ISGA: The foundation for Eelam

by Dr. H. N. S. Karunatilake

The vast majority of the people in Sri Lanka would be taken aback by the ISGA proposals submitted by the LTTE. The UNP government has also expressed surprise at the proposals, though people find it difficult to believe that the UNP were unaware of the scope and content. On the other hand, the UNP proposals have not been made public and there is no basis to evaluate the reported wide gulf between the two sets of proposals. At least at this stage the UNP should disclose its stand on the extent of devolution of power that it has in mind. The preamble has several disputable issues, one is that the LTTE says that the proposals have been submitted "on behalf of the Tamil people for an agreement to establish an ISGA" How could it be said that the proposals are on behalf of the Tamil people? Does this mean that the Tamil people, includes the over 1.5 million Tamils who are living in the South and the other parts of the Island with the Sinhalese, who are enjoying security, prosperity and a high standard of living? There is a reference to an "Agreement" it is not said between whom such an agreement should be reached? Has the UNP government the right to enter into this agreement, where it is stated that the agreement would be outside the present Constitution. Can the LTTE, a pure terrorist organization, enter into such an agreement on behalf of the Tamil people and on what grounds could they do so?

The most hilarious part of the document is that the terrorist LTTE has had the audacity to speak of "the rule of law, human rights and equality of all persons" It is pointless talking about the rule of law and human rights because the LTTE are the supreme example, both nationally and internationally, of the violation of all these rights, values and principles. It is needless referring to the brutal slaughter of innocent civilians, both Sinhalese and Tamils, the forcible recruitment of children for their armed forces and as labour, the extortion of goods and services, the illegal levy of taxes and numerous other human rights violations. The Norwegians who have been the lackeys and the yes men of the LTTE have received a word of praise for their treachery and back scratching and given them the credit in "attempting to bring peace to the Island."

What is the significance of the statement "establish an interim self governing authority for the North East region and to promote for the urgent needs of the people of the North East by formulating laws and policies?" How can the ISGA formulate laws and policies unless it has absolute sovereign power and is an accepted representative body? Today these legislative powers are vested in the Parliament that has the sole right of preparing legislation and transforming it into the law of the land. National policy formulation is largely a matter for the Government in power and the Parliament. If policy is formulated by a non sovereign body called an "Authority" it has to consult the GOSL. Whatever it is even if the objective is the "urgent needs of the people" the ISGA that does not have elected representatives, cannot have the power to formulate laws. What is wrongly conceived here is that the ISGA is a law making body. If an interim and non representative authority has the power to legislate, what would be the legislative and the powers of the final authority? The document says, "that the majority of the Tamil people in the North East by their actions in the general election held in the year 2000 gave their mandate acknowledging the LTTE as their authentic representative." How valid is this contention? The Tamil National Alliance came into being after the elections and nowhere was a declaration made, except until recently, that the TNA was the representative of the LTTE. It is correct to say that most of the major parties in the TNA have cowed down to LTTE threats and have been intimidated to toe the LTTE line. Now there is clear evidence that the LTTE are directly controlling the TNA parties and this has been confirmed by the present moves to dislodge the TULF leader Anadasangary.

Territorially the ISGA covers eight out of the 24 districts or one third. These areas have a considerable Sinhalese and Muslim population. While the Muslims predominate in the Amparai and Batticaloa districts, the Sinhalese are a very large group, over 40 per cent, in the Trincomalee and Vavuniya districts. What would be the fate of these communities if the ISGA controls all eight districts? The ISGA will come into control of a considerable area that is now not subject to the LTTE. An unspecified number of members would be appointed to the ISGA by the LTTE and the Government would do likewise and the Muslims in the North East will appoint their representatives. Article 2.3 implies that the number of Sinhalese and Muslim members will be far less than the number nominated by the LTTE. But why is there no specific provision for the Sinhalese people to appoint their representatives? The snag in the ISGA is that "The number of members will be determined to ensure an absolute majority of LTTE appointees in The ISGA." Representation here is not based on an ethnic population formula, but only to ensure a clear LTTE majority. Even the total number of members in the ISGA have not been determined and stated, and there is no breakdown in terms of the different appointing authorities. Under the ISGA the Sinhalese and Muslim representatives will not have a say in any decision making, they would have no voice in the Authority and will be subservient to the armed might of the LTTE. The proposals do not deal with any mechanisms to safeguard the views and interests of the Sinhalese and Muslims in the ISGA, in terms of the way the LTTE have conducted themselves in the past, undoubtedly they will have their own way. There is no body of appeal that could take up or look into the grievances of the Sinhalese and Tamil representatives. The government in power cannot give directions to the ISGA because it is self-governing authority with overriding powers that will give the LTTE a free hand.

"The Chairperson shall be elected by a majority vote of the ISGA and shall serve as the Chief Executive." The chairperson therefore could only be from the LTTE and he would appoint the Chief Administrator and other officers to assist him. It is also quite obvious that all these officers would be from the LTTE. If no final settlement has been reached at the end of five years elections have to be held. However there are no details given about the elections, who are going to be elected and to what institution? If it is to elect persons to the ISGA it will mean that all those elected will be LTTE representatives. At the end of five years, by systematic settlement of Tamils and the use of arms the LTTE will easily manipulate any election. No one can ever believe that the LTTE terrorists will conduct "free and fair elections." Another ludicrous provision is the appointment of a "Independent Human Rights Commission" that is required to see that the actions of the ISGA are in conformity with the "international human rights law." This commission will be appointed by the ISGA itself. This is one of the biggest jokes perpetrated by the LTTE on the UNP and the people of Sri Lanka. It need not be repeated that the world’s biggest violators of human rights have been the LTTE and it is very strange that they have expressed concern about human rights and this is nothing other than to set a thief to catch a thief.

A startling proposal is "No religion shall be given the foremost place in the North East" Why hasn’t the predominant Hindu population in Jaffna been given recognition. This is undoubtedly due to the pressures exerted by foreign interests and NGOs. As far as the Buddhists are concerned this is the prelude to the desecration of hundreds of Buddhist shrines, ruins and existing Vihares in these areas. Already, many Buddhist monuments have been bulldozed or destroyed or converted into stone quarries. The fate of the Nagadipa Vihare, the Naga Vihare, Tirriyaya Magul Maha Vihare and several others will be in the balance. How can the self centered and the heavily Tamil biased and racist LTTE "ensure that there is no discrimination on grounds of religion, race, caste, national and regional origin?" There are saintly and pious statements in the text about bribery and corruption of which the LTTE has been often found guilty. The most recent example is the sale of stolen luxury vehicles to the LTTE, where the local thieves have been given automatic weapons and ammunition, in part exchange for the vehicles.

The power crazy LTTE has not hesitated to boldly indicate that they are interested in absolute and not in power sharing that has been oft repeated by the UNP. "The ISGA shall have plenary powers for the governance of the North East." These powers are exhaustive and cover all the powers of governance exercised by the GOSL that includes resettlement, rehabilitation and financial management. One can be sure that if it is resettlement and rehabilitation it is only the Tamils who would be resettled. No one will believe that the LTTE would ever resettle the Sinhalese and Muslims in the North East and spend money on their rehabilitation. In the interim five- year period the ISGA will take all possible measures to build up a pan Tamil population in their areas in view, among other things, of the proposed election at the end of five years. Separate institutions for the administration of justice will be established and the LTTE controlled ISGA shall take "appropriate measures to ensure the independence of the Judges." Will these LTTE judges ever give a verdict against the LTTE? An incongruous and highly partial feature in the proposals is that the LTTE will sit in judgment on its own actions and disputes with the GOSL because the "judicial institutions set up by the ISGA shall have the sole and exclusive jurisdiction to resolve all disputes relating to the interpretation and the implementation of this Agreement"

The Financial Commission appointed by the ISGA "shall make recommendations as to the amounts out of the Consolidated fund to be allocated to the North East. The GOSL shall make its good faith efforts to implement the recommendation." This means that there is going to be an unilateral allocation of funds from the Government budget to the ISGA and it is quite obvious that this will be for the development and the resettlement of Tamils. The LTTE is going to use these funds without consultation of the GOSL and this is tantamount to a forced levy like the illegal taxes now imposed by the LTTE. In regard to the use of funds, the Document says, "The GOSL agrees that any or all of its expenditures in the North East shall be subject to the control of the ISGA."There will be three separate Funds, the North East General Fund, the North East Reconstruction Fund and the Special Fund. And all these Funds shall be fully controlled by the LTTE. The monies pledged by international donor agencies and countries will have to be transferred to the North East General Fund. These will be either grants or loans received by GOSL. The document does not state in the event that the funds are loans who will be responsible for guarantee and repayment and is it the ISGA or the GOSL? The existing North East Reconstruction Fund shall continue to exist and all grants for reconstruction will be received through it. But NERF would be controlled and supervised by the ISGA. "The ISGA shall have the powers to borrow internally and externally, provide guarantees and indemnities receive aid directly and engage in or regulate internal and external trade." All the powers mentioned in the preceding sentence are those that are exercised by a sovereign state, and cannot under any circumstance be exercised by a mere Authority. Not being a sovereign state, what is the collateral that the ISGA can offer and what is the assurance that it can give that the borrowed funds would be repaid? An Auditor General can be appointed by fully fledged sovereign government and not by an authority and a country can have only one Auditor General and one such Department. All the proposed financial arrangement could be permitted only in a sovereign state. The ISGA has the power to appoint District Committees to ensure "the effective exercise of its legislative and executive powers," but the Chairpersons of these committees will be appointees of the ISGA.

The Document says the ISGA shall have the power to alienate and determine the appropriate use of all land in the North East that is not privately owned. This will mean that the ISGA will have the authority to allocate land to LTTE members, while the Special Commission on Land Administration could report on the "rights of disposed people over land and subject to encroachment notwithstanding the lapse of any time relating to prescription." The country has only one law relating to prescription and the question arises how this law is going to be sidetracked without new legislation. The army is required to vacate the private land it now occupies, irrespective of security considerations and there is the bold and cheeky statement that "the GOSL must compensate the owners for the past dispossession of the land."

The ISGA will control a coastal area south of Mannar to almost Pottuvil in the South East, and that is more than one third of the Island’s coastline. And it says the ISGA shall "have control over the marine and offshore resources of the adjacent seas and the power to regulate access thereto." In the same way the "ISGA will have control over the natural resources in the North East region." The GOSL is required to ensure that all monies due under existing agreements relating to natural resources are paid to the ISGA. On water use there is a fear that the Government will divert the waters of the Mahaweli river and accordingly it is stated that "The GOSL and the ISGA shall ensure that the internationally recognized principles are followed in the use of water resources" and any changes in the existing agreements should be made with the concurrence of the ISGA.

Article 22 of the proposals does not seem to be inconsistent with Article 10 that also deals with the resolution of disputes. There appears to be two categories of disputes but these categories have not been adequately clarified. Article 22 says "Where disputes arise between the parties to this Agreement as to its interpretation or implementation, and it cannot be resolved by other means acceptable to the Parties including conciliation by the Royal Norwegian Government, there shall be an arbitration before a tribunal consisting of three members, two of whom shall be appointed by each party. The third member who shall be the Chairperson of the tribunal, shall be appointed jointly by the Parties concerned. In the event of any disagreement over the appointment of the Chairperson, the Parties shall ask the President of the International Court of Justice to appoint the Chairperson". This clause seeks parity of status for members of the arbitration tribunal as between the LTTE and the GOSL, and the Chairperson shall be appointed jointly by the GOSL and the LTTE. One does not see the need to assign the function of choosing a tribunal Chairperson to the President of the IJC because the LTTE is not a sovereign entity and it should be in a position to accept a choice made by the GOSL. What the LTTE wants obviously are decisions in their favour. There is a reference in Article 23 to a "New Government for the North East .... is established," but it does not say that it would be elected, and there is no reference to this government in the earlier part of the text.

Considering the totality of the proposals, they go far beyond the perimeters of a Federal State. Accordingly, the conclusion is inescapable that they are all designed to the creation of a future separate state of Ealam that is consistent with the Thimpu declaration. There is nothing whatsoever in the proposals that is partial towards the Government. Matters have been made worse by the UNP government giving in to the demands and totally capitulating to the terrorists, and allowing the various provisions in the MoU for the "Peace Process" to be consistently violated by the LTTE. That includes the progressive infiltration of armed LTTE cadres into all parts of the Island, the establishment of new police stations and courts, the abduction of children, the smuggling of arms and sophisticated military equipment and murder of informants and innocent civilians.