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28 December 2008
The European Union & the Listing of LTTE
as a Terrorist Organisation - Some Reflections
The question of initiating legal proceedings to challenge the listing of the LTTE as a terrorist organisation by the United Kingdom and the European Union has been raised with me from time to time by concerned Tamils during the past several months. As 2008 draws to a close, I felt that it may be helpful to place on record some of my responses.
At the outset there may be a need to recognise that the listing of the LTTE as a terrorist organisation by the European Union was a political decision. The designation had little to do with the means adopted by the LTTE and everything to do with its end goal of an independent Tamil Eelam. Given the uneasy balance of power in the Indian Ocean region and the emerging influence of China and Iran, it is this end goal of an independent Tamil Eelam which the US, UK and the European Union find inimical to their strategic interests.
The LTTE was not listed by the EU until May 2006 - until that is, the EU felt that its 'good cop' role vis a vis the US 'bad cop' role in the Norwegian sponsored peace process, was not yielding the returns that both the EU and the US had worked for and desired. The screw was then turned. And the Co-Chairs Press Release came within 24 hours of the EU listing. Here, the diplomatic routine followed by the EU, the UK and the US was not dissimilar: first threaten to ban, then ban but not implement, then implement the ban in a calibrated fashion, and finally suggest that the ban may be removed if only the LTTE will 'play ball'.
Given that the listing was a political decision, any decision by the LTTE to challenge the listing will also be a political decision. It is a political decision that the LTTE will have to be make on the basis of its own understanding of all the elements of the prevailing political situation. I myself do not have an understanding of all those elements that the LTTE may regard as relevant and I cannot and do not express an opinion on that matter - nor for that matter do I seek to second guess what the LTTE may or may not want to do.
I will confine myself to some legal issues that may be relevant to any recourse to the Courts to challenge the European Union listing.
I like to believe that the law is not a jackass. Perhaps this is a self serving view influenced by my own legal training! Said that, I also believe that something which Dr Colin J Harvey said about international law has a general applicability to all law (to a lesser or a greater extent) -
If we recognise that we are engaging 'in another discursive political practice', the opportunities are great to constructively engage in the legal process. Good law is sound commonsense. If something offends commonsense, it cannot be good law. And courts will be reluctant to uphold it. Courts will be reluctant, because to offend commonsense would be to erode the confidence that a people have in the judicial system - a confidence that is essential to ensure the continuing stability of the existing order. And for the courts, that usually makes political sense as well.
The legal position in relation to the listing by the EU may be straightforwardly stated. It is not overly complex. The listing is a decision taken by the executive in the exercise of powers conferred by the law. The listing is an executive decision within a legal frame. A legal challenge to the listing decision may therefore take three forms
The first course - i.e. a challenge only to the executive decision - is the way of appealing to the executive to review its decision and/or going to the courts to seek a judicial review of the decision without challenging the validity of the legal frame itself. Indeed in the case of an appeal to a body like a review tribunal created by the same legal frame (which empowered the executive to act), the appellant implicitly accepts the validity of the legal frame - and, therefore, cannot challenge it in the same proceedings.
The second course - i.e. a challenge to the legal frame - is to contend that the provisions of the law under which the executive purported to act is invalid and that therefore the executive did not have the power to make the decision that it did.
The third course is self explanatory - it is a combination of the first two.
In my view the first course has little or no chance of success on legal grounds. Said that it is true that the executive itself may be wanting to review the decision on political grounds and may make it known that it is seeking a politically acceptable (and calibrated) way of doing so. Such an approach may stem from a recognition by the UK, the European Union and the US that ambiguity is not without its constructive uses - more so because of the need to wean not so much President Rajapakse (and US green card holders Sarath Fonseka and Gothabaya Rajapakse) but President Rajapakse's left leaning political constituency from a permanent dependence on China/Iran.
Be that as it may, the reason that I am of the opinion that the first course of action has little or no chance of success on legal grounds are several.
For one thing, on the ground of national security, the material on which the listing was made will not be made available to the appellant for cross examination - because to do so would be to put at risk the national security apparatus of the state, which must function in secrecy. The result is that much of the material on which the executive made its decision cannot be tested for its veracity.
Additionally, Courts have always been reluctant to substitute their own assessments and opinions to that of the executive on matters of national security. Courts take the view that where 'national security' is threatened, executive discretion relating to the very life of the nation is involved and this is not a matter where the judiciary should supplant the expressed view of the executive. It is said that the law has empowered the executive (and not the judiciary) to assess matters relating to national security. In the telling phrase of Lord Atkin in his dissenting judgment in Liversidge v Anderson in the Judicial Committee of the House of Lords in 1942, the courts become "more executive-minded than the executive".
In my view the second course - i.e. a challenge to the legal frame - has a better chance of success. The legal frame can be challenged on several grounds including the ground that the vagueness and the breadth of the definition of terrorism in the legal frame offends the rule of law and fundamental freedoms - and in effect, clothes the executive with arbitrary powers, akin to the powers of the old English chancery courts where equity was measured by the length of the Lord Chancellor's foot. The essence of the rule of law is that the executive cannot act arbitrarily.
I myself take the view that legal frames which conflate the two words 'violence' and 'terrorism' offend common sense. A simple question that may have to be asked is whether there are any circumstances under which a people may lawfully resort to violence to secure freedom from alien rule - and if so what are those circumstances.
Admittedly here too Courts may be reluctant to annul the provisions of a law which are intended to advance national security. At the same time Courts may be compelled to address the growing concerns of liberal opinion in Europe and elsewhere that 'liberty may come to die by the efforts made on her behalf' - and Courts may therefore seek to interpret the provisions of the law in such a way that they are at least, not seen to offend fundamental freedoms, international law and standards.
The third course is to combine both the first and the second course. This approach has the advantage of securing a broad based public diplomacy platform. Said that, I am of the opinion that it is important to secure that the emphasis on the second course i.e. the attack on the legal frame, is not diluted in any way - and at any stage.
So much for substantive law. As for procedure, I agree with the view expressed by Professors Bill Bowring (Director of Human Rights and Social Justice Research Institute, London Metropolitan University) and Douwe Korff (London Metropolitan University) in Terrorist Designation with Regard to European and International Law:The Case of the People's Mojahedin Organization of Iran (PMOI)-
I too would urge caution over pursuing cases through the Court of First Instance and the European Court of Justice as I agree with the view that these courts are ill-equipped to deal with the matters in question and are likely to adopt a minimalist approach to any judicial review they may carry out of the Common Positions and Regulations concerned - which would set a bad precedent for any Strasbourg adjudication on the matter. See also generally Terrorism: European Union Law & Practise and Terrorism: United Kingdom Law & Practise.
Finally, it is perhaps appropriate that I include here an exchange of emails that I had with a visitor to tamilnation.org, some 10 years ago. This was at the time that a court challenge was launched on the US designation of the LTTE as a 'terrorist' organisation.