The P-TOMS, hostile actions and future negotiations
By Dr. S. Narapalasingam
The Memorandum of Understanding for setting up the mechanism to rebuild the areas in
the North-East Sri Lanka wrecked by the December 26 Tsunami was signed by the
Government and the LTTE after protracted discussion on June 24. The interim stay order
of the Supreme Court on the implementation of four key provisions in the MoU was
delivered on July 15. And yet the argument for and against the joint mechanism now called
the ‘Post-Tsunami Operations Management Structure’ (P-TOMS) did not cease. The
intensification of the killings in the East, North and Colombo in violation of the ceasefire
agreement has presently turned the focus away from the P-TOMS debate. The
assassination of Foreign Affairs Minister Lakshman Kadirgamar, a strong advocate of unity
and peace in undivided Sri Lanka and well-known opponent of the LTTE on August 12 has
raised many questions about LTTE’s interest in confidence building via the P-TOMS and
commitment to negotiations and peace.
Aim(s) of P-TOMS
The preamble to the MoU states: “WHEREAS the tsunami that struck Sri Lanka on
December 26, 2004 destroyed human lives and property on an unprecedented scale;
WHEREAS there is an urgent need for all communities, Sinhala, Tamil, Muslim and others,
to cooperate on humanitarian grounds in the face of this common adversity; WHEREAS the
equitable allocation of post-tsunami funds to all parts of Sri Lanka struck by the tsunami will
be based on accepted needs assessments; WHEREAS in recognition of this urgent
humanitarian need and in a spirit of partnership, the Government of Sri Lanka and the
Liberation Tigers of Tamil Eelam (LTTE) have resolved to work together, in good faith and
using their best efforts, to deliver expeditious relief, rehabilitation, reconstruction and
development to the coastal communities in the six districts of Amparai, Batticaloa, Jaffna,
Kilinochchi, Mullaitivu and Trincomalee and to facilitate and expedite the process of
rebuilding the affected areas; WHEREAS there is a need for establishing P-TOMS to
facilitate such cooperation among communities, and between the Parties; NOW,
THEREFORE, in consideration of the foregoing the Parties have entered into this MOU.
Thus, the two Parties agreed to join in carrying out the reconstruction, rehabilitation and
development work in the coastal areas of the North-East shattered by the tsunami for the
reasons indicated above. But in reality there were other important reasons for the
partnership. President Chandrika Kumaratunga was keen to bring in the LTTE as a partner
in the rebuilding task, as she considered the partnership useful for sustaining the cease-
fire and also for resuming the collapsed peace talks. Not only the Government but also the
international community believes the talking will eventually lead to a political settlement,
despite the disappointing progress seen at the end of six rounds of talks between the
previous UNF government and the LTTE held abroad during September 2002 – April 2003.
And now the P-TOMS was said to be a stepping stone for a final settlement of the vicious
conflict that had devoured about 65,000 lives and bestowed misery to many more families.
On the contrary, Jathika Hela Urumaya (JHU), Janatha Vimukthi Peramuna (JVP), Patriotic
National Movement and the National Bhikku Front consider the P-TOMS as a stepping
stone for a separate Tamil state under LTTE’s control. They want to keep the unitary
system that bestows decisive power to the majority Sinhalese in the national government.
The critics of P-TOMS have disputed the declared need (in the MoU) for such a joint
mechanism, saying the reconstruction and rehabilitation work could be carried out using the
existing structures. They have cited the remarks of Mano Tittawella, chief of the Task Force
for Rebuilding the Nation (TAFREN) made on July 19 while addressing a luncheon briefing
organised by the American Chamber of Commerce in Sri Lanka, held at the World Trade
Centre in Colombo to substantiate their claim that P-TOMS is not necessary to accomplish
the necessary post tsunami tasks.
At this business gathering, Mano Tittawella is reported to have said: "Somebody asked me
whether the P-TOMS was required to do tsunami reconstruction and the answer is, no, we
can do tsunami reconstruction anyway." Elaborating on the question he said: “Post-tsunami
rebuilding is taking place in LTTE and state-controlled areas despite the absence of the P-
TOMS. That’s happening, P-TOMS or no P-TOMS. Lot of things were happening in the
north and east even before P-TOMS was talked about. Housing is going on, programmes
are going on, the roads are being started, the relief was done, the rescue operation was
done, and the transitional (housing) was done."
However, he stressed: “P-TOMS would have helped build bridges. If we have the PTOMS,
or a joint mechanism, we can do it in actual official discussion and consultation - which is a
good thing to do in building bridges.” This was also the considered view of the local peace
activists and donor countries that want a negotiated settlement to the conflict in Sri Lanka.
According to Mano Tittawella, “around 80 per cent of the estimated total reconstruction cost
US Dollar 2.3 billion has already been committed and signed." He said: "We don’t think
there will be a problem with the balance. We think that in the next month or two, the full
commitment will be signed." But signing does not imply the money will be released
unconditionally. Both the US and Japanese governments have said emphatically they will
not make direct contribution to the Regional Fund in the MoU, because of LTTE’s role in
managing it.
Donors primary request
The foreign donors have for a long time been recommending a separate mechanism for
carrying out the post-tsunami reconstruction work in the North-East using the funds
pledged by them. The statement released by the Donor Co- Chairs on 13th June 2005 after
their meeting in Washington stated inter-alia: "The Co-Chairs support the commitment by
the President, her government and the LTTE to rapidly implement the structure to
administer tsunami assistance in the North and East. ... We urge the immediate signing of
the agreement in order to ensure proper flow of reconstruction aid to tsunami victims in the
North and East."
But they did not indicate the kind of mechanism that should be set up to ensure the
involvement of all affected communities as well as their preferred method of channelling
tsunami aid, knowing fully well that the LTTE would be an equal partner in it. Consequently,
they too have caused confusion in addition to that created by the conflicting statements of
LTTE and parties dissatisfied with the P-TOMS. They also ignored the Constitution of Sri
Lanka and even their own legal restrictions in transferring money to an external fund. If the
LTTE has been denied a managerial role in the fund, it would not have agreed to the P-
TOMS. On the other hand had the donors assumed that the LTTE would have agreed to
this condition, they had misjudged the priorities of the outfit. Only after the P-TOMS
agreement was signed, the governments of USA and Japan realised the problem they have
in contributing money directly to the Regional Fund. Both were in the forefront urging the
two parties to sign the MoU.
According to press reports, the US ambassador in Colombo Jeffrey Lunstead stated that
United States would not contribute money directly to the trust fund of P-TOMS since the
LTTE considered as a foreign terrorist organisation and banned there will have an
important role in administering it. Instead, US tsunami relief funds would be directed to the
Sri Lankan Treasury. In order to clarify the U.S. position on the P-TOMS Trust Fund, the US
Embassy in Colombo issued a press announcement on July 8. It stated: “The U.S. supports
a mechanism, such as that outlined in the P-TOMS, to coordinate the equitable and
expeditious prioritization, delivery and distribution of assistance to tsunami victims from all
communities in the north and east. We believe this mechanism, if properly implemented with
the support and participation of all affected communities can help improve the lives of those
affected by the December 26 tragedy. Because of legal restrictions, the U.S. will not be
contributing to the Trust Fund associated with the P-TOMS. We welcome other donors’
participation in the fund.”
The British Government is yet to decide whether it will contribute money directly to the
Regional Fund. The LTTE is a proscribed terrorist organisation in the UK too. The July 7
suicide bomb attacks in London, while the meeting of the heads of governments of 8
powerful countries (G-8) was taking place in Scotland followed by the failed attempt on July
21 had jolted not only Great Britain but also other countries, reminding the menace to their
life-style by such attacks against civilian targets. These incidents are bound to influence the
decision of the British government on the method of channelling its pledged funds for post-
tsunami reconstruction in the North-East. Meanwhile, the LTTE continued with its effort to
persuade the donors to transfer their funds direct to the North-East bypassing the Sri
Lankan Government. The Supreme Court ruling on P-TOMS, discussed below was also
cited as grounds for making such direct transfer. The recent killing spree in Sri Lanka that
has shaken the world will definitely dissuade any government that might have earlier been
sympathetic to the appeal from giving aid in this manner. Here is another case of tactless
action, unconcerned about the consequences.
Supreme Court’s interim order
The integrated operational management structure for the purpose of planning,
implementing and coordinating post-tsunami work as stated in Section 1 of the MoU
consists of:
i. The Post-Tsunami Coastal Reconstruction Committee (the "High-Level Committee");
ii. The Post-Tsunami Coastal Reconstruction Committee for the Six Districts (the "Regional
Committee"); and iii. Post-Tsunami Coastal Reconstruction Committees for each of the
Amparai, Batticaloa, Jaffna, Kilinochchi, Mullaitivu, and Trincomalee districts (the "District
Committees").
There is no legal problem with the High-Level Committee and the District Committees in the
integrated structure. The July 15 interim order of the Supreme Court applies to the following
four clauses:
(i) Clause 6(f) - The location of the P-TOMS Regional Committee in Kilinochchi. The Court
ruled it should be located in another area on the basis of the criteria set out below:
(i) The place should be centrally located within the Tsunami Disaster Zone (TDZ) of the six
affected districts referred to; (ii) All persons from every part of the TDZ of these districts
should have free and unhindered access to such location.
(ii) Clause 6(b)
(ii)- Project approval and management, with respect to projects for post-tsunami relief,
rehabilitation, reconstruction and development. The Court stayed the execution of this
clause as it felt the Regional Committee should not be dealing with Project Approval and
Management. Instead, a Project Management Unit (PMU) may be set up by the relevant
Ministry in accordance with the applicable procedure. Such Project
Management Unit would be at liberty to coordinate and implement the
projects with the District Committees, the Regional Committee and the High Level
Committees as provided in the MOU.
(iii) Clause 6(b)(iv) - Fund management, with respect to the fund specifically defined in
Section 7. This reads as:
(a) There shall be a Post-Tsunami Coastal Fund for the six districts consisting of
unspecified (program) and secretariat funds. The unspecified funds shall consist
exclusively of foreign funds while the secretarial funds shall consist of both foreign and local
funds;
(b) The Parties shall appoint a suitable multi-lateral agency to be the Custodian of the
Regional Fund;
(c) The purpose of the Regional Fund shall be to expeditiously make available funds,
following proper approved procedures, to facilitate and accelerate the relief, rehabilitation,
reconstruction and development program in the tsunami affected areas of the six districts;
and
(d) The Parties and the Custodian shall agree on a mechanism for the establishment and
operation of the Regional Fund. The Court observed that the foreign funds referred to in
the MoU are the donations to be received by Sri Lanka from multilateral and bilateral
donors. These funds when received by the country should in terms of Article 149(I) of the
Constitution be paid into the Consolidated Fund and be dispersed in terms of the
Constitution and applicable law. Expenditure from this fund would be subject to audit by the
Auditor General, as provided for in Article 154 of the Constitution.
(iv) Clause 7 - In the interim order the court directed that the funds both foreign and local
intended to be deposited in the Regional Fund as provided in Section 7 might instead be
dealt with according to the provisions of the
Constitution and deposited in a separate account with a Custodian to be
designated, if lawfully authorized.
Secretary to the Ministry of Relief, Rehabilitation and Resettlement, M.S.Jayasinghe, who
signed the MoU on behalf of the SL Government filed five objections to the stay order on
July 29, requesting the court to vacate the order. The Supreme Court was urged to permit
the implementation of the operational aspect of the P-TOMS as it was a "delegated power"
made by the Government to the LTTE and did not amount to granting the latter the
functions of the Government. The P-TOMS agreement will be valid for only one year. The
review petition stated, the court had "misdirected itself" on the interpretation of the
agreement. The statement filed in the Supreme Court Registry stated that the Court’s stay
order of July 15, will render ineffective the memorandum of understanding entered into
between the LTTE and the government of Sri Lanka for establishing the P-TOMS.
Moreover the petition stated, if the stay order is not vacated it could effectively prevent
and/or restrict the participation of the LTTE not only in the tsunami relief work, but would
also have a negative impact on the ceasefire agreement entered into between the LTTE
and the government of Sri Lanka in February 2002. The money offered by the foreign
donors is not a state to state transfer of aid. It is all disaster relief aid. The Government’s
position on its finances would be within the existing legal structure. The Supreme Court will
take up for hearing the objections filed by the Secretary to the Ministry of Relief,
Reconstruction and Rehabilitation on September 12, 2005 along with the fundamental
rights violation applications filed earlier by others against the P-TOMS agreement.
Muslims complaint
The Supreme Court has also granted leave to file objections against the P-TOMS
agreement on a petition filed by the Democratic Unity Alliance (DUA) and other Muslim
organisations, who have claimed that their Fundamental Rights as enshrined in the
Constitution are in imminent danger of being violated, if the agreement is implemented. The
petitioners have sought an interim order with immediate effect to direct the state to provide
adequate and equal representation to all persons and ethnic groups affected by the
tsunami in any structure, authority or mechanism entrusted with the task and function of
post tsunami relief, reconstruction, rehabilitation and development and in the disbursement
of donor funds both local and foreign. The petitioners further stated that in view of the
convention on the ‘Suppression of Terrorist Financing Act’ which Parliament passed
recently the inclusion of the LTTE or its representatives in any agreement become unlawful.
With regard to the Muslims complaint, the LTTE has consistently maintained that there are
only two areas of control and two administrations in the North East and hence the
Government of Sri Lanka and the LTTE should be the two signatories to the P-TOMS
agreement. It is recalled, at the time when peace talks between the government and the
LTTE were to start in 2002, the SLMC demanded that they be deemed an independent
third party at the talks. But the LTTE would not agree, saying that the peace talks were bi-
partisan and that the Muslims could join only when their problems were taken up. Clearly,
the LTTE did not want its political agenda to be diluted by the presence of the Muslims as a
third political group. Importantly, after the February 2002 Cease-fire Agreement the LTTE
has throughout maintained a status equal to that of the Government of Sri Lanka.
Involvement of other parties in its dealings with the Government has been resisted as this
would undermine its assumed powerful status as a parallel authority vis-à-vis the
government in Colombo. The Tamil Tigers claim exclusively for themselves the controlling
powers in the North-East on the grounds that they alone had struggled for decades, shed
blood and made great sacrifices towards acquiring a Tamil Homeland, while the Muslims
had not supported them.
Advice of enlightened leaders
Despite the shortcomings such as the exclusion of Muslims and the non-LTTE Tamil parties
committed to democracy and pluralism in the negotiations that led to the formulation of the
P-TOMS, the Women's Coalition for Peace regards the joint mechanism or the P-TOMS as
a welcome proposal that will hopefully address the needs of those affected. They also
regretted Muslims were not given signatory status. The Women’s group stated: “Given that
this represents an important benchmark of the Government and LTTE coming together,
and marks a forward movement towards any future power sharing, it is hoped that a more
democratic and representative process is followed in future negotiations.” This is the
desired wish of many enlightened people. Unfortunately, there is no definite sign of sensed
attitudinal change in the minds of the leaders in Vanni, despite the tsunami disaster that
has intensified the hardship endured by the people caught up in the vicious war. The self-
seeking approach to rendering humanitarian assistance without compromising the political
aims is evident from the demands and arguments of the LTTE since January 2005.
In a press release, CMU’s General Secretary Bala Thampoe said on July 29: “Even though
the Court has held certain administrative and financial provisions of the agreement to be
“inconsistent with the constitution and applicable law,” it has, at the same time, declared
that Government could achieve the objectives set out in the preamble to the agreement, in
accordance with applicable procedure. The judgment of the Court, thus amounted to a
rejection of the two main contentions of the JVP and the JHU. If the LTTE, for its part,
recognize the constitutional limitation under which the Government will now have to act we
hope that unlike the JVP and the JHU, they will treat the needs of the tsunami victims in the
North and East as paramount, and act accordingly in consultation with the Government.”
But there is no sign from Kilinochchi to believe that the LTTE will accept constitutional
restraints. It has even refused to recognize the sovereign rights of Sri Lanka in the North-
East. The country’s judicial system too was declared to be unfair to the Tamils. The recent
acquittal by the Supreme Court of all the convicts of the Bindunuwewa mass murder in
October 2000, in which 27 young detainees were brutally murdered was cited by the LTTE
political wing leader to substantiate the allegation.
The recent killing of prominent persons committed to serving the country and the people
under the existing system will compel those non-Tamils sympathetic to the Tamil cause to
become apathetic. Again the LTTE has demonstrated its insensitivity to such factors. Sadly,
reconciliation is not in the mind of the LTTE leader.
LTTE’s design
To the LTTE the conflict is for self-rule, whereas the general view is that it is the cumulative
effect of the denial of equal rights and opportunities to the Tamils under the unitary system
of governance or Sinhala majority rule. The truth is the grievances of Tamils arising from
various discriminatory policies and practices of past governments are not central to the
LTTE’s struggle, though these are useful for justifying its aim to establish a separate
autonomous state in the North-East. From the very beginning, the LTTE has been striving
to establish that the Tamil people have no option but to set up a separate state. This can
even said to be central to its non-military strategy to secede. The military approach tried
over two decades at great cost has produced only limited success. The fact that no country
approved LTTE’s violent methods has not dissuaded the rebels to give up these
completely. The international pressure to give up violence will intensify now.
The opposition to the P-TOMS by a section of the southern polity is also useful to the LTTE
in its current campaign to assert that the Tamils have no option but to secede. Ironically,
LTTE’s campaign is benefitting from both the rigid stands of the Sinhala nationalists on
retaining the unitary system and the inability of the governments to take suitable actions to
disprove the allegations of neglect of Tamil concerns and interests. The perpetual power
struggle in the South and the related confrontational politics have also contributed
immensely to the failure.
Speaking in the Parliament (August 11) on the P-TOMS, the UNP Deputy Leader Karu
Jayasuriya said that his party would support any approach which is consistent with the Oslo
and Tokyo declarations. The objective should be to achieve a substantive dialogue leading
to the resolution of the conflict. “In our view any agreement should have been viewed as an
integral part of the peace process. It is sad that the government took particular pains to
detach the P-TOMS agreement from the peace process and to insist that it was entirely
distinct and separate. We do not share this view,” he said. The truth is the LTTE did not
want any link between the two for reasons only known to them. Moreover, the P-TOMS is a
temporary arrangement that has no connection with the structure expected to support a
final settlement. The criticism of the P-TOMS agreement is influenced largely by the desire
to score political points. The recent killings could compel the UNP to distance further away
from the agreed P-TOMS.
Although the two main parties have accepted in principle a federal solution to the national
question, it is unlikely they will jointly come up with a draft federal constitution. This dilemma
also lends support to the extremists on either side of the ethnic divide, who want to stick to
their totally opposing political aims. One likely reason for the LTTE to dodge negotiations
on core issues vital for final settlement is the belief that the multiparty consent of the
southern polity on an agreement reached with the government will not be forthcoming. The
abrogation of earlier pacts reached with the governments, intended to address Tamil
grievances because of the opposition of Sinhala nationalists is often cited as a lesson that
should not be ignored. The neglect of approved policies and constitutional amendments
intended to rectify past mistakes is also cited. Hence the use of devious methods for
achieving its political aims. Unfortunately, many Tamils seem to have not realised the
damage these are doing to the Tamil cause and ironically to LTTE’s cause as well.
The veteran investigative journalist, D.B.S. Jeyaraj in his article, ‘Tigers Murder "King
Charlie" Brutally at Inuvil’ published in the Tamilweek.com of 7 August 2005 has analysed
the motive behind the brutal murder of Jaffna Police Superintendent Charles Wijewardene.
His assertion that LTTE was responsible for the killing has been subsequently confirmed by
the investigations conducted by the authorities. DBS wrote in his article:
“It has become a regular feature of post - ceasefire Jaffna life for so called civilian protests
to be staged at the drop of a "panankaai" (palmyrah fruit).The tigers trigger a fracas for the
flimsiest of reasons if and when they desire it. If the armed forces block acknowledged
"tigresses" from wearing a belt "some" civilians of Jaffna assemble on the spot to protest. If
an army vehicle knocks down a civilian accidentally a civilian "mob" converges immediately
to agitate. When Mahinda Rajapakse tried to visit a tsunami refugee camp a "crowd"
gathered immediately to throw excreta and stale food.
Only the naive and stupid will believe that all these are spontaneous reactions of the Jaffna
Tamil masses. If the civilian public was really so fierce and emotional then they should
agitate and protest for a number of real or perceived injustices including those committed
by the LTTE. But no! These protests are most selective. They are only directed at the
armed forces, Police or perceived political enemies. The tigers and their supporters are
sacred cows. This is the state of things in Government controlled Jaffna after the ceasefire
of Feb 23rd 2002 let loose hordes of tiger cadres into the peninsula to do political work.”
The blame was placed on invented unruly Tamil people of Inuvil not realising the smear to
the Tamil culture.
It is recalled Brigadier Larry Wijeratne was killed on 14 May 1998 when he was returning to
his camp in Vadamaradchchi after bidding farewell to local residents following a farewell
lunch hosted by the Traders Association of Point Pedro. He was to have left for Colombo
the very next day to assume duties at the military defence academy there. He was very kind
to the Vadamaradchchi residents and earned their admiration. Apparently, he was killed by
a suicide bomber for committing this ‘crime’.
Dr. Rajasingham Narendran in the TamilWeek.com of 14 August 2005 has raised
fundamental issues on the brutal killing of SSP Charles Wijewardene, which should prick
the conscience of all sensible Tamils. To quote: “The moral basis of the Tamil quest for
justice, human rights, equality and democracy within Sri Lanka has been seriously
undermined by the murder of Charles Wijewardene and many others- Tamil, Sinhalese and
Muslims- who have preceded him. If human life, irrespective of whose it is, is not respected
and valued, calling one self a human being will have no meaning. Human civilization is built
around this philosophical concept. … Being a Tamil involves not only speaking the Tamil
language, but also living subject to a perennial set of time tested lofty values. The LTTE
and its coterie of sycophants and hangers-on are hell bent on destroying the very
fundamentals of the Tamil identity in a very systematic and determined manner.”
The assassination of Foreign Affairs Minister, Lakshman Kadirgamar on Friday August 12
in Colombo has been condemned by governments across the world, including Norway. It is
undoubtedly a severe blow to the ‘peace process’ better called the ‘dodging’ process. Philip
Gourevitch, who visited Sri Lanka recently in his article on the current situation in the
island, first published in 'The New Yorker’ of 1 August 2005 has mentioned what Father
Miller, an American Jesuit missionary who has made his home in Batticaloa told him about
the ongoing killings. He had said: "Deep down inside, people realize that we haven't
crossed that border yet to where we can say that there's going to be peace. We're going to
go on killing each other, and there may come some time when it becomes so totally
desperate that we get some good sense.” Only God knows when this time will come. If the
present design continues, many Tamils may not live to witness the dawn of peace.
Prospects
Although the JVP with its support base in the South is against the P-TOMS, not all
Sinhalese have been against the decision to take the LTTE as a managing partner in the
post-tsunami work. The statement of Women's Coalition for Peace reminded, the goodwill
and sympathy showed by many Sri Lankans for the victims of the tsunami in the immediate
aftermath of the tragedy which proved that it is possible to overcome long held antagonisms
of class, caste and ethnic barriers. A good opportunity to bring closer the divided
communities helpful for reaching a widely acceptable political settlement was lost by the
intrusion of parties with their selfish political aims. And now the recent killings will step up
the demand of the opposition in the South for the Government to discard the P-TOMS
agreement.
The prospect for political settlement and lasting peace in Sri Lanka must be judged taking
into consideration the present muddled situation. The P-TOMS experience is also a pointer
not to rely too much on the intervention of foreign governments in settling the protracted
conflict in Sri Lanka. Despite the suggestion of a few leaders, India has not shown any
inclination to abandon her aloofness with regard to the conflict between the LTTE and Sri
Lankan government.
The people in the different communities must realise the adverse consequences of
maintaining the confrontational stance and dogmatism. There is no broad civil movement to
convince the people of the need to give up chauvinism and move forward with a positive
outlook. There is no influential group in the civil society to expose the misleading
statements of parochial leaders, intended to win popular support for their immediate gains.
Except for the emotionalists, all down-to-earth persons know a military solution is not
possible. But this has not transformed into a force for demanding an amicable settlement
via honest negotiations.
The likely scenario based on current developments is that the North-East Sri Lanka like the
border/tribal areas in Afghanistan, Pakistan and India will continue to remain part of the
country as it has been for centuries. But its inhabitants will be deprived of democratic rights,
better living conditions and hope. The country as a whole will also suffer from the lack of
resources for rapid development. It is the ordinary people on either side of the ethnic divide
who will suffer most because of egoistic leaders, who cannot take a balanced position on
issues that concern the future of the country and the people.