By K.M.M.B.Kulatunga P.C., Retd. Judge of the Supreme Court

The recent agreement signed by leader Velupillai Pirabhakaran (Prabhakaran) on behalf of the Liberation Tigers of Eelam (LTTE) and the Prime Minister Ranil Wickremasinghe and published in the Daily News of 23-02-2002 purports to be an agreement between the Government of the Republic of Sri Lanka (GOSL) and the LTTE.

The declared object of the agreement is to enter into a mutually agreed "cease-fire" between the GOSL and the LTTE to prepare the background for negotiations relating to the "ongoing ethnic conflict" in Sri Lanka. The agreement notes that groups that are not directly party to the conflict. e.g. Muslim population is also suffering. Hence, the agreement would apply to "all inhabitants". There is no specific reference to the Sinhala population. Such a reference would have produced a balanced agreement.

The enthusiasms in which the Prime Minister, and Minister G.L.Peiris and Tyronne Fernando worked on the preliminaries to the agreement in collaboration with the Norwegian Government as facilitator and the tolerance thereof by the President are attributable to political factors viz. winning the votes of the Tamil speaking persons particularly at the forthcoming Local Government Elections. It is only a cease-fire agreement and not a solution to the so called ethnic problem. Even so, the President has declined to sign it alleging that she was not fully informed of the final text until after both the Prime Minister and Prabhakaran had signed it. She also appears to be concerned as Head of State with several conditions contained in the agreement said to be binding on the GOSL. She may well be concerned also with the commitment made to the Government of a foreign country namely, the Royal Norwegian Government which the Prime Minister has adopted to supervise the implementation of the agreement along with representatives of Nordic countries. This deal with a foreign State itself gives legitimacy to the President's concern.

In terms of the agreement, the Norwegian Minister of Foreign Affairs has appointed 24-02-2002 as the date on which the agreement came into effect. The Norwegian Government through the Monitoring Mission would monitor the effective implementation of the various conditions of the agreement. Some of these conditions savours of the recognition of belligerent or insurgent status to the LTTE and perhaps their right to seek self determination on behalf of the Tamil speaking Peoples in the North and East. No third state has upto date recognised such a right. The only consolation under the agreement is the fact that the GOSL has accepted responsibility for maintaining the economy in the North and East which commitment will necessarily negate the concept of self rule.

The President's complaint that she has been sidelined is not without foundation, whether or not the assertion of Minister Peiris that she failed to attend a couple of Cabinet meetings is true; for quite sometime in February 2002 the matter was discussed in great detail between the Norwegian Government and Anton Balasingham in London, in collaboration with the Prime Minister and Ministers G.L.Peiris and Tyronne Fernando. On or about the 19th the final draft was faxed to Prabhakaran who after lengthy discussions with Balasingham agreed to accept it. On the 21st there had been fighting between the GOSL Navy and LTTE boats in the North. However, the Prime Minister signed the agreement together with annexes on the 21st morning. Prabhakaran is said to have signed it between 12 and 2 p.m. According to the President, she was given it at 5 p.m. So she declined to countersign it. However, it is alleged that the Prime Minister briefed her about it from the 20th and it was ultimately approved at a Cabinet Meeting held at Temple Trees that evening, though in the absence of the President.

On the 22nd February the agreement signed by the Prime Minister was formally handed over to the Norwegian Authorities in Vavuniya and the documents signed by Prhabakaran separately on Tiger letterheads were also given to the Norwegian Authorities.

The impugned agreement contains inter alia, the following conditions which are adverse to the GOSL:

1. It requires the total cessation of military action by parties. Military action includes ""firing of weapons", aerial bombardments and offensive naval operations. Armed forces are entitled to safeguard the sovereignty and territorial integrity of Sri Lanka without engaging in offensive operations against the LTTE.

If so, can the Navy engage the LTTE if they seek to smuggle arms? It is to be noted that the agreement does not prohibit smuggling of arms by the LTTE or recruitments to forces maintained by them.

2. On the contrary the LTTE fighting formations are allowed to hold their ground along with the GOSL armed forces; and the status quo as regards the areas controlled by the GOSL and the LTTE respectively, on 24-12-2001, shall continue to apply pending any fresh demarcations by the Monitoring Mission.

3. Tamil paramilitary groups shall be disarmed by the GOSL by D-Day + 30 and be absorbed into the GOSL armed forces away from the Northern and Eastern Provinces.

If so, the armed forces which were fighting the LTTE have to be compulsorily absorbed into the GOSL armed forces and significantly, to serve away from the Northern and Eastern Provinces.

4. As of D-Day + 30 " 50 unarmed" LTTE members have freedom of movement in the North and the East for political work. This would be increased to an additional 100 "unarmed" LTTE members by D-Day + 60. As of D-Day + 90 all such LTTE members shall be permitted the freedom of movement in the North and East.

5. Armed forces of either of the parties shall vacate schools and other public places and return such places for their original use.

This will require GOSL army camps in such places to move out, creating a hideous situation if fighting were to recur.

6. Rail services (disrupted by LTTE) have to be repaired by the GOSL.

7. No search operations and arrests under the Prevention of Terrorism Act shall take place. This is a surrender of the law of the land.

8. Royal Norwegian Government shall appoint the Head of the Monitoring Mission who shall be the final authority regarding interpretation of the agreement.

9. Local Monitoring committees shall be appointed at several places in the North and East each consisting of 2 GOSL and 2 LTTE members; and the international monitor will be appointed as Chairman by the Nordic Monitoring Commission.

10. The agreement also determines what articles are prohibited for LTTE dominated areas, how the quantity of permitted articles shall be decided and the checkpoints for monitoring the flow of goods. These provisions have deprived the GOSL the controls it had over its own territory and movement of goods and the powers of war which are appropriately exercised by the Minister of Defence. This is a blot on the sovereignty of the People.

11. Finally Prabhakaran has been described as the "Leader" when long ago he was being described as "Thambi" (vide. Island of Blood by Anita Pratap). Is this a virtual recognition of Prabhakaran as a Head of a Government?

12. This sort of agreement, pending "peace talks" in 3 months (and not asolution to war according to the Prime Minister) is unconstitutional, ultra vires, contrary to natural justice in that it was adopted without consulting the People or the Parliament. Hence, if ought to be quashed by court. The President may well be made a party to legal proceedings qua Head of the Cabinet of Ministers and represented by the Attorney General.

13. Whatever fault the President may be accused of this step taken by the new Government is a tragedy. It will make consensual government and the solution to the so called ethnic problem a dream. If it is implemented it will create a dictatorship of one man in the North and East. This is not what the multi racial population in that part of the country deserves.

14. By an order dated 04-07-2001 the President proscribed the LTTE in terms of Section 27 of the Prevention of Terrorism (Temporary Provisions) Act No.48 of 1979. That Regulation has not been challenged in court. In terms of that order the LTTE cannot wear uniforms. It is an offence. Any person who engages in any activity with the LTTE also commits an offence. LTTE itself cannot function as a matter of law. This too makes the purported agreement a nullity.

After I prepared this article I learnt from newspapers that litigation has been commenced in the matter. It is therefore, pertinent to note that the European Court held in the 'Sunday Times' case, overruling the House of Lords, that comment is permissible whilst a case is pending where the public interest is paramount. This is such a case.



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