Features
International Law Implications of Canadian Parliament’s Motion on ‘Tamil Genocide’
By Dharshan Weerasekera
On 18 May 2022, the Canadian House of Commons adopted without opposition a motion introduced by Rep. Gary Anandasangaree recognising 18 May of each year as “Tamil Genocide Remembrance Day” (www.parliament.ca). This follows a Bill adopted by the Ontario legislature in May 2021 calling for the week following May 18th of each year to be celebrated as “Tamil Genocide education week.” However, the Ontario legislature is a provincial body and its actions do not carry the same weight as a national legislature.
The fact that purported ‘Tamil genocide’ in Sri Lanka has been recognised by the Canadian national legislature carries international implications. Most critics of the motion dismiss it as an attempt by the Canadian lawmakers to pander to a vocal minority. However, recognition by the national legislature of a foreign county that genocide is taking place in Sri Lanka has very serious consequences to this country. Unfortunately, there has been little or no discussion on this issue in local newspapers or academic journals and it is in the public interest to begin one.
In this article, I shall briefly discuss, i) the lack of evidence for Tamil genocide, ii) the gravity of what the Canadian legislature has done , iii) the illegality of the act, iv) address two objections and draw the relevant conclusions
The lack of evidence for Tamil genocide
I have discussed at some length the lack of evidence for Tamil genocide in Sri Lanka in an article titled, “Ontario’s Bill 104: Tamil Genocide Education or Mis-education Week?” (The Island, 9 December 2021) and refer the reader to that for more details. However, here I shall focus on a report titled, “Canada’s Inadequate Response to Terrorism: The Need for Policy Reform” (2006) by Martin Collacott, a former Canadian High Commissioner to Sri Lanka and also eminent academic. I wish to draw certain inferences from some of Collacot’s observations.
He says: “According to the records of the consular section of the Sri Lankan High Commission in Ottawa, more than 8,600 Sri Lankans with refugee claims pending in Canada applied for travel documents to visit Sri Lanka in a single year.” (Martin Collacot, “Canada’s Inadequate Response to Terrorism: The Need for Policy Reform,” Fraser Institute Digital Publication, February 2006, p. 34)
He continues: “In comparison with Canada, other countries have accepted relatively few refugee claims from Sri Lankan Tamils as they do not consider them to have been persecuted. In 2003, Canada accepted 1,749 Sri Lankan claimants (UNHCR, 2003, table 8) while the rest of the world combined gave refugee status to only 1,160. Canada’s acceptance rate was 76.3 percent, while the average for other countries was 15.8 percent.” (p. 34)
It would be absurd to suppose that people would visit Sri Lanka if they or their relatives are being subjected to genocide here, or at any rate, it casts doubt as to whether such a thing is happening. Meanwhile, the drastic difference in the number of refugee applications of Sri Lankans being accepted in Canada as opposed to other countries, if true, indicates that there is a difference of opinion on the issue of persecution. It should prompt a reasonable person to review and reassess his or her views as to whether Tamil genocide is taking place here.
The point is that information such as that provided by Collacot is readily available in the public domain and it is reasonable to suppose that Canadian lawmakers are familiar with at least some of it. However, there is no evidence that such information has registered with Canadian legislators because there was not a single voice raised in opposition to the impugned motion. In these circumstances, the inference is irresistible that the Canadian House of Commons has adopted the motion with scant regard to the truth or falsity of the allegation of Tamil genocide.
The gravity of the act
The impugned motion is not just a local or domestic concern of Canadians but is pregnant with consequences for Sri Lankans, because of the following reasons. Genocide is the intentional destruction or attempt at destruction of an entire people. Among other things, it is one of the conditions that would permit an ethnic group within a particular country to invoke the right to external self-determination (i.e. secession) under international law.
For instance, in the seminal Canadian case Reference re Secession of Quebec [1998] 2 SCR 217, widely cited in other countries, the Supreme Court of Canada identifies three conditions that would warrant an ethnic/religious/linguistic group within a country to invoke the right to external self-determination: colonialism, alien subjugation or domination and denial of meaningful access to government to pursue one’s political social and cultural development. (Reference, para 138)
Genocide could be brought under the second or third categories. The Canadian House of Commons represents the entire people of Canada, not different interest groups. So, such a body has now placed on record that conditions exist in Sri Lanka for the Tamils to arguably invoke a right to self-determination under international law. It sets a precedent for other countries to also adopt motions or even resolutions unilaterally alleging Tamil genocide in Sri Lanka with scant regard for the truth.
If a significant number of other countries endorse an invocation of the right to self-determination by an ethnic minority in Sri Lanka, this country will eventually have to capitulate to the demand for a separate State. Sri Lanka is a relatively poor country heavily dependent on foreign aid. It cannot afford to alienate the international community, especially its main donors. Therefore, the impugned motion potentially sets the stage for interested parties to advance their ambitions of creating a separate State within Sri Lanka, with the collusion or connivance of other countries.
The illegality of the act
The UN Charter is the basis of international law. Article 2(4) enshrines one of the principles of the UN It states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.”
The above provision has two parts: a) refraining from the threat or use of force against other States and b) acting in any other manner inconsistent with the purposes of the U.N. I wish to focus on the second limb. Articles 1(1) – (1 (4) of the Charter set out the purposes of the U.N. Article 1(2) states: “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take appropriate measures to strengthen universal peace.”
The standard interpretation of the above is that the UN cannot intervene unduly in the internal affairs of nations. More importantly, on the concept of ‘self-determination,’ to the best of my knowledge the international Court of Justice (ICJ) has never yet extended the said concept to cover a right to secession. The court has only held that the concept applies in colonial contexts, non-self-governing territories and that it cannot be used in order to undermine existing state boundaries (See Western Sahara, Advisory Opinion, 1975; Namibia, Advisory Opinion, 1976; and Frontier Dispute case, 1986, ICJ Reports 554, respectively.)
There is a profound difficulty in interpreting the ‘right to self-determination’ to include a right to secession, namely, it could lead to a veritable explosion of demands for statehood by various ethnic minorities. The U.N. is well aware of this problem. A panel of U.N. legal experts point out, “If every ethnic, religious or linguistic group claimed statehood, there would be no limit to fragmentation, and peace and security and well-being for all would become even more difficult to achieve.” (“An agenda for Peace,’ UN doc. A/47/277)
In sum, the UN is not permitted to promote the secessionist ambitions of ethnic minorities. The impugned motion does just that, or at any rate sets a precedent that has the potential to lead to an international endorsement of a right to self-determination of a particular ethnic minority in Sri Lanka. It is inconsistent with the letter as well as spirit of Article 1(2) and hence illegal under international law.
Objections
A critic might object that i) the national legislature is not the government of a country and it is only the government that would come under the purview of international law and ii) the impugned act can be justified under the Responsibility to Protect (R2P) doctrine.
In regard to the first, to the best of my knowledge the Canadian government has not dissociated itself from the act of the legislature or issued a single statement critical of the said act. The well-known legal maxim states, “He who is silent appears to consent (Qui tacit consentire videtur)”. Accordingly, one must presume that the Government is either complicit in the act or tacitly approves of it.
In regard to R2P, the doctrine contends that members of the international community have an obligation to intervene in the internal affairs of nations regardless of the U.N. Charter’s customary prohibitions against such action, if there are horrendous abuses taking place in a country and the citizens of such country have no other means of protecting themselves.
However, a prerequisite for the application of R2P is that the abuses in question must first be reported to the Security Council. No such thing as happened in the instant case. In fact, the Canadian legislature has failed to submit their allegations to any international forum whatsoever and give Sri Lanka a chance to respond. It should be noted that, Natural Justice, which includes the injunction, “Hear the other side!” is an overriding principle (jus cogens) of international law. In these circumstances, R2P cannot justify the impugned motion.
Conclusion
The national legislature of a country should not get a free pass to flout international law at will. If the national legislatures of other countries also start adopting motions alleging ‘Tamil genocide’ with scant regard to the facts, it would pose a danger not just to Sri Lanka but to all countries facing the threat of separatism. It is in the interest of Sri Lankans as well as all friends of international law to vigorously challenge this act and prevent it from setting a precedent.
(The writer is an Attorney-at-Law)
Features
‘There are no private universities in Sri Lanka’ – some considerations for higher education reform
Academics involved in education policy like to say that there is no such thing as a private university in Sri Lanka. The only ‘universities’ in the country are state universities; anything else offering degrees is a private higher education institution (HEI). This position is technically accurate. Yet, in the discourse and imagination of the public, private universities are very real – people teach in them, students register in them, families pay fees, and such degree holders enter job markets in Sri Lanka and outside.
For decades, activists concerned for public higher education have ignored or resisted looking at private HEIs, as if such scrutiny would taint them. Others have worked in both types of institutions, carrying practices from each to the other. The apex body governing state universities, the UGC, has, meanwhile, ignored the concept of conflict of interest and appointed individuals in private higher education in committees and leadership positions. It is unsurprising then that some of the ideologies informing private higher education appear in reform agendas in the state sector.
This is a good time then to consider the varying types of private HEIs around us, and to take a look at some of the issues within them in the hope that higher education reform agendas will include private, as well as state higher education.
What is a ‘private university’?
First, some clarifications. In the public imaginary, a ‘private university’ is typically an institution that provides a foreign or local degree for which the student makes a payment. But this broad classification encompasses a host of diverse institutions and types of degrees which I detail below.
The Non-State Higher Education Division (NSHE) of the Ministry of Education has recognised 295 degrees by 32 institutions. Most of these are private companies and include a handful of established, well-known private HEIs that are ‘university like’. The degrees are local degrees conferred by the institutions accredited by the NSHE Division. While private HEIs conferring local degrees must be accredited by the NSHE Division, there appears to be no legal consequence for not doing so. In addition, there are several permutations of the private degree that miss the net of this Division and the Standing Committee on Accreditation and Quality Assurance (SCAQA) that assists this Division.
For one, degrees conferred by foreign universities offered, via these same private HEIs, are not vetted by the NSHE Division. Secondly, there is a growing plethora of private HEIs which have either no physical presence locally or only a dubious presence. The University Grants Commission has notified the public, through their website, that foreign universities listed in the Commonwealth Universities Yearbook and the World Higher Education Database are recognised, but refrained from giving any other details – which degrees? Offered by what modes? These details are not known. Some of the foreign universities in the lists may be legitimate entities in their own land but the degrees conferred locally, in their name, may not adhere to curriculum or teaching specifications of the NSHE Division or the UGC.
Another troubling phenomenon is the ‘top up degree’, which appears to work on the same principle as that of a pre-paid mobile connection: if I have a Diploma or an HND of a sort, I am eligible to complete a course of study which provides me with a degree, usually from a foreign university. The idea that someone who does not initially qualify for a degree programme should be able to work their way towards one is a progressive notion. This is the concept that open and distance learning (ODL) was based on initially, but which is now sadly exploited. ODL models are expected to provide opportunity for learning for those who may be excluded from traditional learning institutions. In Sri Lanka, however, we have seen ODL become a marketplace offering easy to obtain, for-fee qualifications by institutions with little commitment to superior teaching and learning.
Finally, a perusal of the many types of private HEIs and their varied degrees bring to mind another question – how should the private degrees, provided by state institutions (that are not educational institutions), be regulated? Who should do so?
All of these create a host of problems for the public – for hopeful students and parents and trusting employers. For the higher education sector, recruitment of academic staff, too, has become difficult due to this plethora of ambiguous higher education qualifications, as I discussed in a previous Kuppi article (‘Recruiting academics to state universities’).
Some issues in private HEIs – a bellwether for change in state universities
In this second part of this article, I will discuss some aspects of work in private HEIs – albeit the more established institutions – given that such issues may appear in reform agendas in future.
Across state universities, all permanent staff of a specific category are paid according to the same criteria. The picture is not so clear when it comes to private HEIs since they are different entities legally, typically companies. Private HEIs have salary scales and financial incentives that are different to each other. The more established private HEIs reportedly have attractive renumeration packages, possibly a reason for academics of state universities migrating eagerly to such institutions during sabbatical years and on retirement. This may not of course be the case with other less established, or improperly registered HEIs of which we know little. Academic staff of these more accepted private HEIs seem to value the high financial remuneration they receive (in comparison to state universities) as something that makes their work rewarding.
Attractive remuneration is important to sustain the good life and is at times seen as the institution’s way of encouraging good work. Yet, this has implications for the future of the institution: to continue to deliver on promised financial packages, institutions must continue to have large profit margins. One strategy has been to enroll multiple cohorts of students per year, even up to three or four intakes per year. This can result in exploitative work conditions, since staff must cater to all these cohorts in that same year. If there is inadequate staff, employees are further burdened. On the other hand, if there is a sudden drop in enrolments (degrees can go out of fashion) unexpected layoffs occur. Similar to other sectors that employ short-term contract staff – including state universities – in private HEIs, too, individual teachers, who are on short term contracts that need regular renewal, can feel pressured to work under difficult or exploitative conditions.
At the same time, even in the more established private HEIs, work norms differ from those of state universities in that they include promotional work that keeps the institution’s name in the eye of the public. The Marketing (or similarly named) unit comes up in conversations as one of the most important departments. It appears to weigh in on decision-making related to the number of staff, the amount of re-sits per exams, and other pedagogically important matters. This is a worrying example of how financial rationales interfere with pedagogically or academically sound processes, resulting in problematic results in the classroom. On the plus side, junior colleagues, who had experience in both state and private HEIs, also felt that they faced less harassment in private HEIs – primarily due to the private HEIs ability to take swift action in reported cases of harassment. This is a real indictment on state institutions and their reluctance to address chronic issues of harassment in our universities.
Yet, while we hear much about problems in state universities, we hardly hear of problems that staff in private HEIs face. One rationale for a lack of public expressions by staff is that expressions of discontent might lead to trouble given the importance of reputation for private HEIs. The worry about reputational damage is a growing concern in state universities, too, as evidenced by social media policies and internal conversations on reputational damage, consequent to negative publicity. Institutional worries of reputational damage are harmful in the long run since these impact not only freedom of expression by student and staff, but also research that is possible in and about the education sector.
Some thoughts at the end…
A close look at the private higher education sector is important given its strong presence in the country. Impending reform needs to regulate this diverse array of higher education offerings in the private sector, as well as the state institutions that offer privately-funded options of higher education (a topic for a separate Kuppi on its own). It is time we carefully considered how to build a whole system of higher education out of this broken mess.
Kaushalya Perera is a senior lecturer at the University of Colombo.
Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.
Features
Ready for solo spotlight
Singer Nish Peiris is set to take the next big step in her music journey.
The talented vocalist, who has been seen and heard in the scene here for a short while, and was also featured with the now-defunct band, Inner Vision, has announced that she will be fully committing to her solo career, after completing her degree this year.
“I’m finishing my degree this year, and after that I’ll be fully committing to my solo music career,” Nish told The Island.
“I’ve already got a few tours lined up for next year, so I’m really excited for what’s ahead.”
Fans, no doubt, will remember Nish for her smooth voice and stage presence, and the good news is that she is now ready to chart her own path and bring new music to audiences at home and abroad.
With tours already planned for 2027, the year 2026 promises to be an exciting year for the young artiste as she steps into the spotlight on her own.
We wish Nish every success in this new chapter!
Features
Exclusive musical evening for Sri Lankans in Toronto
While Sri Lankan music lovers, in Dubai, are eagerly looking forward to being a part of the action on Saturday, 25th July, with Rajiv Sebastian in the limelight, Sri Lankans, in Toronto, Canada, are equally excited and are anxiously awaiting the arrival of Sri Lanka’s famous singer/entertainer Sohan Weerasinghe.
Having done the needful with The X-Periments, the legendary performer has now embarked on an exciting new chapter – a solo career – and Toronto, Canada, will see him do the needful, on Friday, 31st July, 2026, from 8.00 pm to 12.00 am, at the Angus Glen Golf Club.
Reports indicate that it’s a ‘sold out’ event – naturally with Sohan in the spotlight.
Having built his reputation through years of unforgettable performances, and hits that became part of our musical fabric, Sohan is ready to bring his own vision, sound, and stories directly to the audience, in Toronto, Canada, backed by the phenomenal Toronto Ceymphony Live Band.
Says Gamini Hemalal, who has been instrumental in reviving the Sri Lankan entertainment scene, in that part of the world:
“The countdown begins for the most exclusive musical event of the summer! Join us for a premium night of incredible music, elite hospitality, and a lavish buffet as the legendary Sohan Weerasinghe takes the stage live in Toronto!
“This is a high-end event, designed for those who appreciate exceptional entertainment and great food.”
Gamini, who is also a member of the Toronto Ceymphony Live Band, mentioned that it’s going to be an intimate musical evening with the celebrated Sohan Weerasinghe.
From packed auditoriums to intimate shows, Sohan continues to prove why he remains one of Sri Lanka’s most beloved entertainers.
For decades, Sohan Weerasinghe has been a household name in Sri Lankan entertainment.
Known for his captivating smooth voice and charismatic stage presence, Canada will experience it all on Friday, 31st July.
Next on the list of events, Gamini Hemal is working on, is Halloween night and he says “what we plan to do will be very interesting and unique … with a surprise guest star, as well!”
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