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by A A de Silva PC

This short article is not in anyway intended to be critical of the Ceasefire Agreement signed between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE).

(1) The Ceasefire Agreement itself contains in article 4 clause 4 - 3 that it could be amended and or modified by mutual agreement of both Parties to the Agreement.

(2) Already according to a news item in the front page of the Sunday Times of February 24 2002 there was a report so far not denied by the administration that the Government released a statement of intent delivered by Prime Minister Ranil Wickremesinghe "to somewhat offset drawback on two major issues in the ceasefire accord it had signed with the LTTE.

The two issues were the right of the Government's armed forces to intercept the illegal movement of arms into Sri Lanka and the assurances to the Sinhalese and Muslims in the Eastern Province that their rights will be protected by the Government."

(3) What is intended here is to pose the question whether the duly constituted Government of Sri Lanka referred to as G.O.S.L., has validly and/or legally signed the Ceasefire Agreement.

(4) It has been signed by Ranil Wickremesinghe for and on behalf of Sri Lanka and V. Prabhakaran is said to have signed on behalf of the LTTE.

(5) On the basis of the constitutional provisions and other laws, custom or usage applicable and followed doubts are entertained in some quarters whether the Ranil Wickremesinghe is empowered or legally entitles in his capacity as Prime Minister to sign the Ceasefire Agreement on behalf of the Government of Sri Lanka.

(6) The Government of Sri Lanka with its armed forces were at war with the rebel and terrorist group LTTE and the cessation of hostilities is part of the peace process a function according to article 33 (e) of the Constitution should normally come under the powers and functions of the President of the Republic as she or he has the right to declare war and Peace and nobody else has the right under the Constitution to arrogate that special functions.

(7) By virtue of the same Article it is the President who shall have the power to make a statement of Government Policy in Parliament at the commencement of the Sessions of Parliament. The President could at any time attend and send messages to Parliament.

(8) More importantly the President shall be a member of the Cabinet of Ministers and shall be its head apart from the right to appoint the Prime Minister and other ministers of the Cabinet.

(9) In view of the special position of the President under the Constitution she is the Head of the State, the Head of the Executive and of the Government and the Commander in Chief of the Armed Forces.

(10) In terms of article 43 of the Constitution while the Cabinet of Ministers is charged with the direction and control of the government which shall be collectively responsible and answerable to Parliament and no member of the cabinet not excluding the Prime Minister is empowered to exercise the executive power of the People which shall be exercised by the President.

(11) On the basis of the aforementioned constitutional provisions could it be said that the Prime Minister has the legal and constitutional authority to sign such an important and far reaching document which affects not merely the deployment of the Armed Forces of the country but the fate of a multitude of people inhabiting several provinces of this country.

(12) Signing of the Ceasefire Agreement with the LTTE is not in any way like signing an agreement to receive stocks of wheat flour from the USA or to obtain some soft loan from the Asian Development Bank but an instrument which concerns war and peace and connected matters dealing with the Executive power of the People.

(13) We have copied and incorporated into our Constitution certain features of the French and American Constitution and even in America the Vice President who is the president of the powerful US Senate or the Speaker of the House of Representatives is not empowered to sign documents concerning matters dealing with War and Peace when the President of the USA, is able to perform his official duties.

(14) It is of interest to ascertain on what authority constitutional or otherwise the Prime Minister signed the Ceasefire Agreement on behalf of the Government of Sri Lanka bypassing the constitutional and Executive Head of this Republic when she is also the Commander in Chief of the Armed Forces who are called upon to be bound by the Agreement.

(15) There is also an assertion by the President according to Newspaper reports that she had been informed of the contents of the agreement only after it had been signed by the LTTE Leader but the Prime Minister has denied this assertion.

(16) What is in issue right now is not the said ascertain of the President and its denial by the Prime Minister but whether the Prime Minister is legally and/or constitutionally empowered to sign the Agreement for and on behalf of the Government of Sri Lanka.

(17) In this regard what cannot be overlooked is that in this country sovereignty which includes the powers of government is with the people and while the legislative power of the people shall be exercised by Parliament the executive power of the people including the defence of Sri Lanka shall be exercised by the President of the Republic.

Therefore it would appear to be that an Agreement of this nature calls for her consent and signature for its validity.

(18) The mere handing over a copy of the agreement which has already been signed on behalf of the LTTE to a foreign Ambassador and thereafter issuing statements and making explanations after the act was done cannot bring validity to an agreement if it is otherwise lacking in validity from its very beginning and it may be difficult for anyone to state with any sense of responsibility that the Ceasefire Agreement and its acceptance and signing is not an exercise of the Executive power of the People in terms of Article 4 of the Constitution and the repository or which includes the function and right is not the distinguished holder of the Office of the Prime Minister.

(19) There is no objection whatsoever to any kind of Ceasefire Agreement or any instrument regarding the Peace Process being signed openly discussion in Parliament and informing the public beforehand implications and thereafter signed by the authority that is vested with the legal right and power to do so in terms of the Constitution.

(20) This article is not intended in anyway to belittle the efforts of the Prime Minister in his efforts to achieve Peace for this country but it is only for the limited purpose of drawing his attention that what needs to be done must be done properly and according to law after due consideration.

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