A solution based on trust

WEDNESDAY, 17 JULY 2013

A solution based on trust would make headway possible

A brilliant legal mind, renowned for causing ripples while he was a member of the upper Judiciary and even after retirement, for his forthright speeches and judgments dispensed in the true spirit of law, former Supreme Court Judge C. V. Wigneswaran in a candid interview with Daily Mirror shared his reasons for deciding to enter politics as TNAs Chief Ministerial candidate and of his views on the contending issues of 13A that has emerged before the decisive Northern election due in September.

WEDNESDAY, 17 JULY 2013

When he decided to contest as the TNAs Chief Ministerial candidate at the upcoming Northern provincial poll, it was not the first time that former Supreme Court Judge, C. V. Wigneswaran became a newsmaker. A brilliant legal mind, renowned for causing ripples while he was a member of the upper Judiciary and even after retirement, for his forthright speeches and judgments dispensed in the true spirit of law, former Justice Wigneswaran in a candid interview with Daily Mirror shared his reasons for deciding to enter politics and of his views on the contending issues of 13A that has emerged before the decisive Northern election due in September. . . . Following are the excerpts:

Q: When your name was suggested as a likely Chief Ministerial candidate for TNA
at the upcoming Northern Provincial Council (PC) polls, you initially professed a disinterest in entering politics. But recently, you expressed willingness to accept the invitation if all five parties unanimously agreed to your candidature, which they did yesterday. What reasons led to this change in your position?

A: About two or three months ago when I was extended the invitation to contest as the
Chief Ministerial candidate for TNA I refused and continued to do so right throughout. But my students, friends in the legal profession and many others kept telling me that I should accept the invitation, pointing out its a duty cast upon me. There was a lot of

pressure exerted on me but still, I could have refused. So after much contemplation, I decided that I would accept the invitation if all constituent parties of the TNA jointly consider me as a common candidate. That is what they did when TNA MPs Sampanthan, Mawai Senadhiraja, Suresh Premachandran and several others visited my residence and informed me they have made an undisputed decision to agree on me as their Chief Ministerial candidate for the upcoming Northern PC polls. Hence, I accepted the invitation because it was the precise condition upon which I agreed to contest at this decisive poll.

Q: Although the government seems quite convinced of the fact that they have
implemented effective measures that would bring solutions to the aggrieved families of the Northern Tamil community, the opposition parties have continuously pointed out that the reality is far from it. As a figure contesting to represent the interests of the Northern Tamil community, which of their issues do you believe should be given priority?

A:With concern to the issues prevalent in the Northern Province, I believe priority
should be placed on reparation, rehabilitation, reconstruction and development. The various developmental programmes being carried out by the government are against the backdrop of a plethora of unresolved issues that continue to victimise the Northern Tamil families. The people have lost their homes and livelihood without any means of rebuilding them. But the most important issue, which is also quite tough to discuss and solve, is the high military presence. Some 10 -15 out of 20 battalions of the army are stationed in the North and they have taken over thousands of acres of land. Some lands are cultivated by families that have been relocated from areas outside the North and that very produce is thereafter sold to the rightful owners of those lands. Lands are being acquired under the Land Acquisition Act and people are simply informed through a notice concerning the acquirement of their properties while the lawful owners of the acquired lands/ properties lament in camps or relations homes without a roof of their own. For example, in my village in Manipay, one of my friends a doctor residing in Australia owned a house. Until a few months ago, for close to 15 years his house was occupied by the Police. Immediately after the Police left, a notice was put up on the house, notifying its acquisition. In his old age, my friend was planning to return and die in his ancestral home, but now he is forced to seek legal assistance to reclaim his property.

Q: Although highlighted by media time and again, the issue of missing/detained

Tamil youth has been left largely unresolved up to date with hundreds of parents still relentlessly trying to find the whereabouts of their children. What are your observations on this issue?

A: This is quite a tough question to answer because it may be possible for me, as a
former member of the judiciary to personally meet and discuss with the present Attorney General concerning the records of these missing/detained youth and he may be able to assist me. Hence, it is likely that someone else so far, may not have had the benefit of being able to converse with him in such a way. But there could be many cases, where the status of the missing individuals whether they are alive or dead, is not possible to determine similar to that of Ekneligoda. But if concerted efforts are carried out to find the whereabouts of these people and an organisation is established with access to data bases inclusive of information on those detained, it is feasible. If such an effort is made and we are able to succeed in getting at least 50 -100 of such detainees released, it would no doubt be a great service. I know as a judge, there are those who have been detained in prisons for a number of years, without charges or a trial. For example, there was a lady who was held in the Welikada prison for some 12 15 years due to non-possession of Rs. 5000 to pay her bail fee. If the Prison authorities check up on such matters and report the information to officials higher up, such predicaments can surely be avoided. When I was a district judge, I used to instruct my prisons officials to give me a list of all the individuals brought to courts and details of their cases. Whenever I found that there was no corresponding case, I would discuss the matter with the prisons officials and made provisions for them to be granted bail.

Q: So are you saying that those in the judiciary are also to be blamed with concern
to the issue of prisoners of Tamil origin, languishing in prisons without trials or charges?

A: Well, contributed in the sense, not that they have done anything purposely but
because of their indifference and lethargy, yes. When we were in the judicial service, we used to constantly keep an eye on those taken into custody and that also encourages the Prison authorities to be concerned of such issues. During my tenure, I used to visit prisons and discuss the grievances of the prisoners where they have expressed their concerns and we have been able to lend a helping hand to ease their issues. Today, there is no sufficient awareness among most in the judiciary, although some of the judges are very good, to look into such matters. It is imperative as a judge, to have the heart to look after them.

Q: During the war and soon afterwards, the government promised a solution that
goes beyond 13 A as an answer to the ethnic crisis. But it seems they are now opting to further repeal powers of 13 A. How do you perceive this situation? Do you feel it is a piece of legislation forced upon Sri Lanka by India?

A:I dont believe it was a legislation forced upon Sri Lanka by India because the Indo-

Sri Lanka accord, only refers to the Sri Lankan government to look into the question of devolution of power and the 13A was actually drafted by the J. R. Jayawardena administration. 13 A was influenced by the Indo Lanka accord that actually called for a solution to ease the issues prevalent particularly in the North and East. Instead the structure was implemented in all other provinces of the country as well. But following its implementation, the legislation did not develop any further than the provincial council elections that were held amidst much chaos. Up to date, the Southern provincial councils have not been bothered about the powers bestowed to PCs through 13A. Instead theyve fixated on increasing individual power, because the question of whether the power is concentrated in centre or the periphery matters very little to them. In the North, since the language, way of life and the culture is distinctly different; the peoples grievances required a governance structure where the power was devolved to the periphery. The government has to understand that severe repression is only going to worsen the crisis because the emergence of another armed conflict is going to be inevitable if the current trend continues. Therefore, I believe cultivating trust among the two communities is very important. If we, as leaders are able to work out a solution based on trust, it may be possible for us to make headway. It should also be noted that if another war breaks out, the sympathies are not going to be with the government. They appealed with India and the international community for assistance to end the war, with promises of looking into the welfare of the Tamil community, which they have failed to realise. Maybe I am mistaken, but I sometimes think that the government is egging on the hardliners to make allegations against 13A so that when the Tamils react and settle for it, the government can simply implement it and wash their hands off the matter because 13A by itself has a lot of shortcomings. The main issue is that no law can be passed without the ascent of the governor - a creation of the Executive. Under those circumstances, 13A is almost of no use. But if that is taken away, the Tamils would have nothing. This is why the TNA decided to contest under it. My point is, there has been no democratic institution for the Northern Province so far, so let us at least establish it under the 13A. Thereafter, like Oliver Twist we could ask for a little more.

Q: So you do not believe that 13A alone is the solution to issues faced by the Tamil
community?

A: 13A alone is not sufficient, but it can be adjusted upon, the tremendous amount of
power and authority given to the governor can be watered down with more powers awarded to the periphery. Although I recently read in newspapers that the President instructed the Governors to refrain from interfering with the workings of the PC, I am

told the present Northern Province Governor has told officers that even if the provincial council is formed, they would have to carry out his instructions. This is the issue with appointing military officials into civil administration; they are not used to working with others or being flexible towards others opinions. Moreover, the government is unfortunately thinking in terms of centralisation and the 18th amendment is a perfect example of their desire for more and more power unto themselves. Under such circumstances it is tough to expect major change to come out of it, but it can certainly be amended into a document on which sufficient devolution of power can take place. For this, it is important that the provincial councils as well as the central governments of Sri Lanka and India work together.

Q: Other reasons championed by those who call to repeal the powers of 13A is that
it is not constitutionally valid and neither is it legally binding due to a referendum not being held and India failing to uphold their part of the Indo-Lanka accord. What are your comments on such claims?

A: A referendum was not necessary because it was with regard to the North and East
and since the Supreme Court ordered the demerging of the two provinces, that argument is not viable. Moreover, the justification of India failing to uphold their side of the agreement is also void because that is what they did in 2009. If not for the support of the international community, particularly India, Sri Lanka could not have got rid of the LTTE so swiftly. So India, on its part although it was not done in the 80s, it was done in 2009 and therefore, I dont believe it is a ground to set aside 13A, which takes root from the international agreement between India and Sri Lanka. You cannot play the fool with such agreements and without the permission of India; it is not possible for Sri Lanka to act unilaterally.

Q: If Sri Lanka acts unilaterally, what do you think would be the repercussions we
would be led to face as a nation?

A: Well, it was made evident with the recent visit of Shivshankar Menon. Our
credibility as a country is going to be severely affected while it is already at stake. The head of this government announced to the whole world that he would implement a 13+ solution to solve the ethnic crisis but at present, it has been watered down to 13-. It is only a matter of time until it is completely scrapped. The Sri Lankan government should know this you can fool some people all the time, other people sometimes but not all the people, all the time.

Q: Do you think it would be beneficial for the Northern masses if the North and
East were merged like during 1987 or administered separately, like it is done at present?

A: I am of the opinion that the two provinces should be merged. The purpose of the
13A was to solve the crisis in the North and East. Following the introduction of the

provincial council system in 1987, the two provinces were merged due to Tamil being the common language used in both areas. There were certain issues raised by Muslims in the East during the time concerning possible majoritarianism on the part of the Tamil, but they have now been sorted. The fact is that the North and East use a different language, have separate cultures and are even climatically different from other provinces and therefore, should be granted the right to govern themselves in their own language etc. No one is against a Sinhalese person residing in the North, so why is it unacceptable for them to learn the common language spoken in the areas? When I was young we used to buy bread from an Appuhami who conversed in Tamil better than us and I knew a Somapala who was working with Joseph Pararajasingham who would speak to me in Tamil even when I spoke to him in Sinhala. But at present, the government has been forcing the people of the North and East to switch from their mother tongue to Sinhalese; all the government correspondences are in Sinhala otherwise they have to be redone and even statements to the Police in the North cannot be given except in Sinhalese. Isnt it absurd in an area where 90% of the masses converse in Tamil? Although certain adjustments are being made, the issues continue to persist.

Q: Earlier you spoke of a solution to the ethnic crisis based on trust between the
two communities. But against a backdrop of accusations against the TNA of being a proxy to the LTTE, do you think cultivating mutual trust is possible?

A: I firmly believe trust can be built through mutual understanding and education. Also,
it should not be forgotten that TNA has always promoted an agenda that stands for nonviolence and federalism unlike the LTTE. But both the TNA and LTTE were campaigning for similar issues; the Tamils being limited to second rate citizens, deprived of their rights and a life of normalcy. These issues were made justifiable grounds by certain parties, to accuse TNA of being an LTTE proxy. What about Daya Master, Thamilini and KP, who were once top LTTE members and are now with the government? They are not given the power to speak on their own and are under the control of the government. Send them out of Sri Lanka and from the clutches of the government - it is most likely their present opinions would undergo a drastic change. The TNA was in a similar position during the time of the LTTE; with their leaders assassinated by the LTTE they were left with little choice but to keep silent before the violence the LTTE carried out. But the government and these very parties who accuse the TNA are claiming the LTTE has been destroyed. So then how can the TNA be proxy to something that does not exist?

Q: The opposition has repeatedly accused the government of being intolerant

towards opposing political activity in the North. Under such circumstances, is it possible to expect a free and fair election in September?

A: This is one of our main concerns at present and a free and fair election is a far cry as
far as I can see since even the provision of bringing in foreign observers is being opposed to. During a recent meeting, our MPs had made a request from the Elections Commissioner to instruct the army to refrain from coming out of their barracks during the election period and he had refused, claiming it is unfeasible. What is the purpose of his role as the Commissioner of elections, if he cannot provide solutions to such a request? The issue had even created a crosstalk between him and TNA MP Suresh Premachandran. Whether the climate for a free and fair election can be created is everybodys guess. Due to my hearing several elections petition cases, I know the type of activities carried out by those in power to undermine the opposition powers. Therefore it is imperative that steps are taken to ensure at least to a certain extent, that the elections are free and fair.