KANNABIRAN MEMORIAL LECTURE

Chennai, 2014-11-09

Justice C.V.Wigneswaran, Chief Minister, Northern Province, Sri Lanka 

Honourable Chairman, distinguished guests, my dear Bharathian brothers and sisters!

We are gathered here today to remember one of India's greatest human rights' leaders and jurist – the late Mr.K.G.Kannabiran. He was the President of your People's Union for Civil Liberties (PUCL) from the year 1994 to 2008.

Abraham Lincoln, who is credited with first using the phrase "the Constitution is not a suicide pact," when he suspended the writ ofhabeas corpus during the American Civil War.  It was articulated formally in the legal context around ninety years later in Justice Jackson's dissent in a free speech case, Terminiello v. City of Chicago, where he chided the majority of the Court thus:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

This brings us to our next question – who are those who seek to espouse these human rights' values?  Are not human rights essentially a Western concept?  Why should we, who have histories and civilisations that date back to antiquity, subscribe to new-found notions of countries that enslaved and colonised most of the world?  Is this not neo-colonialism supported by NGOs that are simply "human rights' hit men"?  What right do other countries and international organisations have to dictate terms to individual countries?  Does it not infringe upon the sovereignty of States?  Is not sovereignty the most sacred element of Public International Law – the foundation even?  Are not slogans of R2P or Responsibility to  Protect simply cloaks for imperialist interventions?

Mr.Dilip Sinha, the Permanent Representative of India to the United Nations in Geneva, in explaining India's abstention at the United Nations Human Rights Council vote on the Resolution on "Promoting reconciliation, accountability and human rights in Sri Lanka" in 2014, said

It has been India's firm belief that adopting an intrusive approach that undermines national sovereignty and institutions is counterproductive. Any significant departure from the core principle of constructive international dialogue and cooperation has the potential to undermine efforts of Human Rights' Council for promoting universal respect for the protection of human rights and fundamental freedoms.

The Sri Lankan Government's response was more direct:

Sri Lanka categorically and unreservedly rejects this draft resolution, as it challenges the sovereignty and independence of a Member State of the UN, violates principles of international law, based on profoundly flawed premises, and is inimical to the interests of the people of Sri Lanka.

As Robert McNamara, former US Secretary of Defence once said "We have come to identify "security" with exclusively military phenomena, and most particularly with military hardware.  But it just isn't so." Looking at National Security and how it is pursued in the contemporary sense we could see that McNamara was not far off the mark. In an era of globalization and transnational threats ranging from Terrorism to Ebola, threats of all manner have become an issue of National Security. I would define it, not as "National Security", which is really an euphemism for "Regime Security", but "human security", which is the type of security I cherish.  As the UNDP's 1994 Human Development Report argued, ensuring freedom from fear and freedom from want for all persons is the best path to tackle the problem of global insecurity.  The definition of human security was framed along seven themes: economic security, food security, health security, environmental security, personal security, community security and political security.

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.

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."

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. In fact when I, as the Chief Minister, tried to visit such places of vandalism I was politely told by the armed personnel manning those areas to obtain permission from the Secretary of Defence who happens to be a brother of the President. Such is the sorry state of our sovereign State's security concerns!

This is what Mr.Kannabiran envisaged when he spoke of the State as a terrorist.

"State violence under the cover of 'law and order' and 'security of the state' has been far more extensive in scale and destructiveness than private violence.  State violence does not come to an end with the abatement of private violence.  It continues its course to ensure that there is no protest, because its purpose is political.  The population must be reduced to apathy and conformism, because participation in decision making is viewed as a 'threat to democracy'. 

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 Sri Lankan judiciary has fostered a culture of impunity in many ways; sometimes very insidiously.  One practice was how the Supreme Court dealt with Fundamental Rights' cases dealing with illegal arrest and detention.  The Court makes much fanfare in asking the Attorney General to check with the defence authorities to see if the person could be indicted or released and to expedite that process.  The argument was that this was an efficient way of ensuring that the defence establishment and the Attorney General would evaluate the matters expeditiously.  What this did was to allow arbitrary arrests and detentions to continue with no fear of consequences except in rare cases.  It also ensured that there were no findings against the Government, which could be used in international fora to show the widespread human rights' abuses that were going on.

It gives me great pain to say that the Judiciary in Sri Lanka, of which I was a part for a quarter of a century, has failed in preventing a culture of impunity and has contributed directly to the Executive's authoritarian rise. 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.  Their findings with regard to the Judiciary's role in public security related cases is also revealing. 

The regressive and oppressive measures against the Tamils did not just occur in the judicial arena. It also extended to the legislative sphere. As I alluded to earlier, the 1972 Constitution

(a) made the Tamil speaking citizens of North and East of Sri Lanka  second class citizens overnight;

(b) unilaterally abrogated the post independent pacts entered into by the elected Tamil Leadership with the majority community Prime Ministers to resolve the ethnic conflict such as the Bandaranaike – Chelvanayagam Pact of 1957 for Regional Councils in the North and East and then Dudley Senanayake-Chelvanayagam Pact of 1967 for devolution;

(c) it institutionalised structures of discrimination which resulted in the denial of right to land, right to education and rights to development and resulting disillusionment and disenchantment and frustration of the Tamil youth and

(d) made the Tamil leadership (against the backdrop of Sinhalisation of the governance structures in Sri Lanka to the detriment of the Tamils) unable to secure an equitable and sustainable political settlement via democratic means. Such were the main causal factors for the genesis of the rise of Tamil militancy in Sri Lanka.

Let us look at the principle of Sovereignty.  Again I cherish this principle, but the sovereignty I cherish is that of the people and the rule of law and not that of the artificial construct of the State. Sovereignty of the State is the remnant of the divine right of Kings from the days when sovereigns ruled.  What we should focus on is ensuring that the people are sovereign and that the rule of law is sovereign.  The necessity for the rule of law and the consequence of the absence of it leading to a culture of impunity has already been discussed.  How do we ensure that the people are Sovereign?  What happens if the majority wish to impose their will on a minority?  This is where we have to go back to our concept of Human Security to ensure that no group is disadvantaged and that there is political security.

It is easy to speak of Sovereignty of the State in lofty terms but that doesn't mean the world has to turn a blind eye as it did in Rwanda when nearly 800,000 Tutsies were massacred in just a hundred days? President Clinton considered it one of his greatest foreign policy failures.  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.  In my view Sovereignty of the State is a representative sovereignty sustained by the sovereignty of the people in that State. This is not to say that countries should be entitled to use internal disturbances as a ruse to interfere, but that Sovereignty should never be allowed to be a shield against violations of international law.

In any event, it should be understood that in today's context Sovereignty of the State has become largely irrelevant. As Luis Moreno Ocampo, the former Chief Prosecutor of the ICC for nearly a decade stated on BBC's Hard Talk around September 20th, 2014, the world order is changing where Sovereignty of States is being eroded with greater power being given to supra-national institutions.  In an age of treaties and the recognition of greater jus cogens norms is Sovereignty still relevant?  The very existence of international law in a sense is a restriction on State Sovereignty.  For pacta sunt servanda to be obligatory as Customary International Law, States are the subjects of International Law and to that extent are not  Sovereign. Still further in today's interconnected world the problem in one country spreads to another very fast, as can be seen in the Middle East.  The cultural, linguistic and religious affinities across borders internationalise issues.  The moment an issue in one country has trans – boundary effects the matter ceases to be a purely domestic issue and all countries affected by it have a stake in the matter.

Let us take the situation of the Tamil-speaking peoples of Sri Lanka.  They were majorities in their areas of historical habitation from time immemorial, but they became minorities in the context of the whole of Sri Lanka.  They have been discriminated against, politically marginalised, brutalised in war and even the Courts have a systemic bias against them and has consistently failed to protect them.  Majoritarian policies have marginalised, disempowered and alienated them.  How is their security preserved?  How is their Sovereignty as human beings preserved, especially since the Sovereignty of the rule of law has been eroded?

Barely a week ago even the usually euphemistic Commonwealth Secretary Mr. Kamalesh Sharma spoke of the lack of independence of the Elections Commissioner in Sri Lanka and the need for reduction of the Military activities in civilian life in the Northern Province.  I know both these issues first hand.

As I stated earlier, the judiciary has been beaten into submission – literally as well – the Secretary of the Judicial Services Commission who was seen as supportive of the impeached Chief Justice was assaulted outside his son's school.  The public service has been completely politicised.  Completing one year in office as the Chief Minister, I can attest to the interference by the Governor who was the Military Head of the Province during the War and the parallel administration that goes on. The Chief Secretary to the Provincial Council, the chief public servant in the province, was appointed in violation of the law and continues in service, despite our objections.  Just recently when important mobile services were being arranged for our people the Chief Secretary kept away, along with several others, citing sudden meetings at the Presidential Secretariat.

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.

.  They have no confidence in the Judiciary, which not only has a history of holding against them, but which has become entirely subservient to the Executive in the last 5 years. 

If the world had lent its ear to the plea of SJV Chelvanayagam in 1974, when he addressed the international community in his missive to the Commonwealth Heads attending the 20th Commonwealth Conference in Sri Lanka in 1974, much tragedy could have been averted. 

This memorandum is presented to you in the hope that through you, world conscience will be awakened to the present plight of the Tamils in this country, who are being systematically subjected to a denial of human rights, various forms of racial discrimination and other practices which could lead to the genocide of the Tamils.

It was the trans-boundary effect of tens of thousands of refugees pouring into India, in addition to the violation of international humanitarian law that prompted India to intervene in Sri Lanka in the 1980s and incidentally the intervention was also geared towards India securing her National Security and National interest.  The legal relationship between India and Sri Lanka has been cemented further through the Indo-Lanka Accord. Indo-Lanka accord is an international agreement between two countries and the Government of India played the role of representing the collective interests and rights of the Tamils of North East. Hence it could be stated the government of India had played the role of a guarantor and underwriter of the Accord, bearing in mind the key aims such as addressing Indian strategic interests, Sri Lankan Sovereignty and the collective rights of the Tamils of the North East.

The military, political and intelligence assistance given by India to Sri Lanka during the final stages of the War, were clearly based on the premise and/or promise that there would be a meaningful political solution.  Not only was that the promise made to India, on more than one occasion, but it was also the solemn undertaking issued to the international community of nations as represented by the Secretary General of the UN. As the Joint Statement issued by the Government of Sri Lanka and the Secretary General of the UN recorded in May 2009:

The Secretary-General welcomed the assurance of the President of Sri Lanka contained in his statement in Parliament on 19 May 2009 that a national solution acceptable to all sections of people will be evolved.  President Rajapakse expressed his firm resolve to proceed with the implementation of the 13th Amendment, as well as to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka.

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 28th 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 13th Amendment and the likelihood of abuse of its provisions. They predicted then that the North and the East would be separated, that the legislative powers of the Provincial Council will be sabotaged, that the Governor who was supposed to be ceremonial will play an interfering role, and the farcical nature of the 13th Amendment.  India's actions as suggested would be in furtherance of Human Security and People's Sovereignty. It is critical to understand addressing the inadequacies of the 13th Amendment necessarily entails revising the Constitution bearing in mind that Sri Lanka is a multi-ethnic, multi-religious and multilingual society. It should recognise and enshrine the collective interests and rights of the fraternity of communities that comprise our beloved but bloodied isle. This is where lessons of constitution making by the far-sighted leaders of Bharat are indeed a shining example – The spirit and deed in which the multi-ethnic, multi-religious, Indian body politic was preserved through a secular constitution, perhaps based on the premise of unity in diversity in post-independence India.

We share a common vision – that of Human Security and Sovereignty of the People and the rule of law.  It is a lofty vision and as Justice Khanna proclaimed "Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power."

I salute Mr.Kannabiran's and the PUCL's eternal vigil.

Thank you.

*PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL) - THE INAUGURAL K.G.KANNABIRAN MEMORIAL LECTURE at VIDYODAYA SCHOOL AUDITORIUM - NO: 1, Tirumalai Pillai Road, T Nagar, Chennai 600017 (near Valluvar Kottam) - On 9th November, 2014 at 11 am. - Address by Justice C.V.Wigneswaran, Chief Minister, Northern Province, Sri Lanka and Retired Judge of the Supreme Court of Sri Lanka on Safeguarding security and sovereignty

 

 

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