A mechanism restrained

Print edition : August 12, 2005

The Sri Lankan Supreme Court passes an interim order staying key operational clauses of the P-TOMS agreement for the rehabilitation of tsunami victims between the government and the LTTE.

V.S. SAMBANDAN in Colombo

Tamil children play in a makeshift classroom in the Vannarkulam camp for tsunami victims in the rebel-controlled town of Mullaitivu in northern Sri Lanka, on June 14.-ERANGA JAYAWARDENA/AP

ON July 15, the Sri Lankan Supreme Court issued an interim injunction restraining the key operational clauses of the agreement made in June for a Post-Tsunami Operational Management Structure (P-TOMS) between Colombo and the Liberation Tigers of Tamil Eelam (LTTE).

In its interim stay on a Fundamental Rights petition filed by the Janatha Vimukthi Peramuna (JVP), a former constituent of President Chandrika Kumaratunga's ruling coalition, the court ordered three critical elements of it - all related to the operational aspects of the Regional Committee - stayed. The court, however, did not strike down the Memorandum of Understanding (MoU) on the P-TOMS structure, which the JVP wanted annulled. While this keeps the agreement afloat, its regional operational mechanism has been curbed by the interim verdict.

The case was filed by the 39 Members of Parliament of the JVP and cited the Attorney-General of Sri Lanka; the Minister of Relief, Rehabilitation and Reconstruction (Triple R), and the two signatories to the MoU - M.S. Jayasinghe (Secretary to the Triple R Ministry) and Shanmugalingam Ranjan (the LTTE's signatory) - as the respondents.

The JVP's objections to the P-TOMS were on five grounds. The first objection was that Jayasinghe did not have "any authority" to do so. The second point of objection was that the President could not constitutionally authorise the MoU.

The third point of objection was that "there is no legal basis to enter into the MoU with the LTTE which is not an entity recognised by law and which is identified with terror, violence, death and destruction". The fourth objection of the petitioners was that "the powers and functions" of the Regional Committee, one of the three tiers in the P-TOMS structure, were "governmental in nature" and that such powers and functions cannot be "validly conferred on such committees in the manner contemplated in the MoU". The final objection was in relation to the Regional Fund, which was to be managed by a multilateral agency. This Fund, the petitioners argued, formed "part of the funds of the Republic" and should hence "be disbursed and accounted for in the manner provided in the Constitution".

In its 20-page interim order, the three-member Bench led by Chief Justice Sarath N. Silva said "there is no illegality in the President entering into an MoU" and that the "petitioners have failed to make out a strong prima facie case" in support of their first two objections.

The court's observation on the legality of entering into an MoU with the LTTE is likely to be a significant judicial interpretation of the situation a state is placed in when dealing with mainstreaming insurgents. The arguments against such a move, the court said, "cannot and should not have the effect of placing the 4th respondent [Ranjan] and the Organisation that he seeks to represent [the LTTE] beyond the pale of law". Pointing out that the government and the LTTE already had a ceasefire agreement in force, which according to the P-TOMS agreement "shall continue in full force and effect", the Supreme Court said "there is no illegality in entering into the MoU" with the LTTE "for the purpose of humanitarian assistance".

Making it clear that the interim order was not granted in respect of the entirety of the MoU, establishing the P-TOMS, the court said the committees may be established and become functional "subject to the restrictions" imposed by the judgment.

The most significant clause stayed by the court is the suspension of the Regional Fund. The P-TOMS agreement provided for the creation of a Post-Tsunami Coastal Fund and a "suitable multi-lateral agency" to be its custodian. According to indications, the World Bank is likely to be the custodian of the Fund.

Restraining the authorities from implementing the Regional Fund, the court said the monies "intended to be deposited" in the Fund "may 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 authorised".

The funds received by Sri Lanka, Chief Justice Silva said, "should be paid into the Consolidated Fund and be disbursed in terms of the Constitution and the applicable law". The provisions in the P-TOMS agreement regarding the Regional Fund, along with the fund management clauses, "are plainly inconsistent with the Constitution and applicable law", the interim ruling said.

Another significant restriction imposed by the court was in setting down two criteria for the location of the Regional Committee. According to the agreement, the Regional Committee was to be located in Kilinochchi - a rebel-held town in northern Sri Lanka, to which access is regulated by the LTTE.

Responding to the specific submission on the location, the court said the "contention of the lack of ... an environment of freedom in the designated place cannot be disputed". Restraining the operation of the provision, the court said the parties could choose "a suitable site" which met a twin criteria - it should be "centrally located" within the tsunami-affected zone and "all persons from every part" of the affected districts "should have free and unhindered access to such location".

The court, in a proactive note, also suggested correctives for the clauses on which it had imposed restrictions. "Since the MoU is intended to deliver urgent humanitarian assistance to the persons who suffered from the tsunami ... if there are any parts of the MoU in respect of which the petitioners establish a strong prima facie case, it is incumbent on this court to take the further step of converting the alleged illegality in respect of which a strong prima facie case has been made to a situation that is legal and according to law and thereby ensuring that the interim relief would not result in undue hardship to the persons who suffered from the tsunami," Justice Silva said.

The correctives were in reformulating parts of the regional mechanism, including the fund and in setting out the twin criteria for the location of the Regional Committee. The next hearing has been scheduled for September 12.

The reactions to the interim verdict by the JVP and the LTTE were along predictable lines. The JVP said the injunction had "effectively stopped" the implementation of the joint mechanism. "There are no wheels in the bus," the JVP's propaganda secretary, Wimal Weerawanse, said.

The JVP said it would continue its "struggle" against the P-TOMS and would hold countrywide protests on July 25. "The protests will be held in all districts in the country," Vijitha Herath, international secretary of the JVP, said. Terming the Supreme Court verdict "the beginning of the victory" of the party's protests against the joint mechanism, he added that "we have to carry out many more struggles".

The LTTE's political wing leader, S.P. Tamilselvan, termed the interim verdict "unfortunate" and said it reflected the "continuation of the methods adopted by the Sinhala majoritarian political leaders". The verdict, Tamilselvan told journalists in rebel-held Kilinochchi on July 17, was a continuation of the Sri Lankan judiciary's "anti-Tamil decisions".

AT a broader level, the interim verdict reflects the search for a delicate legal balance between veto and consent in dealings between the state and an armed unapologetic insurgent group. For a nation that is poised between war and peace, and doubly affected by the tsunami, balancing humanitarian necessities with conflict resolution strategies gains importance. By passing appropriate vetoes, but by not stopping the entire P-TOMS agreement, the Supreme Court has encouraged the possibility of renegotiating the MoU.

The legal points that have been made by the court point to the search for a series of delicate equilibrium points between the state and the rebel outfit which is one of the top terrorist organisations in the world. That the LTTE is in control of two districts and parts of the other four northern and eastern districts affected by the tsunami has weighed in its interim order. The order, which gives limited consent to a rebel involvement in humanitarian affairs, could set a healthy prelude if the humanitarian process is insulated from politics.

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