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New Zealand Supreme Court decision on Tamils, the best example for other countries to follow

[Press Release, Monday, 6 September 2010 08:41 No Comment]

By Satheesan Kumaaran

A decision was made by the New Zealand’s Supreme Court on August 27th that the Tamil Tigers, popularly known as the LTTE, were always a political organization that campaigned to obtain the goals of self-determination for Tamils of Sri Lanka, who were suppressed by the majority Sinhalese, and to secure an independent Tamil State in the traditional homeland of the Tamils in Sri Lanka.  The Court decision is a landmark precedent for other countries that had branded the LTTE as a terrorist group. The New Zealand Supreme Court decision will help other countries to review their ban on the LTTE and the right of the Tamils to secure for independent Tamil State. After 9/11/ 2001, it was child’s play for States facing resistance from militants for freedom and liberation by oppressive States to be declared “international terrorists”. In the case of Sri Lanka, it was even easier, for it was a Tamil “mercenary “showing credibility, a foreign minister, who went around the world declaring the LTTE as a terrorist organization, while all the time he aspired to be prime minister and had become a Buddhist for this purpose to be fully qualified for the position.

The New Zealand Supreme Court decision came after a Tamil respondent, whose name is being kept confidential (born in 1956 in Velvettiturai of northern Sri Lanka), responded to the Attorney-General who was the appellant challenging the Appeal Court decision, which stated that the respondent had the right to seek refugee status in New Zealand, but the Crown was contending that the respondent was a member of the LTTE and he carried weapons and ammunitions for the LTTE to fight against the Sri Lankan armed forces.

Earlier, two other cases were rejected and they were deported.  However, the Tamil respondentchallenged in the Appeal Court and later the Supreme Court, and in fact, this case is now seen as a test case where the New Zealand Supreme Court sees the LTTE as a political organization and that they had the right to fight for right of self-determination. In essence, the LTTE had the right to defend themselves from the majority as that majority launched genocidal war against Tamil minority on the island.

The respondent an innocent Tamil

The respondent gave details as to how he left Sri Lanka in 1981 to go to sea. He was initially based in the Middle East, working in engine rooms first as an oiler and then as a third assistant engineer in the Persian Gulf. He spent brief periods in Sri Lanka in 1986 for personal reasons and returned in 1989 for his marriage where he remained for six months. At the end of 1989, he took up a position as fourth engineer on a container ship sailing between Singapore, Malaysia and Indonesia. He returned to Velvettiturai in April 1990 to be with his wife for the birth of their first child and remained in Sri Lanka for two years.

The respondent said that in June 1992, he was contacted by an employment agent about an opportunity to work as Chief Engineer on a vessel owned by a Thai company. He was not told its name. He travelled to Trang where he met the ship’s agent, and then to Phuket where, on 5 July 1992, he boarded the Yahata, a cargo vessel with a total crew of nine. For the next six months the vessel worked routes in South Asia travelling to ports in Thailand and Singapore.

The respondent told the Authority that he did not know the nature of the cargo during these voyages. He said he had little interaction with other crew members and knew nothing about them other than that most came from Velvettiturai, which is a fishing port, and at that time, a centre of commercial and maritime contacts for the LTTE. He also said he did not know that, as is established to have been the case, most of the vessel’s crew were members of or sympathetic to the LTTE.

On 4 January 1993, the Yahata departed Phuket with the respondent on board. He said he had no knowledge of the cargo, which he had observed, comprised of packets and barrels when it was loaded from a trawler. During loading, 10 extra people joined the ship. Soon afterwards, the respondent said, he was advised that the Yahata was an LTTE ship. He wanted to leave but was told he could not do so until the vessel reached Sri Lanka. He learned that the 10 persons who had boarded were from the LTTE, one of whom was Krishnakumar Sathasivam, alias Kittu, who had been the LTTE’s second-in-command until being injured during hostilities in Sri Lanka. The respondent acknowledged that at the time he knew who Kittu was.

India’s drama exposed

During the Yahata’s voyage to Sri Lanka, when the vessel was some 440 nautical miles off Chennai, the Master told the respondent that the vessel had reached its destination. The engines were stopped. The vessel drifted for about 10 hours without displaying its national flag and while displaying “not under command” lights. An Indian coastguard vessel approached and sought to board the Yahata for verification purposes. The Master warned the coastguard that the Yahata was carrying 110 tonnes of explosives and dire consequences would follow if any attempt were made to board her. The Yahata then tried to flee and was chased for two and a half hours, when the Master agreed to proceed to Chennai. Near that port, the Yahata was surrounded by vessels of the Indian navy and dropped its anchors.

The respondent said that Kittu informed the crew members that the Indian navy had agreed that they would be repatriated to Sri Lanka. On January 16, 1993, the LTTE members who were on board bombed the vessel, killing ten of them including Kittu. Nine crew jumped into the sea. The Indian navy captured and placed them in custody.

The case was heard for 37 days, and dragged on for three years. Thirty-four witnesses for the prosecution, mostly navy personnel, were interrogated. On the court’s directive, the navy salvaged the remains of the ship and claimed to have retrieved rocket-propelling guns and other arms, but the navy did not submit the gunnery records or communication tapes of the ship to the court, even during in camera sessions. Fearing that the case against the accused was not proceeding in favour of the prosecution, the Additional Solicitor General of India, T. S. Tulsi, was specially requisitioned to marshal additional points in defense of the prosecution in the case. The Indian government, having itself instituted proceedings under the TADA, invoked the jurisdiction of the court, then contended that the court had no jurisdiction to inquire into what happened on the high seas.

Tulsi submitted that, though the vessel was registered under the name MV Yahata, it was changed in the high seas, because the vessel was engaged in clandestine activities. He contended that the moment the vessel changed its name, it had lost its nationality. Also, the crew did not hoist the flag of its nationality and did not have necessary papers. When the Indian navy wanted to know its call-sign, the crew gave a wrong call-signal and it was clear that the vessel was stateless, he said. Such a vessel had no rights under the international law, he contended.

Quoting international law on piracy, Tulsi said the master of the vessel was not in control of the vessel, but it was Kittu and he was communicating with the other vessels in the vicinity. A pirate ship could be seized and the Indian navy had the right to seize this vessel, and contended that, if hostile boarding was resisted, we had the right to capture the vessel. But the Indian navy personnel did not board the vessel, because of humanitarian considerations and they feared that the men on board might consume cyanide capsules. But later, we had no alternative but to resort to hostile boarding as a logical conclusion, he submitted.

The TADA court judge, P. Lakshman Reddy, rejected the submissions of the Prosecution as well as the charge of carrying explosives against the crew, and held that the Navy and the investigating agencies, including the Central Bureau of Investigation and the Special Investigating Team, had failed to prove their charges against the crew of the MV Ahat (Yahata).

The Judge said there was no case under the TADA Act against the accused, as they were brought forcibly into the Indian waters and also, there was no evidence of any offence. He agreed with the defence argument that the Coast Guard ship was not justified in intercepting MV Ahat, when it was in international waters and when the accused had revealed that the ship was registered in Singapore and was flying the Honduran flag. Dissatisfied with the judgment of the Trial Court, the Prosecution appealed to the Indian Supreme Court. But the Supreme Court upheld the Trial Court’s finding and ordered the release of the accused.

The judge directed the Commissioner of Police of Visakhapatnam to hand all the nine crew, including its captain, Jayachandran. Other crew members– Satkunalingham, V. Krishnamoorthy, K Nayakam, S. Sivarasa, S. Indralingham, S. Balakrishnan and T. Mohan– were handed over to the appropriate government, and the crew managed to reach their South-east Asian destination.

New Zealand Supreme Court decision a historic one

After the respondent was released from custody and permitted to leave India for Singapore in August 2001, he obtained a New Zealand visitor’s visa and arrived in New Zealand on 13 September 2001, where he was issued with a visitor’s permit. His wife and children also secured visitors’ visas and arrived in New Zealand on 24 December 2001. On that day, the respondent filed his refugee status application. His wife also made an application on 18 January 2002.

The respondent application was rejected and the case went on for years.  The hearing in front of the Supreme Court came in front of Elias C. J., Blanchard, Tipping, McGrath and J. J. Anderson on June 24, 2010, and the verdict was given on August 27 in favour of the respondent.  The court delivered the judgment while dismissing the government’s appeal seeking rejection of the refugee status of the respondent.

The court said in its judgment: “At all relevant times the Tamil Tigers was an organisation having the goals of self-determination for Tamils and securing an independent Tamil state in northeast Sri Lanka. The principal objective was to induce the government of Sri Lanka to concede such political change. These characteristics made the Tamil Tigers a political organisation notwithstanding its use, at times, of proscribed methods of advancing its cause. That much is not in dispute.”

It further said: “The appeal is dismissed. The respondent’s application for recognition of refugee status is remitted to the Refugee Status Appeals Authority for consideration in accordance with the Court of Appeal’s order. Costs are reserved and counsel may submit memoranda if necessary.”

The Crown argued in the Supreme Court that the respondent’s involvement in the voyage made him complicit in the atrocities committed by the Tamil Tigers, so that he had committed crimes against humanity as an accomplice. As well, his involvement in the sinking of the vessel was a serious non-political crime. The Crown’s submission was that each aspect of his conduct disqualified him from being recognised as a refugee under the Refugee Convention and New Zealand law.

The Supreme Court has decided that it was not shown that the respondent’s supportive activities were actually linked to any atrocities committed by the LTTE. This was because the armaments which he helped transport did not reach the LTTE as they went down with the ship. Accordingly, it was not established that any crime against humanity had been committed to which the respondent was an accomplice. Furthermore, any crime committed in relation to the sinking of the vessel was of a political nature which did not disqualify the respondent from holding refugee status under the Convention.

The Supreme Court referred the respondent’s application for refugee status back to the Appeals Authority for consideration of whether he meets the general requirements of the Convention and New Zealand law to be recognised as a refugee.

The decision by the Court is really fascinating, and is a precedent for other countries to follow suit because many countries are unjustly concluding that all militants are together with citizens and bystanders or coworkers. There are some movements by minorities which are fighting to safeguard their peoples from genocide and crimes against humanity by oppressive regimes, so these movements should be considered freedom fighters.  These fighters do not get any benefits, but they sacrifice their lives for the liberation of their nation, and these fighters should not be branded as terrorists. All sections that fight for self determination for their people and against oppression for liberation should not be regarded terrorists.

The New Zealand Supreme Court decision is a historic one, and it should be taken as a precedent in all countries practising Common Law. If the New Zealand Tamils, numbering less than 10,000 people, can educate the New Zealand judges about the sufferings of Tamils in Sri Lanka, then why not the hundreds of thousands living in other western countries such as in England, Canada, Australia and the U.S and others. The decision in New Zealand should be taken as a test case in all other countries which practice Common Law in order to seek justice for the Tamils in Sri Lanka.

(The author can be reached at e-mail: satheesan_kumaaran@yahoo.com)

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