Sri Lanka’s former Chief Justice Sarath N. Silva, one of the experts in the legal fraternity, Interview with Daily Mirror Published with courtesy of the news paper
Under our Registration of Electors Act, voters are enumerated every year. The last enumeration was done in July this year and the Commissioner of Elections has certified it. The number of seats in the Jaffna District have been gradually reduced. It was 11 in 1994, then it dropped down to 9 and now to 6. There is a significant reduction of seats and that is why Tamil MPs are protesting against this. Physically the number of residents have reduced. But the Commissioner of Elections should have taken into account the fact that there was a war in that area for 30 years. The Government has taken over large extents of land for security zones and houses have been demolished. Similarly a lot of people had been driven away by the LTTE. So there is a large scale displacement of persons and the Commissioner’s count of voters does not reflect the true position. There are residents of Jaffna who were compelled to leave the area, now living abroad, in Colombo and even in other parts of the country. I think the Election Commissioner has been hasty in certifying the number of seats and the move could have adverse consequences.
Now the Commissioner says he will rectify the matter if and when the number of actual residents increase. But that is not necessary. He has not looked at the provisions of Article 98 (9) of the Constitution. In terms of which the Commissioner has to certify the number of seats only on the basis of the “register of electors” on which an election is being held.
The Commissioner should have made use of the Article 98 (9) and refrained from certifying the number of seats since no election is pending now. We will not have another General Election for five years.
Tamil parties also say that this is only a temporary displacement of residents and even the President has invited the Tamil diaspora to return back to the country. But they are not encouraged to do so since they have already been disenfranchised.
From time to time politicians in the South have done similar things to aggravate the ethnic problem. Now we have to be extra careful since the international community is applying pressure on us to solve this problem.
When we study history we notice that whenever some alleged discrimination takes place there are repercussions outside the country. At present there is a huge protest by Tamil Nadu’s Chief Minister Jayalalitha Jayaram who is calling for economic sanctions against Sri Lanka. Such pronouncements could have adverse consequences.
In the early 1950s although there was a demand by Tamil politicians for a Federal State, in the 1952 election S. J. V. Chelvanayagam’s Federal Party lost indicating that the Tamil people did not at that stage want a Federal State. But when S. W. R. D. Bandaranaike was elected as Prime Minister in 1956 and Sinhala was made the only Official Language it gave a new life to the demand for a Federal State. There were race riots first in 1959 and thereafter in 1977 and 1983. These resulted in some action taken by the politicians in the South.
When Mrs. Sirimawo Bandaranaike came to office in 1970 she introduced a media-wise standardization system for University admissions and in the subsequent period of six years there was a significant reduction of admission of Tamil students especially to the Medical and Engineering faculties. As a result of the Language Policy, loss of employment in the State Sector and the denial of university admission to Tamil students the situation went from bad to worse. The situation was aggravated by the first Republican Constitution of 1972 which consisted of three provisions that were not in the previous Constitution of 1948. They were firstly that the Republic of Sri Lanka is a Unitary State in a response to the demand for a Federal State, secondly that the official language shall be Sinhala and thirdly that the Republic of Sri Lanka shall give Buddhism the foremost place. Mr. Chelvanayagam resigned from Parliament in protest of the Constitution. And for the first time Tamil Youth got engaged in acts of sabotage. These events lead to the Vaddukoddai Resolution of the TULF in 1976 in which the concept of a separate state of Eelam was mentioned for the first time.
In 1981 there was a move to devolve power and the J. R. Jayawardena administration established District Development Councils. But election to the Jaffna DDC was interfered with, with the participation of UNP leaders including Cyril Mathew and Gamini Dissanayake. Later Jaffna library was set ablaze and this was one of the reasons that lead to the creation of the LTTE. It appears that the Tamil people felt that there was no option but to wage an armed struggle.
In same way that J. R. Jayawardene established the DDCs and tried to win the election in Jaffna, President Mahinda Rajapaksa tried to win the first Pradeshiya Sabha election by putting forward UPFA candidates. Of course he did not use the kind of violence used in 1981 but all state pressure was used and state resources were abused. The Tamil people voted against the UPFA and now there is a rift again. This time it is not TULF but the TNA.
The best period we had to bring about a lasting peace with justice was soon after the war. The Tamil people also wanted the LTTE to be defeated and there was little or no sympathy for the LTTE. In May and June 2009 there was no talk of war crimes. This question of war crimes was brought up by the Government to attack Gen. Sarath Fonseka. The government made use of a statement supposed to have been made by Gen. Sarath Fonseka to the Sunday Leader to charge him. So this talk of war crimes was started not by people from outside but by people within our country.
In a war there are excesses. Those could have been easily dealt with. Even if some offences have been committed by a few soldiers, the whole country cannot be held responsible. Sinhala people did not want the Tamil people to be arrested, tied and shot. It was certainly against the wishes of the vast majority of Sinhala people. If at all this happened, we could have taken some appropriate action. Now the government has got involved in it and Channel 4 has made war crimes allegations against the President and his brother Defence Secretary, Gotabhaya Rajapaksa. It is not correct for some TV channel in England to say that a President of a country and the Defence Secretary should be charged. But, we created a situation for such charges by raising the White Flag incident against General Sarath Fonseka, otherwise this problem would not have arisen.
Soon after the war ended in May 2009 the Tamil people more than anything else wanted to get back to their homes. They did not want to stay in camps. When the Menik Farm refugee camp was established in May 2009, I was still the Chief Justice and I had occasion to visit the place. It was in a terrible state and hundreds of thousands of people were suffering. I felt that we are setting the stage for another crisis. I had a few more days to retire and I requested Major General Chandrasiri who was in charge of these camps to release these persons as early as possible. I even agreed to release the judges in the area to assist in the process of screening the person in detention. In that way we could have reduced the number of refugees to a smaller number. But we kept them for months and international observers noted the inhuman conditions of detention. Now all these would not have arisen if we had allowed these persons to go back to their homes.
Even now we can solve the ethnic problem through genuine devolution of power. The people who are interested in prolonging this crisis are the extremists politicians, both in the South and the North.
To overcome the crisis we have taken too little action too late. In 1987 the Jayawardena administration approved the 13th Amendment to the Constitution to set up Provincial Councils but there has been no Provincial Council which functioned in the North.
At the time of the Presidential Election, I also went to Jaffna with Gen. Sarath Fonseka. We prepared a statement as to what Gen. Fonseka would do immediately upon election. The statement included the measures to be taken for the resettlement of the dispaced, restoration of normalcy, restriction of military presence, restoration of civil administration and the normalization of economic activities and Jaffna people voted for Sarath Fonseka. The people of the North trusted Gen. Fonseka who had defeated the LTTE and voted for him in large numbers. That was the only province he won according to the declared election results. I won’t say that Sarath Fonseka is the only person who can do that. There could be other politicians also but in whatever we do we have to be genuine and say this is the measure of devolution of power that can be granted, specify the unit of devolution and functions clearly and identify the resources that would be provided. There has to be sincerity and trust on both sides. What we devolve with one hand should not be taken back with the other.
Interviewed by Susitha R. Fernando