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The LTTE's ISGA proposal and the peace process - part 3:

The contentious issue of self-determination

by Prof. Gamini Keerawella

(Continued from June 19)

the LTTE: rationalising armed struggle

The reference to the 'right of self-determination of peoples' in the opening paragraph of the preamble is very significant because of its political implications. The often-quoted 'Oslo Declaration' issued after the Third Round of Talks only referred to 'the principle of internal self-determination'. The difference of the two concepts with and without the prefix internal is significant.

The concept of self-determination is a highly contested and evolving one. Since the principle of self-determination of peoples was incorporated into the Charter of the United Nations.

It has been subjected to different interpretations and even at the United Nations General Assembly there were two resolutions, one defining it in terms of the de-colonisation (1514 (XV)) and the other in terms of representative government formula (2625 (XXV)). However, the term 'internal self-determination' is relatively more precise.

It denotes regional self rule within the parameters of the overall sovereignty and territorial integrity of the State, i.e. a high degree of devolution of power on territorial or non-territorial basis.

Implicit in this paragraph, and also in other sections of the text, is an attempt to define Tamil ethnicity in Sri Lanka as 'peoples' in line with UN General Assembly Resolutions and other international instruments such as the Helsinki Declaration and the Charter of Paris. At the same time no reference whatsoever to territorial integrity is noticeable in the proposal.

Their use of arms ('armed struggle') against the State has been rationalised 'as a measure of self-defence and as a means of the realisation of Tamil right to self-determination.'

However, the LTTE raised arms against the populace in the North and East including the Muslims, other Tamil political parties and the democratically elected Tamil political leaders too.

More importantly, the preamble attempts to justify the interim arrangement based on an agreement between the LTTE and the Sri Lankan Government even outside the constitution.

In this respect the last two paragraphs of the preamble are particularly important. It proposes the reliance on 'international precedents for establishing interim governing arrangements in war-torn countries having the force based solely on pacts or agreements between the warring parties recognised by the international community'.

Very interestingly it quotes the Ceasefire Agreement, the Sri Lanka Monitoring Mission (SLMM) as valid precedents.

The main text of the proposals details out the proposed contractual arrangement between the UNF Government to set up the ISGA.

Even though the establishment of an interim authority arising out of such contractual arrangement outside the constitution is rationalised on the basis of international precedents, the international experiences in setting up of interim authorities based on contractual arrangement between the warring parties outside the constitution reveals that it is possible only in the failed states where the legitimate institutions of power and governance ante had collapsed completely.

By way of constructing the background to this claim, the LTTE proposal refers to Sri Lanka only as an empty geographical space, in the politico-judicial sense, where the erection of any structure based on a contractual arrangement could be justified.

It is not a simple faux pas that the Republic of Sri Lanka, the sovereign politico-judicial entity recognised by the international community in the island of Sri Lanka, has never been mentioned in the document.

There is no reference to any sort of framework of the solution to the ethnic problem in the ISGA proposals. The parameters of the interim arrangement can only be decided in relation to the framework of a possible final solution to the ethnic problem.

The ethnic conflicts is not simply a conflict between the ethnic groups. At the root of the ethnic conflict is the discord over the structure of the State and the exercise of political power. Any interim arrangement must facilitate the final solution.

Once interim authority is established it is the interim process that decides the subsequent political development. When it is set up without an agreed framework of a final solution, the interim arrangement itself would decide the parameters of final settlement.

Hence, an open-ended interim arrangement without any linkages to a framework of a final political settlement may end up only as a respite for another phase of the armed conflict. The LTTE proposal maintains that 'reaching a final negotiated settlement and the implementation thereof is expected to be a long process' and interim arrangement is necessary to carry out reconstruction work.

Constitutionality and democracy

It is not possible at all to be silent on the issue of constitutionality of the ISGA, although the constitution is not a sacrosanct document. If the constitution is found to be an obstacle in reaching a lasting solution it could be amended or replaced with a new one, openly with a mandate from the people. It is a basic tenet in democratic political practice.

Any attempt to ignore the constitution or to forge a contractual arrangement over and above the existing constitutional framework will have serious political repercussions.

The opening paragraph of the preamble refers to the principle of the rule of law. The constitution is considered to be the supreme law of the State.

The whole issue of constitutionality could be satisfactorily addressed if the interim arrangement comes as an integral part of a final settlement.

The provisions for Interim Administration in the 13th Amendment to the constitution and the Interim Council in the Constitution Bill of August 2000 can be cited as examples for having an interim administrative authority set up as an integral part of a final settlement.

There is no room for any other stakeholers except the marginal niche carved out for the Muslims in the ISGA - a contractual arrangement only between the UNF Government and the LTTE.

In the present context, it may be practicable for the LTTE to have a lion's share, if other conditions are fulfilled, in the proposed interim arrangement, but the room for different voices must be opened up by incorporating all the stakeholders through democratic content and practice.

Purview of ISGA

The purview the ISGA has been presented in such a way that one could interpret it in its own way. It says 'the urgent need of the people of the northeast by formulating laws and policies and, effectively and expediently executing all resettlement, rehabilitation, reconstruction and development in the Northeast'.

In the first part of the paragraph, the purview and areas where laws and policies are formulated are not specified. The second part refers to 'resettlement, rehabilitation, reconstruction and development' but the powers that are proposed to be vested with the ISGA far exceed the satisfactorily discharging of the task.

In the main text of the proposal, the jurisdiction of the ISGA is defined as 'plenary powers of governance of the northeast'. Further more, it will include 'control over all the marine and offshore resources of the adjacent seas and the power to regulate access thereto'.

The term 'governance' covers the entire gamut of the authority of the State including defence. According to the Longman Dictionary of Contemporary English the term 'plenary' denotes "(of the power of government) complete; without limit", and according to the Oxford Concise Dictionary, 'entire, absolute unqualified'.

The document refers to the term 'regional administration' but what is meant by implication is administration of the region.

The LTTE proposal for ISGA, in effect, goes beyond the federal formula. After the third round of talks between the UNF government and the LTTE in Oslo it was declared that 'both parties agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking people, based on a federal structure within a united Sri Lanka'.

After the talks, Minister G. L. Peiris appeared before State television and hailed this as a 'paradigm shift'. However, when the LTTE prepared its counter-proposals for an interim administration, there is no mention of the term federal or even confederation, let alone devolution, in the entire document.

In brief, the federal principle implies the dispersion of State power between the general and several regional governments where citizens will come under two tiers of government within one sovereign State.

In the federal system of two-tier governments, the centre is responsible for things common to the entire State and retains functions that are best executed at one place. In the proposed ISGA there is no link or role whatsoever to the Sri Lankan Government except appointing some members to the ISGA.

Exclusion

There is no role for the institutional expressions of the Sri Lankan State in the proposed ISGA. In effect, all the institutional apparatus of executive, legislative and judicial functions of the State are excluded from the North and East.

Nirupama Subramanium of The Hindu observes that the Government of Sri Lanka figures in the proposals only in three contexts: 'the vacation of Tamil lands by the Sri Lankan armed forces and compensation by the Sri Lankan State to those whose lands were taken over by the armed forces during the war; to State that the ISGA will control all funds allocated by the Sri Lankan Government to it and those flowing to the Sri Lankan Government from international aid agreements for the North-East; and in the composition of the ISGA, in which there is a provision for government representation.'

The proposal makes provision for the establishment of separate institutions for the administration of justice for the North and East and 'judicial powers shall be vested with in such institution'.

The document is silent as to whether these institutions come under the Sri Lankan Supreme Court.

There is no reference to the judicial structure presently in operation in the North and East. The ISGA has powers to borrow internally and externally and 'provide guarantees and indemnities, receive aid directly, and engage in or regulate internal and external trade'.

(To be continued)

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