canada &
the Struggle for Tamil Eelam On the Suresh Appeal
before Supreme Court of Canada V.Thangavelu, President, WTCWA, Canada
21 May 2001 "The issues coming up for argument before the Supreme Court are fundamental to the protection of human rights under the Canadian Charter of Rights and Freedoms and UN Conventions Against Torture. The issues are:
(i) Whether the principles of a free and democratic society allow
sending a Convention refugee to a country which may torture him;
(ii) Whether the procedural protection in place for a determination under Section 53 of the Immigration Act bars constitutional scrutiny;
(iii) Whether a person can be deported solely on the basis of a lawful political
activity in support of a national liberation movement is protected expression; and
(iv) Whether the right to freedom of association in this context can be claimed by a non-citizen." |
Manickavasagam Suresh appeal against the judgement of the Federal Court of Appeal is coming before the Supreme Court of Canada for hearing on May 22, 2001. The appeal is against the judgement of the Federal Court of Appeal which upheld orders for Suresh deportation to Sri Lanka. The appeal is based on the ground that he would be tortured and his life is at risk if deported to Sri Lanka.
In upholding orders for his deportation, the Federal Court of Appeal said last January that those who raise money for terrorism are as culpable as those who actually plant a bomb. It said that Suresh should be returned to Sri Lanka irrespective of the consequences.
Suresh was arrested on October 18, 1995 on a security certificate signed by the Minister of Immigration and the Solicitor General of Canada under Section 40.1 of the Immigration Act. He was then incarcerated in Toronto (Don) Jail for 27 months not by a Court of law, but by an administrative fiat by the above two Ministers concerned.
The Canadian Security Intelligence Service (CSIS) claimed Suresh had been sent to Canada to oversee the crucial Canadian arm of the Tamil Tigers' global fundraising network. It withheld his security clearance preventing him gaining landed immigrant status. He has not been accused of committing any crimes in Canada, Sri Lanka or elsewhere.
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.
After 52 days of hearing in 1997, the Federal Court Judge merely endorsed the decision of the Ministers by stating " The role of the Court is not to substitute its decision for that of the Minister and the Solicitor General of Canada, nor is it to find that they were correct in their assessment of the evidence presented to them…….. 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."
The Federal Court Judge agreed Suresh was "a dedicated and trusted member in a leadership position with the Tigers."
This judgement confirmed defence contention that the relevant sections of the Immigration Act denied due process of law and the secret hearings and the low standard of proof required resembled the Star Chamber of ancient England!
A deportation order was issued in 1997, but Suresh remained in the country as legal appeals were launched. The Supreme Court ruled that Manickavasagam Suresh, a recognized convention refugee from Sri Lanka, could proceed with his appeal against the Federal Court of Appeal judgement before it.
This ruling meant lawyers representing Citizenship and Immigration Minister , which wants Suresh sent back to his native Sri Lanka, will have to fend off arguments from no less than eight interests groups, including Amnesty International, Bar Association of Canada, Canadian Council for Refugees, Federation of Association of Canadian Tamils (FACT) and the Canadian Arab Federation.
The issues coming up for argument before the Supreme Court are fundamental to the protection of human rights under the Canadian Charter of Rights and Freedoms and UN Conventions Against Torture. The issues are:
(i) Whether the principles of a free and democratic society allow
sending a Convention refugee to a country which may torture him;
(ii) Whether the procedural protection in place for a determination under Section 53 of the Immigration Act bars constitutional scrutiny;
(iii) Whether a person can be deported solely on the basis of a lawful political
activity in support of a national liberation movement is protected expression; and
(iv)Whether the right to freedom of association in this context can be claimed by a non-citizen.
The lawyers' association plans to argue that Manickavasagam Suresh, alleged to be a member of the Liberation Tigers of Tamil Eelam, cannot be deported because the country is bound by international conventions against torture.
David Matas, the Winnipeg immigration lawyer representing the bar association, said the government must protect people from torture regardless of whether they are terrorists, war criminals or even torturers themselves. "Our position is the obligation not to return is absolute and there is no exception." The position is similar to that being taken by other interveners in the case, all of which oppose Suresh deportation.
This will be the first time that the Supreme Court of Canada has been asked to consider these issues and rule on them. Whether Suresh will walk a free-man or get deported to Sri Lanka now depends on Supreme Court's ruling.
Sri Lanka enjoys a dubious reputation for committing horrendous human rights violations including torture, execution style killings, rape, involuntary disappearances, mass graves, detention without trial or charges for long periods under the draconian Prevention of Terrorism Act and Emergency Regulations. Killing of Tamil prisoners under judicial custody by fellow Sinhalese prisoners and prison staff is common in Sri Lanka.
On October 2, 2000 twenty-five (25 ) Tamil political detainees under judicial custody, mostly youths in their teens, were savagely murdered inside the Sri Lankan Rehabilitation Centre cum prison at Bindunuwewa/Bandarawela by the Sri Lankan police and army. Some of the inmates were chopped to pieces and burnt alive and scores of other detainees were critically injured.
Ironically, Foreign Minister Lakshman Kadirgamar chaired the Committee in charge of the detention centre which was flaunted as a model centre to rehabilitate suspected LTTE members taken prisoners.
The Bindunuwewa massacre was reminiscent of the murder of 53 Tamil political detainees at Welikada jail during the 1983 racial holocaust.
The UN Working Group on Enforced or Voluntary Disappearances mentioned in its Report (1995) that Sri Lanka ranked second highest in the world next only to Iraq as regard to the total number of "recorded disappearances." Likewise Sri Lanka ranked second highest in the world, after Sudan, for its number of "disappearances" during the same year. Human Rights activists say the situation today is much worse compared to 1995.
In November, 2000, the UN Committee Against Torture, which completed an examination of Canada's compliance with the treaty, issued its final conclusions and recommendations. The 10-member committee expressed concern that Canadian authorities believe a person considered a serious criminal or security risk in Canada can be returned to another country, even when there are solid reasons to believe that individual would face torture. It said that such action does not conform with one of the provisions of the treaty.
The committee recommended Canada comply fully with Article 3 (1), which prohibits the return of a person to a state where he or she would be subject to torture, whether or not the individual is a serious criminal or security risk.
There is "a serious point of difference with the committee," said Marcus Jewett, senior assistant deputy minister of the Canadian justice department.
The Canadian branch of Amnesty International has also accused Ottawa of flouting its obligations under the convention.
Sri Lanka media owned by the Sinhalese had carried news stories and opinions about Suresh that have heightened his fear that the climate there is too hostile for his safe return. In fact when the Federal Court judge upheld the reasonableness of the security certificate and Suresh faced imminent deportation to Sri Lanka, Foreign Minister Kadirgamar brazenly bragged that he is awaiting for the "big fish' arrival.
Suresh is represented by Ms. Barbara Jackman, Barrister and Solicitor. Ms. Jamie Cameron, Professor of Law at York University is representing FACT. |
