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TAMIL EELAM NATIONAL FLAG

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Why it is entirely legal to hoist the Tamil  Eelam National Flag at public events in the UK

– A Legal Analysis

Introduction:

The Tamil Community in the UK and around the world believes that the Tamil Eelam National Flag should be formally hoisted in their national events as this is the proud identity of  the Tamils and this unites the entire Tamil community regardless of all differences  and divisions.However, some diaspora organisations and individuals continue to mislead the Tamil  Community that the Tamil Eelam National Flag is proscribed in the UK and hoisting the flag  may lead to prosecution. This is part of the agenda implemented by Sri Lankan  Government who considers the Tamil Natinal Flag as a serious threat to their  imperialism because it unites the patriotic Tamil diaspora and inspires them towards  the freedom. The most regrettable truth is that some of the Tamil Diaspora  organisations and individuals knowingly or innocently fallen into this trap and  contribute to the aganda of the Sri Lankan Government who desperately attempt to  destroy the identities of the Tamils.

It was the understanding of the Tamil Commuinty, that the Tamil Eelam National Flag is  misundertood with the LTTE flag by the Scotland Yard/Metropolitan Police and this  causes the tension in 2009. The Tamil diapsora has no intention to use the LTTE  flag at any event, however they believe that they should not be prevented from  hoisting the Tamil Eelam National Flag. During the last few Mullivaikkal Remembarance  days in the UK, considerable members of the Tamil Community went to the extend of  bringing their own pole and flag which was hoisted infront of the stage beyond  control.

The following information will help to clarify the misunderstandings and misconcepts  that the Tamil Eelam National Flag is proscribed in the UK.

The origin/history of the Tamil Nationhood and National Flag:

The Tamil flag encapsulates the aspiration of Tamil nationhood. Eelam is the word  for what is now Sri Lanka and has been in use in Tamil literature right from the  Sankam period dating as far back as 200 B.C. to circa 250 A.D. It is a known fact  that Eelam constituted an administrative unit during the Chola period 1017 to 1070  A.D. Tamil Eelam refers historically to the North and East of what is now Sri Lanka.  These constituted independent Kingdoms and retained their territorial integrity  through Portuguese and Dutch colonisation. Since British united the Kingdoms for  the administrative ease, the Tamil Kingdom began to lose its integrity and identity.  When the British decided to grant independence to Sri Lanka, they failed to ensure  the safety of the Tamil nation and the ruling power was handed over to the numerical  majority Sinhalese. With an intention of creating Sri Lanka as a pure Sinhala and  Buddhist Country, the ethnic cleansing began since 1948 and one of the significant  steps was the official declaration of Sinhala language as the one and only official  language. Likewise, the historical symbols that represent the Tamils were destroyed.  Despite the systematic steps staged by the successive Sinhala Chauvinist  governments, the Tamils redesigned their National Flag in 1990 as in the following  format1.

The Tamil Eelam National Flag:

The Tamil Eelam National Flag is derived from the ancient Flag Chola (Tamil: சோழ) and  was used by Chola Empire2 and consisted of the tiger or jumping tiger (Tamil: பாயும் புலி).

1 http://en.wikipedia.org/wiki/Flag_of_Tamil_Eelam  http://tamilnation.co/tamileelam/defacto/flag.htm
2 The Chola dynasty (Tamil: சோழர்) was one of the longest-ruling dynasties in the history of southern India.  The earliest datable references to this Tamil dynasty are in inscriptions from the 3rd century BCE left by  Ashoka, of the Maurya Empire. As one of the Three Crowned Kings, the dynasty continued to govern over  varying territory until the 13th century CE.

 

The heartland of the Cholas was the fertile valley of the Kaveri River, but they ruled a significantly larger area  at the height of their power from the latter half of the 9th century till the beginning of the 13th century. The  whole country south of the Tungabhadra was united and held as one state for a period of two centuries and  more.[2] Under Rajaraja Chola I and his successors Rajendra Chola I, Rajadhiraja Chola, Virarajendra Chola and  Kulothunga Chola I the dynasty became a military, economic and cultural power in South Asia and South-East  Asia.[3][4] The power of the new empire was proclaimed to the eastern world by the expedition to the Ganges  which Rajendra Chola I undertook and by the occupation of cities of the maritime empire of Srivijaya in  Southeast Asia, as well as by the repeated embassies to China.[5]

During the period 1010–1200, the Chola territories stretched from the islands of the Maldives in the south to  as far north as the banks of the Godavari River in Andhra Pradesh.[6] Rajaraja Chola conquered peninsular

The tiger flag of Chola is mentioned in Periya Puranam, which was compiled during  the 12th century by Sekkizhar. Historically the Tamil people have had a deep  affiliation with the symbol3.

The crossed bayonets were based on the historical crossed sword emblem  of Vannimai "King Pandara Vannian" who was killed by the British colonial era in Sri  Lanka4.

South India, annexed parts of which is now Sri Lanka and occupied the islands of the Maldives. Rajendra Chola  sent a victorious expedition to North India that touched the river Ganges and defeated the Pala ruler of  Pataliputra, Mahipala. He also successfully invaded cities of Srivijaya of Malaysia and Indonesia
3 http://en.wikipedia.org/wiki/Flag_of_Chola
4 http://tamilmirrorcanada.blogspot.co.uk/2013/01/pandara-vanniyan- last-tamil- king-of.html

 

The Proscribed LTTE Flag:

The LTTE Flag was introduced by the LTTE in 1975. It is unfortunate that the  proscribed LTTE Flag is always misunderstood with the Tamil Eelam National Flag, which is  not proscribed by English Law. We set the above LTTE Flag for the purpose of  illustration.

The difference between the Tamil Eelam National Flag and the Proscribed LTTE Flag;

It is essential to note the significant difference between the LTTE Flag and the Tamil Eelam National Flag.

The LTTE Flag contains the writing “Liberation Tigers of Tamil Eelam” in both  English and Tamil. The national Flag does not contain any such writings on it6.

This is not just a “mere” change, which was intended to get around the relevant laws  and glorify the LTTE or seek support to the proscribed organisation. This is a  significant difference that distinguishes the two Flags.

It should also be noted that the Tamil Eelam National Flag was adopted in 1990, more than  a decade before the LTTE was proscribed in 2001. Therefore, any accusation made  that the Diaspora Tamils attempting to display the proscribed Flag with a “mere”  change becomes totally invalid.

The Relevant Law

“Everything which is not forbidden is allowed” is a constitutional principle of English  law – an essential freedom of the ordinary citizen. In layman’s terms, the Tamil Eelam National Flag is not proscribed/forbidden in any of the written law, statutes, by-laws  or regulations in the UK.

5 http://tamilnationalflag.com/index.php/history
6 http://restructure.wordpress.com/2009/05/15/tamil-eelam- flag-versus- tamil-tiger- flag/

Under The Terrorism Act 2000, the Home Secretary defines the PROSCRIPTION  OFFENCES as follows;

Proscription makes it a criminal offence to:

  • belong, or profess to belong, to a proscribed organisation in the UK or overseas  (section 11 of the Act);
  • invite support for a proscribed organisation (and the support is not, or is not  restricted to the provision of money or other property) (section 12(1));
  • arrange, manage or assist in arranging or managing a meeting in the knowledge  that the meeting is to support or further the activities of a proscribed organisation, or  is to be addressed by a person who belongs or professes to belong to a proscribed  organisation (section 12(2)); or to address a meeting if the purpose of the address is  to encourage support for, or further the activities of, a proscribed organisation  (section 12(3));and
  • wear clothing or carry or display articles in public in such a way or in such  circumstances as arouse reasonable suspicion that an individual is a member or  supporter of the proscribed organisation (section 13).

Section 13 is the most relevant part. However, hoisting the Tamil Eelam National Flag at a  public event does not fall into any of these categories for the follow reasons;

  1. The Tamil Eelam National Flag cannot be considered as an “article” that belongs to  any proscribed organisation. Tamil Eelam is not even an organisation but a  Nation and therefore it is cannot be proscribed. Likewise, there are no  grounds for anyone to argue that the Tamil Eelam National Flag is proscribed.
  2. Raising/hoisting the Tamil Eelam National Flag is never going to raise “a reasonable  suspicion that an individual is a member or supporter of the proscribed  organisation”. The purpose of the public event is obvious and nothing to do  with a proscribed organisation.

Need to prove culpable intention

“Actus Reus” and “Mens Rea” are the foundations for criminal law, which literally  means “an act does not make a person guilty unless mind is also guilty”. It’s been  taken that a person is guilty if they are proved to be culpable or blameworthy in both  thought and action.

When applying this principle to our situation, officially raising or hoisting a flag itself  does not amount to a criminal offence. The Police ought to prove that we had  intention to glorify or promote intention, which is obviously impossible in our  situation.

In such cases, “the burden of proof” rests on the prosecution.  This means that the  Police have to prove their case with sufficient evidence. Just mere suspicion does  not suffice. The “standard” of proof in these cases are “beyond a reasonable  doubt”. This means that the Police have to prove the intention for 100%. Even if a  1% doubt exists, the Jury will strike out the charge. In modern law, “making the jury  sure” is often used. Thus, the jury or magistrates must be “sure” of the defendant’s  guilt.

There is no way that the Police could make the Jury believe that we have a culpable  intention to glorify or promote terrorism by raising the Tamil Eelam National Flag. In fact, no  one in the Tamil Diaspora has such intention at all and therefore, the Police cannot  prove this at any cost.

The stand of the Metropolitan Police in the past & Other States;

The above mentioned confusion has lead to the arrests in the past, however the accused were released by the Police without charge after the Police realising that the Tamil Eelam National Flag is not proscribed and cannot be prevented from use or display.

A Police officer has issued a verbal statement to this effect, after consulting with his relevant senior officers, that the Tamil Eelam National Flag is not banned. This video can be viewed at the following link;

According to a report by CBC News, which cited Toronto police spokesman Mark Pugash, the use of Eelam Tamil Eelam National Flag did not contravene any law in Canada. It further states; “The national flag of the Eelam Tamils, described as symbolizing the political, social and cultural aspirations of the Tamils of Sri Lanka was declared in 1990 by the LTTE, at a time when it was not banned by any government”. For the full details, please see;

http://www.tamilguardian.com/article.asp?articleid=2243

The York University Tamil Students’ Association (YUTSA) has passed a motion to use the Tamil Eelam flag to represent the organization in the future and during the university’s Multicultural Week.

These are just few examples of the Tamil Eelam National Flag being not banned by other governments and legitimately used by the Tamil Diaspora all over the world.

The opinion and the belief of the Tamil community:

In 2009, The Mannar Bishop, Most Rt. Rev. Rayappu Joseph, publicly declared “There is nothing wrong in the Tamil nation raising its national flag. The Tamil Eelam National Flag is not the Tigers’ flag but it is the Tamil people’s flag. Hoisting it is not against peace. Many who shout against it are silent over the recent killings. It is very deplorable that such murders are committed even amidst the great human tragedy caused by the Tsunami. These killings are provocations to war[1]

The Tamil community recognise this flag as representative of the Tamil nation. Its sources are apocryphal and to deconstruct the precise symbolism of the flag is an academic exercise. Whatever its origins Tamil community accept the Flag in its present form as the Flag of the Tamil nation. In these times, where the North and East are heavily militarised and where any assertion of Tamil identity is criminalised, the flag is a method of celebrating Tamil ethnicity and identity.

The Tamil Community have no intention whatsoever to glorify or seek support to the Proscribed Organisation byway of hoisting the Tamil Eelam National Flag.

We also provide the following excerpt from an expert academic article, which makes the intention very clear.

By Damien Kingsbury

“Sri Lanka and the Responsibility to Protect: Politics, Ethnicity and Genocide”

Conclusion:

The Tamil community recognise this flag as our National Flag and representation of the Tamil nation. We, represent the feelings of the Tamil Diaspora, believe that it is our fundamental right to exercise our Freedom of Expression without causing public disorder or threat to the national security.

Given the Tamil Diaspora Organisations have the duty to guide the Tamil Diaspora in a manner that doesn’t contradict or breach the laws and the regulations of the United Kingdom, they have acted in due diligence and taken every necessary steps to clarify the legal status of the Tamil Eelam National Flag with the Scotland Yard/Metropolitan Police by writing to them and discussing this issue at official meetings. However, the Scotland Yard/Metropolitan Police refused to provide anything in writing. This must be interpreted as there is no ban on the Tamil Eelam National Flag because the Scotland Yard/Metropolitan Police have a duty to advise if something is proscribed or they are concerned. Should the Tamil Flag is banned; they would not knowingly allow anyone to hoist it and then arrest or prosecute them.

[1] http://tamilnationalflag.com/index.php/in-the-news/16-qtiger-flag-is-tamil-nations-flagq–mannar-bishop

A British Human Rights Activist named Maria took this issue with the Scotland Yard/Metropolitan in 2009. After getting advice from the relevant experts, the Scotland Yard Anti terrorism unit (SO15) has clearly confirmed that the Tamil Eelam National Flag is separate from the LTTE Flag and it is not proscribed. This attached link to the youtube video https://www.youtube.com/watch?feature=youtu.be&v=2ypOwIg73XU&app=desktop clearly demonstrates that the flag in question has been accepted as the national flag of Eelam Tamils by Scotland Yard Anti terrorism unit (SO15) on 26th May 2009.

This was once again verified by the Scotland Yard Anti terrorism unit (SO15) in their official correspondence with Ms. Ambihai Seevaratnam, the executive of the ICPPG dated 17th May 2016.

In light of the relevant law in England and the verbal declaration of the Scotland Yard Anti terrorism unit (SO15) there is no ban on the Tamil Eelam National Flag in the UK and no one should not be prosecuted under the law of the United Kingdom.

Recommendation:

Given the Tamil Eelam National Flag is not proscribed in the UK and around the world, the Tamil Diaspora organisations should take the lead to clarify the doubts in the minds of the public and other Government officials who continue to believe that hoisting the Tamil Eelam National Flag may lead to prosecution. This can only be possible if the organisations come forward and hoist the Tamil Eelam National Flag at each and every national events with due respect. Doing this will not only clarify the doubts but also teaches the second generation of the supreme respect we give to the Tamil Eelam National Flag.

We must also understand that it is nothing but a false myth to argue that promoting the Tamil Eelam National Flag may hinder the diplomatic moves or working with the UN. There are many Tamil Diaspora organisations from various countries who hoist the flag at their events and also work successfully lobbying the UN to bring a resolution against Sri Lanka. It is also worthy to mention here that the only Tamil NGO called “Le Collectif La Paix au Sri Lanka” which has the UN accreditation contains the Tamil Eelam National Flag in its logo. They had been successfully working with the UN and various diplomatic for many years and there is no record that they faced reprisals because of the Tamil Eelam National Flag. This clearly proves that Tamil Eelam National Flag will not hinder any diplomatic moves in any ways. Even if there are individual diplomats who hesitate to accept the Tamil Eelam National Flag as our identity, it is the responsibly of the Tamil Diaspora organisations to convince them gradually and make them accept and honour our Tamil Eelam National Flag. Without succeeding in this, seeking justice and establishing an Independent homeland for Tamils in Sri Lanka will not be possible.


Authored by;

Kulasegaram Geetharthanan, LLB (Hons), Pg Dip in Legal Practice, Dip in Journalism.

Kulasegaram Geetharthanan, LLB (Hons), Pg Dip in Legal Practice, Dip in Journalism.

Geeth is a Human Rights Lawyer, Graduate Member of ILEX and Human Rights Activist Since 2004, he has successfully represented more than 1000 Tamil refugees and involved in the high profile lawsuits under the mentorship of Mr Arun Gananathan, a senior lawyer and Barrister. Due to his outstanding performance and dedicated service to asylum seekers, he was awarded a Scholarship by the Asoka Dias Foundation upon the recommendation of a Judge. He made representations in the Permanent People Tribunal (PPT) Germany and assisted Geoffrey Robertson QC to lodge the first lawsuit against the Sri Lankan Government in Geneva. He delivered a speech at the Global Summit to ‘END SEXUAL VIOLENCE IN CONFLICT’ in 2014 and also published a research paper outlining the need to repeal of Prevention of Terrorism Act (PTA) in Sri Lanka. He runs his own consultancy and continues assist the UN bodies as well as international organizations including Amnesty, Human Rights Watch, Freedom From Torture and International Truth and Justice Project.

Co-Authored by;

Melani Dissanayake, LLB. LLM. Attorney-At-Law

Melani Dissanayake, LLB. LLM. Attorney-At-Law

Melani Dissanayake is a Human Rights Lawyer and a Human Rights Defender. She is of Singhalese origin and she successfully completed her Bachelor of Law Degree (LLB) in 2004 at University of Colombo. She achieved her further qualifications at the Law College of Sri Lanka. She was called to the Bar in 2005 and authorised to practice as an Attorney-at-Law by the Supreme Court of Sri Lanka in 2005.

In the capacity of a Human Rights Lawyer, she was involved in number of high profile cases and also worked for a number of reputable human rights organisations in Sri Lanka. She has represented and assisted many Tamils who were detained under the most draconian law of Sri Lanka, which is known as the Prevention of Terrorism Act (PTA). She currently volunteers with Tamil Information Centre (TIC) and International Centre for Prevention and Prosecution of Genocide (ICPPG) as a researcher. She relentlessly works to gather testimonies from the survivors of Genocide in Sri Lanka and continue to make submissions to the United Nations Human Rights Commission (UNHRC) on behalf of the victims.

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