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After months of anxiety and heartbreak, the "Phoney War" is back

by our Defence Corr.
Anyone who has been reading the newspapers over the past few months would have realized it.

After a prolonged period of ferocious fighting, that lasted from last November into May, Sri Lanka’s civil war is back into its all too familiar "phoney war" phase, with only sporadic skirmishes, punctuated by a few pinpoint attacks by the LTTE, some "limited operations" by the army, and a bomb blast or two in Colombo.

The casualty figures alone tell the story. Over the last six weeks, less than 200 combatants have been killed in the northeastern war zones. This compares to March and April, when dead and wounded were being claimed in the thousands every week by both sides.

While massive land battles dominated the fighting a couple of months ago, they have given way to minor skirmishes, and the most serious clashes have shifted out to sea, with the Sea Tigers trying to disrupt supplies to Jaffna.

Like the original "phoney war" on the French-German border in 1939, Sri Lanka’s war has lessened in intensity, for awhile at least.

In fact, news about the war has all but vanished from the front pages of newspapers, including the state newspapers. Skirmishes are reported mostly on inside pages.

This phenomenon is a strange one in the wars that are going on around the world.

When one looks at other wars going on today, such as Chechnya, Afghanistan, Sierra Leone, Congo and Ethiopia-Ethiopia-Eritrea, one sees thousands of combatants being killed in a few days, with massive armies sweeping across dozens of kilometres daily. Death tolls are counted in the tens of thousands, or in hundreds of thousands.

Much of the low death toll in Sri Lanka can be attributed to the fact that there are relatively few civilian casualties in our war. There are many reasons for this. One is that both the army and the LTTE orders civilians to leave areas of fighting, well in advance of a battle. Another is that our air force does not engage in the carpet bombing of civilian areas, even if we had the numbers of aircraft to do so.

Yet another reason is the presence of international organizations such as the International Committee of the Red Cross, United Nations High Commission for Refugees, Save the Children, Medicins sans Frontieres, etc, in a very active way in Sri Lanka,. As much as we may sometimes dislike them, Sri Lankans have an age-old respect for foreigners, and we are usually happier if we don’t fall afoul of them. Especially since we rely on foreign aid in a massive way to prop up our economy and our development.

Other factors include the firm hand of foreign diplomats, who frequently visit the north and east, and also quietly remind top government officials that they are monitoring the situation, and the presence of the Catholic Church in the north.

Perhaps most importantly, Sri Lanka’s soldiers do not see civilians as the enemy. Rather, they are seen as a bit of a nuisance, among whom Tiger cadres are almost ever present. But the soldiers know that the majority of Tamil civilians are not Tigers.

This on-again, off-again tendency also tends to perplex foreigners, such as journalists who like to write catchy lines like "the war is entering a decisive phase."

In late April, after the fall of the Elephant Pass army base complex, more than 50 foreign journalists flocked to Colombo, sent by editors who believed that Sri Lanka’s war had reached a climax. With the government publicly declaring a war footing, who could blame them?

But instead, the fighting subsided, and the journalists left, muttering about a waste of time!

The fact is that neither the armed forces, nor the LTTE, have the capacity to wage war with great intensity for more than a few months at a time.

As this column noted as early as May 7, "Sore losses indeed for the LTTE, which has been keeping up their series of offensives for six weeks now, and have taken a huge number of casualties. Given the LTTE’s limited strength, it will not be able to sustain such casualties for much longer."

Again on June 18, we said: "the LTTE has quite clearly run out of steam, as is quite clear from the low intensity of Tiger attacks over the past four weeks. In fact, during this period, it is the army that has been on the offensive more often than the Tigers, although operations are still on a relatively small scale."

"The fact is that the LTTE sustained such heavy casualties in six months of nearly continuous fighting, that it is not in any shape to withstand a major onslaught by the armed forces in the north."

"This is quite clear from the fact that the Tigers stopped giving their casualty figures in early April, which can be taken as a reflection of their desire to keep the true figures secret, and avoid showing weakness. Their propaganda press releases on the Tamilnet say little of the war nowadays, and have instead withdrawn into merely parroting news from NGOs operating in the north, or repeating articles from Sri Lankan newspapers."

This week’s most serious clash was the attack by the Sea Tigers on the cargo ship Mercs Uhana off the Jaffna peninsula on Monday, at 2.30 a.m. The ship was clearly carrying food suplies to civilians in the Peninsula, and it was definitely not a case of mistaken identity. The LTTE staged the attack, obviously intending to disrupt food suplies to the civilian population.

Although Jaffna has ample stocks to last until the next ship arrives, the attack was a clear breach of the tacit understanding in the war, that the government supplies all civilians in the northeast with food, in both LTTE areas and government areas, and in return the Tigers refrain from attacking those who are transporting the food.

What this attack shows is that the Tigers are still too weak for a major battle on land, and are doing all they can to divert the attention of the armed forces from launching a major operation against them.

UNP draft on state, sovereignty and people accepted
Choksy helps solve the tangle

by Deshavimala
The most important factor of the proposed new constitution, the State, Sovereignty and the People was discussed for hours this week between the People’s Alliance and the United National Party at Temple Trees. On a request by President Chandrika Kumaratunga, UNP’s former Constitutional Affairs Minister and President’s Counsel K. N. Choksy submitted a Working Paper which was described by both parties as a practical document. Choksy’s document though brief dealt with all vital aspects that covered the subject and using his experience, he filed an explanatory note into the Working Paper which cautioned both sides on the usage of words and terms that were sensitive. Choksy described his Working Paper as the basic framework of the constitution if accepted by both sides. His proposal contained in the document were far reaching on the subject of devolution of powers which the Tamil parties are agitating for.

Choksy in his explanatory note states that the paper embodied the principles of government upon which the constitution is based which would be used as the "Key" to interpretation in the event of any legal dispute between the Central Government and the Regional Councils in regard to their respective powers. He had pointed out that the rival political contentions on the side of the majority community is to maintain the territorial unity of the country, whilst the Tamil parties are anxious to ensure adequate devolution entrenched in the constitution which cannot be legally assailed.

Choksy had recommended the avoidance of the use of controversial terms such as ‘unitary state’, ’union of regions’, ’indissoluble’ and ‘indivisible’. He recognises the fact that the Republic consists of the Centre and Regions while enunciating and recognising that the legislative and executive powers of the Republic are distributed between the Centre and the Regions, to the respective extents spelled out in the Constitution. Choksy has also ensured the maintenance of the unity and territorial integrity of the Republic whilst devolving powers to the Region.

When the two sides met on Friday afternoon, President Kumaratunga who was in Kandy arrived late as she could not fly early from there due to bad weather. The talks started five minutes past noon. At the outset Kumaratunga told the two sides that she went through Choksy’s working paper on the state, sovereignty and the people and described the document as an ‘excellent draft’. Justice Minister Professor G. L. Peiris too stated that he too studied Choksy’s paper and was in total agreement with the document. With agreement from both sides the Working Paper was adopted unanimously.

Choksy’s Working Paper will be chapter one of the new constitution titled "The State, Sovereignty and the People" and contains the following.

1) Sri Lanka is a free, sovereign and independent Republic which shall be known as the Republic of Sri Lanka and in which the sovereign, legislative, executive and judicial powers of the people shall be exercised by the Central Government and the Regions as hereinafter provided in the constitution.

2) The territory of the Republic shall comprise the capital territory, the regions, the territorial waters and the air space above.

3) It shall be the duty of the people and of all organs of the State to safeguard the Independence, sovereignty, unity and the territorial integrity of the Republic.

4) In the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty consists of the powers of government, fundamental rights and the franchise.

5) The legislative power of the people shall be exercised by Parliament and by the People at a Referendum and by the Regional Councils to the respective extents and in the manner as hereinafter provided in the constitution.

6) The executive power of the people shall be exercised by the President of the Republic on the advice of the Prime Minister and the Cabinet of Ministers and by the Governors of the Regions as in hereafter provided by the constitution.

7) The judicial power of the people shall be exercised by the courts, tribunals and institutions created and established or recognised by the constitution or by law. In matters relating to the privileges, immunities and powers of parliament and its members, the judicial power of the people may be exercised by parliament according to law.

8) The franchise of the People shall be exercised by the people at the election of Members of Parliament, regional councils and local authorities and at a Referendum.

9) The fundamental rights of the People which are by the Constitution declared and recognised shall be secured and advanced by all organs of government, and shall not be denied or restricted or abridged save in the manner and to the extent hereinafter provided in the constitution.

10) The State shall foster a Sri Lankan identity amongst its citizens by recognising the multi-ethnic, multi-religious and multi-lingual character of the Sri Lankan society.

11) No Regional Council or Administration shall, by direct or indirect means promote or otherwise advocate or attempt to promote or otherwise advocate,

a) the separation of any region or part thereof from the Republic,

b) the alteration of the area or boundaries of a region,

c) the change of the name of a region,

d) the formation of a new region by separation of the territory from any region or by unifying two or more regions or parts of regions or by unifying any territory with part of any region.

Provided however that a regional council or administration may make representations to the Central Government regarding matters referred to in sub paragraph (b), (c) and (d) above.

12) The National Flag of the Republic shall be the Lion Flag depicted in the......... schedule hereto.

13) The National Anthem of the Republic shall be ‘Sri Lanka Matha‘ the words and the music of which are set out in the ................ schedule hereto.

14) The National Day of the Republic shall be the fourth day of February.

The acceptance of Choksy’s paper is a victory for the UNP but, when the paper is out for debate and discussion there could be pressure on two issues, namely the exclusion of Buddhism and the powers of the Centre with regard to dissolution of the Regional Councils if the latter acts in a manner detrimental to the unitary character of the nation. Though certain provisions are embodied in the paper prohibiting the violation of boundaries in the Region, no provisions are envisaged as to how the Centre would react on such instances. The present constitution empowers the Centre and the Executive to dissolve any council that acts to the detriment of national interests, and that provision helped late President Ranasinghe Premadasa to dissolve the North East Provincial Council when its Chief Minister acted in such manner. Political analysts say that such safeguards must be embodied in Chapter One of the Constitution which deals with the State, Sovereignty and the People and not anywhere else in the chapter or clause that comes under Constitutional Amendments.

The UNP and PA delegations dealt at length on the subject of Constitutional Amendments on Friday. The question of the two thirds majority was discussed and the question arose whether the Regional Councils should come into the process of Constitutional Amendments.

The Tamil parties which met Kumaratunga sometime back wanted the Regional Councils to have a say in constitutional amendments. The two sides agreed on Friday that the requisite of the two thirds majority in parliament was a must on constitutional amendments and if the Regional Councils objected to such amendments, the Members elected to Parliament from those Regions would have a "weighted vote" scheme in Parliament on the issue. This was the thinking of both sides and the issue was kept open to work out the modalities.

The UNP was successful in its attempt to get the demand for an Independent Election Commission into the statute that is to realise. This will be a separate chapter in the new constitution. This draft too was prepared by UNP constitutional expert Choksy.

The UNP drafts on Independent Police, Public Service and Judicial Commissions were kept open for discussion later. Though Kumaratunga was determined to end the talks on Friday, she later agreed that more contentious issues were yet to be discussed and extended the talks for this week.

Though it was agreed by both sides that an Independent Election Commission was a necessity, no firm decision was arrived at whether it would be done before the next general election due in October with Parliament due to be dissolved on August 25. The two sides on Wednesday worked out the modalities of setting up the commission. The proposed commission shall have five members, three nominated by the President and the other two by the Leader of the Opposition. These Commissioners will function for six years uninterrupted and will have the status of Supreme Court Judges.

The Commission will take over all functions presently enjoyed by the Commissioner of Elections and be answerable to Parliament and receive and act on complaints of election malpractices and violence. It will also have powers to deploy the police for elections and the requisite amendments to the Police Ordinance would be effected.

The present Commissioner of Elections will come under the Commission in the capacity of a Commissioner General of Elections and the Chief Executive Officer of the Commission. When the appointment of the Commissioner of Elections as the Commissioner General of Elections was discussed, UNP leader Ranil Wickremesinghe observed that adequate safeguards were needed to prevent arbitrary removal of the Commissioner General of Elections by the Commission. Kumaratunga said that more details regarding that appointment should be discussed and told the UNP leader that his request would be considered before finalising the issue. Though the proposal for an Independent Election Commission was agreed upon in principle, the government appears to be dragging its feet while the UNP want it in place before the next general election.

Interim Council

The PA and the UNP this week finalised certain modalities with regard to the proposed Interim Council to the North East. Though it was earlier proposed to set up this Council for two years, both sides agreed that it should function for five years. They discussed at length the issue of bringing the LTTE into the Council but President Kumaratunga who had taken a firm stand not to let the LTTE in until the latter gave up arms was unhappy when members from both sides talked of the LTTE involvement in the democratic process.

SLMC leader, Minister Ashraff pointed out that the Council would be of no use if all Tamil parties were not included. The UNP delegation took a similar stand. This forced the President to rethink her earlier position on the LTTE. The two delegations then spent an hour on how to term the phrase that would not make the LTTE inclusion transparent.

UNP’s K. N. Choksy, an expert on phrases and terms of reference which do not collide with usage proposed that "all parties to the conflict" could be included in the Council. So the two delegations dropped the letters "LTTE" and replaced it by ‘all parties to the conflict’. Choksy during the talks had wanted sensitive words out of the constitutional process and this position was visible from his Explanatory Note in his Working Paper of the State, Sovereignty and the People.

Having agreed on the term ‘all parties to the conflict’ it was decided to invite the membership of all Tamil parties in those districts who were willing to participate. The total number of members are to be the same number that was in the earlier North East Council. The statute of the proposed Council require the assent of the Governor who will reserve any statute for reference to the Supreme Court through the President.

The Sinhala and Muslim parties that represent the Council will be given minimum number of ministerial posts under the ethnic ratio while a referendum will be held only in the East after five years to determine whether the two provinces should merge or not.

It must be recalled that when the Thirteenth Amendment to the present Constitution was introduced by the UNP to set up Provincial Councils, the UNP openly said it was against the merger of the North and East. President J. R. Jayewardene pledged to campaign against such merger if a referendum was held but he did not hold a referendum. Instead he continued with the temporary merger under special gazette notification. All successive Presidents followed the Jayewardene pattern to extend the temporary merger. However, neither Kumaratunga nor Ranil Wickremesinghe have so far said they would campaign against the merger when a referendum is held.

The proposals to the Interim Council has looked into the ground situation if and when a referendum is to be held. Knowing that the LTTE is bent more on arms than democracy, provision has been created to consult the Constitutional Council in the event a referendum was not conducive according to the ground situation.

The appointment of the Chief Minister and the Board of Ministers to the Council will be done by President Kumaratunga. At the talks, the UNP proposed that it should be done in consultation with the Leader of the Opposition and explained that it would look more democratic if the opposition leader too was consulted. However, there was no response from the government.

The two sides which discussed land issues decided that national forest reserves, tea, rubber, coconut plantations and the shore line will be under the Central government. All land settlement schemes should come under the National Land Policy to be adopted by the Land Council that is to come into effect, the two sides agreed. The Land Council will also resolve disputes between the Region and the Centre with its decision final and not subject to be challenged in court.

The UNP team had earlier fought hard for the setting up of the Police Commission. But Kumaratunga had certain reservation on the proposal. She said that it cannot be done immediately as power was going to be devolved to the periphery in due course. Her Minister Batty Weerakoon backed her argument. UNP’s Mahinda Samarasinghe pointed out it was a necessity to ensure free and fair elections and also to maintain law and order in a just and fair manner.

The issue was then put off for a further date by Kumaratunga and it is likely to be discussed this week along with the issue of the Public Service Commission. The issue of the Public Service Commission was also put off on the request of Minister Weerakoon who claimed that it was a matter to be discussed after the nature of the state was decided. The two sides have already decided on the nature of the state on Friday and the UNP will pressurise the PA to finalise these two Commissions this week. Both G. L. Peiris and K. N. Choksy are preparing working papers on these subjects for discussion this week.

While the government was busy with the UNP opposition in finding a solution to the problem, the Norway peace maker Erik Solheim arrived in Colombo on Monday for talks with Kumaratunga. He first met Kumaratunga at Temple Trees and the President briefed him on the measures taken to create a democratic atmosphere in the war torn area to start civil administration with an Interim Council. Solheim welcomed the move but Kumaratunga quipped, "Now it’s upto you to bring the LTTE to that Council". Solheim responded with a smile. Thereafter he met UNP leader Ranil Wickremesinghe, the TULF and the EPDP separately. Carrying a message from Colombo Solheim flew to New Delhi on Tuesday to meet the Indian leaders for discussion.

Elections

Kumaratunga has only seven weeks left to put all her plans into action as parliament will stand dissolved on August 25 this year. She is fighting for time to introduce a new constitution and the government may consider postponing the election.

Several senior ministers who are confident of returning to parliament the next time have warned Kumaratunga that a postponement of elections would be suicidal. However, there is a group in the PA and also in the UNP which supports an extenstion of the life of the House. They are backing the Crossover Bill which is to come on a special date this month for debate and vote in Parliament.

PA’s UNP cabinet Minister Sarath Amunugama is working hard to get 12 more UNPers to support this Bill. This week he brought UNP MP Ariya Walpitagama from Trincomalee to support Kumaratunga.

Walpitagama who entered the House recently was very critical of Kumaratunga in his maiden speech. He even called Kumaratunga a ‘Vihara Maha Devi’ who consumed whisky. Some sections of his speech which referred to the conduct of the President was expunged by the Speaker that day.

Informed sources said that the Crossover Bill may be suicidal to the government if it planned to go ahead with it. They claimed that there were six PA MPs, including a minister who may cross to the UNP putting the PA in difficulty. Morever, the PA partner, SLMC leader Ashraff too is not in favour of a Crossover Bill and an extension of the life of the Parliament. The only Tamil party that would support it is the EPDP of Douglas Devananda.

The former Chief Minister of the North East Province Varatharaja Perumal is reported to be in favour of an extension of the life of parliament and had promised to support Kumaratunga in the North at a referendum. It is learnt that Perumal may be brought on the PA National List if parliament is extended with Kumaratunga asking a PA National List MP to step down.

Political developments on the PA side will be interesting to watch in the coming weeks with the government running out of time to implement what it has in mind. The Tamil parties are not prepared to rush through the draft constitution in a few days. The talks with the UNP will continue this week. There are many other issues the government want to tackle before the dissolution of parliament. The PA camp is divided over certain issues and Kumaratunga will find a tough time persuading her camp before coming to parliament on vital issues.

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