By Sourya Banerjee
Edited by Nandita Singh, Senior Editor, The Indian Economist
The Sri Lankan Government’s decision to release five Indian fishermen on 19th November 2014, has been heralded as a positive development, which will further strengthen the multi faceted relations between Sri Lanka and India. Newspapers called it an immense diplomatic coup for the new Modi Government, but was it really a great victory or merely an instance of an act of bullying and arm-twisting politics, the kind USA is generally accused of.
The five Tamil Nadu fishermen were arrested in 2011, on drug trafficking charges. The five fishermen —Emerson, Agastas, Wilson, Prasath and Langlet — were arrested when the Sri Lankan navy intercepted their boat near northern Jaffna on November 28, 2011, after they crossed the International Maritime Boundary Line. Out of eight Tamils arrested together in that incident, five of them were Indians and the rest three were Sri Lankans. They were convicted and sentenced to death by a Lankan High Court on October 30 for smuggling heroin into Lanka. The 5 Indian fishermen were released by Sri Lankan President Mahinda Rajapaksa, using the powers vested in him through the Constitution after the conviction of the fishermen triggered furious protests and sporadic violence in Tamil Nadu. Protesting the verdict, local villagers had damaged a 300-metre rail stretch near Pamban, affecting trains connecting Rameswaram, Madurai, Chennai and other major cities in the state. Road traffic along the national highway linking Madurai and Rameswaram was affected owing to blockades. A bus was also burnt at Ramanathapuram.
Initially, the Ministry of External Affairs, India, filed an appeal in the Supreme Court of Sri Lanka against the verdict and maintained that the Tamil Nadu fishermen were not guilty and it would pursue all legal processes to prove their innocence. However, due to the sensitivities involved in this matter, the Government of India placed high priority to the issue and used all avenues to ensure the release of these fishermen. Accordingly, the Indian High Commission in Colombo withdrew the case from the Supreme Court, finally paving the way for Sri Lankan Presidential pardon. It is important to note here that the 3 Sri Lankan Tamils, who were caught along with the Indians, remained on death row.
It should now be considered that irrespective of what the Government of India said, the Sri Lankan High Court found the fishermen guilty, beyond reasonable doubt. It would be hilarious to claim that the Sri Lankan court decided to hold those people guilty just because they were Indians. There was clear evidence that those people were smugglers. Considering the facts;
- Under the Convention of the Law of Seas, the Sri Lankan High Court does have jurisdiction on matters of smuggling, piracy etc. [Due to the proximity of the Sri Lankan and India coast lines, there is no ‘High Sea’ as such]
- Sri Lankan Criminal Code provides for Death Penalty as the maximum punishment for a wide range of offences among them being smuggling, rape, drug trafficking etc.
Hence, the Sri Lankan High Court was perfectly right to have sentenced those fishermen to death, once they were found guilty beyond reasonable doubt, irrespective of which country or ethnicity background they belonged to.
Now, the most important aspect to be noted in this episode is that, even though the Sri Lankan Criminal Code provides for death sentence, there have been no executions since June 23rd, 1976! That is even though both the Sri Lankan High and Supreme Court have been regularly handing out death sentences, none of them have been carried out for the last 38 years! All death sentences were automatically commuted to life imprisonments. Hence, even if the Indian Government had not interfered, the 5 Indian fishermen would never have been executed. However, due to the socio-political situation of Tamil Nadu, where the regional political parties were pulling out all stops to woo voters back from the BJP, the BJP had its hand forced. Through intense diplomatic negotiation, India managed to convince the Sri Lankan President that it would be best for their interest if they let the fisherman go free, irrespective of what their High Court thinks.
The issue has to be looked at in the context of domestic political developments within Sri Lanka and India, and the external environment, which promoted the Government of Sri Lanka to take a calculated decision. The domestic political situation within Sri Lanka is charging up for the upcoming presidential elections. In a situation where opposition parties are trying to put up a common candidate to defeat President Rajapaksa, the ruling United People’s Freedom Alliance (UPFA) needs the support of minority parties to win the elections, particularly in the Northern Province. This is the only minority dominated province not ruled by the ruling UPFA. The Tamil National Alliance (TNA), has been consistently raising the issue of minority rights, resettlement and rebuilding of war affected population and discrimination towards Tamil minority by the Rajapaksa government. Since it is also an emotional issue based on ethnicity, the government took a pragmatic decision to release the fishermen, because the prosecution would have resulted in more resentment towards the ruling coalition. The fact that the ruling alliance partner, the Jathika Hela Urumaya (JHU) broke ranks with the government recently, the ruling alliance is cautious about maintaining its alliance partners as well as getting new support. Opposition parties are also questioning the constitutional validity of President Rajapaksa’s wish to contest for a third term. The United Nations (UN) and opposition parties raised concerns over the 18th Amendment to the Sri Lankan Constitution, which empowers the President to dismiss or appoint members of the Judiciary and other independent bodies. Opposition parties alleged that since the judiciary in Sri Lanka is controlled by the government, the death penalty was a move to target the Tamil minority. Sri Lankan Government’s willingness to maintain a cordial bilateral relationship with the new government in India was evident on various occasions. Immediate acceptance of the invitation extended by the Prime Minister of India to attend the swearing-in ceremony in May this year, and release of all the Tamil Nadu fishermen in custody in Sri Lanka on this occasion as well as on India’s Independence Day as a “good will gesture” are some of the examples. Slowly but surely, India’s standing in South Asia is becoming akin to USA’s position is most of the world. Countries like Sri Lanka, Bangladesh, Nepal, Bhutan and Maldives mostly are forced to accept what India wants, as India being the economically and politically superior nation has made huge investments in the Governments and militaries of each of these countries. Hence, when India asked Sri Lanka to release the fishermen, for President Rajapaksa, it was nothing short of a final ultimatum. There is no way he could overcome constitutional and moral objection to his third term and continue to be the President of Sri Lanka, without the blessing of New Delhi.
International law and diplomatic relations depend a lot on mutual respect and understanding of each other’s laws and policies. If India cannot respect the laws of its neighbors, it cannot expect them to respect our laws. In the instance of the Italian Marines Case, where two Italian Marines on duty were supposed to have shot and killed Indian fishermen, there was a huge outcry made by the media and opposition parties, due to the interference of the Italian Government in the judicial process, which forced the India Government to issue an assurance that death penalty would not be issued or carried out. If we intend to have other nations respect our judicial process and not interfere in the due process of law, we must do the same. What India did, and what Italy had done, in trying to protect its citizens was very logical. However, what is ‘logical’ is not always‘right’. Fiat justitia ruat caelum (Justice must be done, even if the sky falls).
The regional politics of Tamil Nadu, the internal strife in Sri Lanka, and the eagerness of a new Government to leave a mark with its foreign policy may have led India and Modi to make an error so grave that its consequences would be felt by future generations. People may say that this is an extremely small matter, that the fishermen might have just been innocent. If they were innocent, justice should have been allowed to run its course. The Supreme Court of Sri Lanka would have settled the matter once and for all. However, the current fact remains that the Sri Lankan High Court found them guilty and the least we could do is respect its ruling. In the eyes of the world, what India managed to do was strong-arm an economically weaker sovereign state to release 5 people who were given a fair trial and had been proved beyond reasonable doubt to be smugglers. Such easily overlooked ‘minor acts’ were how once upon a time even USA and USSR (now Russia) had begun. It might be such a small instance today, but tomorrow India might actually end up behaving like the new “Big Brother” in South Asia. As much as any patriotic Indian would love the idea of a strong India ruling over and commending smaller nations nearby, that is exactly what India should avoid being. A leader among men does not mean a ruler. India and South Asia as a whole can only reach their full potential and live in harmony, when there is mutual respect of each other’s sovereignty and interests.