international forum.

He concludes by pointing out the impossibility of considering this issue in the present proceedings when he says:

“I ask myself how I could express such a view without hearing from the Sri Lanka Government even if I had the jurisdiction to do so which I do not”.

Now what is most astonishing is how he slided into a finding on discrimination in the face of the three reasons he gives for not dealing with the issue of self-determination viz: (a) not relevant to the sole issue before him (b) no jurisdiction for a Canadian Court to rule on a political question affecting a sovereign State and (c) impossibility of deciding it without the Sri Lanka Government being a party to the proceedings, and the gay abandon with which he then proceeds to say the following:

“I refer to the reams of evidence made as to the treatment of Tamils in Sri Lanka. As I have stated in my judgement of August 29, 1997 the evidence clearly shows that the Tamil population is discriminated against by the policies of the Sri Lankan authorities. The evidence also disclosed that Tamils arrested by the Sri Lankan authorities are badly mistreated and in a number of cases, I would consider the mistreatment as to border on torture. I base this statement on evidence before me by a witness who described his treatment at the hands of the Sri Lankan authorities”.

Apart from anything else was it prudent to base a finding of this nature on the testimony of a single witness who, presumably being an asylum-seeker had perforce to validate his claim by alleging mistreatment and persecution by the Government of Sri Lanka?

The allegations of discrimination and mistreatment at the hands of the Sri Lankan authorities can only be relevant in these proceeding if they are an answer to the allegation of terrorism made against the L.T.T.E and such allegations are subsumed under the aborted plea that the alleged acts of terrorism were not unlawful because they were committed in the exercise of the right of self-determination. Having ruled that issue out of court for comprehensive reasons, the judge does not explain how he came to make a pronouncement ex parte on discrimination and mistreatment amounting to torture coming under the same rubric, which he must surely have known were highly prejudicial and damaging to the interests of a friendly country which was likewise prohibited territory for a Canadian judge for the very same reasons. Was he seeking to accede to the request of the unnamed law professor that the Judge’s opinion on this matter would carry “weight” in the international forum? Was he seeking by these remarks in some way, to assuage the feelings of disappointment among the hundreds of the community that, throughout the proceeding, thronged the precincts of the Court? Was he intimidated by this show of solidarity for Suresh?

While it is idle to speculate on the reasons for such injudicious if not unjudicial conduct it is nevertheless a matter for regret that such obiter dicta should taint a judgement that does not, in any event, do very much more than add to the corpus of judicial opinion in Canada on this topic by confirming earlier expressions of opinion rejecting contentions similar to those suggested by Counsel for Suresh.

It is quite clear that the categorization of aliens who are not permanent residents of Canada as “inadmissible” was aimed at protecting its national security. That was the true scope and policy behind the legislation and it has a special relevance to the question of interpreting “unreasonableness” in the context of this provision of the statute. Counsel for the Crown contended for a broad interpretation of “membership” while Counsel for Suresh argued that it had to be more narrowly construed so as to be consistent with Charter Rights of freedom of expression and association. The judge declined to adopt a narrow construction and held on the evidence that since Suresh devoted time for the organization, associated with other members of the LTTE and collected funds for it, the Minister could reasonably have come to the conclusion that he was a member of the LTTE The nexus to be established for membership was not limited to compliance with the LTTE procedures for being admitted to the organisation and membership was not only manifested by the cyanide capsule as essential neck wear. It remains a question whether regular contributions would not suffice to establish membership which interpretation would result in a severe curtailment in fund-raising in Canada now estimated at over 700,000 dollars a month. There is no indication that the threshold for establishing unreasonableness has been lowered on this score and a stringent application of the statute would make even the individual contributor vulnerable to deportation.

Justice Teitelbaum did not seek to depart from existing Canadian precedents on the issue of terrorism and in the absence of a statutory definition did not venture a definition of it in response to Counsel’s strenuous argument that it was not definable, except in the context of the statute, the terms of which gave no indication of the criteria to be adopted. She argued that the Judge needed to define it if the LTTE were to be found guilty. The judge thought there was no need to define the word “terrorism” in order to find proof of its existence. He made the terse remark. “When one sees a terrorist act one is able to define it”. What he probably meant was that from an account of what had taken place, sometimes evidenced by visual material, one is able to recognize or identify a terrorist act. This conforms to the view held in common parlance as to what is implied by terrorism.

What all this means is that, when it comes to the business of dealing with the real life horrors of terrorism, those who romanticize so-called “freedom fighters” need to take off their rose-tinted spectacles. There is no danger of subjectism in this approach since reasonableness is determined by reference to an objective standard now well-settled in law. The chronology of over 140 incidents tabled before the Court together with the circumstances surrounding their occurrence in which the LTTE were implicated, where the death toll has exceeded three thousand afforded ample ground for holding that the LTTE was engaged in terrorism. The attempt made by the LTTE through witness to disclaim responsibility for all acts not admitted by them in their Diary of Combat, was not countenanced by the Judge as their denials lacked credibility. Another approach referred to as the “contextualised approach” that was propounded by Professor Richard Falk according to which the assessment of acts in themselves cannot be divorced from the context in which they arise, apparently did not find favour with the Judge. It was contended that the infractions of the laws of war by the LTTE had to be seen in the context of the Tamils generally being victims of political violence and these acts of violence were part of the politics of resistance. This was an insidious form of the self-determination issue which the Judge had rejected on jurisdictional grounds. In rejecting this approach the Court was adopting a stance that was fuly consistent with the UN Declaration of 1994 which was “the unequivocal condemnation by the international community of all acts, methods and practices of terrorism as criminal and unjustifiable wherever and by whomsoever committed which inter alia, threaten the territiorial intergrity and security of States” Likewise, it is an acceptance of the principle accepted in the Declaration that, “Criminal acts intended or calculated to create a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, plilosoplical, ideological, racial, ethnic, religous or any other nature”. This implied affirmation of the UN Declaration is undoubtedly positive feature of the judgement.

In view of this rejection, it is outside the scope of this paper to examine and evaluate the opinions of the numerous academics who were called to present a case for the first time, as far as I am aware, for a judicial determination in a domestic forum of the right of self-determination as distinct from a purely political judgement. Interestingly it is being advanced once again before the United States Court of Appeals for the District of Columbia Circuit in the challenge to the recent US Government decision to ban the LTTE as a terrorist organization. It is however unlikely that the issue of self-determination and the legitimacy of an armed struggle can ever be adjudicated in those proceedings since the proceedings do not envisage the Government of Sri Lanka as a party respondent. If the issues of self determination and its denial do in fact arise as substantial questions in adjudicating on terrorism in the US litigation, and is not merely a tactical ploy and part of a strategy to argue the non-justiciability of the issue, with a view to then complaining of lack of effective judicial review, this may prove to be the Achilles Heel in the legislation which may invalidate the power to ban terrorist organizations, unless the issue is held to be foreclosed under the statute. There is every indication that the case is likely to turn out to be another long haul. But as far as the Canadian ban is concerned the phenomenal effort made in the case of Suresh, though a commendable feat of advocacy of a hopeless cause, was both fruitless and counterproductive in reaching the objective sought to be achieved.

Go to the Jungle Telegraph

Return to the Editorial/Opinion contents page