Taking advantage of the disunity among political parties in Tamil Nadu even on common issues affecting the State and its people, if the neighbouring States of Karnataka and Kerala are reticent in honouring the rightful share of water for the State in Cauvery river and Mullaiperiyar dam issues, the neighbouring country of Sri Lanka is also adopting the same attitude in its handling of the issues of Eelam Tamils and fishermen of the State.
Otherwise, the Sri Lankan Minister for External Affair G.L.Peiris would not have had the audacity to speak from the Capital of India that ceding of Kachatheevu to Sri Lanka is a setlled matter that could not be reopened. He has ruled out early repatriation of over 100 Tamil Nadu fishermen arrested by it recently for allegedly crossing into Sri Lankan territorial waters. Some of them have been in custody for over two months, and he says they would have to undergo the judicial process “though the intention is not to deprive them of their liberty for long”.
“But there has to be some deterrence, otherwise why won’t they come over and over again?’” asked G.L Peiris who maintained that India’s transfer of Kachatheevu island to Sri Lanka was a settled matter and cannot be reopened.
The Sri Lankan Foreign Minister said that till some time back, Indian fishermen who entered Sri Lankan waters were released quickly. But as this step was not dissuasive enough, Sri Lanka planned to prosecute the current lot of arrested fishermen so that they would not venture into its waters again.
The Lankan Minister also defended its human rights record and did not think the international community’s reservations on its handling of the military conflict with Tamil militants would come in the way of participation of member-countries in the Colombo Commonwealth Summit in November.
In New Delhi to formally invite Prime Minister Manmohan Singh to the Commonwealth Summit, which political parties in Tamil Nadu, Tamils all over the world and human rights organisations are calling on India to boycott, Peiris admitted the people of northern areas, where some of the most vicious fighting took place, were “bitter, angry and disillusioned.”
As was the case with Minister for Economic Development Basil Rajapaksa, Peiris also ruled out an early fix to the demand for greater political powers to the Northern Province, which will go to polls later next month. He also indicated that the Parliamentary Select Committee that is looking into giving greater political powers to provinces will go ahead with its deliberation next week without representatives of Tamil parties attending.
Condemning the audacity of the Lankan Minister, DMK President Kalaignar rightly said that the Supreme Court of India will give fitting reply to Sri Lanka on Kachatheevu issue.
Sri Lanka as well as some misled people in India believe that the pending litigation in Supreme Court on Kachatheevu island is futile and described claims to retrieve the island as weak in international law.
There is no doubt an order issued by the Supreme Court of India is not binding on Sri Lanka, as they say, but it must not be forgotten that the court’s jurisdiction extends up to the contiguous zone (up to 24 nautical miles) of India. Section 5 of the Maritime Zones Act specifically provides Indian courts with powers in the contiguous zone in matters where the “security of India” is involved. Therefore, matters pertaining to Kachatheevu — which is 18 nautical miles off the Indian coast, fishing in the waters around it and the safety of fishermen could be argued to be well within the ambit of Indian courts. Also, the petition filed recently by Kalaignar M. Karunanidhi (former Chief Minister of Tamil Nadu) specifically lists as respondents the Union of India, through its Cabinet Secretary and Foreign Secretary, all of whom are accountable to the courts of the country.
Of course, the Government of India has to amend the First Schedule of the Constitution to confirm the cession of territory, in accordance with the judgment in the landmark Berubari Union case. But, the government’s failure to table the 1974 and 1976 agreements in Parliament has raised questions about its intention. Also, the treaties state that they are subject to ratification. According to Article 14(1) (b) of the Vienna Convention, ratification of a treaty is necessary when negotiating states have agreed that ratification is required. But there is no indication that the India-Sri Lanka agreements have been ratified by the President of India, once again leaving us to wonder whether there is a bona fide intention by the government in giving any legal effect to the agreements.
Interestingly, they raise the question of whether the island was comprised in the Province of Madras as central to the claims on Kachatheevu. Historical evidence abounds that Kachatheevu was the zamindari of the Raja of Ramnad, and subsequently became a part of the State of Tamil Nadu. The Memoirs of the Governor of Ceylon from 1757 to 1762 clearly establishes the control of the Raja of Ramnad over the island. In 1921, a meeting of British officials in Colombo to discuss maritime boundary issues has referred to India’s territorial claim on Kachatheevu. After independence, the island was listed as a part of Ramanathapuram district in the 1972 Gazetteers: Ramanathapuram by the Government of Tamil Nadu.
Apart from this, they commit two serious omissions in their analysis. First, they fail to explain the contents of the agreements, which is important to understanding their constitutional maintainability. The 1974 agreement between the Prime Ministers of India and Sri Lanka allows the “vessels of India and Sri Lanka to enjoy in each other’s waters such rights as they have traditionally enjoyed” but that “each country shall have sovereignty and jurisdiction and control over the waters.” The words of the agreement sow the seeds of legal confusion. Simply put, as per this agreement, our fishermen can legally fish in Sri Lankan waters but they can be arrested for the same under Sri Lankan laws.
Second, they neglect to cover the historical events leading up to the 1976 agreement. In June 1975, Emergency was imposed all over India. Consequently, the DMK Government in Tamil Nadu was dismissed in January 1976. While there was no parliamentary or legislative functioning or civil society activism possible, the Exchange of Letters on March 23, 1976 between the Foreign Secretaries of India and Sri Lanka constituted the 1976 agreement. It was agreed that “fishing vessels and fishermen of India shall not engage in fishing in the Exclusive Economic Zone of Sri Lanka,” but it made no mention of the traditional fishing rights guaranteed in the previous agreement.
The contradictory and conflicting positions espoused by the two agreements, created in the background of political upheaval and uncertainty, have caused immense hardship to Tamil Nadu’s fishermen. According to reports, an estimated 500 fishermen have been killed in India-Sri Lanka waters over the past 30 years. It is not disputed that India must be bound by her international commitments, but the violations of international maritime and humanitarian laws by Sri Lanka and its navy have left India with no other choice but to review the agreements of 1974 and 1976. If the Government chooses to do so, it would be well within the purview of the Supreme Court to adjudicate the way forward.
Besides all these legal, Constitutional and political issues and provisions of international law, no other political party than the DMK in Tamil Nadu can claim to protest against the ceding of Kachatheevu by the Centre to Sri Lanka from the beginning. Kalaignar has given exhaustive details of the steps taken by the State government and the DMK led by him to prevent the ceding of the island. Notwithstanding her bravado in 1991 in swearing to retrieve Kachatheevu and now subdued muttering that she is hopeful that we could retrieve the island, it was only her party ADMK which refused to sign a resolution protesting against the move adopted at the meeting of leaders of political parties represented in the Assembly, that Kalaignar as Chief Minister convened at the secretariat in 1974. So if at all any political party betrayed Tamil Nadu fishermen on Kachatheevu issue, it is the ADMK led by Jayalalitha. The spirited fight of the DMK against the Centre’s move to cede the island to Sri Lanka right from the beginning is on the records of the State government, the records of the Lok Sabha and Rajya Sabha of Parliament containing the speeches of the then DMK MPs Era.Chezhiyan and S.S.Marisamy in the Houses respectively. The copies of dailies of those days will speak for the protest meetings conducted by the DMK against the Centre’s move and the speeches delivered by Kalaignar himself.
It is with this bonafide record of the DMK that Kalaignar exudes the confidence that the Supreme Court will give a fitting reply to Sri Lankan regime on Kachatheevu issue. r
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