New Zealand Supreme Court Decision on Tamils

The Best Example for Other Countries to Follow

A decision was made by the New Zealand’s Supreme Court on August 27th that the Tamil Tigers, popularly known as the LTTE, were always a political organization that campaigned to obtain the goals of self-determination for Tamils of Sri Lanka, who were suppressed by the majority Sinhalese, and to secure an independent Tamil State in the traditional homeland of the Tamils in Sri Lanka. The Court decision is a landmark precedent for other countries that had branded the LTTE as a terrorist group. The New Zealand Supreme Court decision will help other countries to review their ban on the LTTE and the right of the Tamils to secure for independent Tamil State. After 9/11/ 2001, it was child’s play for States facing resistance from militants for freedom and liberation by oppressive States to be declared “international terrorists”. In the case of Sri Lanka, it was even easier, for it was a Tamil “mercenary “showing credibility, a foreign minister, who went around the world declaring the LTTE as a terrorist organization, while all the time he aspired to be prime minister and had become a Buddhist for this purpose to be fully qualified for the position.

The New Zealand Supreme Court decision came after a Tamil respondent, whose name is being kept confidential (born in 1956 in Velvettiturai of northern Sri Lanka), responded to the Attorney-General who was the appellant challenging the Appeal Court decision, which stated that the respondent had the right to seek refugee status in New Zealand, but the Crown was contending that the respondent was a member of the LTTE and he carried weapons and ammunition for the LTTE to fight against the Sri Lankan armed forces.

Earlier, two other cases were rejected and they were deported. However, the Tamil respondent challenged in the Appeal Court and later the Supreme Court, and in fact, this case is now seen as a test case where the New Zealand Supreme Court sees the LTTE as a political organization and that they had the right to fight for right of self-determination. In essence, the LTTE had the right to defend themselves from the majority as that majority launched genocidal war against Tamil minority on the island.

The respondent is an innocent Tamil

The respondent gave details as to how he left Sri Lanka in 1981 to go to sea. He was initially based in the Middle East, working in engine rooms first as an oiler and then as a third assistant engineer in the Persian Gulf. He spent brief periods in Sri Lanka in 1986 for personal reasons and returned in 1989 for his marriage where he remained for six months. At the end of 1989, he took up a position as fourth engineer on a container ship sailing between Singapore, Malaysia, and Indonesia. He returned to Velvettiturai in April 1990 to be with his wife for the birth of their first child and remained in Sri Lanka for two years.

The respondent said that in June 1992, he was contacted by an employment agent about an opportunity to work as Chief Engineer on a vessel owned by a Thai company. He was not told its name. He travelled to Trang where he met the ship’s agent, and then to Phuket where, on 5 July 1992, he boarded the Yahata, a cargo vessel with a total crew of nine. For the next six months the vessel worked routes in South Asia travelling to ports in Thailand and Singapore.

The respondent told the Authority that he did not know the nature of the cargo during these voyages. He said he had little interaction with other crew members and knew nothing about them other than that most came from Velvettiturai, which is a fishing port, and at that time, a centre of commercial and maritime contacts for the LTTE. He also said he did not know that, as is established to have been the case, most of the vessel’s crew were members of or sympathetic to the LTTE.

On 4 January 1993, the Yahata departed Phuket with the respondent on board. He said he had no knowledge of the cargo, which he had observed, comprised of packets and barrels when it was loaded from a trawler. During loading, 10 extra people joined the ship. Soon afterwards, the respondent said, he was advised that the Yahata was an LTTE ship. He wanted to leave but was told he could not do so until the vessel reached Sri Lanka. He learned that the 10 persons who had boarded were from the LTTE, one of whom was Krishnakumar Sathasivam, alias Kittu, who had been the LTTE’s second-in-command until being injured during hostilities in Sri Lanka. The respondent acknowledged that at the time he knew who Kittu was.

India’s drama exposed

During the Yahata’s voyage to Sri Lanka, when the vessel was some 440 nautical miles off Chennai, the Master told the respondent that the vessel had reached its destination. The engines were stopped. The vessel drifted for about 10 hours without displaying its national flag and while displaying “not under command” lights. An Indian coastguard vessel approached and sought to board the Yahata for verification purposes. The Master warned the coastguard that the Yahata was carrying 110 tonnes of explosives and dire consequences would follow if any attempt were made to board her. The Yahata then tried to flee and was chased for two and a half hours, when the Master agreed to proceed to Chennai. Near that port, the Yahata was surrounded by vessels of the Indian navy and dropped its anchors.

The respondent said that Kittu informed the crew members that the Indian navy had agreed that they would be repatriated to Sri Lanka. On January 16, 1993, the LTTE members who were on board bombed the vessel, killing ten of them including Kittu. Nine crew jumped into the sea. The Indian navy captured and placed them in custody.

The case was heard for 37 days, and dragged on for three years. Thirty-four witnesses for the prosecution, mostly navy personnel, were interrogated. On the court’s directive, the navy salvaged the remains of the ship and claimed to have retrieved rocket-propelling guns and other arms, but the navy did not submit the gunnery records or communication tapes of the ship to the court, even during in camera sessions. Fearing that the case against the accused was not proceeding in favour of the prosecution, the Additional Solicitor General of India, T.S. Tulsi, was specially requisitioned to marshal additional points in defense of the prosecution in the case. The Indian government, having itself instituted proceedings under the TADA, invoked the jurisdiction of the court, then contended that the court had no jurisdiction to inquire into what happened on the high seas.

Tulsi submitted that, though the vessel was registered under the name MV Yahata, it was changed in the high seas, because the vessel was engaged in clandestine activities. He contended that the moment the vessel changed its name, it had lost its nationality. Also, the crew did not hoist the flag of its nationality and did not have necessary papers. When the Indian navy wanted to know its call-sign, the crew gave a wrong call-signal and it was clear that the vessel was stateless, he said. Such a vessel had no rights under the international law, he contended.

Quoting international law on piracy, Tulsi said the master of the vessel was not in control of the vessel, but it was Kittu and he was communicating with the other vessels in the vicinity. A pirate ship could be seized and the Indian navy had the right to seize this vessel, and contended that, if hostile boarding was resisted, they had the right to capture the vessel. But the Indian navy personnel did not board the vessel, because of humanitarian considerations and they feared that the men on board might consume cyanide capsules. But later, they had no alternative but to resort to hostile boarding as a logical conclusion, he submitted.

The TADA court judge, P. Lakshman Reddy, rejected the submissions of the Prosecution as well as the charge of carrying explosives against the crew, and held that the Navy and the investigating agencies, including the Central Bureau of Investigation and the Special Investigating Team, had failed to prove their charges against the crew of the MV Ahat (Yahata).

The Judge said there was no case under the TADA Act against the accused, as they were brought forcibly into the Indian waters and also, there was no evidence of any offence. He agreed with the defence argument that the Coast Guard ship was not justified in intercepting MV Ahat, when it was in international waters and when the accused had revealed that the ship was registered in Singapore and was flying the Honduran flag. Dissatisfied with the judgment of the Trial Court, the Prosecution appealed to the Indian Supreme Court. But the Supreme Court upheld the Trial Court’s finding and ordered the release of the accused.

The judge directed the Commissioner of Police of Visakhapatnam to hand all the nine crew, including its captain, Jayachandran. Other crew members– Satkunalingham, V. Krishnamoorthy, K Nayakam, S. Sivarasa, S. Indralingham, S. Balakrishnan and T. Mohan– were handed over to the appropriate government, and the crew managed to reach their South-east Asian destination.

New Zealand Supreme Court decision a historic one

After the respondent was released from custody and permitted to leave India for Singapore in August 2001, he obtained a New Zealand visitor’s visa and arrived in New Zealand on 13 September 2001, where he was issued with a visitor’s permit. His wife and children also secured visitors’ visas and arrived in New Zealand on 24 December 2001. On that day, the respondent filed his refugee status application. His wife also made an application on 18 January 2002.

The respondent application was rejected and the case went on for years. The hearing in front of the Supreme Court came in front of Elias C.J., Blanchard, Tipping, McGrath and JJ. Anderson on June 24, 2010, and the verdict was given on August 27 in favour of the respondent. The court delivered the judgment while dismissing the government’s appeal seeking rejection of the refugee status of the respondent.

The court said in its judgment: “At all relevant times the Tamil Tigers was an organisation having the goals of self-determination for Tamils and securing an independent Tamil state in northeast Sri Lanka. The principal objective was to induce the government of Sri Lanka to concede such political change. These characteristics made the Tamil Tigers a political organisation notwithstanding its use, at times, of proscribed methods of advancing its cause. That much is not in dispute.”

It further said: “The appeal is dismissed. The respondent’s application for recognition of refugee status is remitted to the Refugee Status Appeals Authority for consideration in accordance with the Court of Appeal’s order. Costs are reserved and counsel may submit memoranda if necessary.”

The Crown argued in the Supreme Court that the respondent’s involvement in the voyage made him complicit in the atrocities committed by the Tamil Tigers, so that he had committed crimes against humanity as an accomplice. As well, his involvement in the sinking of the vessel was a serious non-political crime. The Crown’s submission was that each aspect of his conduct disqualified him from being recognised as a refugee under the Refugee Convention and New Zealand law.

The Supreme Court has decided that it was not shown that the respondent’s supportive activities were actually linked to any atrocities committed by the LTTE. This was because the armaments which he helped transport did not reach the LTTE as they went down with the ship. Accordingly, it was not established that any crime against humanity had been committed to which the respondent was an accomplice. Furthermore, any crime committed in relation to the sinking of the vessel was of a political nature which did not disqualify the respondent from holding refugee status under the Convention.
The Supreme Court referred the respondent’s application for refugee status back to the Appeals Authority for consideration of whether he meets the general requirements of the Convention and New Zealand law to be recognised as a refugee.

The decision by the Court is really fascinating, and is a precedent for other countries to follow suit because many countries are unjustly concluding that all militants are together with citizens and bystanders or coworkers. There are some movements by minorities which are fighting to safeguard their peoples from genocide and crimes against humanity by oppressive regimes, so these movements should be considered freedom fighters. These fighters do not get any benefits, but they sacrifice their lives for the liberation of their nation, and these fighters should not be branded as terrorists. All sections that fight for self determination for their people and against oppression for liberation should not be regarded terrorists.

The New Zealand Supreme Court decision is a historic one, and it should be taken as a precedent in all countries practising Common Law. If the New Zealand Tamils, numbering less than 10,000 people, can educate the New Zealand judges about the sufferings of Tamils in Sri Lanka, then why not the hundreds of thousands living in other western countries such as in England, Canada, Australia and the U.S and others. The decision in New Zealand should be taken as a test case in all other countries which practice Common Law in order to seek justice for the Tamils in Sri Lanka.

Satheesan Kumaaran writes on Sri Lanka and be reached at: Read other articles by Satheesan.

7 comments on this article so far ...

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  1. bozh said on September 6th, 2010 at 9:51am #

    I understand that tamils were not indigenous to sri lanka; they were brought to sri lanka by UK. The purpose being what? The same as in iraq, india, afgh`n, pakistan, and palestina– per dictum: “divide et impera“?

    Original home of the tamils is india. Mind u, one cannot blame them from not going from sri lanka back to india.
    The question arises, have sinhalese objected to importation of tamils? And UK, as master, prevailed?
    Do we have an expert on sri lanka who could enlighten us about this? tnx

  2. 3bancan said on September 6th, 2010 at 10:00am #

    The zionazification of the world is marching on:

    “For years Israel has aided our war on terror through the exchange of information and the sale of military technology and equipment… Our air force fleet includes 17 Kfir warplanes, and we also have Dabur patrol boats. Our pilots were trained in Israel, and we have received billions of dollars in aid over the past few years. This is why I asked to be assigned to Israel — a country I consider a partner in the war against terror.”

  3. 3bancan said on September 6th, 2010 at 11:58am #

    I wrote yesterday on another thread (where it is still “awaiting moderation”):
    //While the Hollywoodians keep producing stuff stimulating the Americans’ supremacist hubris, their brothers in Israel are more keen on production and export of their new bestseller: drones. Could it be that this
    planned agreement has something to do with them?
    After “conquering” India Israel is slowly taming Russia – a task not very difficult as Medvedev has a tender heart for the Jews (, while Putin was the first Russian president to visit Israel. Those who hoped that Russia would help Iran (selling it the S-300 systems and blocking new sanctions that will inevitably be imposed by the so-called international community at the behest of the zionazis) will most probably be disappointed – because it’s Israel who decides what Russia (as well as the US, the UK and others) can sell and to whom. Israel is also diligently making inroads into China, so I wouldn’t be surprised if people will probably soon have to discover that China is just a paper tiger, just another obedient member of the so-called international community…//

    Look now today:
    “the Russian Armed Forces have already bought 12 Israeli unmanned aircraft”
    “the Israeli minister noted the fact that both Israel’s and Russia’s anti-terrorism agencies are faced with similar problems. He said his country was ready to share its experience in the anti-terrorist fight, including with the use of unmanned aircraft. We have mutual understanding and maintain efficient cooperation ties, Barak said and added that Israel is ready to share with the Russian military its experience in anti-terrorism and security measures. According to Barak, Israel sees Russia both as an important partner and as a big country playing a significant role in the Middle East.”

  4. teafoe2 said on September 6th, 2010 at 4:51pm #

    Sri Lankan Tamil people
    From Wikipedia, the free encyclopediaJump to: navigation, search
    For other uses, see Sri Lanka Tamils (disambiguation).
    Sri Lankan Tamils
    ???? ??????

    Sri Lankan Tamil people (Tamil: ???? ??????, ??at tami?ar ?), or Ceylon Tamils, or Eelam Tamils, are a section of Tamil people native to the South Asia island state of Sri Lanka. According to anthropological evidence, Sri Lankan Tamils have lived on the island since the 2nd century BCE. Most modern Sri Lankan Tamils claim descent from residents of Jaffna Kingdom, a former kingdom in the north of the island and Vannimai chieftaincies from the east. They constitute a majority… SNIP////

    (for continuation cf. URL)

    (some additional info):
    Total population
    3,000,000 (estimated)
    Regions with significant populations
    Sri Lanka 1,871,535 (1981)[1]
    Other significant populations:
    Canada ~200,000 (2007)[2]
    United Kingdom ~120,000 (2007)[3]
    India ~100,000 (2005)[4]
    Germany ~60,000 (2008)[5]
    France ~50,000 (2008)[6]
    Switzerland ~50,000 (2008)[7]
    Malaysia ~24,436 (1970)[8]
    Netherlands ~20,000 (2008)[9]
    Norway ~10,000 (2000)[10]
    Denmark ~9,000 (2003)[11]

    Tamil, English, Sinhala

    Predominantly Hinduism of Saivite sect with a Christian and Roman Catholic minority

    Related ethnic groups
    Indian Tamils · Portuguese Burghers · Sinhalese · Sri Lankan Moors · Veddas · Malayali

  5. shabnam said on September 6th, 2010 at 5:09pm #

    {Israel is also diligently making inroads into China, so I wouldn’t be surprised if people will probably soon have to discover that China is just a paper tiger, just another obedient member of the so-called international community…//}

    I agree with you knowing that Israel manipulate China with Tibet card.

    There are other more important factors. Israel’s interest is undeniable. In fact, they have been helping this ancient green land with ‘agriculture techniques’ in recent years[iv]. Elie Wiesel, Nobel Laureate and Holocaust survivor, is recruiting fellow Nobel winners to press China on Tibet. Other notables such as Spielberg have already cooperated, and Sarkozy is considering boycotting the Olympics. One has to ask why these humanitarians are not concerned with the well-being of 1.4 million Palestinians described by the UN and the ICRC as being subjected to worst possible human disaster witnessed.

  6. shabnam said on September 6th, 2010 at 5:27pm #

    People must understand that ISRAEL USES both Tamil and Sri Lanka to keep the war alive and make fortune out of it. No one should trust THE ZIONSIT JEWS, THE ENEMY OF HUMANITY. Mossad trains both and use them as they please.

    **Mossad in Sri Lanka**

    We know from sources other than Ostrovsky that shortly after the war broke out in Sri Lanka, Mossad approached a group of officers from India’s Research and Analysis Wing (RAW, which is India’s equivalent to the CIA). In July 1984 this inner RAW circle arranged with Mossad to send Tamils to Israel for commando training. Mossad paid the RAW team for this by setting up accounts for them in the BCCI bank. (More about this below.) The Tamil commandoes that went to Israel became known as the TELO. They are separate from the main Tamil rebels, known as the LTTE (Liberation Tigers of Tamil Eelam).

    Meanwhile the Jews simultaneously trained the Tamils’ enemies (the Singhalese) in Israel, but did not tell the main Tamil army, or the main Indian government, or anyone else. In Israel they kept both Goy groups apart. The Jewish purpose for this, as always, was to fan the war to a fever pitch, and make a fortune as the Goyim kill each other.

    Each group had 60 members. Training started with a two-week basic commando course at an Israeli base known as Kfar Sirkin near Tel Aviv. This is a fairly large base, but on one occasion the two groups passed within a few yards of each other while they were out jogging.

    After the two-week basic course, the Israelis took the Tamils to Atlit, a top-secret naval commando base at Haifa. Meanwhile Singhalese were brought in for basic training back at the Kfar Sirkin base. After the Tamils completed advanced training in Haifa, they were moved out, and the Singhalese were brought in to learn how to deal with all the techniques the Israelis had just taught the Tamils.

  7. shabnam said on September 6th, 2010 at 5:33pm #

    The comparison between Israel’s brutal attack on the Gaza Strip and its killing of over 1,000 civilians and the wounding of many thousands of others and the Sri Lankan assault on a three-mile long coastal strip controlled by the Tamil Tigers have been made by a number of observers, including Australia’s Green Left Online in a May 2 article by Sean O Floinn & Emma Clancy:

    A largely defenseless people struggling to survive and hemmed in on a narrow strip of land, facing indiscriminate air strikes, assault from gun boats and cluster bombs by a well-equipped army, conjures up the image of the recent Israeli invasion of Palestine’s Gaza Strip.

    However, there is more to the comparisons between Israel’s attack on the Gaza Strip and Sri Lanka’s attack on the narrow strip of the Jaffna peninsula. In May 2000, a day after India refused to give Sri Lanka any military assistance in its war against the Tamil Tigers, Sri Lanka and Israel resumed diplomatic relations. Although the corporate media are focusing on Sri Lanka’s military assistance from China, little mention is being made of the island nation’s military links with Israel. After the establishment of diplomatic ties between Jerusalem and Colombo, Israeli military technicians arrived to maintain Sri Lanka’s Israeli-made Kfir fighter-bombers and Russian MiG-27 aircraft and provided Sri Lanka with Dvora fast naval attack craft. Israeli arms and ammunition also began flooding into Sri Lanka.

    Soon, Israeli military advisers and “consultants” were regular visitors to Colombo’s new Access Lanka Building, owned by relatives of Sri Lanka’s top military officers. Among Israel’s security exports to Sri Lanka was state-of-the-art electronic and imagery surveillance equipment. Israeli Air Force pilots reportedly flew Sri Lankan attack aircraft against Tamil Tiger targets on the Jaffna peninsula. Israeli military personnel were also reported to have taken part in Sri Lankan military attacks on Tamil units.

    Due to Israel’s military assistance to Sri Lanka, Palestinians reportedly began aiding the Tamils in the 1980s. It is also believed that Israel’s Mossad recruited agents among Sri Lanka’s large contingent of foreign workers in the Persian Gulf Arab states. There were also reports that Israelis were also providing weapons and training to Tamil guerrillas in order to maintain a “market” for Israeli arms suppliers in the civil war-wracked island nation. On Mar 2 2007, WMR reported:

    WMR visited Phnom Penh, Cambodia and discovered that the Mossad and Cambodian criminal syndicate allies continue to obtain bought-back Cambodian weapons from Cambodian government warehouses and are selling them to guerrilla groups throughout Asia, including Sri Lanka’s Tamil Tigers, anti-Laotian Hmongs, the small anti-communist Free Vietnam Movement, and Burmese tribal guerrilla groups. WMR photographed a number of Zim shipping containers portside along the Mekong River in Phnom Penh. From this and other port facilities, including the port of Sihanoukville, bought-back Cambodian weapons, some originally provided to the Khmer Rouge by Israeli tycoon Shaul Eisenberg and the Chinese, are making their way to insurgent groups around Asia, possibly including Iraqi guerrillas battling US forces in Iraq.

    Although Sri Lanka suspended diplomatic ties with Israel in 1970 over the failure of the Israelis to withdraw from illegally occupied Palestinian territory, however, Israel continued operating there via an Interests Section within the US embassy in Colombo. Israeli-Sri Lankan ties began to grow closer in the mid-1980s. Israel provided Sri Lanka with military advisers and established a special commando unit for the Sri Lankan police.

    In 1990, Sri Lankan President Ranasinghe Premadasa ordered the Israeli Interests Section at the US embassy to close its doors and two Israeli diplomats in Colombo were ordered to leave. Premadasa was said to have come under pressire from Muslim ministers in his government. In 1990, Premadasa also ordered a government investigation of charges that Mossad was training both Sri Lankan and Tamil guerrilla forces. On Sep 25 1991, Reuters reported from Colombo:

    Sri Lankan President Ranasinghe Premadasa, fighting against a campaign to have him impeached, yesterday accused the Israeli intelligence agency Mossad of plotting against him because he closed the Israeli interests section in the US embassy. He spoke at the opening session of parliament.

    On May 1, 1993, Premadasa was assassinated in Colombo during May Day festivities by a suicide bomber said to be a Tamil guerrilla. Twenty-three other people were killed in the blast. On May 28, 1993, Abdul Hameed Mohammed Azwer, Sri Lankan minister of state for Muslim affairs, said in Jeddah:

    Israel was enraged by when they were expelled from Sri Lanka by Premadasa and I suspect the Mossad was behind the dastardly murder of this respected leader.

    Those behind Premadasa’s assassination remains an Asian “cold case.” On September 23, 1997, Attorney General Sarath Silva released 18 Tamil suspects in the assassination of the president, citing lack of evidence. Silva declared the case would be officially deemed as “unsolved.”

    During a Mar 2009 trip to Israel by Sri Lankan Prime Minister Ratnasiri Wickremanayake, talks were held with Israel’s leading arms suppliers on increased military aid by the Israelis to Sri Lanka. Israel continues to supply Sri Lanka with arms and military training even after the US and UK cut off military supplies to Sri Lanka over the government’s human rights violations.