“TAMIL PEOPLE OF SRI LANKA SUFFER FROM DISCRIMINATION, AND, BASED ON SOME OF THE EVIDENCE MAY HAVE SUFFERRED PERSECUTION” SAYS JUDGE IN SURESH CASE

( V. Thangavelu, President, FACT )

(Not unexpectedly the Sri Lankan government and the Sinhalese owned press are  indulging in disinformation about the judgement given in Suresh case. Propaganda is made that the Canadian Federal Court has held that the LTTE is an organization engaged in terrorism per se. At the behest of Foreign Minister Lakshman Kadirgamar, Sri Lanka’s Permanent Representative to the United Nations has written a comment in The Sunday Island to justify such perception. All what the Court was asked and what it did pronounce is that there are reasonable grounds to believe, not true as a matter of fact, for the Ministers to conclude Suresh ( who  is a Convention refugee) is a person inadmissible into Canada.   The article below sifts facts from fiction.)

On August 29, 1997 Mr. Justice Teitelbaum of the Federal Court, Trial Division rendered judgement against Manickavasagam Suresh, a Tamil activist and Co-ordinator of the World Tamil Movement. He has been detained without review at the Don Jail in Toronto since October 18, 1995 following a security Certificate issued against Mr.Suresh by the Solicitor General of Canada and the Minister of Citizenship & Immigration.  The Judge said, “ I am here to determine whether there exists sufficient evidence for me to conclude as to the reasonableness of the Certificate signed by the Ministers. It is not to determine the Ministers were correct in their assessment of the evidence. From the evidence presented to me both in camera and in public, it was reasonable for the Ministers to conclude that Mr.Suresh is a person inadmissible into Canada.” In other words the Court confirmed that there were reasonable grounds for the Ministers to believe that Suresh is a member of the Liberation Tigers of Tamil Eelam (LTTE).  It is a belief based on reasonable grounds by the Ministers, but not necessarily true as a matter fact.
 
In upholding the certificate, the Court made it clear that it was not deciding if the allegations against Suresh and the LTTE are true as a matter of fact. This is because the judge only has to determine if the Ministers acted reasonably, a standard which is lower than the criminal standard of 'proof beyond a reasonable doubt' and the civil standard of 'balance of probabilities'. The process and the law under which Suresh has been prosecuted have been criticized as undemocratic and draconian by international and national human rights organizations, including Amnesty International, the American Association of Jurists, the Canadian Civil Liberties Association, and the Canadian Council for Refugees.

The American Association of Jurists has severely criticised the Ministers for using sections of the Immigration Act to detain Mr.Suresh. It accused the Ministers that “ On the pretence of national security, the Canadian Government has resorted to the draconian provisions of the Immigration Act to deny Mr.Suresh the right to know who his accusers are and his right to challenge the veracity of the evidence.” Ironically, the Minister of Immigration, Sergio Marchi, who signed the certificate against Suresh, was one of the strongest opponents of the law, as the then Liberal Immigration critic, when it was brought before Parliament for passage in 1988. He forcefully argued that he and his Liberal party are opposed “ to detaining or ordering people out of the country based upon suspicions. It has to be much more valid than that.” He proceeded and rightly asked “ Is Nelson Mandela a terrorist because he has tried to obtain freedom for himself and his people in South Africa? Currently Nelson Mandela is in prison and has been convicted what South Africa thinks is a crime and what we would reward with a medal, namely, seeking of one’s democracy and freedom.”

The section 40.1 certificate alleges Mr.Suresh (who was accepted as a Convention refugee in 1991) to be described in sections of the Immigration Act: S.19 (1)(e)(iv) (C); 19(1) (f) (ii) and 19(1)(f) (iii) (B).

Section 19(1) of the Act includes as grounds of inadmissibility, and by virtue of section 27(2)(a), as grounds of removability, the following:

 S.19 (1) No person shall be granted admission who is a member of any of the following classes:
 (e) persons who there are reasonable grounds to believe

     (iv) are members of an organization that there are reasonable grounds to believe will
      (C) engage in terrorism;
     (f) persons who there are reasonable grounds to believe
     (ii) have engaged in terrorism, or
      (iii) are or were members of an organization that there are reasonable grounds to believe
   is or was engaged in
  (B) terrorism,

These provisions of the Immigration Act are applicable only in respect of refugees and refugee claimants and not permanent residents or citizens. The basis of the certificate is that the Canadian Security Intelligence Service (CSIS) believes that there are reasonable grounds to believe that Mr.Suresh is a member of the LTTE. It is interesting to note that while the Minister of Immigration alleges that LTTE is an organization engaged in terrorism, Canadian Foreign Ministry offers to mediate between the Sri Lankan government and the LTTE to end the civil war provided both the parties to the conflict make a joint request. Further Canadian representatives served as members of the Monitoring Committees appointed to monitor the aborted “Cessation of hostilities” agreement between the Sri Lankan government and the LTTE in 1995. Canadian diplomatic staff too meets routinely with officials of the LTTE outside Canada. Officials of FACT of which the WTM is a constituent member also meet Foreign Ministry officials on a regular basis.

During the course of the hearings, the Minister’s counsel submitted that the prosecution is not saying that the LTTE is in fact an organization engaged in terrorism. All what the prosecution is saying is that the Ministers have reasonable grounds to believe that the LTTE is an organization engaged in terrorism. It was also the contention of the prosecution that Mr.Suresh was or is a member of the LTTE as a matter of fact, only the Ministers have reasonable grounds to believe he was or is a member of an organization engaged in terrorism. The prosecution has conceded a number of points. It conceded that there are no allegations of criminal misconduct or criminal activity against Mr.Suresh. There are no allegations that he engaged in “terrorism” in Sri Lanka.

The case against Suresh did not constitute a criminal or civil trial. It was what could be termed a “judicial review” directed, to quote Mr. Justice Teitelbaum “ solely and exclusively to determine the reasonableness of the Ministerial Certificate identifying Mr.Suresh as a member of an inadmissible class of persons. I can do no better than to quote Mr.Justice Denault in the case of Baroud where he states:

 ‘ The role of the Court is not to substitute its decision for that of the Minister and the Solicitor General, nor is it to find that they were correct in their assessment of the evidence presented in them, but, rather, to find whether or not, based on the information and evidence presented to this Court, the Minister's Certificate is a reasonable one…’

The Court will issue full reasons at a later date. To the extent that the Court provided an explanation for its decision, it indicated, in the best tradition of the Federal Court of Canada, that it could not define 'terrorism' and did not see the need to give meaning to this term, because people 'know what it is when they see it'.

Mr. Justice Teitelbaum had some harsh words against the Sri Lankan government’s discriminatory treatment of the Tamil people. He said “ I can only say and do say that, based on the evidence made before me, the Tamil people of Sri Lanka suffer from discrimination, and, based on some of the evidence made before me, may have suffered, in certain specific cases, from what may be considered persecution.  He observed “ I would add that it is not the function of the Court to solve political issues that exist between groups of people in another country. It is not my function as a judge of the Federal Court of Canada… to determine, based on the evidence before me, whether the Tamil people in Sri Lanka should or should not be granted their own homeland or even to express an opinion on that subject. That is a political question to be determined by the people in Sri Lanka, together with the help of the United Nations and other nations of goodwill.”

 It is clear Justice Teitelbaum statement, judging by what Ambassador H.L. De Silva wrote in his comment, badly stung the Sri Lankan government. He wrote “ In this setting it is regrettable that the Judge, in the face of the enormous uncertainties that enfeebled the component, 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 …….”  True to form while lauding the Judge over the judgement against Suresh, the Ambassador is unable to stomach the same Judge’s strictures  “ that the Tamil people of Sri Lanka suffer from discrimination, and, based on some of the evidence made before me, may have suffered, in certain specific cases, from what may be considered persecution.”

The Court refused to entertain any challenge to the constitutional validity of the legislation it applied, so that its decision has been made without consideration as to whether the provisions of the Immigration Act infringe Suresh's right to fair process and to freedom of expression and association guaranteed under the Charter of Rights and Freedoms.

It should be emphasised that the relevant sections of the Immigration Act apply only to refugees and not to permanent residents or citizens. Only citizens and certain permanent residents have a right to enter or remain in Canada. No other person has such rights. In  similar sections 19(1)(g) and 40.1 case ( Al Yamani Vs Solicitor General) relating to a permanent resident, the Federal Court presided by Mr. Justice W. MacKay ruled that “ Paragraph 19(1)(g) of the (Immigration Act) ....  contravenes freedom of association assured to everyone by paragraph 2(d) of the Charter of Rights and Freedoms in a manner that is not demonstrably justified in a free and democratic society, and to that extent paragraph 19(1)(g) is of no force and effect.” Section 2 of the Charter of Rights and Freedoms guarantees everyone the following freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. 

The sections of the Immigration Act used by the government to detain Suresh permit the Ministers and the Court to determine that a person is removable from Canada on the basis of association with an organization which is engaged in violence, regardless of whether the person concerned has him/herself engaged in violence or would be likely to and regardless of the nature of the conflict in which the organization is involved.

The Association of American Jurists has adopted Suresh as a political prisoner and a prisoner of conscience. Amnesty International has expressed its concern over his detention and has indicated that if his detention continues, it would declare him a political prisoner.
 
Following the confirmation of the reasonableness of the Certificate, the Adjudicator (Immigration Department) has served Mr.Suresh with a removal order. The Immigration department has informed the Minister of Immigration that Mr.Suresh can be deported to Sri Lanka. He will face removal directly to Sri Lanka after his lawyer has responded to the order within a period of fifteen days. Thereafter, the Minister may sign the deportation order, but as soon as the order is signed an application will be made to the Federal Court for a stay order on the grounds that Mr.Suresh will face serious risk to his life and freedom if removed to Sri Lanka. It is very likely the Federal Court will grant the stay order in view of the horrendous human rights record of the Sri Lankan government which ranks during the last 10 years second only to Iraq.  After a lapse of 120 days if Mr.Suresh has not been removed to Sri Lanka or to another third country, then he may apply for release from detention. The Court will review his detention and release Mr.Suresh if his release would not be injurious to the national security of Canada.

Obviously the freedom of association available to Al Yamani, is also available to Suresh since the Charter speaks about “everyone” not citizens or permanent residents alone. As mentioned the Federation of Association of Canadian Tamils (FACT) will mount a constitutional challenge to Sections 19 (1) (f) (iii) of the Immigration Act which is ultra vires of section 2(d) of the Charter and to that extent is of no force and effect. Canada is a free country and human rights organizations rightly believe that sections 19(1) and 40.1 are draconian and fascist in nature. Such laws should not be allowed to form part of the statute in a free and democratic society like we find in Canada.

Finally the judgement in Suresh case will in no way impede the legitimate and lawful political activities in support of the Tamil peoples’ national liberation struggle for the right to self determination under the leadership of the LTTE.    

DETENTION AND DEPORTATION OF SURESH – WHAT DOES  THE  IMMIGRATION   LAW  SAY?

The section 40.1 certificate alleges Mr.Suresh (who was accepted as a Convention refugee in 1991) to be described in sections of the Immigration Act: S.19 (1)(e)(iv) (C); 19(1) (f) (ii) and 19(1)(f) (iii) (B).

Section 19(1) of the Act includes as grounds of inadmissibility, and by virtue of section 27(2)(a), as grounds of removability, the following:

 S.19 (1) No person shall be granted admission who is a member of any of the following classes:
  (e) persons who there are reasonable grounds to believe
 
 (iv) are members of an organization that there are reasonable grounds to believe will

  (C) engage in terrorism;

 (f) persons who there are reasonable grounds to believe
 (ii) have engaged in terrorism, or
 
  (iii) are or were members of an organization that there are reasonable grounds to believe
   is or was engaged in
 
  (B) terrorism,

These provisions of the Immigration Act are applicable only in respect of refugees and refugee claimants and not permanent residents or citizens. The basis of the certificate is that the Canadian Security Intelligence Service (CSIS) believes that there are reasonable grounds to believe that Mr.Suresh is a member of the LTTE.  

Section 40.1 - Where a person in Canada is not a Canadian citizen or permanent resident, and the Minister of Immigration and the Solicitor General of Canada are of the opinion that this person is a person as described in one of the security clauses, including Sections 19(1)(e) or (f) of the Act, they may sign a certificate to that effect and file it with an immigration officer or an adjudicator.  Once a certificate is signed any inquiry pending or in process, is stayed pending a determination by a designated judge that the certificate is reasonable. The certificate is referred forthwith to the Federal Court and a process is established under section 40.1 of the Act to determine if the certificate should be quashed. If quashed the person is set free. If confirmed process is set in motion to deport the person. There is no provision for appeal to a higher Court to review the judge’s determination. Under Section 53(1) of the Act a person found to be inadmissible to Canada for security reasons may be deported to a country where his/her life or freedom would be threatened if the Minister is of the opinion that the person constitutes a danger to the security of Canada. If within 120 days the person concerned is not deported or found a third country to take him, the detainee can apply to Court to review his detention. The Court can order the release of the person subject to terms and conditions as the Court deems appropriate where the Court is satisfied that: (a) the person will not be removed from Canada within a reasonable time; and (b) the person’s release would not be injurious to the national security of Canada or to the safety of persons.