By Jayadeva Uyangoda
The Supreme Court determination on the P-TOMS agreement delivered on July 15 is a
significant judgment in a variety of ways. It is also remarkable that the JVP which sought
the judicial intervention to invalidate the agreement, the government which was the
respondent, and the UNP which has been watching the controversy from outside the ring
are all quite happy with the judgment for reasons of their own. Only the LTTE, the co-
respondent who did not represent itself at the hearing, have expressed dismay over the
judgment and its possible political consequences. If the officials at Colombo’s Peace
Secretariat can convince their counterparts in Killinochchi that all is not lost, the P-TOMS
process can hopefully move forward even with the interim stay order in force.
Validation
The most important aspect of the Supreme Court judgment is that it has legally validated
and legitimized the MoU on the P-TOMS. It has also in passing endorsed the CFA which
the UNF government signed with the LTTE in February 2002. The campaign opposing
both these agreements was based on the assumption that they were legally wrong and
politically illegitimate. Lawyers of the petitioners canvassed this point in courts making the
assertion that it was wrong for the President, even in exercising her Executive powers, to
enter into an agreement with a terrorist group that had functioned outside the law. The
Supreme Court has found this argument untenable. According to the justices, there was
‘no illegality’ in the President entering into an MoU with the LTTE for the humanitarian
objectives as set out in the MoU’s Preamble.
One of the key political arguments put forward by the JVP, JHU and many critics in their
campaign against the MoU was that it was an agreement signed by the President in
secrecy (hora givisuma), without informing Parliament or even the Cabinet of Ministers. A
‘secret pact’, as they claimed, had no legal or moral validity. The Supreme Court has
totally rejected this reasoning. The President does not require, according to the
judgment, to consult or seek prior concurrence of either the Parliament or the Cabinet of
Ministers for the exercise of government power. Besides, when the Presidential action
results in an outcome like the Operational Management Structure in the P-TOMS, its
authority does not need to be derived from an existing statute. In making this point, the
Supreme Court has also proposed to depart from the narrow, positivist legal position that
authority should flow down from a clearly defined sovereign body of the state, such as the
legislature.
These are important conceptual points. They have the effect of making invalid the
political arguments against the P-TOMS. This clearly is a setback to the oppositionist
campaign. Yet, the Supreme Court’s adverse findings relating to the Regional Fund and
the location of the Regional Committee need to be addressed by the government and the
LTTE in a continuing framework of cooperation. The LTTE’s initial reaction to the
Supreme Court determination was a negative one, on the assessment that the verdict has
made the MoU totally unworkable. But, on sober reflection, both the government and the
LTTE should realize that there is still room for further consultation and modification of the
disputed clauses and then come back to the Supreme Court and explain the new position.
The greatest challenge that the government and the LTTE will have to deal with is to stay
on the course of compromise and convince the Court that what has been envisaged is a
win-win outcome to an extremely difficult and complex political problem.
Violence in the East
Meanwhile, there are two other immediate issues that have a great potential to further de-
stabilize the political situation; the escalating violence in the Eastern Province and
increasing anger building up among the Muslim political forces concerning the
government-LTTE MoU on the P-Toms.
The increasing violence and killings in the Eastern Province involves the LTTE cadres,
members of the state security forces and the para-militaries linked to the so-called
Karuna faction. In recent months, this violence has reached a qualitatively new phase.
Earlier, there have been killings and secret violence involving the intelligence wings of the
state and the LTTE. These incidents occurred and continued despite the ceasefire
agreement. Now the violence involves, both as actors and targets, members of the state
security forces other than the state intelligence wings and the combatants as well as
political cadres of the LTTE. Continuing escalation of this violence will be the main threat
to the CFA. Earlier many of these incidents occurred in Batticaloa and Colombo, and now
they have reached the Trincomalee district as well. This is quite ominous. Both sides may
continue to claim that they honour the ceasefire agreement. At the same time secret
military operations by both sides are likely to escalate in the Eastern Province making a
mockery of the CFA. Meanwhile, public confidence on the CFA and the peace process is
plummeting. There is increasing fear in the Eastern Province that war might break out
anytime there. The government should not treat the emerging situation in its
characteristically passive manner. It is time now that the government immediately explores
the possibilities for high-level political talks with the LTTE.Muslim issue
On the Muslim issue, the best option is for the LTTE and Muslim political leaders to
initiate direct dialogue in order to address and resolve issues that have so far kept the
two sides apart. This requires both sides to adopt a framework of mutual accommodation
and flexibility. There are two fundamental changes that the LTTE and the Muslim leaders
should consider as necessary in their approaches to each other. The Muslim political
leaders need to re-think their strategy of dealing with the LTTE through the political
leadership of the ruling party in Colombo. Similarly, the LTTE should be flexible towards
the Muslim political leadership in order to respond to the concerns and aspirations of the
Muslim community. The LTTE’s strategy of by-passing the Muslim political leadership and
dealing directly with Muslim community leaders on the ground in the Eastern Province has
not contributed much to Tamil-Muslim reconciliation. The Muslim political leaders’ strategy
of not directly dealing with the LTTE leadership in Kilinochchi has led to similar negative
consequences. Building the trust between two sides at leadership level is crucial for the
Tamil as well as the Muslim communities affected by the tsunami to receive any benefit.
Perhaps, the LTTE and the Muslim Peace Secretariats should take the initial steps
towards a new dialogue for accommodation.
While Sri Lanka’s overall political situation remains somewhat chaotic, there is an urgent
need to protect the peace process in a context of escalating violence in the Eastern
Province, setbacks to the post-tsunami recovery process and increasing erosion of public
confidence in the ability of the government and the LTTE to work together for peace. A
regime change in Colombo may not necessarily alter this condition of deadlock and
uncertainty. A new process of high-level political dialogue between the government and
the LTTE might succeed in reversing this situation. But there are no objective ground
conditions that can facilitate such a dialogue. Sri Lanka’s politics seems to have entered
a peculiar phase in which everyone knows and talks about things that are going from bad
to worse, but no one really wants to do anything to arrest the process. [Courtesy: Daily Mirror]