We can only turn to India for help as it is the regional power
Dr. Nirmala Chandrahasan
by A. Jathindra, Centre for Strategic Studies, Trincomalee, March 5, 2022
Dr. Nirmala Chandrahasan is a distinguished academic and law professor, who has been involved in the constitutional process to resolve the national question for several years. She has specialised in international law, particularly in the areas of the law of the sea, international humanitarian ( laws of war), human rights, and refugee law. She has contributed articles on these subjects to international law journals and has written a book on the Law of the Sea. Dr. Nirmala was part of the 3 member expert team of the Tamil National Alliance, that recently visited Washington DC.
“[The] Sinhalese people are our friends; the unitary constitution is our enemy,” were the famous words of your father Dr. E. M. V. Naganathan. Indeed, it was invoked by you in August 2021 at an event to commemorate his 50th death anniversary. Nevertheless, it is 74 years since the formation of the Federal Party. Federalism is a distant dream: there are no vibrant voices in favour of federalism among the Sinhalese, although there is an occasional voice. Why is that?
You state that there are no vibrant voices in favour of federalism among the Sinhala people and 73 years after the formation of the federal Party, Federalism is still a dream. This is true, but the reason for this is that from the 1950s the Lake House press, then the dominant media outlet and the Sinhala nationalist parties both the UNP and the SLFP carried on a propaganda campaign against Federalism. In an interview with Dr A.T. Ariyaratne the founder of the NGO Sarvodaya, on his perception of S.J.V. Chelvanayakam the leader of the federal party, Aryaratne spoke of him favorably and as a national leader, but Commenting on Federalism he said ‘that word Federal, even then (he was referring to his youth) they were telling us that it was the first step to Separation’.
This idea has been instilled into the Sinhala consciousness, in spite of the fact that federalism is a concept whereby diverse ethnic and other identities have been held together as one Nation, as we see in our neighbour India, and in diverse countries such as Switzerland, Canada, USA, former Soviet Union etc. What needs to be done is for the Tamil parties to actively campaign among the Sinhala people to explain to them what Federalism means, and this has to be done through the medium of Sinhalese language and Sinhala press.
Chandrika Bandaranaike Kumaratunga’ when she was President, in order to muster support in the Sinhala south for her 2000 Constitution, which was federal in content, organized a campaign called the Sudu nelum (white Lotus) campaign, and had people go to the Villages and explain the concept. In the surveys done subsequently, it was found that from 23% in favour the percentage had gone up to 67%. When the Bill was presented in Parliament, the SLFP, including Mahinda Rajapaksa, and its allied parties voted for it. The UNP voted against and their leader burnt a copy of the Bill in Parliament. The Bill was still 7 members short of a majority, but the Tamil party TULF (predecessor of the TNA) abstained, thus denying the Bill its majority and the Constitution Bill was defeated in Parliament. The Tamil members, it was understood, had to follow the instructions of the LTTE or face dire consequences. So it will be seen that it is possible to change the mind of the Sinhala people and if the Tamil parties could spend some time on this endeavor while also canvassing the international community, we might come closer to our objective of a federal Constitution.
I might add that Dr Naganathans statement underscores the need for a cordial relationship between component units of a Federal structure as it is a cooperative endeavor. It is only if the Sinhalese people are convinced that federalism can work, just as two hands are needed to clap. The Sinhalese must come to understand that it is good for them as well. In the Quebec Reference case the Supreme Court of Canada pointed out that democracy is fundamentally connected to substantive goals, most importantly the promotion of self-government, and democracy accommodates cultural and group identities. Hence, a federal structured Constitution will ensure the unity, sovereignty and territorial integrity of Sri Lanka while preserving its character as a multilingual, multiethnic, multireligious plural society.
The new regime is also pronouncing a new constitution. But there are reasonable fears that even the space made available by the 13th Amendment maybe nullified. Against the backdrop, six Tamil parties have joined hands and demand India’s intervention. This is opposed by Tamil hardliners. How do you interpret such developments? Is an Indian intervention feasible?
Firstly, I would like to point out that this was the initial position taken by the Parties representing the Tamil-speaking people in which only the implementation of the 13th Amendment fully was spoken of. This position was agreed upon by the Muslim political parties as well as political parties representing Upcountry Malayaha Tamils and Tamils living outside the Northern and Eastern Provinces. So that it comprised the representatives of all the Tamil-speaking people in the Country.
However, subsequently the ITAK / TNA added further provisions which included recognition of Tamil right to self-determination and a federal structure. Consequently, the Muslim parties and Malayaha Tamils found themselves unable to sign, and the letter was signed and handed over to the Indian High Commissioner by six Tamil parties representing the northern and eastern Tamils only. To my mind this was unfortunate as it could have been the starting point for forging a Tamil speaking consensus and an alignment of parties which could present a united front in Parliament and strengthen the Tamil political position in the country. Instead, today we continue with a splintered Tamil-speaking people. Requesting India’s intervention in the implementation of the treaty provisions (Using the word demanding is not appropriate here) is certainly legitimate as the Government of India, GOI and the Government of Sri Lanka, GOSL are parties to the Treaty i.e. the Indo – Sri Lanka Peace Accord of July 1987, and hence the obligations to carry out the provisions of the Treaty are obligations which are owed to the GOI, by the GOSL. We, the Tamil-speaking people are only the beneficiaries under the Treaty.
I would like to cite here the words of Shri Rajiv Gandhi in an address to the Indian Parliament which sets out the intentions behind the Accord. He said as follows, “We have structured framework for a durable solution to Sri Lanka’s ethnic problem. The Agreement meets the basic aspirations which animated the Tamil struggle namely the desire to be recognized as a distinct ethnic entity, political autonomy for managing their political future, and appropriate devolution of governmental powers to meet this objective, the recognition of the Northern and eastern provinces of Sri lanka as areas of historical habitation for the Tamils, and acknowledgement and designation of Tamil as an official language of Sri Lanka. (31st July 1987 reproduced in Indo-Sri Lanka Agreement, Ministry of External Affairs, New Delhi).
We see that even after 30-odd years “the appropriate devolution of governmental powers”Shri Rajiv Gandhi refers to has not taken place because of the roadblocks put on its application by successive governments in Sri Lanka. In my article on “13 Amendment, the Tamil polity – A pragmatic approach’” published in the Island newspaper of Sri Lanka dated11th February 2022, I have analysed the impediments to the smooth working of the system, and set out the ways in which these impediments can be remedied and the Provincial Councils set up under the 13th Amendment, made to work efficiently giving meaningful devolution not only to the North and East but to the whole country as provincial councils have been established for all nine provinces, although originally intended for a North-east province through a joinder of the Northern and eastern provinces. So I would agree that the GOI should be urged to get the said agreement implemented. While also bringing to their attention the ways and means by which this can be done, as set out in my article above.
To answer your question, yes I think that an Indian Intervention is feasible in respect of the implementation of the 13th Amendment and the Provincial Council system, but as to the question of recognition of principle of self-determination and setting up a federal structure, I do not know how far we can expect the GOI to concur in matters which can have implications for them domestically. While it is recognized that we have to work within the parameters of what is possible, the TNA and Tamil organizations in foreign countries, find themselves constrained to make these additional demands as there are hard liners within the Tamil community who take the view that the 13th Amendment does not fulfil the Tamil aspirations.
You have recently urged the Tamil polity to adopt a pragmatic political approach. Yet the Tamil polity seems to be embarrassed to discuss developments. What are your observations?
I agree with this evaluation. I think that as a community we have to realise our limitations. We are only 11% of the population according to the last census in 2012. After so many have died during the war and so many have emigrated to foreign countries (people in the Diaspora claim that they are 1 million), our percentage of the entire population may be even less. After a new census and parliamentary delimitation, we can expect to have less members in Parliament and a further decline in our political strength. Together with the upcountry Malayaha Tamils and Tamil speaking Muslims of the eastern province we can muster something closer to 25%. Of Tamil-speaking people in the country. The pragmatic viewpoint would indicate that we draw closer to these two groups and build political alliances. You will see that in the matter of the letter to Prime minister Modi and the GOI, we let slip such an opportunity.
The recent political history of the Tamils is in fact a tale of missed opportunities due to ‘’hubris’’ or naivety. We might recall that under the Indo – Sri Lanka Agreement the Tamils were given a Tamil Homeland by the administrative joinder of the two provinces northern and eastern, and a single provincial council to administer it. Unfortunately, the mainstream Tamil political parties declined this opportunity. Today we are asking for a North-east joinder but this is now a distant dream as the demography of the province has been and is being further altered. It is unlikely that even the Tamil speaking Muslims of the eastern province would support this proposition as there has been no attempt to win their support. I refer to the above missed opportunities, and mistakes not to blame anyone, (the political parties and their leaders were in many instances forced by circumstances or the Militants to take a particular stand) but so that we as a community will learn from our mistakes and be cautious in rejecting things out of hand.
Today some Tamil parties are campaigning against the 13th Amendment and the Provincial Council system. The present Government will be only too happy to pay heed to these complaints and the Experts Committee which is preparing the new Constitution would do away with the Provincial Councils or re redraw the boundaries so that we no longer have two Tamil speaking majority provinces in the country. They might even as an alternative substitute District Councils. After so many years of non-violent agitation by way of Satyagrahas, and civil disobedience campaigns, parliamentary agitation, negotiations and pacts with Sinhalese governments and finally a civil war which took the lives of so many of our people and reduced the population of the northern and eastern areas to penury, the only institution which we can show for ourselves are the Provincial Councils and that too with Indian intervention. So lets not depreciate them and dwell on the shortcomings, but try to remedy the defects in the system and make use of them as best we can. This does not prevent us from also working towards obtaining institutions which could give greater powers, but nothing will be gained by throwing away what we have in hand. Our people must be made aware that it is only if the Northern and eastern provinces remain as Tamil speaking provinces that we can claim to be “a People”, and have a right of self-determination.
This is why today the attack is being directed at the lands in the two provinces and the Archaeological Task force for the Eastern province, Mahaveli Dept, Forest Dept, Wild Life Dept, assisted by the police and army are all part of this campaign to take over the lands in these Provinces, under the pretext that these were originally Sinhalese Buddhist areas, although it is historically proven that the artifacts and ruins found therein are Tamil Buddhist stupas and Vihares built at a time when the people of South India and Tamils of Sri Lanka were also Buddhists i.e. from around the 3rd Century AD to the 9th Century AD when a composite Hindu /Buddhist culture prevailed.
These are the present realities which the politicians of today and Tamils living abroad are not aware or not taking account of. While some political parties here and Tamils abroad are making nationalist and political demands for the Right to self-determination, and for Separate, Confederal, Federal status etc, the reality on the ground is that the Tamil farmers in these provinces are seeing their farms and grazing grounds being taken over and lands are being lost, the Tamil population is dwindling, the parliamentary representation is becoming even lower, the political power of the community is at a low point and we have no allies. We can only turn to India for help as it is the regional power. The western nations cannot help us in these matters, although they can help in the matter of human rights and accountability for war crimes. But our existential crisis as a people remains.
Since the end of the war in 2009, the Tamils began embracing the liberal West. Tamil politics was understood, especially through human rights pressure. But no progress has been made in terms of a political solution. It is in this context that the Tamil parties demand India’s intervention. You recently had discussions with U.S. State Department officials in Washington and the TNA expressed hope that the United States and India work together for a political solution. How do you asses the possibilities for U.S involvement in a political solution for the Tamil people?
I agree with you that the Tamil people and in particular the Tamil Diaspora have turned to the International Community which actually means the western countries. They have carried out a successful campaign on Human rights violations and Accountability issues connected with the civil war in Sri lanka where the Tamil people have been the Victims. The UNHRC Resolutions in Geneva are very much a result of these efforts and the taking up of these issues in the political and parliamentary circles of these countries has not only given these issues publicity but have had an impact on Sri Lanka as well as for example is seen in the EUs linking of economic advantages with the carrying out of Human Rights obligations. However, progress on the political front has lagged behind. This is because countries do not intervene generally in the political settlements of other sovereign states, (at least not overtly), unless their own security is at stake or is adversely affected.
You have posed the question of the possibilities of an American intervention to help the Tamils. I think one has to look at this question in the context of spheres of influence. While South America is considered within the US sphere of influence, South Asia is considered as being within India’s sphere of influence. In my view as the two countries are now allies and members of the QUAD alliance, the Americans would not interfere in this region unless to support India’s stand. However, at a time when Sri Lanka was considered to be very much in the Chinese camp, the US Government showed greater interest because of the geopolitical implications of this position for the Indo-Pacific region. However as of now Sri Lanka has side stepped the appearance of too much Chinese influence and is balancing itself between the two Asian giants India and China. Perceptions have changed, and hence the interest in Sri Lankas’ political configuration has waned in the US, and for that matter in India too, with the Trincomalee port and its oil tanks coming within India’s purview.
You are an expert in legal matters related to the maritime borders of Sri Lanka. The issue of Sri Lankan–Indian fishermen continues unresolved. That too almost resembles the Eelam Tamil national question. How do you see this? What do you think is the solution to this problem?
The demarcation of the boundary between India and Sri Lanka was by two Boundary Agreements. The first one in 1974 demarcates waters in the Palk Straits. This boundary delimitation was based on Agreement, as the purpose was to settle Katchchtivu island dispute, which the state parties had agreed to hand over to Sri Lanka. Hence, the line was drawn so that this island fell within Sri Lankas boundary, but it was equidistant in other sections. Under article 5of the treaty Indian fisherman and pilgrims were given access to visit katchchativu without visas or other documents during the annual Church festival of St Anthony. I might mention that this island still remains a bone of contention as Tamil Nadu claims that it rightfully belongs to it. In 1976 a second boundary agreement was made extending the boundary in the gulf of Mannar and the Bay of Bengal.
As both countries are given sovereignty and exclusive jurisdiction over their sections of the intervening sea this includes fishing rights. The exchange of letters between the two states makes it clear that the fisherman on either side of the boundary line cannot fish in the waters of the sea demarcated to the other country. The waters on the Sri Lankan side are historic waters and therefore come under the classification of internal waters, and not territorial sea.
During the long drawn out civil war in the Country the Tamil Fisherman in the North were for the most part prevented by the military from fishing in these waters for security reasons and had suffered much deprivation as this was their only source of livelihood. During this time, the Fisherman from Tamil Nadu were able to fish here freely, and today continue to do so, as their part of the sea has been denuded of fish by over fishing and by bottom trawling by trawlers. Most of these Trawlers are owned by persons from Tamil Nadu. This has caused great hardship to the Tamil fisherman of the North who not only find the fish stocks depleted but find their nets torn and destroyed by the Bottom trawling operations.
Animosity is growing, and there have even been attacks in the sea between the two groups of fishermen. The Sri Lankan navy has been intercepting some of the boats of the Indians and arresting the persons doing illegal fishing and incarcerating their boats. Tamil Fisherman of the North however feel that the Sri Lankan Navy does not always do it job and that this exacerbates the conflict. They are unable to stop the huge incursion of Indian boats, nor the practice of bottom trawling which is a banned method of fishing. Furthermore, the government of India intervenes and demands the release of such person and their boats on humanitarian grounds as protests take place in Tamil Nadu, and the Sri Lankan Government finds itself unable to deny their request.
In my view we must make a distinction between the actual fisherman of Tamil Nadu who do their fishing in small boats or catamarans using traditional methods, and the businessmen who are owners of Trawlers and employ poor fishermen or other laborers to operate the Trawlers. The catch in this part of the sea, of fish and prawns/ schrimp, is a good business for them and much of it is sold abroad to European markets so that profits are high. On the other hand the Fishermen living on the coasts are people who have lived here and fished in these waters for generations. They find it difficult to understand that there is now a boundary in the sea, and going over to the other side is illegal. For these people too fishing is there only livelihood. In my opinion some accommodation could be made for them and the Fisherman’s representatives on both sides could meet and work out some compromise so that they too can fish on certain days or particular times or have some quota allotted to them.
But as for the trawlers and their owners there can be no compromises and they must be stopped forthwith. The GOSL must protect the livelihood of their own citizens, the northern fishermen. The trawler owners must be persuaded to take to deep sea fishing and do their trawling in India’s Territorial sea and EEZ (exclusive economic zone) on the eastern coast which goes up to 200 nautical miles. Leaving out Sri Lankas Historic waters and the territorial sea in the Gulf of Mannar. It must be pointed out that the Trawling methods employed by these trawlers has not only depleted fish stocks but also damaged the ecosystems of the marine environment, and is a method that is banned under the 1995 FAO Code of Conduct for Responsible fisheries. The law of the Sea Convention emphasizes both the aspects of utilization as well as conservation and management.
There is a discourse in the liberal world that Chinese expansionism is a serious problem. The Chinese Ambassador’s recent visit to Jaffna seems like a rehearsal for stepping into the north and east. The Tamil National Alliance continues to oppose Chinese presence in the Tamil domain. Most Tamil nationalist parties have a similar policy stance. What are your thoughts on this?
I would like to set these matters in a Historical and the geo -political context. You speak of Chinese expansionism as a serious problem and discourse in the liberal world. But what of the Western countries and their expansionism in the earlier centuries when they colonized Asia and Africa and used trading practices which were not always ethical. The Chinese are now using economic strength to influence and gain control of other countries. It is all part of a historical process where nations rise and fall, and one cannot be too judgmental. Presaging the Belt and Road initiative presently underway, the Chinese had started on a series of voyages known as the Ming treasure voyages” in the 15th century itself. To quote the Article by professor Sasanka Perera, these voyages were undertaken to expand Chinas military, political and commercial Authority across the oceans and establish Chinese spheres of influence in different parts of Asia, parts of the middle east and in places like Mombasa and Mogadishu in Africa. Admiral Zheng He, was the commander of this great fleet which also visited Sri Lanka in February 1409.
This date is taken from the stone tablet (stele) with inscriptions in Chinese, Tamil and Persian proclaiming the arrival of the fleet, and discovered in Galle in 1911, now kept in the Museum. The Tamil inscription calls upon the blessings of the “Thenavaran Nayanar” ie The Hindu God Vishnu, and mentions that the Admiral had made offerings at the Great Vishnu Devale (Temple) in Devinuwara, which was subsequently destroyed by the Portuguese. History sometimes repeats itself and recently Ambassador Qui Zheng Hong, similarly made offerings at the Kandasamy Kovil in Nallur, Jaffna, with due observance of the dress code and customs enjoined for such worship. So since you are asking me for my thoughts on this matter I think the Tamil people should be pleased to get recognition of their culture and religion from the representative of China.
I would also like to point to the fact that the Tamils of South India and Sri Lanka have had long standing cultural and political ties, and trade links with the Chinese, and that the famous monk the Rev. Bodhidharma who brought Buddhism to China was a Tamil Buddhist monk from Kancheepuram. In fact the Pallava Kings who ruled in South India between the 6th – 9th centuries were patrons of Buddhism. According to historical sources they had extensive trading contacts with the Chinese and the town of Mamallapuram (Mahabalipuram) was a Port city of the Pallava kingdom, and many Chinese coins and artifacts have been found here.
It was in recognition of these historical ties that the Prime minister of India Shri Narendra Modi arranged a Summit meeting with the President of China Xi Jinping, in the town of Mamallapuram in Tamil Nadu, and not in New Delhi as is customary. This summit between the two leaders was held in October 2019. Very recently Shri Modi mentioned this fact when he was accused of not giving the States due recognition, and he responded by pointing out that he had held the Visit of the President of China and summit meeting with him, in Tamil Nadu. On the other hand some Tamil politicians from the north, treat this visit of the Chinese Ambassador to the Nallur temple with derision and disrespect. When a courtesy is extended to our people we must likewise respond courteously, recognizing that our two cultures have co- existed over many centuries enriching each other. Our ties with India will always be closer as these are long standing ethnic, cultural and religious bonds and will not be adversely affected by any contacts with the Chinese.