• Tamil separatists’ overseas network is under pressure
  To Catch a Tiger
• The Northern Ireland Peace Accord and Lankan Const. reform proposals
• Corruption in the restructuring of Air Lanka
• Reply to Special Correspondent
  'Anti - Tamil violance cause of N - E crisis'
  The war is the result of an undemocratic, unrepresentative, hegemonic neo-colonial state and social order and is being financed and supported by certain imperialist powers. Whether in war or peace, these powers continue to penetrate the lifelines of our economy and our country. This is the political reality behind the World Bank and the economics of globalisation and open market liberalisation. Through the war the great powers manouvre to gain strategic leverage in the South Asian region by penetrating Sri Lanka in a thousand different ways.
• A response to Professor Wilson's reply
  'Package will greatly nullify parliament's powers'
• L E G A L W A T C H
  For Whom The Bell Tolls

By Hugh Williamson in London and Manik de Silva in Colombo
Anton Raja is proud of his new central-London offices in Eelam House. "Look, from this window you can see Tower Bridge," he says, pointing to one of London’s top tourist attractions. But despite his business suit, Raja is no typical company boss showing off new premises. He is the international spokesman for the Liberation Tigers of Tamil Eelam, otherwise known as the Tamil Tigers, the guerrilla movement that’s fighting for secession in Sri Lanka.

"Our new offices are a meeting place for Tamils, local politicians, journalists, anyone interested in our struggle," he says. A portrait of the Tigers’ supreme leader, Velupillai Prabhakaran, gazes from a wall in the entrance hall at piles of leaflets for fund-raising events run by support groups for the Tigers. Beside the portrait is a large map of northern and eastern Sri Lanka — what Raja and the Tigers call their homeland: Tamil Eelam.

Raja believes Eelam House, which opened last year, symbolizes London’s growing importance to the Tigers’ global activities. The LTTE is outlawed in Sri Lanka and labelled a terrorist group in the United States, but its propaganda and fund-raising operations in the British capital are booming. From Eelam House, the LTTE produces magazines, runs Internet Web sites, mans telephone hot-lines and issues press releases. These help to convince many of the 450,000 Tamils living outside Sri Lanka of the need to campaign, fund and fight for a separate homeland.

But the LTTE’s stronghold in London is also under threat. Whitehall is drawing up a law under which incitement in Britain — through publicity or fund-raising, for instance — of terrorist acts abroad will become a criminal offence. New powers to ban foreign "terrorist groups" will also be introduced. Home Secretary Jack Straw says the new law, which could take effect by 2000, shows London will not "drop its guard" against groups that "commit acts of terrorism in the United Kingdom, raise funds here or use the UK as a base from which to launch attacks elsewhere in the world."

Response
The move is a response to criticism from countries such as Sri Lanka, Saudi Arabia and Egypt that Britain is a haven for terrorists. Indeed, many rebel groups are based in London and can operate freely as long as they do not break domestic laws. But Colombo’s recent banning of the LTTE has removed the argument — often cited by London — that a group still legal in Sri Lanka should not be banned in Britain.

Raja, however, is "unconcerned" about any new law and evidence suggests the LTTE will not easily roll over. In 1992 London expelled Sathasivam Krishnaswamy, at the time the Tigers’ international chief, reportedly for his links with foreign terrorism. But LTTE activity continues unabated — thanks in part to its support groups which run campaigns that don’t bear the LTTE’s name. A law banning the LTTE may have little effect on their activities.

"The LTTE would not be affected by any new law," says James Karan, head of the London-based pro-Tigers International Federation of Tamils. He adds: "As local Tamils we will keep our campaigns going, whatever any new law says."

Aruna Kulatunga, a spokesman at Sri Lanka’s high commission in London, welcomes the new law but believes it might only affect "showcase LTTE offices" such as Eelam House. Rohan Gunaratna, a specialist on the Tamil rebels at St. Andrew’s University, Scotland, agrees: "The LTTE has a network of other premises, often under different names, which could keep running."

Used to legal battles
The Tigers are used to legal battles against governments. For instance, the LTTE hired a top law firm run by former US Attorney General Ramsey Clark to fight Washington’s decision last year to label it a terrorist organization. The effort failed and donations by US residents to the Tigers are now banned, while LTTE activists are denied American visas.

But the Canadian government’s efforts to deport Suresh Manickavasagam, a Tamil accused of LTTE links, to Sri Lanka have been repeatedly held up in the courts by local support groups. "They will fight with all means possible," says a London-based Sri Lanka expert close to the Tamil community, who requested anonymity. "They’ll use their Tamil groups as cover and mount legal challenges to any moves against them."

The British government knows that implementing a law against inciting terrorism abroad will be tricky. Straw says "fine balances" will be needed to define what incitement to terrorism means in practice and to assess whether related support groups and charities would also be affected.

It is precisely such concerns that prompt civil-rights groups to fight against such a law. "A line is needed between prosecuting people for what they do and what they say," says John Wadham of the British rights group Liberty. "If people believe the Tamil Tigers’ goals are right, such free speech should be protected."

The Tigers would lose much if the law were passed. Gunaratna believes the law "could be a major blow to the Tigers internationally, as London is the group’s most important base outside Sri Lanka." It could also hit their military operations, Gunaratna says, as "funds for weapons and explosives are raised here and bank transfers for arms have been traced back to London." Last November, a captured LTTE activist testified in a Colombo court that the Tigers’ London office had paid him to plan attacks in Colombo. Such evidence could prove crucial to any future legal action against Eelam House.

But if the past is any guide, the Tigers will prove difficult to catch. Gunaratne’s books on their global operations reveal overlapping networks for fund-raising, arms procurement and propaganda, stretching across Asia, Europe and the Americas. He estimates the Tigers generate several million dollars a month world-wide, from donations, front organizations such as shops and restaurants and from property and other investments. Colombo estimates that the LTTE raises $400,000 a month from Britain alone.

Some of those funds seem to come from illegal activity. The Toronto-based Mackenzie Institute, a non-profit research group, alleges in a 1995 study that the Tigers’ "most profitable activities have been heroin trafficking and extortion of Tamils living in India and the western world." It documents the arrests world-wide, since the early 1980s, of several Tamils for drug-running.

Consequently the police and intelligence agencies in countries such as Britain and Germany keep a close watch on the Tigers. In January police raided their premises in London in search of drugs but no arrests were reported. Since the mid-1980s at least a dozen Tamils have been charged with extortion in Germany. German police, however, complain that victims usually refuse to give evidence for fear of reprisals.

The LTTE makes sure that the criminal links to its networks, if any, are hard to find. Tamil sources in Britain believe the organization now tries to forestall complaints to the police from within the community by using strong social pressure, rather than the threat of violence, to get donations.

The LTTE appears set on a two-fold response to London’s legal moves. On the one hand, it plans to intensify its international propaganda to strengthen support within the Tamil community. On the other hand, it plans to cut formal links with groups that conduct pro-LTTE campaigns, making it difficult to prosecute its activists.

The Sri Lankan government acknowledges that the LTTE’s propaganda is a formidable weapon in the battle to mould public opinion. High Commission spokesman Kulatunga says the Tigers have "a highly sophisticated publicity machine. We’ve been slow to match it." He has counted around 50 pro-LTTE support groups in Britain. LTTE staff, volunteers and other backers run several magazines and Web sites-just a few of about 30 pro-LTTE newspapers and 60 Web sites worldwide. Press releases are faxed to 450 international addresses virtually every day. Annual soccer, cricket and other fund-raisers attract thousands of people.

Copying for compact discs
The rebels are also involved in the copying and selling to Tamil compact discs and videos, often illegally, according to Sri Lankan sources. And the London office coordinates campaigns with LTTE support networks in countries such as France, Germany, Switzerland and Canada.

The LTTE has its connections in government, as well. The Tigers have about a dozen national lawmakers in Britain among their backers, according to Kulatunga. In February two Labour Party parliamentarians were keynote speakers at a pro-LTTE rally in London, which attracted more than 10,000 people — an indication of the Tigers’ political clout.

"The LTTE is skilled at mobilizing Tamil block votes in targeted constituencies during elections," says Kulatunga. Such support persists even though many of the 160,000 Sri Lankans living in Britain know that some of their donations are used not solely for humanitarian aid, as the Tigers claim, but for the war effort in Sri Lanka.

Sri Lanka’s 14-year civil war has claimed an estimated 50,000 lives and compelled Colombo to spend 6% of GDP on defence. This year, about 47 billion rupees ($780 million) has been bugeted to combat the Tigers. Sri Lankan President Chandrika Kumaratunga hopes to isolate the LTTE from the Tamil mainstream through a new constitution which in effect recognizes a Tamil homeland in the northeast of the country. But she lacks the parliamentary support to push through these proposals, for which a two-thirds majority is required. What’s more, her formula was devised without consulting the LTTE — and is therefore unlikely to result in peace.

(Far Eastern Economic Review)

The Northern Ireland Peace Accord and Lankan Const. reform proposals

by Professor G. L. Peiris
Minister of Justice, Constitutional Affairs Ethnic Affairs and National Integration

The principle of double majority approval proposed by the Charlottetown agreement (1992) in Canada accords with this principle. The one major divergence is that this arrangement was to be made operative through the Senate. Under that Accord there would be 62 Senators with each Province having 6 Senators and one Senator each representing the two Territories. Legislation that was passed by the Commons (lower House) was divided into 4 categories:

1) Revenue and expenditure or "supply" bill;
2) Bills materially affecting French language or culture
3) Bills involving tax policy changes relating to natural resources; and
4) Other legislation which did not fall into categories 1-3.

If a bill in category (2) was passed by the Commons and referred to the Senate, that bill would have to be passed by:

(a) a majority of the Senators voting in its favour; and (b) a majority of Francophone (French speaking) Senators also voting in its favour.

(for this purpose Senators would have to declare their 'status' as Francophone when taking office).

If the bill was not approved in this manner, it was deemed to have been defeated and, unlike in respect of other matters, could not be overruled by a special majority of the lower House or a joint session of both upper and lower Houses.

Other Mechanisms
The British-Irish Agreement also proposes several other bodies to facilitate coordination of policy and administration:

Strand Two: North South Relationship
A North-South Ministerial Council will be established under legislation at Westminster and the Oireachtas (Irish Parliament), to bring together ministers from the North and the Republic. This Council is to: "develop consultation, co-operation and action within the island of Ireland - including through implementation on an all-island and cross-border basis - on matters of mutual interest within the competence of the administrations, North and South." The Council decisions will be made by agreement between the two sides, and the ministers involved will be accountable to the Oireachtas and the Northern Ireland Assembly respectively. Participation in the Council will be an essential responsibility attaching to relevant posts in the two administrations. The Council must exchange information, discuss, consult and try its best to reach agreement and make determined efforts to overcome disagreements.

Each side at such meetings must be in a position to take decisions "within the defined authority of those attending" while remaining accountable to the Assembly and the Oireachtas whose approval is required for decisions beyond the "defined authority" of those attending each meeting. A number of measures are included to ensure that the North-South Council is actually set up, and is not sabotaged or undermined by those opposed to the concept:

During the transitional period the Council must draw up a work programme covering at least 12 subject areas, with a view to identifying by October 31, 1998, areas where mutual cooperation and implementation would benefit both sides. These areas include: animal and plant health; teacher qualifications; transport planning; environmental protection; tourism; social security fraud; and certain EU programmes.

The two Governments will take measures to ensure "as an absolute commitment" that bodies to implement cross-Border co-operation actually function at the time of the formal inception of the new Agreement.

It is stated explicitly that the Assembly cannot function without the North-South Council. The Council can be developed further with the approval of the Assembly and Oireachtas.

Strand Three: East West relationships
A British-Irish Council will be established consisting of representatives of the British and Irish governments, devolved institutions in Northern Ireland, Scotland and Wales, the Isle of Man and the Channel Islands. It will hold summit meetings twice a year, and at other regular intervals to discuss particular policy sectors.

The Council will "exchange information, discuss, consult and use best endeavours to reach agreement on co-operation on matters of mutual interest within the competence of the relevant administrations." Suitable issues for discussion are listed as transport links, agriculture, environmental, cultural, health and education issues as well as approaches to EU matters.

The Council can agree on common policies and actions, buy any individual participant can opt not to participate in such common policies or actions.

Inaugural meetings of the North-South Ministerial Council, the British-Irish Council and the Assembly in their transitional forms must take place as soon as practically possible after the Assembly elections.

British-Irish Intergovernmental Conference
A new British-Irish Agreement will establish new British-Irish Conference, an overarching mechanism, which will subsume the inter-governmental machinery established under the 1985 Anglo-Irish ((Hillsborough) Agreement. The new Conference will take on the role of the one established in 1985, which will be formally abolished. It will meet at Summit level (Prime Minister to Taoiseach (Irish Head of Govt.) and on other occasions at the level of various ministers to discuss matters of mutual interest.

These matters include specifically: "non-devolved Northern Ireland matters, on which the Irish Government may put forward views and proposals." It will keep the workings of the new institutions established by the new agreement under review.

Conclusion
It can be seen that many creative and imaginative ideas and concepts have been proposed in order to address the root causes of conflict. Just as the Northern Ireland Agreement has proposed coordinating mechanisms between the authorities to whom power has been devolved, and between the devolved authority and the Centre, the Government has also provided for a consultative mechanism through the instrumentality of the proposed Chief Ministers' Conference to address matters of common interest and meetings between the Prime Minister - the Head of the Government under the proposed Constitution - and the several Chief Ministers (see draft Article 141; Chapter XV Government Proposals of 24 October, 1997).

There are many interesting parallels and a commonality of approach that is of considerable instructive value as we attempt to deal with our own crisis. Although we cannot seek to indiscriminately adopt measures taken in other counties to resolve difficulties with a few similarities, there are lessons that we can usefully and productively learn from each others experience.

Corruption in the restructuring of Air Lanka

This is the letter UNP and Opposition Leader Ranil Wikremesinghe wrote to James D. Wolfensohn, President of The World Bank, in connection with the Air Lanka deal.

Iam writing to you to bring to your urgent attention certain serious issues relating to transparency and corruption that have surfaced in connection with the recent re-structuring of the Government controlled airline — Air Lanka. I am addressing this letter to you because of the World Bank's involvement in financing the technical advisory services relating to this transaction as well in providing general assistance to the Public Enterprises Reform Commission (PERC) on privatization. I also understand that this project is now awaiting approval for a Multilateral Investment Guarantee Agency (MIGA) guarantee.

More importantly I have followed with great interest the concern you have expressed at an international level on matters pertaining of official corruption and transparency. There is no doubt that it is owing to the vision and responsibility displayed by persons such as yourself that the OECD's Convention on Combating Bribery of Foreign Public Officials will at last become a reality. Therefore, as a former investment banker, I believe that you will share my outrage at the manner in which the Air Lanka transaction has taken place.

Background
On 5th April 1998 the Sri Lanka Government announced that it had selected Emirates as the Manager and Strategic Partner (with a 40% shareholding) for our country's flag carrier — Air Lanka. As part of the same announcement the Government also stated that Air Lanka would be entering into a $ 500/700 million re-fleeting program with Airbus Industries. This is on the single largest purchase contract ever entered into by the Government of Sri Lanka. The decision to purchase Airbus airplanes had been taken bypassing established procurement procedures and conventions. From its inception, the Air Lanka restructuring process has demonstrated a pattern of inconsistency and opaqueness which has led many international and domestic observers to believe this transaction to be tainted with corruption. The following points I believe will highlight my argument in this regard.

Shifting the goal-posts
The original requests for proposals document (RFP) explicitly stated that Air Lanka's flag carrier status, management contract, ground handling monopoly and exclusive catering rights would only be available for a maximum of five years after restructuring. Similary the subsidy on aviation fuel was to be only available for a period of one year. However, according to the deal reached with Emirates all these concessions would be available for ten years. A generous 15-years fiscal incentive package has also been added.

Contrary to established procedures these deviations from RFP terms were not offered to other credible bidders who were interested in Air Lanka. In many such cases PERC, the Government's lead agency responsible for this transaction stonewalled and diligently cast aside other interested parties, particularly those bound by national laws such as the Foreign Corrupt Practices Act of the US. For example when Mr. David Bonderman of Texas Pacific Group, Newbridge Capital and Continental Airways with whom I am sure you are familiar, sought flexibility to the terms of the RFP in writing, on some of the issues outlined above, he was turned down.

Airbus re-fleeting
Another controversial aspect is the Government's announcement that Air Lanka would purchase six new A-330 aircraft from Airbus Industrie as part and parcel of the restructuring deal. This was done without conforming to established procurement procedures, Ironically during my Party's tenure in office the World Bank vehemently objected to Air Lanka's decision to placing a more modest order for Airbus aircraft although this decision had been taken after the Air Lanka Board, a Technical Committee and a Cabinet Sub-Committee had recommended the purchase.

The current procurement decision has been taken without sufficient evaluation of the options available and appears to be based on unrealistic commercial and business forecasts. This is especially the case since Emirates have themselves ordered 16 aircraft of a similar type, some of which according to market speculation may be surplus for their own operations.

The Government has stated without substantiation that there would be no sovereign guarantees involved in this exercise. However the fact remains that even after restructuring, 60% of Air Lanka's stock will remain Government owned. Since it would be naive to assume that a Government would allow its flag carrier to go into bankruptcy there is in fact an implicit Government guarantee involved in this transaction.

Emirates alliance
The route network of Emirates, which is owned by the Government of Dubai and has a hub in that country, directly competes with that of Air Lanka. In this context it is difficult to imagine the complementarities and synergies that Emirates could bring to strengthen Air Lanka.

Furthermore the agreement with Emirates pledges to give Air Lanka flag carrier status and route monopolies for a period of ten years, and also precludes the establishment of any other international airline in Sri Lanka within this period. At first glance this appears to give Emirates an open license not only to cannibalize Air Lanka but also to potentially destroy Sri Lanka's chances of becoming a hub for this region. In an era where the trend is towards competition and open skies policies in civil aviation this whole arrangement appears to be rather strange and puzzling.

As a rule I do not like to second-guess sound commercial decisions, provided they are subject to transparency and competition on a level playing field. However, I am convinced that this was far from the case when the Sri Lanka Government decided on Emirates as the strategic partner for Air Lanka.

The points above together with many other facets of this transaction have convinced my Party, the United National Party (UNP), the main Opposition Party in Sri Lanka, that the restructuring of Air Lanka was done with the sinister motive of obtaining illegal commissions for the benefit of personages in the Sri Lanka Government.

On realisation of this fact, the General Secretary of the UNP wrote to Mr. Tim Clark, Director Airline Operations of Emirates, on 15th January 1998 prior to the consummation of the transaction warning him that our Party, in the event of election into office would not abide by the agreement.

Nevertheless both Emirates and the Government of Sri Lanka chose to go ahead with the restructuring program as originally conceived.

I How understand that Emirates have formally applied to MIGA to obtain insurance for their investment. In this context I am compelled to communicate to you in your capacity as the President of MIGA that a Government formed by the United National Party will not honour any commitments or agreements that are entered into as part of the Air Lanka restructuring transaction which are tainted with corruption. As part of our own efforts to inquire into this scandal and bring to justice those who are culpable we will be filing a complaint with the Bribery Commission of Sri Lanka.

I would like to categorically state that the stance taken by my party on the restructuring of Air Lanka is not ideological and one that is purely motivated by the repugnant nature of this overtly corrupt transaction.

As you may be aware the United National Party from 1977 to 1994 was responsible for introducing and developing a free market economy in Sri Lanka. Our economic reform and privatization program was held up internationally as a model for other democracies in the developing world. As Prime Minister and Industries Minister, for a number of years, I had the privilege of playing a leading role in the reform process and had occasion to interact intensively with several of your colleagues and predecessors. During these dealings as a matter of principle I was against the granting of exclusive rights, monopolies and other rent-seeking opportunities in the guise of public enterprise reform. In fact, our Party's aviation policy aims to develop Sri Lanka into a regional hub within a framework of completion. The Air Lanka transaction as presently structured will not give us the necessary flexibility to achieve this objective.

In conclusion, my past associations with the World Bank, have led me to believe that your organization would not in any way condone acts of corruption. Therefore I would urge that you initiate your own inquiries to ascertain the true facts behind the restructuring of Air Lanka and carefully review the Emirates application for MIGA insurance with the above background in mind.

Ranil Wickremesinghe M.P.
Leader of the Opposition.

Reply to Special Correspondent
'Anti - Tamil violance cause of N - E crisis'

by Ajith Rupasinghe
A virulent attack against the National Peace Council appeared in the Sunday Island of last week titled "National Peace Council Not a Front. A War Council". This article written by a "special correspondent" attempts to discredit the role and image of the NPC by an ecceltic jumble of dispointed and distorted assertions.

The special correspondent tries to revive a political trend in this country which has sustained its political agenda by consistently denying the specific oppression of the Tamil people by the state and denying their claim for equality by opposing any form of devolution of political power. The verbal assassination is reminiscent of the politics of the recent past and is a pitiful substitute for analysis and democratic debate. Yet, I take the time to reply in the hope that the paper will allow me a modicum of the liberty and generosity afforded to their special correspondent.

The special correspondent takes offense at the statement that the "aspiration for a separate state has arisen due to the inability of the Sri Lankan state to address the issue of the right of self-determination". Why is he infuriated by this analysis? Is it not true that the citizenship and voting rights the most basic democratic rights of the Tamil plantation workers were taken away by a simple majority in the parliament? Does the special correspondent deny that the fundamental democratic rights of the Tamil people in the North-East-in terms of their right to defend, nurture and promote their language, religion, culture and identity has been systematically denied? Do you really mean to deny that there have been the most barbaric state-ponsored communal riots targeting the Tamil people?

How do you accou nt for the fact that in the 1970 General Electi on, when Mr. Suntharalingham contested the Vavuniya seat on the basis of a demand for a separate state, he managed to get some paltry three hundred votes and lost his deposit, whereas by 1977 the overwhelming majority of the Tamil people voiced for the TULF in favour of a separatic state and the TULF won all of the 16 seats in the North East? Remember that the TULF was formed in 1976 at the Vaddukoddai conference when the resolution to struggle for a separate state was adopted unanimously by all the Tamil political parties representing the entire Tamil population in the North-East? What happened for this sea change to take place?

Common aspirations
Are you saying that this Common Aspiration of the entire Tamil population to excercise their right of self-determination has no basis in history or reality? Would that not itself represent the very same oppressor perception and attitude that claims the monopoly of historic interpretation and which denies the victims the right to interpret their own history?

Is it not astounding that this special correspondent should rise to the defense of the state when leaders of both major political parties which have ruled this country have accepted that there are legitimate historic grievances of the Tamil people which have to be addressed constitutionally? The entire international community also shares this view and it is now a forgone conclusion. Most curiously, how does this defense of the state accord with the experience of the rural youth in the South. Well, it seems that you have a lot of explaining to do if you are ever to get out of the twist you have wound yourself into!!

At the very least, we would expect some historical interpretation and analysis of these major political developments from our special correspondent. If you do have a different interpretation and analysis we and the people would like to hear it. Then we can sustain an intellectual dialogue. Such a dialogue would require intellectual honesty and integrity and a serious approach to deal with the real concrete issues in a constructive manner. But unfortunately, it seems that you are only interested in waging a campaign of slander and character assassination. This is most unfortunate since truth cannot be established by the force and thunder of print alone.

Given that this most complex problem has plunged our country into the depths of a most destructive crisis it is incumbent on all responsible political forces to abide by basic democratic and civilised norms of debate and discussion such that the people may decide upon the truth independently. Unfortunately, your style does not lend itself to such democratic debate nor provide any analysis or constructive way out of this crisis-then and now!!

This war has produced a mutually reinforcing a logic of savage destruction and barbaric terror where civilians including children and elderly and places of worship are deliberately targeted. The war has fed and spread the most vile corruption and a breakdown of all civilised democratic norms, while prepetuating poverty and misery among the people.

Hundreds of thousands of refugees continue to live in sub-human conditions with no voice being raised against these crimes against humanity.

Try to establish and represent the views and needs of the poorest people in this country who are held in ransom by a cruel and devastating terroristic war. Whether it be Sinhala soldiers or Tamil soldiers, whether it be nearly one million Tamil people displaced or Sinhala civilians living in border areas and elsewhere-they are all our brothers and sisters the sons and daughters of our soil and for their sake we must all unite to find a democratic and lasting solution to this national crisis.

Imperialism
You bring up the issue of imperialism so let us deal with it in a forthright way.

The classic colonial/imperialist strategy is to divide and rule. This the colonial powers knew well to do in Sri Lanka and elsewhere. Instead of building national unity in the common struggle against imperialism and instead of laying the foundations for building a modern democratic nation state, our national leaders opted to build a Sinhala-based, highly centralised majoritarian, hegemonic comprador state representing the class interests of the most powerful propertied clans in the country, this class has since then betrayed our independence and sovereignty. It has colluded and collaborated with imperialism to exploit and suppress our country and our people. Suppression of the fundamental rights of the Tamil people has been an integral and indespensible policy in deviding and derailing the anti-imperialist struggle and in perpetuating the neo-colonial system. It is the foremost duty of all honest patriotic progressive forces to rise above these divisions and to strive to bring about the unity of the oppressed in the common struggle against imperialism.

Unfortunately, your political stand has or wittingly unwillingly played into the hands of this very same strategy. In your advocacy for perpetuating the war and in your one-sided characterisation of the Tamil national movement as terrorists, you find yourself in the company of the world imperialist powers, including the greatest of all imperialists, the US. Are you sure you can preserve your patriotic credentials in such company?

The war is the result of an undemocratic, unrepresentative, hegemonic neo-colonial state and social order and is being financed and supported by certain imperialist powers. Whether in war or peace, these powers continue to penetrate the lifelines of our economy and our country. This is the political reality behind the World Bank and the economics of globalisation and open market liberalisation. Through the war the great powers manouvre to gain strategic leverage in the South Asian region by penetrating Sri Lanka in a thousand different ways.

The only way to stand up against imperialist domination is to build the unity of the oppressed people. This is an elementary truth. But you promote division,hatred, distrust and WAR among the oppressed and not unity, solidarity and trust. You take part in and justify the suppression of the Tamil people by the neo-colonial state and call for the perpetuation of this civil war.

Your hypocrisy is even worse. You denounce terrorism from the North. Indeed, this terrorism is a gross and repugnant aberration and has caused tremendous harm to the people. But is it not one-sided to denounce only this terrorism? Terrorism is not the monopoly of the Tamil national movement. What about state terrorism? What about the events of 1958 and 1983? What about 1971 and 1989? Why are we so selective about historical events? Mr special correspondent you should know about these latter events better than anyone else. Perhaps some honest self-criticism would be more in order, don't you think?

So lets be fair to history so we can move a little history. If we are not fair to history we shall betray ourselves and destroy ourselves. Serving truth is the path to liberation and freedom.

United Sri Lanka
The National Peace Council stands for a united Sri Lanka where all nationalities and communities can live with equality, dignity, security and freedom. We feel that the democratic demands of the Tamil people must be accommodated within a constitutional framework that guarantees the above conditions for each and every nationality, community and citizen in this country. The economic, cultural, political and territorial basis for excercising these rights have to be negotiated in a truly democratic manner where no community can exercise hegemony or domination over any other.

Is this not the way to solve this question? Or do you have any other alternative? If you do, I would like to discuss and debate these issues-if the newspaper will allow me the same privileges afforded to you. I urge you to come out of your medieval cave into the twenty first century so we can unite to build a truly united, democratic, independent and prosperous Sri Lanka for each and all the citizens of this country.

We should like to advise you not to distort facts. No official of the NPC has ever taken part in any march or sung songs in favour of separatism. We have addressed rallies, meetings and all such fora in Sri Lanka and abroad and among all political communities to bring home the truth that we need a political settlement in the context of a UNITED Sri Lanka. We believe that the only way to achieve a united Sri Lanka is by struggling for a democratic constitutional order which gives full, equal and free expression to the political will of all its constituents - specifically for both the Tamil and Sinhala speaking people.

I believe that the first condition for achieving this is a fundamental revolutionary restructuring and transformation of the prevailing neo-colonial comprador state and social order and the establishment of a people's democratic state giving expression to the unity and equality of all the oppressed nationalities, peoples and communities in the common struggle to build a free, independent and prosperous Sri Lanka.

Could you have any possible contention with this agenda?

We are against this fratricidal war and we do not hide our agenda. In fact, it is our committment to a united Sri Lanka that makes us oppose this war since the continuation of this war and the immense suffering it rains upon the people will result in rupturing the umbilical chord that has kept us together if it has not already done so. We know that we express the deepest aspirations and sentiments of the people of our country for peace and unity, that we stand with the forward march of history, and we will continue to serve our mandate with the courage of our convictions.

A response to Professor Wilson's reply
'Package will greatly nullify parliament's powers'

By H. L. de Silva
Professor Wilson says that I have "written a lengthy discourse on certain questions (he) had raised about Article 76(1) and (2) of the Sri Lanka Constitution" but regrets that I have" not taken up cudgels against (his) interpretation of Article 76 (1) and (3) "(brackets supplied to clarify that the reference made here is to Professor Wilson). A perusal of his original article would show that there is no reference whatever made by Professor Wilson to Article 76 (1), (2) or (3) anywhere in it and naturally there was no occasion for me to deal with this in my reply. Now that he has for the first time put forward the argument that by reason of the existence of Article 76 in the 1978 Constitution, notwithstanding the two lists of powers (i.e. the reserved list and the regional list) in the new proposals, the Sri Lanka Parliament will continue to enjoy "overall sovereignty," I shall certainly respond to this at the end of this reply, instead of being diverted from the central issue that was originally posed and the problem for which he was impolitely suggesting a remedy, even if this was not explicitly stated.

To get back to the matter on which we were at issue, before Professor Wilson adroitly shifted his ground in the reply, the thrust of his argument was that the requirement of the two-thirds majority was not an insuperable barrier to constitutional change because it need not be complied with, for the several reasons which were adduced by him.

To recapitulate very briefly, he argued that (1) Parliament is sovereign and is not featured by a rule prescribed by an earlier Parliament and accordingly any such rule can be disregarded. (2) That the doctrine of necessity empowers the relevant authority to disregard the constitutional limitations when compliance with the rules was impossible in a given situation (3) that Kelsons' theory of the grundnorm and its creation afforded a legal basis for validating an extra-constitutional or illegal change, provided the new legal order acquired efficacy (4) that there was the earlier precedent of 1972 when the first republican constitution was adopted without complying with the procedure prescribed by the 1946 Order-in-Council for repeal or amendment.

Professor Wilson encapsulated his "message" in the adage:

"Where there is a will, there is a way," thereby insinuating that unwillingness to follow "the way" showed that there was no political will on the part of the Government to implement the proposals. There was no mistaking the direction to which he pointed. It was to these contentions that I made reply, pointing out the infirmities in reasoning and that the four grounds on which the submission of Professor Wilson was based were not sustainable in law to justify non-compliance with imperative constitutional requirements.

Not clear
It is not clear at all from his reply whether Professor Wilson now concedes that Parliament is bound by Article 82 (5) if the Constitution is to be amended, or whether he still maintains that it need not be complied with. If the latter, does he also contend that the requirements as to approval at a Referendum under Article 83 can likewise be dispensed with, in the event it is felt that it is "impossible" to get the approval of the People at such Referendum? Does he contend that the sovereignty doctrine enables parliament even to make laws overriding constitutional limitations even in regard to fundamental rights? Or does he now admit that Parliament is bound by the terms of the Constitution now in force?

He has evaded the issue realising that his main contention is untenable. But at least we are now assured by Professor Wilson that "there was absolutely no intention on (his) part of proposing a circumvention." If that be so, one is left wondering as to what was intended to be conveyed by his reliance on Kelson's theory, the Dosso case, Matova and so on — which were all beside the point, if he too agreed that we had to conform to the prescribed method of amendment.

As to the doctrine of necessity, the parameters within which it operates, as authoritatively laid down by the cases, make it clear that cases of "relative impossibility" fall outside the scope of the doctrine of necessity. The mere fact that the Government cannot, at the present juncture, secure the support of the main opposition party for the proposed reforms or the mere fact that the system of proportional representation makes it more difficult or even unlikely that a single party would obtain two thirds of the number of seats in Parliament, do not satisfy the stringent conditions necessary for the doctrine to operate.

What is more, configurations in electoral politics change in the course of time, breakaways from existing parties occur, new coalitions are formed and consensus cannot be ruled out if hard-line positions are abandoned and compromises are made by the disputants.

One of the tailors
Professor Wilson bemoans the fact that "the UNP tailored a Constitution to suit the whim of one person" and that the garment will not fit another. One wonders whether, after twenty years, he has conveniently forgotten the fact that he too was one of the tailors in attendance in that sartorial exercise. Can he now seek to absolve himself from blame for what took place in 1978 with "the possibility of a permanent veto against change?"

I accept Professor Wilson's assurance that he did not intend to propose circumventing the provisions of the Constitution but I maintain that this was a reasonable inference that could be drawn by a reader considering the cumulative effect of the four "observations" he assiduously made, climaxing with the challenge to the PA Government that if "there is a will there is a way." The word "blithely" was used by me in this context to indicate the cavalier manner in which the grave consequences of such a step, to which I adverted in my reply, were not considered or warned against by those advocating this course of action.

An analysis of judicial decisions, cited by Professor Wilson and Professor Marasinghe, do not go anywhere near supporting the proposition that, if the consensus required for political change by the Constitution is not forthcoming, then the change can nevertheless be effected by the simple expedient of seeking a mandate at a general election to change it by an ordinary majority through the medium of a constituent assembly when the Constitution expressly provides otherwise. If that is permitted the whole system of constitutional guarantees and entrenchment will begin to unravel and the last state will be worse than the first.

As to other points of a peripheral nature arising from the Professor's reply, I have to say that I have no "problem" at all with academics for whose opinions, based on their research I have much respect, but I do have a "problem" with unsound arguments whether they be from academics or nonacademics, which I believe merit demolition lest they mislead others. As to when a legal order has acquired efficacy, when Professor Kelson himself gave no hint of the criteria for the determination of this question, it is surely best entrusted to those who are habitually engaged in evaluating facts and circumstances, - namely the judges, rather than Professors given to airing their pet theories about law and politics. But that is not to say that judges are infallible.

Cultural ethos
I think the gibe about Mr. Justice Wanasundera is quite unfair. Every judge has his own philosophical outlook and is to some extent conditioned by his own cultural ethos and values while being independent and impartial. This would apply equally to the judges who formed the majority in the Thirteenth Amendment as well as to the dissentient minority. This is particularly relevant in Constitutional cases where the boundary lines between law and politics are often blurred and the judgement of the United States Supreme Court clearly bear this out.

No better alternative has been suggested and one has perforce to live with the inevitable limitations of such a system undergirded by the Rule of Law. I certainly do not subscribe to the view, as implied by Professor Wilson, that "the sacrosanctity (sic) of judges is inviolable" and I myself have been critical of their judgements when the necessity arose. We have some that have been academically trained who are also excellent judges but where the judicial function and academics are concerned I think there is some wisdom in the saying "Let the cobbler stick to his last."

Professor Wilson is in error in supposing that the Judges of the Supreme Court who held office prior to the 1978 Constitution were obliged to swear allegiance to the 1978 Constitution because it was necessary to get them "to uphold the new Constitution." There was in fact no need for such a cautionary step, unlike in 1972, as nobody doubted that Article 171 of the 1978 Constitution effectively repealed the 1972 Constitution, and there was no ambiguity necessitating judicial approbation. Article 163 of the 1978 Constitution (under which they all went out of office) was enacted for the much less commendable purpose of "court packing," as a favoured few of them were resurrected along with some new appointees to serve the new Administration.

Professor Wilson's new thesis in his reply (not put forward in his original article) may now be dealt with. The contention is that the new constitutional proposals (referred to by him as the G. L. Peiris-Chandrika Kumaranatunga proposals) despite the provision of "the two exhaustive lists of powers" (i.e. the Regional List and the List of Reserved Powers) "leave the Sri Lanka Parliament "in the enjoyment of the plenitude and majesty of its power," by reason of Article 76, sub-paras (1) and (2) of the 1978 Constitution, because the powers sought to be now devolved come within the ambit of paragraph (3). This is a contention that can be disposed of quite shortly because it is so hopelessly flawed.

Firstly, it would appear that Professor Wilson proceeds on the assumption that article 76 of the 1978 Constitution in its present form will continue to survive, despite the repeal of the 1978 Constitution which is now envisaged in Chapter XXVIII of the draft. He does not explain how this miraculous resurrection of Article 76 is to take place despite its repeal.

Deceptively similar
Secondly, Professor Wilson has failed to give his mind to the corresponding provision in the new proposals viz. Draft Article 92 which is so deceptively similar to Article 76 of the 1978 Constitution, in that it contains identical language as in Article 76 of the 1978 Constitution, that a non-lawyer may be forgiven for the error made in the interpretation of its terms in an entirely new context. The error arises from the radically different meanings that are attached to the phrase "its legislative power" which occurs in Article 76 as well as in the corresponding provision, Article 92. In order to determine what "its legislative power" (i.e. the legislative power of Parliament) means, one has to look at the immediately preceding Articles which are respectively Article 75 (in the 1978 Constitution) bad Article 91 of the October 97 draft which hold the key. I shall quote each of them to make clear the differences.

Article 75 of the 1978 Constitution (which confers plenary power) is as follows:

Parliament shall have power to make laws, including laws having retrospective effect and repealing or amending any provision of the Constitution or adding any provision to the Constitution.

(The proviso is omitted, as it is not relevant to the argument)

The unconditional terms of the grant are clear, there is no reduction of the power to make laws.

Article 91 of the new draft (which introduces the new limitations imposed) is as follows:

Parliament has exclusive power to make laws, including laws having retrospective effect with respect to any of the matters enumerated in List I of the second Schedule (referred to as the Reserved List) and with respect to the matters enumerated in List II in the Second Schedule (referred to as the Regional List) in relation to the Capital Territory referred to in paragraph (1) of Article 2 and specified in Part A of the First Schedule.

Now it is as clear from these provisions that Parliament's power to make laws in matters specified in the Regional List extends only to the Capital Territory but not to the Regions which narrows the ambit of the legislative power.

Thirdly, draft Article 137 of the new draft puts the matter beyond doubt when it states that the Regional Council of a Region has exclusive power to make statues for such Region with respect to any matter specified in the Regional List. It is also provided by draft Article 1012 (2) that Parliament's power to amend any provision of Chapter XV which deals with devolution of power to the Regions or the territorial limits of a Region cannot in respect of that Region be exercised, except with the approval of that Region, which means a permanent veto in the hands of a Region. The conjoint effect of these provisions is to cause a paradigmatic shift from a unitary state structure to that of a federal state.

No misunderstanding
There is in my opinion no "misunderstanding" or "confusion" among those engaged in the debate in regard to the legal effect of the new provisions, as alleged by Professor Wilson. While I agree with him in regard to the legal effect of the recent devolution proposals for Scotland and Wales in the United Kingdom, which leaves the legal position of the Westminster parliament untouched as the supreme legislature in the UK, I disagree with him entirely in regard to the effects of the corresponding provisions in Sri Lanka which I say would lead to a sea change.

I venture to doubt whether Professor Wilson would be able to call in aid the opinion of any constitutional lawyer of repute to support his conclusion of no change in regard to the legislative competence of the Sri Lankan Parliament upon enactment of the October 1997 proposals of the Government. These will result in the Sri Lanka Parliament undergoing a radical transformation presenting an image that is vastly different from that projected by Professor Wilson. This quaint interpretation of Professor Wilson of the new proposals is likely to alarm the Tamil parties in Parliament and bewilder the advocates of the package.

Before I conclude, may I allude to two other matters. I have no difficulty with Dr. Neelan Tiruchelvam's comment (quoted by him) that Constitutions should have the widest possible acceptance if they are to endure, which is indeed a truism. Such a result is surely not achieved through bypassing the mandatory procedure of securing a two-thirds majority, which is specifically aimed at obtaining a broad consensus instead fo the assent of a simple majority, which is specifically aimed at obtaining a broad consensus instead of the assent of a simple majority.

"Narrow partisan purposes fo political parties' are observed not only int he instances mentioned by Professor Wilson. It is seen to be an ubiquitous phenomenon reflected in such instances as the making of "non-negotiable" demands when seeking a political compromise, reinforced by mythical claims to a homeland, being equally potent forces for the disintegration of the policy.

Likewise, I agree with Dr. Radhika Coomaraswamy's comment (quoted by him) that liberal democratic values can be transformed, indeed perverted, by such forces as cultural nationalism to create symptoms of morbidity. Can anyone doubt that ethnic separatism and its concomitant racism, created by a variety of forces, including cultural nationalism is the condition of morbidity par excellence, which now "threatens to destroy the territorial integrity of a once happy land?" (to use his own words)

Despite what Professor Wilson seems to think, I have no affinity with the 1978 Constitution, not even a claim to be an "adviser" during its pre-natal stage, except that I was privileged to assist, many years later, in fashioning the devolution scheme embodied in the 13th Amendment, which in my view, despite its detractors, represents the most significant advance hitherto made in this country in restructuring the polity. For a variety of reasons, it was unfortunately orphaned shortly after its birth and would appear to suffer from acute anemia through a plain lack of essential nourishment and may yet need minor surgical attention for vigourous growth and above all the warmth of parental care, if it is to be a remedy for the current crisis.

It is to say the least, ironic, that Professor Wilson, having in his earlier article, dangled before us the fatal attractions of Dosso and Matova and Kelson's theory that are sterile of all constitutional morality, should now stage a volte face in his reply, warning us of the impending doom that awaits if constitutional procedures are insisted on. Finally, in regard to Professor Wilson's condescending efforts to diagnose my "problem," ministrations of a kind that I find quite amusing, coming as they do from one to whom I would, not in any spirit of rancour, but gently say physician, heal thyself.

L E G A L W A T C H
For Whom The Bell Tolls

By Nayana
The inconclusiveness of both the peace process and the war effort of the last three and a half years was illustrated by the almost simultaneous killings of Brigadier Larry Wijeratne and Jaffna Mayoress Sarojini Yogeswaran last week.

It would seem that the best and the bravest among us are still destined to die at the hands of those who acknowledge no principle other than blind obedience to their leader. Meanwhile, those who lead a cocooned existence at the helm of our nation still repeat the same stale dogmas in the apparent belief that repetition will somehow make them come true; and those who were at the helm when the culture of political violence took hold of this country with a vengeance remain uncertain, or uncommitted, as to how they will respond in their new role in opposition.

Against this background, the late Larry Wijeratne and Sarojini Yogeswaran set a unique example to two people who could combine moral courage with practical efficiency. The fact that their lives were prematurely terminated should not blind us to their respective achievements. Wijeratne, by all accounts, was a commander who combined humanity with effectiveness. His "hearts and minds" approach not only won him respect and affection among the people but also helped to bring in a great deal of useful information about the LTTE, leading to the elimination of the local Tiger leader of his area.

Mrs Yogeswaran, the unarmed representative of a party whom most pundits had written off as being outdated in the violent cockpit of Tamil politics, demonstrated that principle and commitment can still occasionally triumph over money and guns in the electoral politics of this country. That such an example occurred in war torn Jaffna rather than the more comfortable South is a fact that has yet to receive the acknowledgment it deserves.

Down here, where political rhetoric takes the place of personal example, little has been done during the last three and a half years to reduce the potential for political violence and restore the rule of law. In saying this, one is not unmindful that the problem was created during an earlier decade, but the point is whether we are going to continue the sterile process of recrimmination and political point scoring, or try and take this country forward in a meaningful fashion.

Last year’s local government elections were the most violent of their kind and showed that politics remain as divisive as ever. The degree to which old grudges and political point scoring has become an obsession was best illustrated by the fact that even at a recent function for the presentation of scholarships to Year 5 students, the President of the country could not resist taking swipes at her political opponents.

As already documented in this column, political interference with the Police force has reached unprecedented levels, with PA party organisers (not even Members of Parliament) being able to interfere in police transfers, and the Inspector-General going along with it. Although one of the Special Commissions of Inquiry looking into political disappearances has added its voice to the Opposition’s call for an independent body to oversee the Police, the Government appears deaf to any such suggestion.

The Government in fact has effectively shelved any improvements to our political and administrative system by tying everything into its constitutional package which it knows is unlikely to receive the two-thirds majority required to pass it through Parliament. For instance, does the Government need a law to authorise it to consult with the Opposition before appointing such officials as the Commissioner of Elections, Attorney- General or Inspector-General of Police - persons whose professionalism and political impartiality are vital to the rule of law in civil society. But no, we are told that all such measures have to await a new "Constitutional Council".

However one must not blame only the politicians. A large section of the intellectual elite has connived with the Government for three years in perpetrating the myth that its devolution proposals would be the harbinger of peace, knowing full well that they had already been rejected by the principal warring faction, the LTTE. By limiting the constitutional debate to the question of whether one was for or against the "package", these people stifled any meaningful discussion of alternatives, with the result that the constitutional reform process is still at square one, while a deteriorating security situation in communally mixed areas like the city of Colombo appears to be exacerbating tensions between the Tamil community and the security forces.

In this context an analysis of the Northern Ireland peace process is relevant but not for the purpose of lamely saying "if they can do it, why can’t we?" It is important to understand the differences between the two political systems that prevent this country from achieving a similar degree of consensus.

In mainland Britain, although political parties snipe at each other in the course of parliamentary debate, their supporters do not thrash each other on the streets. Thus the rancour and even blood feuds that have come to characterise politics in this country are totally absent there.

Secondly, there are some broad common principles which are adhered to by all the mainstream parties in regard to their dealings with the extremists in Northern Ireland, and it is a convention that the government of the day keeps Parliament informed of developments in any negotiations. The Prime Minister himself is in Parliament at least once a week to answer questions personally, and there is no question of asking for "six weeks" time to come up with answers. In this country both the main political parties have conducted secret dealings with the LTTE at various times, and thanks to our hybrid presidential cum parliamentary system, the effective head of the government, namely the President, does not have to answer to parliament.

Finally, the Northern Ireland peace agreement was worked out by parties first sitting and discussing issues of principle, and only then was a document written out. In this country the constitutional reform process started by the Government publishing an all-encompassing document drawn up in splendid isolation, and then back-tracking on a few selected clauses in the face of criticism from various quarters. However a tinkering with clauses is meaningless unless there is broad agreement on the principles. By putting the cart before the horse, the process has now got stuck in the mud.