India & Sri Lanka

Semantics of a release

Print edition : December 12, 2014

“Pardoned” and “freed” meant the same thing, at least in Colombo and New Delhi this fortnight. The semantic distance between the two words did not stand in the way of five innocent Indian fishermen, sentenced to death on the charge of possession of narcotic drugs, being “pardoned” in Colombo and reaching New Delhi as “free” men.

From the beginning, the facts of the case differed in New Delhi and in Colombo. In New Delhi, the final conclusion arrived at after investigations was that the fishermen from Rameswaram, Emerson, P. Augustus, R. Wilson, K. Prasath and J. Langlet, arrested in Sri Lankan waters on November 28, 2011, were not smugglers (see Frontline, November 28). In a first, the Government of India insisted that the five were innocent. In Colombo, however, they were seen to be part of a dangerous drug-running cartel.

On October 30, days after Sri Lankan Defence Secretary Gotabaya Rajapaksa had a not-so-pleasant meeting with top officials in New Delhi, the five were sentenced to death by the Colombo High Court. India, which had been insisting on “the immediate and unconditional release” of the fishermen, said “any avenue” to secure their release “will be pursued”, according to the news agency PTI.

Though the Indian High Commission in its repeated interactions with the Sri Lankan authorities insisted that the fishermen were innocent, no headway was made. The only significant change that took place was the transfer of the case from Jaffna to Colombo.

The award of the death penalty, following which the five were locked up in separate cells at Colombo’s notorious Welikada prison, led to intense diplomatic activity at the highest level, which culminated in Prime Minister Narendra Modi speaking to Sri Lankan President Mahinda Rajapaksa on November 9. It was not clear what transpired in the telephonic conversation, but the fact that an appeal was filed on the fishermen’s behalf in the Colombo High Court on November 11 seemed to indicate that the Government of India was back to trusting Sri Lanka’s courts more than its own politician-decision makers.

This seemed to complicate an already out-of-hand situation: India insisted on their innocence and demanded their early release, and Sri Lanka wanted the legal process to get over before the President could intervene.

As per Sri Lanka’s Constitution, a presidential pardon could be a full pardon or a commutation of the sentence. Chapter VII, Section 34(1) says: “The President may in the case of any offender convicted of any offence in any court within the Republic of Sri Lanka—(a) grant a pardon, either free or subject to lawful conditions; (b) grant any respite, either indefinite for such period as the President may think fit, of the execution of any sentence passed on such offender; (c) substitute a less severe form of punishment for any punishment imposed on such offender; or (d) remit the whole or any part of any punishment imposed or of any penalty or forfeiture otherwise due to the Republic on account of such offence.”

Days after the award of the death penalty, a Sri Lankan Tamil parliamentarian, Prabha Ganesan, who pledged support to the United People’s Freedom Alliance government in 2010, enabling it to reach the magical two-thirds majority in Parliament, announced that the President would pardon the fishermen. But the rider was that India should withdraw the appeal. A few days later, a second Tamil politician, representing Indian-origin Tamils, Arumugham Thondaman, also made a similar statement. There was no confirmation or denial of their assertions from the President’s Office.

It was known that withdrawal of the appeal was a pre-requisite for any decision on the release. It is also apparent that India went ahead with the appeal after making efforts for a presidential pardon. In an embarrassing flip-flop, the appeal was withdrawn, leaving the fishermen at the mercy of a presidential pardon. The Government of India, which had insisted on a full and unconditional release of the fishermen, climbed down from its pedestal and was reduced to relying on the kind-heartedness of President Rajapaksa.

Soon after his birthday celebrations on November 18, Rajapaksa announced a pardon for the fishermen. The Indian Mission in Colombo was quick to thank him: “We are deeply grateful to His Excellency Mr. Mahinda Rajapaksa, President of Sri Lanka, for this humanitarian gesture, which will further strengthen the strong and multi-faceted relations between India and Sri Lanka.”

The race to take credit for the “victory” began immediately. The fishermen, who have not seen their families in three years, were taken to New Delhi, ostensibly for a “debriefing”. The real intention, of course, is that the BJP has its eyes firmly on the 2016 Tamil Nadu Assembly elections. The Dravidian parties claimed that it was because of the pressure they brought on the Centre that the fishermen were released.

The incident brought to the fore yet again the problem of Indian fishermen crossing over to Sri Lankan waters and indulging in unsustainable fishing practices. However much Team Modi’s spin doctors might work on this, the fact remains that the five fishermen, for whom the Regional Superpower stood up, were not exonerated in Sri Lanka. They were back home because of Mahinda Rajapaksa.

R.K. Radhakrishnan

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