Kachchatheevu – Indian or Sri Lankan?

by Gaja Lakshmi Paramasivam

(August 24, Melbourne, Sri Lanka Guardian) I respond to the article ‘Kachchatheevu- A perspective from Chennai’ by Dr. Suryanarayan, published in Sri Lanka Guardian.

The issue seems very similar to Aboriginal Land Rights here in Australia. They are also relevant in the context of accusations of colonization, against the Sri Lankan Government.

Dr. Suryanarayan introduces us to the matters by saying ‘The Daily News, the Sri Lankan Government owned newspaper, has published an article entitled “Kachchativu – Issues at International Law” on August 20, 2011. The author is Dr. Ruwantissa Abeyratne, who has specialized in Aviation Law and is currently Acting Deputy Director, Air Transport Bureau at the International Civil Aviation Organisation. He is concurrently associated with the Concordia University, Montreal.’

Is Daily News, Government owned or is it owned by the People of Sri Lanka? That brings to mind, my own experiences in Australian Courts – which upheld that the University of New South Wales was private property and therefore I was trespassing when I waited peacefully to speak to the Vice Chancellor. As per my genuine interpretation of the constitution of the University of NSW – I was an owner because I was Australian and the University of NSW is owned by the Public. On that basis I brought action of Racial Discrimination in Courts – because to me – if I was denied the rights of an owner without conscious application of merit – the strongest apparent reason needs to be taken as the reason why I was arrested. That was my race. In addition to my looks vs the looks of the arresting officer – I was listed as a Sri Lankan National by the Police. Yet, the Courts dismissed my complaints. I concluded that the Courts also did not know the difference between Public and Private.

Ultimately – the only ownership that we take with us is our consciousness. The law must reflect the essence of the work done by both countries and their citizens – naturally beyond the call of duty, since the last legal title/milestone. That would project the most appropriate picture for the next generation.

I learnt through these experiences the limits of the legal system in Australia. This does not mean that there is no value in actually practicing the law ourselves. I continue to practice racial equality and feel good about it. Ultimately what matters is how we feel. That is what we carry into the next stages of our life and according to my belief - beyond death. We also naturally share these feelings with all those who have faith in us/all those who feel as we do – even though we may not know them.

Dr. Suryanarayan says ‘Since the ownership of Kachchatheevu has become a subject matter of controversy between the Government of Tamil Nadu and the Government of India and since the matter is pending before the Supreme Court for final decision, it is necessary to analyse the details of the 1921 Conference.’

The subject matter of controversy is also between India and Sri Lanka which has been the ‘apparent’ owner since 1974.

Dr. Suryanarayan says about the 1974 agreement ‘The personal equation between Indira Gandhi and Sirimavo Bandaranaike which played a decisive role in the conclusion of the 1974 Agreement has been aptly summed up by Prof. Partha Ghosh of Jawaharlal Nehru University. To quote Prof. Ghosh, “Kachchativu was the most typical case of a personal equation, playing the role of diplomacy. When the negotiations had virtually failed, and the Indian official delegation was virtually pressurizing Indira Gandhi not to give up India’s claim on the islet, Sirimavo Bandaranaike made a personal appeal to Indira Gandhi to come to her rescue, as it would otherwise spell political disaster for her. Indira Gandhi appreciated Mrs Sirimavo Bandaraniake’s predicament and manipulated the situation in such a way that it became a fait accompli even before the Indian delegation could react. Sirimavo Bandaranaike remembered this gesture as late as 1990 with immense gratitude”.’

Personal feelings do matter at the humanitarian level as well as at the Diplomatic level. Former is belief based and the latter is consciousness based. At Humanitarian level – where help is often shown through movement of assets, any benefit that moves needs to be from our own pockets, on the basis of belief. At Diplomatic level – it needs to be pooled in common towards shared ownership – as in partnerships and limited liability companies and through taxes and drawn by individuals as per their needs and earnings through common policies. The indecisiveness of our governments confirms the difficulties experienced by the citizens of both countries in regards to use of Public Property. It is noted that neither country has good reputation in terms of Public Administration.

Belief, when regulated by common interest of our environment – leads to consciousness that we are that environment. Human Law is one such path through which we travel towards this consciousness. Natural Justice is the widest path through which we travel towards this consciousness. On their own the legal outcomes are mere milestones along that path. Unless at least one person has consciously used that path to successfully realize consciousness – the law itself needs to be questioned and set aside if necessary.

Legal titles may be used to determine status of one over the other whilst in common territory. Where there is low awareness of legality, one needs to be driven by belief based entitlement in the case of an individual and consciousness based entitlement in the case of nations and beyond. On that basis, the Natural Rights of Sri Lankan Navy personnel who are largely Sinhalese could be questioned, unless they have faith in St. Antony – the Presiding Saint of Kachchatheevu. The form that confirms the strongest belief is the most appropriate form of ownership. Human law needs to uphold common belief.

As per Wikipedia : ‘In June 2011, the new Tamil Nadu government led by Jayalalithaa filed a petition in supreme court seeking the declaration of the 1974 and 1976 agreements between India and Sri Lanka on ceding of Katchatheevu to Sri Lanka as unconstitutional. The supreme court of India in 1960 in Berubari case(Case on exchange of enclaves in Kutch with Pakistan) ruled that cession of Indian territory to another country should be ratified by parliament through amendment of the constitution. Katchatheevu was ceded to Sri-lanka ignoring this ruling of the supreme court, under the 1974 and 1976 agreements, without the approval of two Houses of Parliament.’

It is not apparent from this as to the legality of Sri Lanka’s role in the agreement. Seems very much like the ‘blind leading the blind’.

Hence to my mind it seems that - for our purposes we need to use the parallels in our respective domestic laws to know whether or not our Government is being just. In Sri Lanka, we have Prescription Ordinance 1871 which facilitates legal ownership after 10 years of uninterrupted and undisturbed possession, independent of and adverse to the legal title.

In other words, if the Fishermen from Jaffna – who are likely to be Tamils – used the Island of Kachchatheevu in the belief that it was theirs and likewise if the Fishermen from Tamil Nadu used the Island in the belief that they had the rights – then legally it ought to be ‘Commonly owned by the two countries’. The laws that uphold this common ownership need to be of International standards – especially considering the International Interest in Sri Lanka – through the Tamil Diaspora. If the governments are not able to work together their parallels in each country are likely to continue to be in conflict with each other.

Ultimately – the only ownership that we take with us is our consciousness. The law must reflect the essence of the work done by both countries and their citizens – naturally beyond the call of duty, since the last legal title/milestone. That would project the most appropriate picture for the next generation.