The ISGA an Epitaph for Sri Lanka?

Address by H. L. de Silva (PC) at the book launch of Abomination

Courtesy: The Island 29-09-2004

With the publication of his new book - "Abomination" (which is about the demand for an Interim Self Governing Authority, and not the abominable snowman) S. L. Gunesekera has fired yet another of his multi-barrelled rockets hitting many intended targets and on its way causing some collateral damage to some not so innocent bystanders! To S.L. and those like-minded, the ISGA and the LTTE and their fellow-travellers represent an abomination - an object of loathing and disgust. As you can see the cover of this book depicts a horrifying and sickening sight - the dead bodies of little children lying on the floor of the hovel they lived in, massacred along with other members of their family by the Tigers in their ethnic cleansing operations in the Eastern Province a few years ago. Pictorial representation of such gruesome crimes is perhaps the more effective demonstration than verbal condemnation of their barbaric ways and of the utter hypocrisy of their recent pretensions to uphold human rights and the rule of law pretentiously proclaimed in the lengthy preamble of the ISGA. But the book is not simply an emotional outburst. It is a reasoned analysis of what is to be expected, if the ISGA is implemented.

Some of you present here may not recall that some 18 years ago, during the regime of President Jayewardene, some representatives of the Government of Sri Lanka, at India’s bidding met with a group of politically active Tamils which included an assortment of those who are euphemistically termed "militants" a sanitized term for terrorists, in the Himalayan Kingdom of Bhutan in a sleepy town called Thimpu SL was a very articulate member of that delegation and was often involved in lively exchanges with the Indian Foreign Secretary Romesh Bhandari at pre-Conference consultations held at the Ashok Hotel in New Delhi in presenting his point of view. His comments were always direct and forthright, with no frills and as sharp-edged as they come in refreshing contrast to the namby-pamby, convoluted pontifications on this subject which we have been accustomed to hear for quite some time from so-called authoritative sources. SL as he himself confesses, is a misfit in politics and would be a disaster in diplomacy. But if you need a frank, no-holds-barred response to a difficult political problem, he is the man for the job. You may not like to hear what he has to say, but it will not be easy to dismiss the unvarnished truth of what he says. You may be amused to hear that SL was because of his initials sarcastically referred to in that group as "soft-line Gunesekera" which of course as you may have guessed was a barb directed at a less ebullient personality whose initials were unfortunately suggestive of the "hard line", but that, I assure you, was a mere coincidence - a misleading inference.

The ISGA has, in recent months and weeks, been subjected to many a critical analysis from diverse angles which have left little room for any one to doubt the futility of discussing the proposal even as an interim arrangement. It is a clear illustration of how a situation that purports to be provisional and temporary will harden over time to a permanent state of affairs. The truth of this apprehension is exemplified in conflict situations in other parts of the world apart from the merger of the Northern and Eastern Provinces. Examples of this are the ceasefire line between the Turkish and Greek areas in Cyprus, the cease-fire line in Jamnu - Kashmir and the line of control of the West-Bank in Palestine and the Golan Heights. The ISGA is simply a surreptitious plan for the LTTE to expand and consolidate control over the cleared areas in addition to the uncleared areas in the Northern and Eastern provinces which commenced with the CFA. The demand for acceptance of its terms is an ultimatum, for its rejection means a resumption of the War which they confidently expect to win.

The ISGA could not have been seriously envisaged even by its authors as providing a basis for discussion because its major premise, its foundational assumption, would in effect be a voluntary acceptance by the Government of Sri Lanka of its own death and demise, as a precursor to the birth of the new State of Tamil Eelam, on the footing, as the 12th clause of the Preamble itself states, "that the LTTE exercises effective control and jurisdiction over the majority of the North-Eastern area of the island of Sri Lanka." One pauses to ask the question: Does anybody in his right mind think that the Government of Sri Lanka is prepared to consent even notionally to its own dissolution and extinguishment as a single Sovereign State to engage in a meaningless discussion with the LTTE supposedly in the interests of Peace? Is it not a subtle form of conditioning the mind of Sri Lankans to accept the inevitability of partitioning our island home? The banal assurances of respect for the territorial integrity of Sri Lanka so easily given by all countries which show any interest in our problem have a hollow ring when these very countries keep on urging the Government to settle with the LTTE, when it is manifest that their proposals are for the establishment of a Separate State and nothing else.

To put it quite bluntly, the essence of the ISGA is an invitation to discuss the arrangements for the creation of the new State of Tamil Eelam which necessitates as a precondition the death and demise of the supposedly moribund State of Sri Lanka. The proposal assumes that the death is to take place quietly, unwept and unsung, without that fact even being expressly mentioned as an event in the document. The fact of the death of the State as an event is simply ignored. That is the ultimate insult! It is as though one party is asked to acknowledge his own impending death and arrogantly requested to accept the invitation to discuss the details of succession to the inheritance of property which is being claimed by the other party, as an initial step, before the final appropriation of the assets.

What is surprising is that any Sri Lankan showing reluctance or who doubts the wisdom of taking part in this macabre exercise is regarded by the peace activists as being unreasonable, intransigent and according to a recent school of thought as being even mentally deranged! So even at the risk of being remanded to the House of observation for these comments, let me give you some of my own thoughts on the subject, however unpalatable they may be to others who want the ISGA accepted.

Although the expression "Self-Governing Authority" ordinarily would signify a body of persons empowered to exercise certain powers or perform certain functions, relating to the government of a people, the very first clause indicates that it is also synonymous with a designated area of territory and reads as follows:

An Interim Self-Governing Authority (ISGA) shall be established comprising the eight districts namely: Amparai, Batticoloa, Jaffna, Killinochchi, Mannar, Mullaitivu, Trincomalee and Vavuniya in the North East, until a final negotiated settlement is reached and implemented".

The "final negotiated settlement" is an uncertain event, of uncertain date which may never take place but the ISGA once established will continue as there is no date for its winding up. The clause does not merely indicate the jurisdictional limits of the Authority, the entity bearing this name is itself described as being comprised of eight of the districts of the territory of the Republic of Sri Lanka specified in Article 5 of the Constitution. In other words the ISGA is also identified with the territory represented by the aforementioned eight administrative districts of Sri Lanka. What about the ISGA’s powers and legal competence? Clause 9 succinctly sums it up: "The ISGA will have plenary powers for the governance of the North and East "As everyone knows "plenary" means "entire, absolute and unqualified". It means total autonomy over the eight districts. The rest of the clause itemizing the subjects is therefore tautologous as nothing is in any event excluded from its competence.

Land is specifically mentioned in Clause 16 which goes on to state the obvious that land is vital to the exercise of the powers set out in Clause 9 and that the ISGA will have "the power to alienate land and determine the appropriate use of all land in the North-East that is not privately owned. Clause 17 makes it clear that the territory of the ISGA constitutes another state because it states "the occupation of land by the Armed Forces of the GOSL.... is a violation of the norms of International Law." If international law is to govern the question, it can only mean that Sri Lanka as far as the North-East Region is concerned is deemed a foreign State. Then to leave no room for doubt, it goes on to enumerate the remaining assets which the ISGA will acquire apart from land i.e. marine and offshore resources, natural resources and the rivers running through the region. Although not mentioned everything under the land ( mineral resources) and the air space over the territory are all assumed to belong to the ISGA. Permission to over fly the region will have to be obtained.

The provisions relating to Finance are quite hilarious. There is only going to be an outflow of money from the Government’s Consolidated Fund to the North-East General Fund, and the income to be paid into the Fund is meticulously itemized in Clause 11. But there is no inflow from the North-East Region to the Consolidated Fund. It is all one way traffic. If I may borrow a quip from the Basques of Spain, the ISGA will be like the cow which has its mouth in the South and its udder in the North East!

In clause 10 of the ISGA, it is stated that separate institutions for the administration of justice shall be established for the North and East and judicial power vested in such institutions. This means that the existing Courts and Tribunals will be shut down. Even before the ISGA has been institutionalized we hear of bodies called the courts of Eelam functioning in the North and East that are reputed to hand down judgments and sentences in cases brought before them. The brand new courts complex in Trincomalee that was ceremonially opened only the other day will no doubt be peremptorily taken over if the ISGA is in place. Incidentally, there is more information on the subject in another document issued by the LTTE which has been sent to me by a friend from the University of Sabaragamuwa entitled "The Judicial Administration of Tamil Eelam. Its structure, functions and the duties of officials in charge." The Region it is said will have its own laws, lawyers and legal education. This document makes it clear that this region is to have its own system of courts with a Supreme Court at the apex. The system is expressly stated "to function on the basis of the direct approval of the National leader - V. Prabhakaran", in the very first clause - who is declared "to have the authority to reduce or increase the sentences of the Courts whenever the need arises and all laws are to be made with his approval." The National Leader is to be the fountainhead of all Law and Justice. After all he is Surya Devan and now Sarvadesh Thalevar!

An item of interest in this other document which amused me somewhat read as follows: "Judges should not have outside relations or contacts. If they have needs for such contacts, they could make such contacts with the Chief Justice or the official in charge of judicial administration" I shall not venture to interpret its precise meaning because it is obscure’ but some of you may think it is a salutary rule to adopt for the Judges in the rump State of Sihalam to ensure judicial independence!

Although there is only a brief reference to powers relating to the maintenance of law and order Clause 9.1 of ‘the ISGA in the other document which I mentioned, re Judicial Administration states that execution of judgments will be undertaken by the Police in criminal cases. The ISGA makes no reference to the question of defense presumably because it is assumed that it is entirely a matter for those who govern the North-East region. The concept of "self-government" envisaged in the ISGA is not limited to "internal self-government" but foreign affairs as well as seen by Clause 12 which empowers the ISGA to borrow both internally as well as externally, receive foreign aid directly and engage in or regulate internal and external trade. The governance of the North and East by the ISGA in short is to be independent and separate from the remainder of the original State.

Clause 9 of the ISGA does not go on to state that the ISGA will by agreement stand dissolved if no final settlement is reached or that its authority will be terminated. Under Clause 23 the operational period of the ISGA is of indefinite duration. In such an eventuality and since no time limit is fixed for the conclusion of the final settlement if the LTTE does not agree to the terms of the final settlement, the Interim Authority arrangement will continue ad infinitum and forever. Since the LTTE will not voluntarily wind up the ISGA, the designated districts would automatically acquire permanency and become an established fact, as the GOSL going by its present form would in all likelihood be unwilling to resort to armed force to compel the restoration of the status quo ante. If the ISGA (which also comprises territory) is renamed Tamil Eelam the creation of the new State would be complete - a consummation devoutly desired by the so-called votaries of peace, who are in truth the apostles of appeasement, despite their feeble remonstrances. Clauses .1,5 and 23 of the ISGA amply support the conclusion that the creation of a Separate State is the object and purpose of "institutionalizing the ISGA" as demanded by the LTTE.

What else is intended by the insistence of the LTTE that the ISGA be "the sole basis" of the talks? It simply means that it will be "the common ground for negotiations, the foundation and the determining principle of the talks". The LTTE has also ruled out in advance the consideration of any counter proposals by the Government. So consideration of the Oslo Declaration and Tokyo Agreements, as suggested by the UNF, is ruled out in advance. Understandably, if the LTTE "basis" contemplates a Separate State, as I have shown as its essential postulate, there cannot be the simultaneous consideration of any proposal on another and different basis, involving the continuing territorial integrity of Sri Lanka as a single State because the first basis of a separate State necessarily excludes the concept of an undivided State of Sri Lanka. It is as simple as that. It is as though in a matrimonial dispute, one spouse is saying that he or she wants a divorce and the other insists on staying married. So if, both parties insist on the two distinct "bases" for a joint discussion or negotiation, the resultant deadlock will be a foregone conclusion and we will be treated to the spectacle of two monologues, unless of course, (and this is what is dreaded most of all), the GOSL, is browbeaten and bludgeoned into submission at the negotiating table with the help of the quislings in our midst. Then we shall have another Munich and the inevitable proclamation of "Peace with Honour" a la Neville Chamberlain! You may be relieved to hear that in my opinion, this is an unlikely scenario and I sincerely hope I am not wrong!

The conjoint effect of these three main provisions (clauses 19 and 23) and related provisions of the ISGA is to displace the Constitution of the Republic of Sri Lanka as the ultimate norm and substitute a new grand norm as far as the eight administrative districts of the Northern and Eastern Provinces are concerned and the three branches of the Government of Sri Lanka will cease to exercise any of their powers in respect of the specified areas.

The question anyone is likely to ask is has the Government of Sri Lanka represented by the three branches of government, the power or authority under the Constitution to enter into negotiations on the requested basis? If the answer is in the negative, then all the hot air expended on these proposals is time wasted. It has no legal significance or constitutional effect The reason for this incapacity or incompetence is that the Constitution of Sri Lanka prohibits all persons governed by it or holding legal authority under it to act contrary to express prohibitions contained in the Constitution. Article 82 of the Constitution makes it manifest that no provision of the Constitution can be repealed or replaced except in terms of that provision which contemplates action by Parliament and the approval of the People at a referendum.

Neither the Sri Lankan Parliament, nor the Executive President nor the Judiciary can enter into any agreement with the leader of the LTTE or with Beelzebub himself to do any act which is not authorized by the Constitution. Under Article 75 Parliament cannot make any law suspending the operation of the Constitution or may part of the Constitution as to any part of the territory of the Republic. Under Article 38(2) even the President cannot intentionally violate the Constitution except upon pain of removal from office. Under Article 105 the Courts which are the established institutions for the administration of justice, are under a duty to vindicate and enforce the rights of the People under the Constitution. The People of Sri Lanka are surely entitled to know whether the Government of Sri Lanka can ever agree to accept the institutionalizing the ISGA without violating its own Constitution. Article 129 prescribes the procedure under which the opinion of the Supreme Court may be authoritatively ascertained if the President makes a request for such opinion as she ought to do. Under Article 157A of the Constitution no person can directly or indirectly in or outside Sri Lanka in Oslo, Tokyo or Sattahip or Killinochchi, or elsewhere promote the establishment of a separate State. The LTTE want the ISGA alone, not federalism, nor any counter proposal from the Government, not even any camouflaged form of capitulation but terms of unconditional surrender of sovereignty over eight administration districts of the Northern and Eastern Provinces.

The LTTE I am sure, are quite clear in their own minds that what has been asked in the ISGA cannot be granted under law, unless the Constitution be radically amended to enable the creation of a Separate State which they also know no Government that hopes to continue in office can hope to achieve unless two-thirds of the M.Ps are either corrupt or insane and unless more than half the voting population of Sri Lanka are similarly afflicted or uninterested in the issue which of course may well be the case.

So what does this mean? The LTTE is hoping that the Government’s yearning for peace, is so overwhelming and overpowering a desire, that it will agree to their proposal in defiance of the Constitution. Even the loquacious Professor’s incessant demand for transparency will then be satisfied because the new Agreement based on the ISGA will be a "transparent fraud" on the Constitution! Another learned Professor of Political Science has urged a response to the ISGA on a new theory of "non-territorial federalism". That of course is as novel an idea as a sandwich minus the encasing bread or an omlette made without eggs. One can sniff the ISGA inside out but you will not get even a whiff of federalism in it.

Since there are many who want the Constitution changed as effortlessly as a change of clothes, for different reasons. This may seem to them a golden opportunity to divest themselves of all controls. The snag however is that with the jettisoning of the Constitution, all the organs of Government that participate in this illegal and farsical exercise will ipso facto lose their constitutional and legal status and legitimacy. If that were to happen, any rebel Government including the LTTE can then validly claim an equality of status with those thereafter claiming to be the Government of Sri Lanka without any semblance of legitimacy. No Government that holds office under a Constitution can claim to retain its legality of status if it negates and abandons the Constitution. Every aspirant to office will claim legitimacy on the strength of their own home-made Constitution heralding a state of anarchy and an emergent dictatorship with the support of the armed forces in what is left of Sri Lanka after the Tiger has had his fill.

One is amazed at the deafening silence of the constitutional lawyers in our midst who so vigorously expound constitutionalism but from whom we have not heard even a whimper of protest, except exhortations to the Government to talk, despite the fact that the LTTE insists on the ISGA as the only basis, which excludes any alternate proposal.

One wonders whether because of the enormity of the violation contemplated they have become tongue-tied or is it a case of lock-jaw? Negotiating with the LTTE on the basis of the ISGA, is about as meaningful as seeking agreement on the terms of the epitaph for Sri Lanka that is to appear on its grave-stone. Even the ubiquitous undertakers for the funeral of the sickman who is taking a long time a-dying and the waiting pall-bearers who incessantly prattle about talks with the LTTE don’t seem to show much interest in the formulation of th text of the epitaph.



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