An item of interest in this other document which amused me somewhat read as follows: "Judges should not have outside relations or contacts. If they have needs for such contacts, they could make such contacts with the Chief Justice or the official in charge of judicial administration" I shall not venture to interpret its precise meaning because it is obscure’ but some of you may think it is a salutary rule to adopt for the Judges in the rump State of Sihalam to ensure judicial independence!

Although there is only a brief reference to powers relating to the maintenance of law and order Clause 9.1 of ‘the ISGA in the other document which I mentioned, re Judicial Administration states that execution of judgments will be undertaken by the Police in criminal cases. The ISGA makes no reference to the question of defense presumably because it is assumed that it is entirely a matter for those who govern the North-East region. The concept of "self-government" envisaged in the ISGA is not limited to "internal self-government" but foreign affairs as well as seen by Clause 12 which empowers the ISGA to borrow both internally as well as externally, receive foreign aid directly and engage in or regulate internal and external trade. The governance of the North and East by the ISGA in short is to be independent and separate from the remainder of the original State.

Clause 9 of the ISGA does not go on to state that the ISGA will by agreement stand dissolved if no final settlement is reached or that its authority will be terminated. Under Clause 23 the operational period of the ISGA is of indefinite duration. In such an eventuality and since no time limit is fixed for the conclusion of the final settlement if the LTTE does not agree to the terms of the final settlement, the Interim Authority arrangement will continue ad infinitum and forever. Since the LTTE will not voluntarily wind up the ISGA, the designated districts would automatically acquire permanency and become an established fact, as the GOSL going by its present form would in all likelihood be unwilling to resort to armed force to compel the restoration of the status quo ante. If the ISGA (which also comprises territory) is renamed Tamil Eelam the creation of the new State would be complete - a consummation devoutly desired by the so-called votaries of peace, who are in truth the apostles of appeasement, despite their feeble remonstrances. Clauses .1,5 and 23 of the ISGA amply support the conclusion that the creation of a Separate State is the object and purpose of "institutionalizing the ISGA" as demanded by the LTTE.

What else is intended by the insistence of the LTTE that the ISGA be "the sole basis" of the talks? It simply means that it will be "the common ground for negotiations, the foundation and the determining principle of the talks". The LTTE has also ruled out in advance the consideration of any counter proposals by the Government. So consideration of the Oslo Declaration and Tokyo Agreements, as suggested by the UNF, is ruled out in advance. Understandably, if the LTTE "basis" contemplates a Separate State, as I have shown as its essential postulate, there cannot be the simultaneous consideration of any proposal on another and different basis, involving the continuing territorial integrity of Sri Lanka as a single State because the first basis of a separate State necessarily excludes the concept of an undivided State of Sri Lanka. It is as simple as that. It is as though in a matrimonial dispute, one spouse is saying that he or she wants a divorce and the other insists on staying married. So if, both parties insist on the two distinct "bases" for a joint discussion or negotiation, the resultant deadlock will be a foregone conclusion and we will be treated to the spectacle of two monologues, unless of course, (and this is what is dreaded most of all), the GOSL, is browbeaten and bludgeoned into submission at the negotiating table with the help of the quislings in our midst. Then we shall have another Munich and the inevitable proclamation of "Peace with Honour" a la Neville Chamberlain! You may be relieved to hear that in my opinion, this is an unlikely scenario and I sincerely hope I am not wrong!

The conjoint effect of these three main provisions (clauses 19 and 23) and related provisions of the ISGA is to displace the Constitution of the Republic of Sri Lanka as the ultimate norm and substitute a new grand norm as far as the eight administrative districts of the Northern and Eastern Provinces are concerned and the three branches of the Government of Sri Lanka will cease to exercise any of their powers in respect of the specified areas.

The question anyone is likely to ask is has the Government of Sri Lanka represented by the three branches of government, the power or authority under the Constitution to enter into negotiations on the requested basis? If the answer is in the negative, then all the hot air expended on these proposals is time wasted. It has no legal significance or constitutional effect The reason for this incapacity or incompetence is that the Constitution of Sri Lanka prohibits all persons governed by it or holding legal authority under it to act contrary to express prohibitions contained in the Constitution. Article 82 of the Constitution makes it manifest that no provision of the Constitution can be repealed or replaced except in terms of that provision which contemplates action by Parliament and the approval of the People at a referendum.

Neither the Sri Lankan Parliament, nor the Executive President nor the Judiciary can enter into any agreement with the leader of the LTTE or with Beelzebub himself to do any act which is not authorized by the Constitution. Under Article 75 Parliament cannot make any law suspending the operation of the Constitution or may part of the Constitution as to any part of the territory of the Republic. Under Article 38(2) even the President cannot intentionally violate the Constitution except upon pain of removal from office. Under Article 105 the Courts which are the established institutions for the administration of justice, are under a duty to vindicate and enforce the rights of the People under the Constitution. The People of Sri Lanka are surely entitled to know whether the Government of Sri Lanka can ever agree to accept the institutionalizing the ISGA without violating its own Constitution. Article 129 prescribes the procedure under which the opinion of the Supreme Court may be authoritatively ascertained if the President makes a request for such opinion as she ought to do. Under Article 157A of the Constitution no person can directly or indirectly in or outside Sri Lanka in Oslo, Tokyo or Sattahip or Killinochchi, or elsewhere promote the establishment of a separate State. The LTTE want the ISGA alone, not federalism, nor any counter proposal from the Government, not even any camouflaged form of capitulation but terms of unconditional surrender of sovereignty over eight administration districts of the Northern and Eastern Provinces.

The LTTE I am sure, are quite clear in their own minds that what has been asked in the ISGA cannot be granted under law, unless the Constitution be radically amended to enable the creation of a Separate State which they also know no Government that hopes to continue in office can hope to achieve unless two-thirds of the M.Ps are either corrupt or insane and unless more than half the voting population of Sri Lanka are similarly afflicted or uninterested in the issue which of course may well be the case.

So what does this mean? The LTTE is hoping that the Government’s yearning for peace, is so overwhelming and overpowering a desire, that it will agree to their proposal in defiance of the Constitution. Even the loquacious Professor’s incessant demand for transparency will then be satisfied because the new Agreement based on the ISGA will be a "transparent fraud" on the Constitution! Another learned Professor of Political Science has urged a response to the ISGA on a new theory of "non-territorial federalism". That of course is as novel an idea as a sandwich minus the encasing bread or an omlette made without eggs. One can sniff the ISGA inside out but you will not get even a whiff of federalism in it.

Since there are many who want the Constitution changed as effortlessly as a change of clothes, for different reasons. This may seem to them a golden opportunity to divest themselves of all controls. The snag however is that with the jettisoning of the Constitution, all the organs of Government that participate in this illegal and farsical exercise will ipso facto lose their constitutional and legal status and legitimacy. If that were to happen, any rebel Government including the LTTE can then validly claim an equality of status with those thereafter claiming to be the Government of Sri Lanka without any semblance of legitimacy. No Government that holds office under a Constitution can claim to retain its legality of status if it negates and abandons the Constitution. Every aspirant to office will claim legitimacy on the strength of their own home-made Constitution heralding a state of anarchy and an emergent dictatorship with the support of the armed forces in what is left of Sri Lanka after the Tiger has had his fill.

One is amazed at the deafening silence of the constitutional lawyers in our midst who so vigorously expound constitutionalism but from whom we have not heard even a whimper of protest, except exhortations to the Government to talk, despite the fact that the LTTE insists on the ISGA as the only basis, which excludes any alternate proposal.