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Killing Prabhakaran Will Not Silence the Tamils

by Justice C. V. Wigneswaran, FederalIdea, February 16, 2008

Similar dramas are being effected in the North and East today. Without the consent of the people affected, without the consent of persons lawfully elected by the people, certain institutions are being set up. State thuggery seems to be the name of the game. Men and institutions remain free only when freedom is founded upon respect for the Rule of Law and if grievances are redressed by constitutional methods. But if all constitutional methods fail to redress grievances of sections of society who have been subjected to innumerable hardships due to callousness and indifference and maybe even partiality of successive Governments in power, how are they to redress their grievances by constitutional methods? Let us not forget that East Pakistan became Bangladesh on account of the indifference of the then West Pakistan to the real grievances of the people of East Pakistan.

Senator Tiruchelvam's Legacy [Full Text of speeech made by Justice C.V. Wigneswaran, Retired Supreme Court Judge, at the Book Release of “Senator Tiruchelvam’s Legacy”- a Vijitha Yapa Publication on 1st February 2008 at the New Kathiresan Hall, Colombo, Sri Lanka]

Akanda Mandalaakaaram Viyaaptham Yena Charaacharam Tatpatham Dharshitham Yena Tasmai Shree Gurave Namaha.

Madam Chairman, my dear brothers and sisters!

Closing in on the psalmist’s three scores and ten years, age wise many of us are legacies from the past. As a student and then even as a young legal practitioner at the time Senator Tiruchelvam was a Minister, I remember myself firmly believing that the future of this Country was going to be all rosy and happy. The tomorrow was going to be better than the today of those yesteryears, I thought. But alas! It had got worse and worse so much so, from a political perspective those few years of Dudley Senanayake’s stewardship as Prime Minister appears as an oasis in the midst of a long stretch of barren desert soil.

The release of “Senator Tiruchelvam’s Legacy” is timely. It reflects the staid sobriety of a by-gone age during our own mundane human existence, quite out of step with the belligerent, blithering, bullying, barbaric and boorish outfit of today boastfully though beguilingly referring to itself as benignant and beneficient, benevolent and even blessed. Those of us bred in the Western public school traditions yet having also imbibed the perennial virtues of our Eastern values find it difficult to classify the negative norms and superficial standards of the present era into anything worthwhile Eastern or Western, traditional or modern, national or international. A hybrid new culture alien to Western and traditional Eastern culture though possibly borrowed from the seedier sides of those two cultures, seems to be taking root in this country. Naked selfishness, rank self interest and the spirit of self aggrandizement, conceit and egotistic imperatives seem to motivate today’s possessors of power and authority. Holding on to the reins of government at any cost has become the principal dogma and doctrine to be pursued. Destroying one’s opponents using any means or modes has become a cult. Dead men do not talk has become the principal motto of their outlook.

Just forty years ago it was not so. Democracy had a meaning. You could discuss your differences without despising your opponent. Today even the heads of organs of State carry venom and vituperation in their veins, however much they camouflage their nakedness with high sounding patriotic and religious epithetic garbs.

It is amazing to see the change of values, norms and standards since forty years ago. Maybe we who were born during British times and bred after Independence are considered today as anachronisms to be tolerated since we will be no more in a few years’ time.

I like to show the difference in perspectives between the time of Senator Tiruchelvam and the present era. If you take today’s Parliament, none seem to be interested in what is taking place there except to the extent as to what benefits attendance in Parliament, could bring upon them. Arguments in Parliament in comparison to the earlier period are puerile and often border on personal vituperation.

Justice CV Wigneswaran speaking at the book launch

The bygone era of Senator Tiruchelvam discussed in a dignified way the most distressing political problem that beset them at that time. No white vans took valued relatives of Parliamentarians as hostages to manipulate voting pattern in Parliament. Crossing the floor for Ministerial benefits was minimal.

I like to quote late Mr.J.R. Jayewardene,who later became the first Executive President of this country, when he paid tribute to Senator Tiruchelvam on his demise. JRJ was a contemporary of Mr. Tiruchelvam at the Ceylon Law College and a colleague of his in Dudley Senanayake’s cabinet. Having said that Mr. Tiruchelvam was a Minister of great acceptance, he continued thus-(I quote) “He never obtruded in our discussions. When he intervened it was acceptable and civilized”.(unquote) This civility is missing today amidst our Parliamentarians. Each appears to be a bull in his own China Shop.

I sometimes wonder whether we could ever visit the earlier intellectually stimulating period of Parliamentary debates, our Parliamentarians in recent times having tainted themselves with brutal prejudices and boorish pretensions.

Dr. Colvin R. de Silva had this to say about Senator Tiruchelvam.(I quote) ‘He had of course even in political discussion, a certain tenacity in respect of decisions to which he had already come in that field and which decisions he was seeking to pursue. But he did even that in an extremely agreeable and pleasant manner so that one could after a discussion that might have turned heated, terminate the discussion as good friends who had had a discussion on a matter of utmost difficulty” (unquote).

Such a quality was of utmost necessity in the field of Parliamentary activity where members had to face each other daily. However agitated the generation of Tiruchelvam and Dr. Colvin R.de Silva were, they hardly ever transgressed acceptable behavioural patterns of dignified Parliamentarians. One wonders whether in today’s Parliament the atrocious behavioural practices are staged for the consumption of their TV watching constituencies. After their unacceptable boorish behaviour we find Parliamentarians showing a rare camaraderie outside the Chamber. Maybe birds of the same feather but of different political hues are cahoots in deals which give them each personal benefits. The show in Chambers may be a cover for their nefarious activities.

Another quality of Senator Tiruchelvam portrayed in the publication under review today was his conviction that this country belongs to all its citizens. He was individualistic when wanting to uphold the rights and privileges of a particular ethnic group among the denizens of this Island of ours. But he was at the same time nationalistic and viewed the country’s citizenry as one composite whole and therefore willing to co-operate and inter-act at the public and national level. In fact, he was resolutely in favour of a united and plural Sri Lanka and therefore opposed the 1976 Vaddukottai Resolution that demanded a separate State of Thamileelam and advised Mr. Chelvanayagam against it. Obviously he still had faith in the humaneness of those politicians among the Sinhalese who drove the Tamils to pass that Resolution as a last resort much against their innate wishes.

There is an unfortunate tendency today among many of our Sinhala Buddhist brethren to view and consider those who speak up for the rights of the Tamil speaking people as traitors and terrorists. What is amazing in this perspective is that many of them believe in such trash. When I made my acceptance speech, on being elevated to the Supreme Court in the year 2001, in all three languages including Sinhala, referring candidly to the problems of the Tamils of Sri Lanka there were many of my colleagues who were otherwise well disposed towards me who were shocked and looked upon me like a visitor from an alien planet. It took some time for them to realize it was the same old Wigneswaran because I showed no difference in my day-to-day behavioural pattern. If my right to express my views about the community to which I belong, is considered traitorous and terroristic, I used to wonder how justice could be expected from some of these colleagues in cases in which minorities were before Courts. Did it not mean that these gentlemen had fallen prey to prejudices and predilections? They simply could not take the trouble to understand what I said and if necessary vehemently argue with me, rather than being at once prejudiced.

Mr. Tiruchelvam refers to a similar incident with regret in his maiden speech in the Senate on the 30th of April, 1965. Speaking about the introduction of the Language of the Courts’ Bill in Parliament, he said, unfortunately, Mrs. Bandaranaike was out of the Island on that date and it fell upon the then Minister of Justice to introduce the document. Mr. Tiruchelvam then went on to say as follows-(I quote from the publication under review)-”I regret to say this but I have to say it for the purpose of record-Although he was the Minister in charge of the subject, that is the official language,(he) had not read the Bandaranaike-Chelvanayagam Pact. He did not know the principles enunciated by Mr. Bandaranaike on this matter. Indeed, even at a later stage during the Satyagraha movement, when we had negotiations for the purpose of settling matters, to my utter consternation and horror I found that he had not read the Bandaranaike Chelvanayagam Pact. I thought to myself that the destinies of this country, the destinies of hundreds of thousands, nay, of millions of people are entrusted to people of this type who did not have even the elementary responsibility of familiarizing themselves with that important document or at least one section of it “.(unquote).

Maybe the then Minister of Justice was an exception at that time. But today his types are the order of the day. Prejudices, predilections, apathy and indifference affect most of our politicians today. A craving for power and money drives them. Make hay while the Sun shines, they seem to be saying. What happens tomorrow is not our business, they seem to be thinking.

How stupid would it be to think that militarily overcoming the LTTE or killing its head would solve the ethnic problem of Sri Lanka? The LTTE is the offspring of the ethnic problem itself created by the successive mono-ethnic parliamentary majority in Sri Lanka. It was State terrorism on their part which created the Liberation Tigers. The ethnic problem concerns the denizens of the Northern and Eastern Provinces who had lived in their areas for centuries from pre-historic times. True, there were influxes of Tamils at various stages of our history. But the fact that right throughout history the Dravidians had occupied the present Northern and Eastern Provinces and even more lands surrounding them cannot be disputed. The Buddhist remains in the North are the remnants left by the Demala Bauddhayo not anybody else. Buddhism flourished in South India, too, at that period of history. Even though students join a College like, say, Royal College from Royal Primary or after passing the Scholarship exam or at the level of GCE Ordinary Level or even at some other class they are all called Royalists. You don’t call them by any other name. Similarly, whatever may have been the period at which Tamils may have arrived in Sri Lanka, we cannot dispute the fact that always the Northern and Eastern Provinces were occupied by Tamil-speaking people, including the Muslims. Whether the East came under the suzerainty of the Kandyan King was irrelevant. If it is relevant, then the fact that the Tamil King Elara wielded power over the entire Island would also become relevant. I hope you understand the connection.

From the time of Independence, a large majority of the people of these two provinces have shown their preference for a live and let live policy by supporting parties which declared a federal form of government as the best for this Island. When federalism was jettisoned by the so-called National Parties, then only the Vaddukoddai Resolution was passed in 1976, despite opposition by Tamils like Mr. Tiruchelvam. From that time emerged the military arm of the Tamils, however imperfect or perfect they may be. By destroying the military arm you don’t destroy the aspirations of the people who have been deprived of their legitimate rights. And you are dealing with Tamils whose literature and culture are as old as or older than the oldest civilization in this world. Once the civilization of the Lemurian Continent comes to light, much of the information about the antiquity of the Tamils now shrouded in mystery would be brought to light. I say this only to point out that you cannot trifle with people who are heirs to civilization and culture of such antiquity. Let us not forget that, despite China annexing by force the land of the Tibetans. their problem is still kept alive by Dalai Lama and others. Killing Pararajasingham, Raviraj or Maheswran or any other Tamil Politician or political agitator or even Prabakaran will not silence the Tamil people, whose whole existence as an ethnic and linguistic unit from ancient times is being jeopardized by successive insensitive Central Governments.

There are no terrorists who are born into this world. They are made. Mostly by persons in power and authority, the mighty and the powerful, due to their selfishness and insensitiveness which give rise to resistance and reaction. Such mighty conveniently call those unable to accept their dictatorial dictates by names. Earlier they were called Communists, then Fundamentalists and now Terrorists. It is the terror tactics of those in power and authority which creates such antagonistic opposition and hostility. Those in authority who lack humanism or who have personal and selfish agendas of their own take cover behind such loaded terms such as Terrorism and Terrorists. The period of Tiruchelvam fortunately was devoid of such persons, though not too much later the 1971 JVP insurrection took place. There again, it was the insensitiveness of successive governments towards the needs and aspirations of the poor and downtrodden people of the South which gave rise to such insurrection. It needs to be said in favour of Dudley Senanayake that he was prepared to discuss and adjust matters with those having opposite views, instead of taking cover behind such terms as Naxalites and terrorists.

Yet Mr. Tiruchelvam could not continue to be in the cabinet on account of certain disputes that cropped up with regard to the Koneswaram Temple in Trinco, and also due to the chauvinistic attitudes of many in Dudley’s party in power, who prevented the implementation of the Senanayake-Chelvanayagam Pact. Mr. Tiruchelvam resigned in September 1968.

His last months were spent in successfully defending Mr. A.Amirthalingam and three others charged with sedition for peacefully defying the 1972 constitution. Two seniors led him in Court - S.J.V. Chelvanayagam, K.C. and G.G. Ponnambalam, K.C. the leaders of two opposing Tamil political parties. For a wonder, Tamil birds of different feathers joined together. As expected they were successful. God made the Tamils disunited for the same reason that he denied horns to horses. They could be invincible if united. But I doubt their ever uniting. The verdict at the Trial at Bar was a triumph for the rule of law as stated by Mr. Ram Balasubramaniam in his introduction to the book under consideration.

Even before the 1972 constitution was enacted, Mr. Tiruchelvam had warned with regard to its legality. In the course of his speech on the 30th of June 1970 after the new United Front Government under Mrs. Sirimavo Bandaranaike was sworn in, he pointed out that the Constituent Assembly which was due to be set up by the newly elected Government was illegal. He said as follows - ”There was not one single speech, not one single talk indulged in the election campaign that there was going to be a Constitutional Assembly. How can there be a constituent assembly when the Government Parliamentary Group does not have a single Tamil elected representative to represent them and carve out a constitution?” Continuing, he asked “How can you talk of a constituent assembly formed by a mere Resolution of the House? By a mere Resolution, how can you make it a constituent assembly?” At page 281 later on, he pointed out that sovereignty was vested with the people. Therefore, unless those elected were people who were elected or selected ad hoc for that purpose, such constituent assemblies would lack the necessary legal authority. The Constituent Assembly in India was an ad hoc body, he pointed out. He said it was specifically elected to exercise the sovereignty of the people and to create a constitution. But here, what they are seeking to do, he said, is rather an amusing piece of effrontery - that is for the other House to arrogate to itself the power to frame a constitution and to make that constitution work. He pointed out as per page 285 of the publication under review, that we cannot adopt and operate a constitution unless you have it as a legal document, unless we are vested with the legal power. That legal power he said can only be vested in us by an Act of Parliament, may be with a two thirds majority.

I was in Court when the late inimitable C. Suntharalingam brought an action before the Supreme Court stating that Section 29 of the then Constitution was in danger of being done away with. Chief Justice H.N.G. Fernando said it may or may not happen. Mr. Suntharalingam said it would be too late to come into Court if the entrenched Section 29 was arbitrarily done away with. The Chief Justice was impassive. The section was done away with. Again Mr.C.S was before Court. The Chief Justice said we are working now under the new Constitution. We cannot under it question the legality or otherwise of any provision. That was the end of the journey for Mr. C.S. The 1972 Constitution lacked legality.

Similar dramas are being effected in the North and East today. Without the consent of the people affected, without the consent of persons lawfully elected by the people, certain institutions are being set up. State thuggery seems to be the name of the game. Men and institutions remain free only when freedom is founded upon respect for the Rule of Law and if grievances are redressed by constitutional methods. But if all constitutional methods fail to redress grievances of sections of society who have been subjected to innumerable hardships due to callousness and indifference and maybe even partiality of successive Governments in power, how are they to redress their grievances by constitutional methods? Let us not forget that East Pakistan became Bangladesh on account of the indifference of the then West Pakistan to the real grievances of the people of East Pakistan.

It is to be said in favour of Mr. Murugeyson Tiruchelvam that, until he breathed his last, he believed in the goodness of all men. I wonder whether the pendulum would have swung to the other extreme if he was living today. I thank you for your patient hearing.

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