N Sathiya Moorthy www.orfonline.org, 15 March 2017
Possibly for the first time, media reports have spoken about investigations into the death of a Tamil Nadu fisherman, K Brijto, 21, allegedly in a firing incident involving the Sri Lanka Navy (SLN). The Special Correspondent of The Hindu at Rameswaram has quoted investigating officials to report that the Indian fishing vessel had rammed into an SLN vessel – either a water-scooter or inflatable-boat possibly while turning back home after being shooed away. News reports have also spoken about doctors, who performed post mortem examination on the dead fisher’s body, removing a bullet and handing it over to the police.
Citing the ‘Italian Marines case’ off the Kerala coast, the Rameswaram fishers and their counterparts across Tamil Nadu have demanded the arrest and prosecution of the SLN personnel involved in the case. As the New Indian Express has recalled, quoting U Arulanandam, President, Alliance for the Release of Innocent Fishermen, there is only one case of the Indian Coast Guard (ICG) arresting a Sri Lankan officer for the alleged shooting down of two Indian fishers, Susaiyappar and Alphones, in the Gulf of Mannar, reportedly under pressure from then Tamil Nadu Chief Minister, the late M G Ramachandran, as far back as 1985. The arrested SLN official was later released.
In the present case, the police investigators have also reportedly seized the GPS data and mobile phones of the fishers on board the ill-fated boat in which Brijto and five others had travelled on the night of Monday, 6 March 2017, to verify their claims that the SLN vessel had intruded into Indian waters, where alone they were fishing. Other reports have also claimed that the police had identified that the bullet had been fired from an AK-47 rifle, which however needed to be confirmed. Reports have said that details would be known after forensic examination by Indian experts.
Sri Lankan denial
As on many earlier occasions, the SLN has denied that such an incident ever took place. Minister of State for External Affairs M J Akbar told agitated MPs in the Indian Parliament that the Sri Lanka Government had promised to investigate the matter. Should Sri Lanka take their commitment seriously, either they would have to stand by their Navy, or/and seek material evidence now reportedly available with the Indian investigators.
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Sri Lankan forensic investigators too will require the remnants of the bullet to ‘verify’ if the bullet had been fired from any of the weapons in the hands of SLN personnel patrolling the neighbourhood seas at the time. They would also demand the GPS data to ‘ascertain’ the whereabouts of not only the Indian fishing boat, but also of their vessels in the vicinity and the distance between the two.
International law stipulates that even in case of illegal fishing in the other’s seas, the encroachers should not be fired upon. Between India and Sri Lanka, there is an October 2008 agreement to the effect. This was followed by an era of mid-sea arrests, and fewer firing (or, next to nothing) since. Worse still, any violation of the Indian waters by SLN is a greater issue, involving India’s sovereignty, security and territorial integrity than any violation of the Sri Lankan seas, if at all, by innocent fishers would entail.
In the pre-2008 past, whenever Indian fishers used to claim that the SLN had intruded into the Indian seas and interfered with their vocation, it had gone mostly unproven and unchallenged. Around the time, senior officials of the Indian Navy began appealing to them to provide the details to the officialdom, lest such incursions into Indian territory would go without adequate response. Not many cases or details had come through since, despite technological innovation helping the Indian fishers to identify both Indian waters, and also the location of their boats and also of any intruding SLN vessels.
Boycotting festivities
The dead fisher’s family has declined the Tamil Nadu Government’s compensation, and more so his body after post mortem examination. Whether a co-relation could be made to the assembly poll victories of the ruling BJP at the Centre elsewhere in the country or it also owed to fatigue setting in after a week, they have announced the withdrawal of protests at the intervention of Union Ministers of State, Nirmala Sitaraman and Pon Radhakrishnan on 12 March.
By then, however, the neighbourhood fishing community had ended up boycotting the annual festivities at the St Anthony’s Church on the tiny Katchchativu Islet, over which the Centre and Tamil Nadu hold different views. India agreed to the islet falling on the Sri Lanka side of the international boundary line (IMBL) when it was negotiated and drawn for the first time and notified under UNCLOS in 1974. The exact/technical reasons are unclear but coming as it did only years after the ‘Bangladesh War’ in which India had played a role in 1971, the Katchchativu accord also served the purpose of sending out a positive signal to the southern, Indian Ocean neighbour.
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The issue remains if the agreement provided freedom for Indian fishers to undertake their avocation in the seas around Katchchativu, especially after the second accord of 1976. However, the late AIADMK Chief Minister Jayalalithaa had moved the Supreme Court, while in the Opposition, challenging the constitutionality and legality of the transfer. This was followed by a separate petition of the kind by then DMK Opposition Leader, M Karunanidhi, another veteran politician and former Chief Minister.
The Tamil Nadu Government impleaded itself after Jayalalithaa returned to power in 2011, supporting the line she had taken as a private citizen. The Supreme Court is yet to commence regular hearing in the case, so as to pronounce a verdict early on. Jayalalithaa is no more. Karunanidhi, according to news reports and claims by the party leadership, is irrevocably indisposed.
This may also questions about the maintainability of Jayalalithaa’s suit on the one hand, and the possibility of Karunanidhi’s legal team to seek instructions from their client, if and when required. Whether others can file fresh petitions, or enjoin themselves in the pending petitions too is a question that the court may have to rule upon, as and when the main case is taken up for hearing and disposal.
However, pending the case, the Centre had obtained for the Rameswaram fishers, the right to worship at the St Anthony’s Church during the annual festivities, based on a bilateral arrangement with the Sri Lankan Government after the conclusion of the ethnic war in that country, in May 2009. Indian officials would verify the list of participants for their genuineness, and the Sri Lanka Navy reserved the right to run a security-check, if found necessary.
If nothing else, the festivities have provided an occasion for Tamil fishers from both countries to meet socially, and at times renew family ties – and even exchange/ take forward ideas on ending the fishers’ row. This time however, the Indian fishing community chose to boycott the Katchchativu festivities of 11-12 March, protesting against the SLN shoot-out.
Apart from other issues, the boycott by itself may have set a precedent for Sri Lanka to deny the Indian pilgrims to visit the islet from the next year on. Sri Lanka could then argue that the fishers having chosen to break what they had claimed to be a religious custom, even if only once, after the enforced break during the war-years could be expected to stay away in future too.
Still troubled
Almost everyone writing on the India-Sri Lanka fishers’ row have used the clichéd phrase, ‘fishing in troubled waters’ more than once. The issue refuses to die down. Nor has it been able to find itself a solution. The two national governments intervene whenever there is a crisis of the kind, or slightly less, and get imprisoned prisoners in each other country released forthwith. It’s no different this time, too – and it’s a relief in itself for the families of the jailed fishers in particular.
Sticking to a post-war decision, based not always on facts, Sri Lanka has once again decided not to release their boats. The Government seems to have concluded, not always based on facts — that the arrested Indian fishers are poor, and the real boat-owners are rich and are forcing the labour to take the risks, for the price they get as wages. It’s not always the case, but none has bothered to verify or clarify.
It’s another matter that periodic arrests of the kind have not discouraged the Tamil Nadu fishers to take the risks, especially because they do not know any other trade, unlike those in the hinterlands, and diversify to less risky and more lucrative trades and businesses. The Governments, both at the Centre and in the State of Tamil Nadu, have made feeble attempts from time to time, to change the trade/career options of the fishers along the coasts, as even without the Sri Lanka-centric problems, the catch is dwindling all across. Results cannot be achieved in a single generation.
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Periodic talks between the Governments and the fishers have not gone anywhere, nor could it be expected to do so in the foreseeable future. If anything, the incumbent Government in Sri Lanka, egged on by Tamil fishers in the nation’s North in particular, has only toughened its stand. The Opposition Tamil National Alliance (TNA) in Sri Lankan Parliament, with a massive majority in the Tamil-centric Northern Provincial Council (NPC) has taken a tougher stand.
The Tamil Nadu fishers, and more so their local political backers, are either unaware of this fact, or they are blind to the fact. They continue to live in the war-time past, blaming everything on the ‘majoritiarian Sinhala government’ in Colombo, and the ‘Sinhala’ Navy. They have embedded difficulty in acknowledging that the Navy of any nation is tasked with protecting the sovereignty and territorial integrity of that nation.
Non-starter
There is also the larger issues of “historic waters” and “traditional rights”, which has not taken the Tamil Nadu fishers anywhere over the past decade or so, especially. At present some fishers’ organisations in the State are considering moving the UNHRC, which is already tied down with issues on the Sri Lankan ethnic front, with no workable solution in sight.
The Indian fishers at best can seek protection from gun-attacks by SLN personnel, if past actions of the kind could be proved. But the question of Tamil Nadu fishers’ rights over Sri Lankan waters would lie with UNCLOS, if at all, where the Government of India has repeatedly taken a stand that is consistent with the claims of Sri Lanka, as both are bound by the twin-accords of 1974 and 1976, especially on Katchchativu but could extend to fishing, per se.
There is also the question of quid pro quo issues of alleged violation of Sri Lankan sovereignty and the rights of the post-war Sri Lankan (Tamil) fishers, with which the Indian brethren are said to be ‘intervening’, at times violently. Other than embarrassing their own governments in the State and at the Centre, any move by the Tamil Nadu fishers to move the UNHRC could remain a non-starter, and do exactly the opposite of what (all) they are seeking.
However, pending the so-called, and possibly non-existent, negotiated settlement, the Government of India could revive the Tamil Nadu proposal for funding the Rameswaram fishers especially, to convert their trawlers into deep-sea fishing vessels. Incumbent Chief Minister ‘Edappadi’ K Palanisami revived the long-pending Tamil Nadu demand for grants/aid from the Centre for the purpose when he met Prime Minister Narendra Modi, recently.
Before Palanisami, his leader, the late Chief Minister Jayalallithaa, had taken up the issue with Modi since he assumed office in May 2014. She also used to remind the Prime Minister of the pending demand, periodically, through frequent reminders. The two Governments could begin there, and review the situation periodically, even while keeping the bilateral negotiations process alive and forward.
Alternatively, the Centre could encourage the State Government to find the required resources, if the present demand is found unfeasible, whatever the reason. Together, they could also explore the possibilities of encouraging the nationalised lead bank for the revenue districts concerned to extent credit-facilities to fishers and/or fisher cooperatives for the purpose.
Of course, the question of loan/interest-waiver could arise on a later date, with some political backing, but it’s not unusual for the Governments in the country to facilitate the same in the farm sector. To this end, and otherwise, too, the Centre should consider the off-again-on-again demand for declaring the fishing communities as ‘Scheduled Tribes’ under the Constitution with all attendant benefits and protection, considering the long and unbroken histories and legends in their favour.
In between, should Sri Lanka come up with a request/demand for joint investigations into fisher Brijto’s killing, the Governments of India and Tamil Nadu would be called upon to take a policy-decision in the matter. Earlier, during the war-years, Sri Lanka had proposed joint-patrolling of the shared seas, if only to detect violations and violators on both sides, but it did not find favour with the Governments in India.
The Centre, especially Prime Minister Modi can begin by considering the creation of a separate Ministry for Fisheries, that too at the Cabinet-level. This is more so, given the 7500-km length of the Indian coast-line, and also developmental and environmental, maritime and naval implications involved. For starters, it would empower Indian negotiators on fishing issues with other nations, to highlight the ‘livelihood angle’ as much as acknowledge the security concerns of the other side – which is the case at present.
http://www.orfonline.org/expert-speaks/killing-of-indian-fisherman-raises-questions-of-sovereignty/
(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)