1. The SLFP’s approach to the national problem
The Sri Lanka Freedom Party views with grave concern the proposals released by the LTTE for the establishmentof an Interim Self Governing Authority ISGA) which lays the legal foundation for a future, separate, sovereignState. The proposals clearly affect the sovereignty of the Republic of Sri Lanka and violate its Constitution.
The SLFP under the leadership of President Kumaratunga is clearly of the view that the solution to the ethnicconflict lies in the devolution of power within a united Sri Lanka on the basis of a negotiated Constitutionalarrangement, such as the one contained in the draft Constitution of 2000 and its earlier version. PresidentKumaratunga has always held, and on numerous occasions expressed, the view that the grievances and aspirationsof the Tamil community in Sri Lanka must be addressed in a fair and equitable manner, taking fully intoaccount the aspirations of all the other communities who have lived from time immemorial in the North and Eastof our country. Any final settlement must be balanced and acceptable to all the communities. The pluralisticnature of our society must be preserved. Exclusive powers of governance cannot be vested in one community tothe detriment of other communities. Any final Constitutional arrangement must preserve and protect the unityof our people and the unity and territorial integrity of the Republic of Sri Lanka. It must promote unity, notencourage division. The democratic structure of our polity must extend to the whole country. Democracy cannotbe enjoyed by the people of the South and be denied to the people of the North and East. There cannot be twogovernments in Sri Lanka; there can only be one. The SLFP has noted that in the LTTE’s proposals theexpression "Republic of Sri Lanka" has never once been mentioned. This omission is not withoutsignificance. Sri Lanka is referred to throughout the proposals as "an island", as though it were merely ageographical entity consisting of a vacant space within which new contractual (not even constitutional)arrangements could be erected at will by two parties – the UNF Government and the LTTE – without anyrecognition of the indisputable fact that there are many other legitimate stakeholders in the unity,territorial integrity and sovereignty of the Republic of Sri Lanka.
The SLFP would like to see the immediate commencement of talks involving all concerned parties on the coreissues which need to be addressed if the resolution of the conflict is to be brought to finality. The SLFPsees no reference to this fundamental aspect of the national problem in the proposals for an interimadministration submitted either by the UNF Government or the LTTE. The SLFP believes that given goodwill andpolitical commitment by all concerned, the core issues could be resolved expeditiously so that a lawfulstructure for the governance of the entire country could be constructed within which a lawful administrativestructure could be built for the North and East to ensure that reconstruction and rehabilitation in that partof the country, and the return of displaced persons to which the SLFP is committed, could be carried out inthe shortest possible time. The SLFP believes that such an approach is not only desirable but possible.
The SLFP has made it clear over a period of time that any interim administration should be an integral part ofthe final settlement. Indeed chapter xxviii of the draft Constitution of 2000 deals specifically and inconsiderable detail with the establishment of an interim administration for a time bound period subject tovarious safeguards for other minorities in the North and East. That Interim Council was to begin operatingafter the new Constitution itself came into force. Therefore, the Interim Council was envisaged as a necessarymechanism for facilitating the operation of the new Constitution. It was truly an integral part of the finalsettlement.
In this respect the SLFP welcomes and supports the position taken by the Government of India in the recentjoint statement issued from New Delhi on 21st October, 2003, where the Government of India specifically statedthat "any interim administration should be an integral part of the final settlement and should be in theframework of the unity and territorial integrity of Sri Lanka".
The SLFP also endorses paragraph 18 of the Tokyo Declaration of 10th June 2003 which was signed by 51countries and 22 international organizations. That paragraph states that the disbursement of funds for therehabilitation and reconstruction of the North and East should be accompanied by monitored observance of theprogress of the peace process with particular reference to objectives and milestones including theparticipation of a Muslim delegation, parallel progress towards a final political settlement, effectivepromotion and protection of human rights of all people, the stoppage of underage recruitment and balanced andverifiable de-escalation, demilitarization and normalization at an appropriate time in the context of arrivingat a political settlement. The SLFP calls upon the international community to remain strongly committed tothe salutary principles laid down in paragraph 18 of the Tokyo Declaration and not to depart from them in the name of peace at any cost.
The SLFP welcomes the goodwill shown by large sections of the international (including the donor) communityfor the resolution of the national problem. But it wishes to reiterate, on behalf of the people of Sri Lanka,its total and permanent commitment to the sovereignty of the Republic. Our Constitution declares thatsovereignty is in the People, it is inalienable and indivisible: it is ours; it belongs to us. It is not atradeable commodity to be weighed in the balance of expedience. The SLFP, and the millions who support it,will never be a party to robbing the people of Sri Lanka of their sovereignty. The SLFP will not allow anyinternational consortium or "safety net", in the name of a spurious, unjust peace, to foist on the peopleof Sri Lanka any extra Constitutional arrangement that is not acceptable to all the People, all thecommunities that inhabit our land.
2. Analysis of the proposals
It is a cardinal principle of legal interpretation that the text of any statute or other type of document withlegal implications should be read in the light of its preamble. The LTTE’s proposals are prefaced by apreamble of 26 paragraphs. These should be read carefully because they set out various aspects of the LTTE’scase for a self-governing authority which could ultimately become a separate State. The preambular statementsreveal the LTTE’s mindset, the philosophy that underlies their proposals. The preamble shows that the LTTEis getting ready for the day when it could argue that if the negotiations are unsuccessful (because they donot yield the results that the LTTE wants) it will have no alternative but to go for a separate State. MrPirabaharan, in his various speeches, has often made the point that they will first seek peace through anegotiated settlement but may well be driven ultimately to acquire a separate State by force if their demandsare not met.
The following highlights in the preamble should be noted.
the right to self determination of Peoples (paragraph 1); the LTTE’s determination to establish an ISGA for the North East to provide for the urgent needs of the people by formulating lawsand policies and effectively and expeditiously executing development while the process for reaching a final settlement isongoing (paragraph 5. Comment: the significance of legislative powers for the ISGA coupled with"plenary powers for the governance of the NorthEast" including "all powers and functions in relation toregional administration exercised by the GOSL in and for the NorthEast" – clause 9 of the proposals - isheightened by the absence of any reference whatsoever in the proposals to Parliament); the history ofrelations between the Tamil people and the Sinhala people have been a process of broken promises and unilateral abrogation by successive Governments of Sri Lanka, of pacts and agreements entered into between the GOSL and the elected representatives of the Tamil people(paragraph 6. Comment: this is an important part of the case for ultimate separation); successiveGovernments of Sri Lanka have perpetrated persecution, discrimination, State violence and Stateorchestrated violence against the Tamil people (paragraph 7. Comment: the implication is that LTTE terrorism is justified as being in self-defence);the Vadukoddai Resolution of 1976 mandated the elected representatives of the Tamil people to establish anindependent sovereign secular State for the Tamil people (paragraph 8. Comment: this is the LTTE’s so-called Peoples’ mandate. The fact that it is beingmentioned now, 23 years later, shows the LTTE’s mind-set regarding a separate State); the Tamil armedstruggle has been a measure of self-defence and a means for the resolution of the right toself-determination after more than four decades of non-violence and peaceful constitutional struggle (paragraph 9. Comment:again terrorism is justified); the majority of the Tamil people in the North East by their actions in theGeneral Elections of 2000 gave their mandate acknowledging the LTTE as their authentic representative(paragraph 13. Comment: this ignores the fact that thousands of Tamil voters voted for other Tamilparties); the LTTE exercises effective control and jurisdiction over the majority of the North East area ofSri Lanka (paragraph 14. Comment: this is factually incorrect and could be refuted with facts andfigures about the extent of land and the number of people not under LTTE control); the final negotiatedsettlement and its implementation is expected to be a long process (paragraph 15. Comment: this is pre-justification for consolidating the LTTE’s position on theground); institutions and services provided by the GOSL have been inadequate and the various committeesestablished during the peace negotiations have led to no action (paragraph 17 and 18. Comment: this isone of the justifications for self-government); the GOSL has recognized the necessity for an interim authorityin its 2000 election manifesto (paragraph 19. Comment: this refers to the UNP manifesto. The PA’sposition on the interim administration was in chapter xxviii of the August 2000 draft Constitution and istotally different from the UNP/UNF’s and the LTTE’s proposals); the need for raising revenue to meet theurgent needs of rehabilitation etc. and for carrying out any functions of the Government, and the importance of control over land (paragraphs 21 and 22. Comment: note the reference to thefunctions of the Government i.e. the ISGA); the Tamils did not participate in the making of the 1972 and 1978 Constitutions (paragraph23. Comment: this is questionable. There were Tamil representatives in Parliament at that time); theinternational practice over the last decade of solving conflicts between peoples through agreement betweenthe parties to the conflict in terms of equality and through innovative and imaginative measures. The existence of international precedents establishing interim governing systems in war torn countries havingthe force of law based solely on pacts or agreement between the warring parties recognized by theinternational community (paragraphs 24 and 25. Comment: this is the argument in support of an Agreementbetween the UNF Government and the LTTE which would be outside the Constitution But the argument is whollyuntenable, whatever the situation might be in other countries, because any such Agreement would be invalid ifit violates the Constitution of Sri Lanka).
3. There are hugely significant statements and omissions in the Agreement which affect the sovereignty of the State of Sri Lanka and violate the Constitution:
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a) Clause 9. Jurisdiction of the ISGA.
The executive power of the people, including defence, which is vested in the President by Article 4 (b) of the Constitution will be seriously eroded because the ISGA will have "plenary powers"for the governance of the North-East (Comment: Governance includes security and defence. "Plenary" means"absolute, unqualified". By seeking "plenary powers" the LTTE wants unqualified and absolute powersof governance without any organic link with the Sri Lankan State.
b) There is no reference whatsoever to Parliament or its role in relation to the ISGA (Comment: as noted earlier a significant pointer to the completemarginalisation of Parliament is the preambular reference to the ISGA formulating laws)
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c) Clause 10. Separation of Powers
There is no reference whatsoever to the Supreme Court or to the present judicial structure of Sri Lanka. On the contrary, Clause 10 on separation of powers says that "separate institutions for the administration of justice shall be established for the North East,and judicial power shall be vested in such institutions". (Comment: therefore, there will not be one Supreme Court for the sovereign State of Sri Lanka. Under Article 3 of the Constitution sovereignty isin the People and is inalienable. Under Article 4 (c ) the judicial power of the People shall be exercised by Parliament through courts etccreated, established or recognized by the Constitution or by law. Therefore, clause 10 of the proposalsclearly violates the Constitution).
d) Clause 11
The ISGA will have total control of financial matters excluding the Government. But the Government is expected to make contributions to the ISGA budget from the ConsolidatedFund although the Government will have no control whatsoever over the expenditure of such funds.
e) Clause 12. Powers to borrow, receive aid and trade
The ISGA will have powers to borrow internally and externally, provide guarantees and indemnities, receive aid directly and engage in and regulate internal and external trade – there is no reference whatsoever to theGovernment in this cluster of powers
f) Clause 13. Accounting and auditing of funds
The ISGA will appoint a separate Auditor General. This violates Article 153 of the Constitution. Under the Constitution there is only one Auditor General (Comment:this is a clear indication that Parliament will have no say whatsoever in the affairs of the ISGA)
g) Clause 16
With the demand that all occupied land in the North East be immediately vacated the Government’s role in security is considerably eroded. (Comment: in this event, Palaly Airport,in particular, will be left defenceless, as the SF Commander North pointed out in his note of December 2002,and the Trincomalee Harbour will be in grave peril).
h) Clause 18. Marine and off-shore resources
The ISGA shall have control over the marine and offshore resources of adjacent seas and power to regulateaccess thereto. (Comment: this is a very significant provision highly dangerous to the sovereignty of the State. Ifcontrol over the marine and offshore resources of the adjacent seas passes to the ISGA the territorialintegrity and sovereignty of the State of Sri Lanka will be very considerably compromised. There will be agrave threat to international shipping lanes that pass the East Coast of Sri Lanka, and needless to say to thesecurity interests of India. The power to "regulate access" means that the Sri Lankan Navy will no longer be able to regulate access to the adjacent seas and will therefore not be able to perform its duty to protect the territorial integrity of the State. It mustbe remembered that the coastline of the seas adjacent to the North East go all the way down to Hambantotain the East and to Mannar or below in the West. The NorthEast coast line comprises almost 2/3rds of the coastof Sri Lanka).
i) Clauses 20 and 22. Water Use and Settlement of Disputes
The provisions relating to water use and the settlement of disputes between the GOSL and the LTTE, especiallythe requirement of parity of status, clearly show that the LTTE is preparing the legal ground for a separate State.
j) Clause 3. Elections
The provision dealing with elections is also an extremely important indication of the LTTE’s ultimateobjective. It says that if after five years of the Agreement coming into force no final settlement has beenreached and implemented, then an independent Election Commission appointed by the ISGA shall conduct a free and fair election. This is the clause that conceals the power or right to secede. The LTTE can say after five years – "no agreement has been reached, we will hold an election" and thendeclare a separate State having explained to the world why, as the preamble indicates, they were driven totake that ultimate step. The fault for not reaching a final settlement, acceptable to the LTTE, will beattributed solely to the GOSL.
k) The removal of the Governor from the North East power structure violates the 13th amendment to theConstitution.
