C.V.Wigneswaran’s KG Kannabiran Memorial Lecture at Chennai, 9 November 2009: Extracts

Courtesy of Iqbal … See note ** at end

 Justice CV Wigneswaran, Chief Minister Northern Province — Pic from AP

* In Sri Lanka, when the Presidential elections were announced in late 2009, shortly after the Attorney General’s officers waxed eloquent on the perils of releasing the hundreds of thousands of hapless Tamils, nearly 250,000 were suddenly released. Those who were perilous to the entire nation as potential bloodthirsty terrorists were now safe voters! In one of its most cowardly acts, the Supreme Court of Sri Lanka is yet to make order on whether leave to proceed should be granted or not in this case even though five years have passed. To give this dastardly act some context, leave to proceed is usually granted or refused by Bench Orders of single sentences and reasons seldom given. To reserve order and not pronounce it for 5 years is an act of unforgiveable cowardice.

*If security is viewed as Human Security instead of Regime Security we would be able to resolve many of the so-called tensions between liberty and security. As I mentioned earlier, the release of 250,000 Tamils who were held in open prisons without any legal basis just before the Presidential election in 2010 demonstrates a classic case of how Regime Security is given primacy. The people were incarcerated primarily to prevent the flow of information about the atrocities committed during the war and to ensure a change in the demography. Free flow of that information would have undermined the rhetoric of the “zero-casualty” and “humanitarian mission” and would have led to calls for prosecution for grave breaches of humanitarian law. The principle of command responsibility posed a serious risk to the regime. However, winning the election was a greater requirement for the regime and the possibility of gaining a significant number of votes as gratitude for release was the thinking behind the sudden release. If Human Security was at the forefront the release could have been expedited months earlier.

* The Chief Justice was given around 1000 pages of evidence at 4.30 p.m. and asked to present her defence by 1.30 p.m. the next day by the Parliamentary Select Committee that heard her matter. Eager witnesses were hurriedly summoned when the Chief Justice’s legal team and the few honourable members of the Select Committee walked out of the shambolic proceedings. Parliament proceeded to impeach the de jure Chief Justice and a de facto Chief Justice was put in her place. At the time of such appointment the Court of Appeal order supported by the Supreme Court’s decision was in full force and effect. Not a single judge of the Supreme Court had the courage to refuse to sit with the de facto Chief Justice despite the judicial orders in existence that made the appointment a nullity.

• If Human Security were foremost in their mind the Government of Sri Lanka would not have engaged in the “bait and switch” chicanery by announcing to the world that it has abolished the draconian Emergency Regulations in 2011, whilst persisting with the equally draconian PTA. In fact, as Human Rights Watch reported the then Attorney General had confirmed that the lapsing of the Emergency Regulations will not mean a change in detention practices, stating “No suspects will be released and there is no change even though the Emergency has been allowed to lapse.”
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• As I have repeated on numerous occasions the militarisation of the North of Sri Lanka, where I am the Chief Minister, takes place not due to any real security threat, but to maintain a stranglehold over the populace; to subjugate them and make them compliant; to stifle any form of democratic or political dissent. If Human Security were the guiding principle the military would not be taking over people’s lands, cultivating them with the owners having to buy the produce from their own land and building hotels and golf courses when the dwelling homes of the people devastated by the war remain like pock marks in the Northern landscape. Today cases involving more than 2100 petitioners are pending before the Court of Appeal and the Supreme Court regarding the acquisition of 6381 acres of land in Valikamam North where an illegal High Security Zone for the Sri Lankan armed forces has been set up. Despite such legal actions pending before the highest court in the country, the Army continues to destroy whatever is left of the buildings, homes, holy places or hallowed school premises inside the High Security Zone.

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• If Human Security was at the forefront the people would be allowed the freedom of association without needing to worry about the military – they need not grit their teeth and invite military officials even for school functions. There would not be a need for foreign passport holders to obtain special permission to visit the North.   This requirement was brought about barely a month ago – not because of any security threat but because of the UN inquiry and the fear that more evidence would be collected.
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• If Human Security were at heart there would be no systematic and continual rape and torture of Tamil men and women by the Armed Forces as recent reports show. The BBC reported a man stating, “They would put my testicles in the drawer and slam the drawer shut. Sometimes I became unconscious. Then they would bring someone and force me to have oral sex with him. Sometimes if we lost consciousness during the torture they would urinate on us”. Another woman describes being photographed and fingerprinted and then kicked, beaten with batons and pipes, burned with hot wires and cigarettes, submerged in a barrel of water until she thought she would drown suffocated by having a petrol-soaked plastic bag put over her head, before being repeatedly raped by men in army uniform. Her relatives managed to bribe and secure her release after 20 days of this torture. Just a few days ago a man was arrested for trying to gather evidence for the investigations being carried out by the Office of the High Commissioner for Human Rights. Is this evidence of Regime Security or Human Security? Or is this the new norm under which security imperatives rule the day?
• In Sri Lanka as in Pakistan and other states, we are witnessing the growth of National Security apparatus as a distinct power centre within a democratic system where secrecy and industry’ interests dominate as the nexus between military, industry and institutions of governance gain primacy. Lacking democratic oversight, the protection of democratic values and civil liberties has now become a process of bargaining with the dominant power centre, the security apparatus. In the case of Sri Lanka the fact that a single family controls the power centres, political and military, adds a new dimension to the state Mr.Kannabiran took on.

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• Well-meaning people tend to argue that restrictions on fundamental freedoms will have to be made to ensure the protection of the people themselves. Thus they will state that it is necessary at times to hold people without legal authority. What they fail to see is that every time such aberration takes place, the Government sets a precedent to breach the law. This empowers unscrupulous elements to abuse that power. ………………………………………………………………………………………………………… I would, however, wager that the Executive in Sri Lanka was emboldened by the series of decisions made by the Sri Lanka Supreme Court in supporting Bills and Constitutional amendments and holding with the Executive in Fundamental Rights’ cases, so much so that the leader of that very Supreme Court herself became a victim of the Executive’s wrath when she finally refused to tow the line._________________
• The Judiciary also played a major role in foisting a second-class citizenship on the Tamil Speaking Peoples. It has shown a systemic bias against minorities as the recent research by three fearless lawyers show. Dr. de Almeida Guneratne, Kishali Pinto Jayawardena and Gehan Gunatilleke in their excellently researched book The Judicial Mind in Sri Lanka – Responding to the Protection of Minority Rights describe how the judiciary as an institution failed the minorities in not only National Security cases but in relation to the language rights, land and housing rights and religious rights. The book authored by non-Tamils concludes that the rise of Tamil militancy in Sri Lanka cannot be divorced from institutional failure, including that of the Judiciary, to address genuine grievances, because, barring a few exceptions, the Judiciary’s treatment of minorities was fundamentally different to the general dispensation on the issue.
• From 1979 to 2009 (i.e. until the conclusion of the war) the Court was inconsistent in its findings but what is disturbing is that while the progressive cases were invariably those where majority community members were involved, the regressive and oppressive decisions tended to be where minority community members were involved. Post-war the Court transcended its anti-minority bias and instead became completely deferential towards the Executive._____________________________-
• When one points out the injustices indulged in by the State, one is invariably termed a terrorist, naxalite, communist, imperialist, separatist or whatever term that is in vogue at the time to demonise and silence critics. Human Rights’ organisations and civil society groups are oft termed western lackeys and conspirators. Critics are viewed as fifth columnists seeking to undermine the Sovereignty of State. This brings us to the question of Sovereignty.

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• In a damning internal report by Charles Petrie, the UN was criticised for failing in its mandate to protect civilians in Sri Lanka in the final months of the War and the events were termed a “grave failure” for the UN. Contriteness is admirable, but is not prevention preferable? If India had not intervened in 1971 would not the genocide of Bangladeshis continued unabated? A State is morally entitled to claim sovereignty only when it is ensuring the sovereignty of its people and the rule of law by ensuring Human Security.
• Even though he was to pass the Sinhala Only Act 30 years later as the Island’s Prime Minister, Mr.S.W.R.D. Bandaranayake, was reported by the Ceylon Morning Leader of 17^th July 1926, to have argued that “the Tamils, the Low­-Country Sinhalese and the Kandyan Sinhalese had lived for over a thousand years in Ceylon and had not shown any tendency to merge. They preserved their language, their customs, and their religion”, and to have stated firmly that he was “convinced that some form of Federal Government would be the only solution”
• It is a testament to the courage of my people in the Northern Province that they voted overwhelmingly for the Tamil National Alliance despite the terror and misinformation unleashed by the Sri Lankan military and associated militant groups. An entire newspaper was fabricated on the morning of the election, an entire village was prevented from voting, candidates were attacked, voters were bribed, beaten and intimidated and yet they voted. I have already spoken of the usurpation by the military of virtually every civilian activity in the Northern Province.
• The Sri Lankan Government method of dealing with issues is showcased with the way it is dealing with the UN investigation into violations of humanitarian and human rights’ law. It attempted to canvass global opinion against the UNHRC Resolution and failed thrice. If Sri Lanka thinks that such a procedure undermines its Sovereignty and is illegal, it could request the General Assembly or the Security Council to refer the matter to the International Court of Justice for an Advisory Opinion. It could perhaps even seek to take the movers of the resolution before the ICJ, with their agreement, for a decision on the issue. As a worst-case scenario it could even withdraw from the UN, even though there are no formal provisions in the UN Charter for withdrawal. Instead Sri Lanka seeks to play the petulant scofflaw refusing to comply with its obligations. Worse still is the way in which it deals with the investigation itself.
• In the last few weeks Sri Lanka is openly arresting and intimidating those who are trying to collect evidence for the investigation. The basis appears to be that the evidence is false – is that not a decision to be made at the stage of evaluation? If we had proof that the evidence was false – is not the best course of action to forward proof of such falsity to the Office of the High Commissioner of Human Rights? The State does not want to allow the evidence to leave the shores of the country – just as in the incarceration of the 350,000 Tamils, the primary aim was to let no evidence leave the shores.
• As regards the domestic processes, if the High Commissioner of Sri Lanka to the United Kingdom could be assaulted by a Member of Parliament of Sri Lanka in New York, if the victorious Army Commander could be dragged across the streets like a common criminal, if the Chief Justice could be impeached in a despicable manner, can there be any hope for Tamils? It was only because of India’s insistence that elections were held in the Northern Province last year having been postponed every year since the end of the War. It was only because of pressure from the United Kingdom that a minion of the regime was prosecuted and convicted for murder and rape. In the absence of external pressure there can be no hope of the Sri Lankan Government changing its recalcitrant position. We, in the Northern Province, remain open to co-operation, but have only faced broken promises and interference.
• India has legal and moral obligations to ensure the welfare of the citizens in Sri Lanka. It should do so by holding the Sri Lankan government to its promises to India and to its obligations under International Law. It should do so by lending its support to international processes that are in furtherance of justice and truth. It should do so by supporting the return of the rule of law and democracy to Sri Lanka. It should do so by prevailing upon the Sri Lankan government to stop the harassment and abuse of minorities; to return to civilian life; to reverse the militarisation. It should do so by urging the repeal of the odious Prevention of Terrorism Act of Sri Lanka, as India herself did with the TADA and the Prevention of Terrorism Act (POTA).
• India’s obligations apply a fortiori with regard to the vulnerable Tamils, towards whom it has a fiduciary duty. It should do so by ensuring that the Tamil Speaking Peoples are not subject to torture and harassment; that their lands are returned; that the occupying force that is in their lands of habitual residence be withdrawn; that the urgent psycho-social needs of a war-ravaged society are addressed; that the safety of our women and children are ensured. It should do so by ensuring that the right of self-determination of the Tamil Speaking Peoples of Sri Lanka is realised within a united Sri Lanka. It should do so by ensuring that a proper 13 Plus Plus amendment is introduced into a Constitution shed of its unitary character. In so doing India would do well to take heed of the prophetic words of the Tamil leaders’ letter of 28^th October 1987 to Prime Minister Rajiv Gandhi, pointing out the violation of the Indo Lanka Accord and the insidious manner of the Sri Lankan government’s dealings, the gross inadequacy of the 13^th Amendment and the likelihood of abuse of its provisions.

** NOTE from Iqbal, 10 November 2010: ” I am attaching hereto a copy of a remarkable speech made by Justice C.V.Wigneswaran, Chief Minister of NPC in Chennai, today.   His speech is going to be of historical importance.  On the very  first opportunity he got to leave the country  after he became CM  he has made a speech touching  on the key issues concerning the Tamils of Sri Lanka today especially with regard to their human rights and the right to be treated as equal citizens of the country.