1. The SLFP's approach to the national problem

The SLFP views with grave concern the proposals released by the LTTE for the establishment of an ISGA which lays the legal foundation for a future, separate, sovereign state. 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 ethnic conflict lies in the devolution of power within a united Sri Lanka on the basis of a negotiated constitutional arrangement, such as the one contained in the draft Constitution of 2000 and its earlier version.

President Kumaratunga has always held, and on numerous occasions expressed, the view that the grievances and aspirations of the Tamil community in Sri Lanka must be addressed in a fair and equitable manner, taking fully into account the aspirations of all the other communities who have lived from time immemorial in the north and east of our country. Any final settlement must be balanced and acceptable to all the communities. The pluralistic nature of our society must be preserved. Exclusive powers of governance cannot be vested in one community to the detriment of other communities.

Any final constitutional arrangement must preserve and protect the unity of our people and the unity and territorial integrity of the Republic of Sri Lanka. It must promote unity, not encourage division. The democratic structure of our polity must extend to the whole country. Democracy cannot be enjoyed by the people of the south and be denied to the people of the north and east. There cannot be two governments in Sri Lanka; there can only be one. The SLFP has noted that in the LTTE's proposals the expression "Republic of Sri Lanka" has never once been mentioned. This omission is not without significance.

Sri Lanka is referred to throughout the proposals as "an island," as though it were merely a geographical 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 any recognition 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 core issues which need to be addressed if the resolution of the conflict is to be brought to finality. The SLFP sees no reference to this fundamental aspect of the national problem in the proposals for an interim administration submitted either by the UNF government or the LTTE.

The SLFP believes that given goodwill and political commitment by all concerned, the core issues could be resolved expeditiously so that a lawful structure for the governance of the entire country could be constructed within which a lawful administrative structure could be built for the north and east to ensure that reconstruction and rehabilitation in that part of the country, and the return of displaced persons to which the SLFP is committed, could be carried out in the 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 of the final settlement. Indeed chapter xxviii of the draft constitution of 2000 deals specifically and in considerable detail with the establishment of an interim administration for a time bound period subject to various safeguards for other minorities in the north and east. That Interim Council was to begin operating after the new constitution itself came into force. Therefore, the Interim Council was envisaged as a necessary mechanism for facilitating the operation of the new constitution.

It was truly an integral part of the final settlement. In this respect the SLFP welcomes and supports the position taken by the government of India in the recent joint statement issued from New Delhi on October 21, 2003, where the government of India specifically stated that "any interim administration should be an integral part of the final settlement and should be in the framework of the unity and territorial integrity of Sri Lanka."

The SLFP also endorses paragraph 18 of the Tokyo Declaration of June 10, 2003 which was signed by 51 countries and 22 international organisations. That paragraph states that the disbursement of funds for the rehabilitation and reconstruction of the north and east should be accompanied by monitored observance of the progress of the peace process with particular reference to objectives and milestones including the participation of a Muslim delegation, parallel progress towards a final political settlement, effective promotion and protection of human rights of all people, the stoppage of underage recruitment and balanced and verifiable de-escalation, demilitarisation and normalisation at an appropriate time in the context of arriving at a political settlement.

The SLFP calls upon the international community to remain strongly committed to the 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) community for 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 that sovereignty is in the people, it is inalienable and indivisible: it is ours; it belongs to us. It is not a tradeable 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 any international consortium or "safety net," in the name of a spurious, unjust peace, to foist on the people of Sri Lanka any extra Constitutional arrangement that is not acceptable to all the people, all the communities 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 with legal implications should be read in the light of its preamble. The LTTE's proposals are prefaced by a preamble of 26 paragraphs. These should be read carefully because they set out various aspects of the LTTE's case for a self-governing authority which could ultimately become a separate state. The preambular statements reveal the LTTE's mindset, the philosophy that underlies their proposals.

The preamble shows that the LTTE is getting ready for the day when it could argue that if the negotiations are unsuccessful (because they do not yield the results that the LTTE wants) it will have no alternative, but to go for a separate state.

Pirapaharan, in his various speeches, has often made the point that they will first seek peace through a negotiated settlement, but may well be driven ultimately to acquire a separate state by force if their demands are 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 and east to provide for the urgent needs of the people by formulating laws and policies and effectively and expeditiously executing development while the process for reaching a final settlement is ongoing (paragraph 5. Comment: the significance of legislative powers for the ISGA coupled with "plenary powers for the governance of the north east" including "all powers and functions in relation to regional administration exercised by the GOSL in and for the north east" - Clause 9 of the proposals - is heightened by the absence of any reference whatsoever in the proposals to parliament);

The history of relations between the Tamil people and the Sinhala people have been a process of broken promises and unilateral abrogation by successive Governments of Sri Lanka (GOSL), 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);

Successive governments of Sri Lanka have perpetrated persecution, discrimination, State violence and State orchestrated 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 an independent sovereign secular State for the Tamil people (paragraph 8. Comment: this is the LTTE's so-called Peoples' mandate. The fact that it is being mentioned now, 23 years later, shows the LTTE's mind-set regarding a separate state);

The Tamil armed struggle has been a measure of self-defence and a means for the resolution of the right to self-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 the General 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 Tamil parties);

The LTTE exercises effective control and jurisdiction over the majority of the North East area of Sri Lanka (paragraph 14. Comment: this is factually incorrect and could be refuted with facts and figures about the extent of land and the number of people not under LTTE control); the final negotiated settlement and its implementation is expected to be a long process (paragraph 15. Comment: this is pre-justification for consolidating the LTTE's position on the ground);

Institutions and services provided by the GOSL have been inadequate and the various committees established during the peace negotiations have led to no action (paragraph 17 and 18. Comment: this is one of the justifications for self-government);

The GOSL has recognised the necessity for an interim authority in its 2000 election manifesto (paragraph 19. Comment: this refers to the UNP manifesto. The PA's position on the interim administration was in chapter xxviii of the August 2000 draft Constitution and is totally different from the UNP/UNF's and the LTTE's proposals);

The need for raising revenue to meet the urgent 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 the functions of the Government i.e. the ISGA);

The Tamils did not participate in the making of the 1972 and 1978 Constitutions (paragraph 23. Comment: this is questionable. There were Tamil representatives in Parliament at that time);

The international practice over the last decade of solving conflicts between peoples through agreement between the 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 having the force of law based solely on pacts or agreement between the warring parties recognised by the international community. (paragraphs 24 and 25. Comment: this is the argument in support of an Agreement between the UNF Government and the LTTE which would be outside the Constitution But the argument is wholly untenable, whatever the situation might be in other countries, because any such Agreement would be invalid if it 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:

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 powers of 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 complete marginalisation of parliament is the preambular reference to the ISGA formulating laws)

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 is in the people and is inalienable. Under Article 4 (c ) the judicial power of the people shall be exercised by parliament through courts etc created, established or recognised by the Constitution or by law. Therefore, Clause 10 of the proposals clearly 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 Consolidated Fund although the government will have no control whatsoever over the expenditure of such funds.

e) Clause 12.

Powers to borrow, receive aid and tradeThe 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 the government 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 regulate access thereto.

(Comment: this is a very significant provision highly dangerous to the sovereignty of the State. If control over the marine and offshore resources of the adjacent seas passes to the ISGA the territorial integrity and sovereignty of the state of Sri Lanka will be very considerably compromised. There will be a grave threat to international shipping lanes that pass the east coast of Sri Lanka, and needless to say to the security 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 must be remembered that the coastline of the seas adjacent to the north east go all the way down to Hambantota in the east and to Mannar or below in the west. The north east coast line comprises almost two thirds of the coast of 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, especially the 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 ultimate objective. It says that if after five years of the Agreement coming into force no final settlement has been reached 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 then declare a separate State having explained to the world why, as the preamble indicates, they were driven to take that ultimate step. The fault for not reaching a final settlement, acceptable to the LTTE, will be attributed solely to the GOSL.

k) The removal of the Governor from the north east power structure violates the 13th amendment to the Constitution.

4. The composition of the ISGA.

The salient features are: that there will be members appointed by the LTTE, by the GOSL and the Muslim community in the north east. Number of members: The LTTE shall have an absolute majority on the ISGA for four years, the Muslim and the Sinhala communities in the north east shall have representatives in the ISGA, but an absolute majority means the LTTE will have more than 50 per cent.

The Chairperson will be elected by a majority vote of the ISGA (which means the LTTE) and serve as Chief Executive. He shall appoint the Chief Administrator for the north east and all officers. Representatives of the Muslim community have the right to participate in formulation of their role in the ISGA.

(Comment: Muslims will have to accept the ISGA i.e. permanent subservience to the LTTE; they can only talk about their role in the ISGA. Can the Muslims settle for this lowly status when they are already more than 40% of the population of the East?).

5. References to the GOSL in the proposal.

The GOSL is mentioned in only ten places in the entire agreement and always in the context of having to do something or give-up something; never in the context of exercising powers or rights reflecting the sovereignty of the State. The references are the following:

a) Some members of the ISGA to be appointed by the GOSL

b) The ISGA to exercise all powers and functions of the GOSL in the north east

c) The GOSL shall make good faith efforts to implement the recommendation of the ISGA for funds out of the Consolidated Funds

d) The proceeds of all grants and loans made by the GOSL to the north east general fund shall be under the control of the ISGA

e) The armed forces of the GOSL shall immediately vacate all land in the north east

f) The GOSL must also compensate owners of such land for past dispossession

g) The GOSL and the ISGA shall enter into a water use agreement

h) All proceeds of agreements and contracts under the jurisdiction of the ISGA shall be paid by the GOSL to the ISGA

i) In the case of any dispute between the parties as to the interpretation or implementation of the agreement, it shall be referred to arbitration consisting of three persons, one by each of the parties, the Chairman to be appointed by both parties, and on the failure of agreement the parties shall request the President of the International Court of Justice to appoint a Chairperson

j) In the determination of any such dispute there shall be parity of status of the LTTE and GOSL (Comment: (b) (i) and (j) above read together with other clauses virtually confer on the LTTE the status of a sovereign entity)

6. Land administration

Clause 16. Administration of Land

The proposed Special Commission on Land Administration which is to report on the rights of dispossessed people over land subject to encroachment notwithstanding the lapse of any time relating to prescription puts in jeopardy the rights of impoverished settlers of all communities who were given to State grants of land under prevailing laws from a time prior even to independence. This section seeks to negate one of the most important achievements of the old United National Party under the leadership of Prime Minister D. S. Senanayake.