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Tamil Eelam - a De
Facto State
Tamil Eelam Legal System
E.Pararajasingham, Head of Tamil Eelam Judicial Division
TamilNet 30 October 2003
“The purpose of the LTTE’s legal system is to create a crime free
environment where adjudication of civil and commercial disputes is
fair and expeditious. This is the essential foundation on which one
can rebuild Tamil society to achieve economic development and
prosperity," said Mr. E. Pararajasingham (Para), head of the
Judicial Division of the Liberation Tigers, in an in depth interview
with TamilNet this week about the LTTE’s legal system. “The very
instruments designed to subvert the Rule of Law in the northeast
were eventually turned on the Sinhala people too," he points out.
“The manner in which the PTA was used to humiliate and oppress the
Tamil people is a good example of the total failure and
insensitiveness of the Sri Lankan judiciary in upholding the
principle of the Rule of Law," Mr. Pararajasingham said.
TamilNet interviewed the head of the LTTE’s Judicial Division at the
Tamil Eelam Courts Complex in Kilinochchi.
TamilNet: Why did you create a separate judicial system? Was there
any particular political reason or was it due to the exigency of
circumstances?
Para: Let me first explain the political background. It is now
generally accepted that the Sri Lankan constitution does not reflect
the sovereign will or the aspirations of the Tamil people. It is the
indubitable expression of Sinhala Buddhist supremacy in this island,
drawn up by the Singhalese for the Singhalese. The Tamils were not
in any manner, even for mere cosmetic purpose, associated in
drafting or promulgating this constitution.
In fact the year before its promulgation the Tamil people living in
the Tamil homeland gave a clear mandate at the general election of
1977 for establishing the separate sovereign state of Thamil Eelam
as the only viable way for realising their rights and freedoms.
In any democracy sovereignty is vested in the people and is
inalienable. The Tamils exercised their sovereignty to give a
mandate for a separate state. It was never exercised in any manner
to endorse the Sri Lankan constitution. In fact Tamils were
deliberately excluded from its drafting and promulgation in 1978.
This is why it remains an utterly inflexible unitary Sinhala
Buddhist constitution. Eminent Tamil jurists and political
scientists have elaborated on all this.
Therefore it is an illegitimate constitution designed to perpetuate
Sinhala Buddhist hegemony and oppress the Tamils. It naturally
follows that it would be preposterous for the Tamil people,
particularly those living in the liberated parts of the Tamil
homeland, to seek legal remedies from the judiciary established
under the Sinhala hegemonic constitution. These, in brief, are the
political and legal imperatives that underlay the creation of the
Thamil Eelam judicial system.
Incidentally, the argument that the chapter on fundamental rights in
the Sri Lankan constitution provides the framework for Tamils to
realise their rights and aspirations is insidious and specious. This
view is now being widely touted to the international community by
some so called Sinhala liberals and unscrupulous Sinhala Marxists as
a panacea to the Tamil people’s problems. I must also draw attention
once more to the fact that the Sri Lankan constitution’s chapter on
fundamental rights does not speak about the right to life.
It is comical how after the Sri Lankan state totally subverted the
Rule of Law in the northeast – brutally wiping entire communities in
several parts of the Tamil Homeland in the process- these so called
Sinhala liberals and Marxists are trying to convince the world that
the chapter on fundamental rights in the Sri Lankan constitution
guarantees the Tamils all the rights and freedoms due to every
citizen in a fully fledged democracy. This chapter in the final
analysis is an utter travesty because the Sri Lankan constitution as
a whole is designed precisely to prevent the Tamils from realising
their rights and legitimate aspirations. This basic truth has been
borne out well since 1972 when the first Sinhala Buddhist
constitution was promulgated.
TamilNet: How do you envisage the role of the Tamil Eelam judicial
system and laws in the present context of the LTTE’s efforts to
rebuild the northeast? - Particularly in view of possible
negotiations on a establishing an interim administration for the
northeast.
Para: Rebuilding society in the northeast is often understood in
terms of construction, laying of roads, repairing of water
reservoirs, etc. But it is often overlooked that all this would be
viable in the long term only if the moral fabric of our society,
tattered by long years of war, destruction and displacement, is knit
tightly together again. A crime free environment where adjudication
of civil and commercial disputes is fair and expeditious is the
essential foundation on which one can rebuild a society to achieve
economic development and prosperity. This also is necessary to build
a strong sense of confidence in the minds of the people who have
seen all normal structures of their society fall apart under the
relentless onslaught of Sri Lankan state terrorism on Thamil Eelam.
There is also another important reason behind our leader’s decision
to establish a law and order system in Thamil Eelam.
States often control oppressed peoples by subverting the Rule of Law
among them. By definition, denying a people their rights means the
subversion or destruction of the Rule of Law, which is the
expression of a people’s Sovereign Will. To conquer a people one has
to break their collective will to remain sovereign. Therefore the
public and covert strategies of imperial and oppressor states to
crush peoples’ legitimate struggles for their rights and to plunder
resources in third world countries have the ultimate effect of
subverting the Rule of Law. Look at mineral rich countries in Africa
like Congo; look at oil rich Middle East countries. This is why we
wanted to lay a strong foundation for ensuring the Rule of Law in
Thamil Eelam as an expression of the Tamil speaking people’s
Sovereign Will.
The draconian Prevention of Terrorism Act (PTA) was introduced in
1979 with the specific aim of subverting the Rule of Law in the
Northeast. Tamils as a whole were exposed to the racist whims of the
Sri Lankan armed forces to which the PTA gave a legal blank cheque
for indiscriminate arrest, torture and detention. The PTA, in
conjunction with the Emergency Regulations (ER) precipitated a total
break down of the Rule of Law in the northeast. Also, in enunciating
fundamental rights, the Sri Lankan constitution does not speak of
the right to life. The scant regard the Sri Lankan state and armed
forces had for Tamil lives has been well recorded.
The manner in which the PTA was used to humiliate and oppress the
Tamil people is a good example of the total failure and
insensitiveness of the Sri Lankan judiciary in upholding the
principle of the Rule of Law.
Therefore our people had neither political nor practical reasons for
reposing any faith in the Sri Lankan judicial system. Incidentally,
one should note here that these very instruments designed to subvert
the Rule of Law in the northeast were eventually turned on the
Sinhala people too. So much so that the Asian Human Rights
Commission (AHRC) quite rightly stated recently: “the serious
degeneration of Sri Lanka's judiciary is now a matter of public
record, both within the country and internationally."
Therefore we as a liberation movement had to come up with an
expeditious solution to prevent the collapse of the social order in
the northeast while creating structures that would reflect the
Sovereign Will of our people. So in the beginning we established
mediation boards (Inakka Saphai) at the village level. These
functioned from 1984 to 1992. But the mediation board system was a
failure mainly because there was no legal code as basis for
adjudication and because many of those who sat on the mediation
boards weren’t educated and trained in law. It created a lot of
problems for the Liberation Movement and led to frictions with
society.
TamilNet: If that was the case, why did you let the mediation board
system go on for so long – almost eight years?
Para: In the beginning we were a guerrilla organisation, engaging in
hit and run tactics against the Sri Lankan armed forces. We had no
stable control over large territories or populations. Therefore we
neither had the resources nor the environment to set up and run a
proper judicial system. But in 1993, as soon as we were in control
of most of the north, our leader established the Tamil Eelam
Judiciary and College of Law.
TamilNet: What is the structure of your judicial system now?
Para: There are six district courts – in Kilinochchi (Jaffna and
Kilinochchi Districts), Mallavi (for the Vavuniya District),
Jeyapuram (Mannar District), Puthukkudiyiruppu (Mullaithivu
District), Trincomalee and Batticaloa.
Each court has a Family Counselling Unit.
There are two high courts – one in Kilinochchi and the other is
Mullaithivu.
The Thamil Eelam courts have heard 24000 cases and delivered
judgements on 20000 so far – that is since they were first
established ten years ago.
There is an appeal court in Kilinochchi and we have created a
‘Special Bench’ to hear cases rejected by the Appeal Court.
We have also established a Review Committee on Appeal for Pardon to
which those who have been sentenced to death can have recourse.
TamilNet: Is this Special Bench the equivalent of a supreme court?
Para: We wouldn’t yet call it that. But it functions as a kind of
apex body of the Thamil Eelam judicial system.
TamilNet: Critics in the south say that your judiciary is not really
independent - that it is a travesty of justice. What do you say?
Para: This is part of the subtle smear campaign to discredit our
system – to delegitmise it. It is for the Tamil people to decide how
fair and expeditious our judiciary is. And there are already very
clear signs that given a choice people prefer to bring their
disputes to our courts. We are in the process of evolving – learning
from experience and knowledge of other judicial systems in the
world.
I must also add here that the contours of the space within which our
legal system has to function is quite limited by political, economic
and military pressures. But as this space expands in the future we
would be in a position to adopt measures that would perfect our
legal system to match international standards.
District Court in Kilinochchi
TamilNet: How about members of the LTTE? Do your laws apply to them?
Para: Certainly. If a member of the LTTE commits any act in
violation of the laws of the land he or she will be dealt with
accordingly under our legal system like anyone else in Thamil Eelam.
Our leader has been very clear on this.
TamilNet: What would you consider the milestones in the ten years of
your judiciary?
Para: The Tamil Eelam Penal Code and the Thamil Eelam civil code,
which were enacted in 1994. The Thamil Eelam Law College was another
milestone. It was established in 1991. We made special laws for
women regarding their property rights, rape, abortion etc. Under our
laws women are totally free and on par with men in property
transactions. As you know, this is not the case under Jaffna’s
traditional law, Thesawalamai. Our civil code has done away with the
stipulation in Thesawalamai that a woman should obtain her husband’s
consent to sell her property. We made caste discrimination a crime.
These could be considered some of the milestones of the Thamil Eelam
judicial system.
TamilNet: On what basis was the Thamil Eelam Penal Code enacted?
Para: Distinguished Tamil jurists, legal experts and leading lawyers
studied the British, Indian and Sri Lankan criminal justice systems
before formulating the Tamil Eelam Penal Code. We have identified
439 types of crimes. Some crimes considered liable for punishment in
the Sri Lankan Penal Cod are treated less harshly in our Code. We
are in the process of reviewing provisions in the penal code that
permit capital punishment in the light of the increasing
international trend against it. However, until such time anyone
sentenced to death can petition the Review Committee seeking pardon.
We are endeavouring to introduce progressive laws relating to women.
We brought an amendment to the penal code in connection with
abortion. Earlier it was permissible on medical or other reasonable
grounds only with the consent of both husband and wife. Under the
said amendment a woman can take the decision on her own to abort her
pregnancy within five months of conceiving on medical or other
reasonable grounds.
Court of Appeals
TamilNet: How was your civil procedure code drafted? There are two
specific set of local laws, Thesawalamai in Jaffna and the Mukkuwa
Law in Batticaloa. Then there are numerous customs governing various
communities of Tamils in the northeast, recognised as valid in
adjudication by British and Sri Lankan legal systems. How does your
civil code deal with all this?
Para: The Tamil people had their own legal systems before the
colonial conquests. Obviously Tamils could not have sustained vast
stable empires and their large sea faring merchant guilds for
several centuries without such systems. These fell apart in the
chaos wrought by colonial rule in its early phases.
However, as our traditional legal systems had crumbled with the
waning of Tamil kindgoms, the Dutch made an effort in the 18th
century at compiling some of our traditional customs into a legal
code for the purposing establishing their rule on a firmer footing.
In 1704 the Dutch governor of Ceylon, Cornelis Joan Simmons,
instructed Claas Isaakz, a Dutch official in Jaffna, to inquire into
the customs of the Tamil inhabitants of Jaffna as then existed and
to compile them. Isaakz completed the work in Dutch three years
later in 1707 and handed it over to the Jaffna commander Van Der
Duyn who directed that it be translated into Tamil. Commander Duyn
subsequently gave copies of this translation to twelve “sensible” –
in his words – Mudaliyars (Tamil chief officials nominated by
colonial rulers) and asked them to study the compilation and revise
it where necessary.
The Mudaliyars agreed with the translation and Isaakz’s compilation
was promulgated by the Dutch governor in 1708 as the law applicable
to the Tamil inhabitants of Jaffna. This is what came to be known as
Thesawlamai.
Similarly, the Dutch compiled the Mukkuwa Law regulating the
succession to intestate property of the Mukkuwa community in
Batticaloa.
Besides these two, there were other traditional customs relating to
property, succession, marriage, temple transactions, etc., among
Tamils in the northeast which have on occasion been treated as
customary law by western colonial governments.
None of these have been compiled and codified although the expertise
and knowledge of local pundits and scholars have been sought by
courts from time to time to throw light on specific civil disputes.
How do we make laws on the basis of these in tune with the
far-reaching changes in our society since colonial times,
particularly since the upheavals of the war began transforming our
society in ways we never imagined possible? This is the serious
question before us now.
Mukkuwa Law in Batticaloa, for example, is not applicable to
everyone in that region. It applies to a particular community which
no longer has well defined social contours.
A good portion of Thesawalamai as it stands is obsolete and
ineffective. What Thesawalamai says about the slavery, adoption and
caste are no longer valid; slavery and caste discrimination which
Theswalamai talks about are abominable to the modern Tamil
sensibility.
Therefore we are in the process of studying and compiling all local
customs governing communities in the northeast and are planning to
discuss them with a panel of experts from all parts of the
northeast.
What comes out these deliberations would contribute to enhancing our
civil procedure code in the near future. It is our leader’s concern
that the Thamil Eelam civil procedure code should be progressive and
meticulously equitable while reflecting the traditional norms of all
sections of our society – that it should provide the basis for
building a forward looking, modern society rooted in its soil.
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