Examining the ISGA Proposal

 by A. Sri-Jayantha


The proposal for an Interim Self-Governing Authority (ISGA) for the NorthEast of Sri Lanka was made public by the LTTE on Nov.1, 2003. The constitutional crisis in the South precipitated by Pres. Kumaratunge on Nov. 4 has allowed us to mull on this proposal and to react to its contents in a leisurely fashion. The people of the NorthEast, who are living with the devastation caused by two decades of war and a continued alien military occupation of heavily populated areas with no agreement on a plan to relieve their troubles, do not consider this time to reflect a luxury, however.

Self-sufficient

Most noticeable from an initial reading of the proposal for the ISGA is how self-sufficient it is. This, perhaps, reflects how self-reliant the NorthEast was forced to become because of the isolation imposed on it by the many years of blockade by the Sri Lankan government. Efforts to destroy the LTTE and its social base have formed a society ready to run affairs on its own terms with little dependence on the outside world.

This self-containment also derives from the fact that the proposal neither expects or proscribes any changes from the government side. There is no expectation of power-sharing at the center or of new institutions linking the northeast to the rest of the country. Understanding the political situation in the South, the proposal's formulators probably know that any such changes are impossible in the current climate of hostility to Tamil rights. When this hostility abates or the political dynamics change, then perhaps a permanent arrangement for addressing these rights at the center and the coordination of areas of joint jurisdiction can be proposed.

Many comments have been made that the ISGA is important because it presents "what the Tamils want." This is incorrect. The ISGA is very pragmatic in providing for an acceptable form of government for the Tamil areas given the current circumstances. Tamils would much prefer a permanent solution immediately that resolves such issues as the the relationship between the judiciaries of the two parts of the island and the ability of the civilian government to appeal against military actions. However, it is clear that no such solution is possible given the present political gridlock in Colombo.

Arenas of interaction

The ISGA proposal is concrete on 7 arenas of interaction outside the NorthEast:

1.) The Sri Lankan government (SLG) will appoint representatives to the ISGA. Presumably this representation will be large. The exact proportion, although less than 50%, is not spelled out and would have to be negotiated between the LTTE and the SLG.

2.) Monies from the SLG's Consolidated Fund are to be allocated to the NorthEast. Presumably, as power follows money, this will give the SLG considerable influence, depending on how many funds are allocated. There is no mechanism, as noted above, for determining how much money will be provided, other than 'good faith' - not a strong suit of finance or politics.

3.) The ISGA proposal proscribes that funds provided by multi- and bi-lateral institutions for reconstruction and development of the NorthEast will be utilized under its supervision. These institutions have in the past provided funds to non-state actors, but in many ways this is another example of the 'good faith' of the SLG required to acquiesce to funds for the NorthEast. Allowing the ISGA to determine how the money is spent will be an effort to isolate the NorthEast from the corruption which affects the SLG. It will also be an effort to minimize the power of the purse that the central government has traditionally wielded to further its own agenda in the NorthEast . The agenda of the outside world will still be intruding, however, through its funds.

4.) The ISGA will "seek the assistance of international human rights bodies to facilitate the rapid establishment of an effective regime for protecting human rights." Those with no faith in the ISGA are unhappy that the handling of human rights will be under its control. Perhaps it is time to try a different strategy as the SLG does not have a particularly clean record in this regard, especially when it comes to the human rights of the inhabitants of the NorthEast. The ISGA will still be governed by the international treaties signed by the SLG and those who have complaints can still appeal to the UNHCHR.

Human rights are not protected by the Sri Lankan constitution, but by an act of parliament, which set up the Human Rights Commission. Human rights in the NorthEast will be protected by the fundamental law which sets up the area's interim government.

5.) An internationally-reputed firm will be appointed to audit all Funds provided by international bodies. This is an indication of the confidence the formulators of the ISGA must have in the ISGA's potential functionaries and the firmness with which they view the need for financial transparency and incorruptibility.

6.) Disputes between the LTTE and the SLG which cannot be resolved in any other fashion will be arbitrated by a committee headed by someone appointed by the International Court of Justice, similar to the procedure agreed to in Article V(2) of Annex 2 to the Dayton Accords which brought an end to the war in Bosnia. In many countries the Supreme Court arbitrates disputes between units. In this case, however, because no permanent agreement has been reached that allows the people of the NorthEast to have any influence on the make-up of Sri Lanka's highest judicial body, it cannot be considered a neutral body for this purpose.

7.) "The ISGA shall have powers to borrow internally and externally, provide guarantees and indemnities, receive aid directly, and engage in or regulate internal and external trade." Borrowing and providing guarantees, etc. are actions that provinces and states of other countries routinely engage in, so this is not a unique situation, however unique it feels for Sri Lanka. Historically the NorthEast traded extensively throughout the Indian Ocean. With the British and Sinhalese interest in controlling and profiting from all trade, the merchants of Valvettiturai were labeled smugglers and all goods had to be transported through Colombo. The folly of this dependence on one airport for links with the outside world was demonstrated to Sri Lankan businessmen recently. There is nothing in the proposals which state how this external trade is to be carried out - just that the ISGA shall have powers to engage in or regulate it. One would presume that this would allow commercial shipping and air links directly from the Northeast. Engaging in serious trade with the outside world will be difficult, however, until the military vacates the Northeast's main ports, KKS and Trincomalee. In addition the main airport of the North, Palaly, is surrounded by a military base.

A related issue is the ISGA proposed "control over the marine and offshore resources of the adjacent seas and the power to regulate access thereto" in provision #18, which follows the provisions about control of land. A significant portion of the NorthEastern population depends for its livelihood and protein on fishing. The NorthEast has learned from the poaching of Indian fisherman that was tacitly allowed by the Sri Lankan Navy, the permission given by the SLG for oil exploration by foreign companies off Mannar and the licenses given for trawling in NorthEastern seas to the Chinese by the SLG - all with no local consultation - that better husbandry of these resources is required for the benefit of the area's inhabitants. Commentors on this section of the ISGA have read this section as much more than any other regional entity in the world has rights to. In the United States Washington cannot unilaterally make decisions like this for the coastal states about fishing and oil drilling - although it has more say than the states would like. In the Bougainville Peace Agreement, Bougainville retains exclusive rights to marine resources and marine use within a three mile zone. (see http://www.usip.org/library/pa/bougainville/bougain_20010830.html)

International standards

The ISGA proposal has concrete reference to the outside world in the 7 areas discussed above. In addition, it refers to international mores and standards in 4 instances. Provision #19 wants to ensure that the international principle that upper riparian users of river systems provide a fair, equitable and reasonable use of water resources by lower riparian users. Here again, the NorthEast must depend on the 'good will' of the rest of the island, buttressed by a very weak international standard. Provision #12 states that all funds will be "maintained, operated and audited in accordance with internationally accepted accounting and auditing standards." Provision #4 says that "The people of the NorthEast shall be accorded all rights as are provided under international human rights law."

The ISGA proposal in #3 provides for elections supervised by an independent Election Commission and the international community after 5 years of the ISGA coming into force. This has been one area that the ISGA proposal has been heavily criticized for. It is quite odd, as there has been very little criticism by these same people about the current state of affairs, which hardly provides for a democratic system in the NorthEast. The governor of the NorthEast Province has been a retired general appointed by the president for most of its existence. The military is and has been the main decision-maker in large areas of the NorthEast for two decades. Only in areas held by the LTTE is its judgement not supreme.

There have been elected members of parliament from the NorthEast since 1989, but large sectors of the population have been unable to vote even in local elections for the past two decades. In 1994 5 members of parliament were allowed to take their seats having polled less than 10 votes each from residents of the NorthEast. Neutral poll-watchers have been unable to reach many areas in the elections. There has been no update of the electoral lists for two decades, a period in which at least half the population has been displaced and tens of thousands killed. Polling booths are routinely located inside military camps! Gerrymandering of electoral districts [an American term meaning drawing district boundaries to assure a desired political outcome] and state-sponsored colonization since independence has drastically shrunk the number of seats in parliament held by the NorthEast. Even when MPs elected from the NorthEast arrive in Colombo to take their seats, they have had little power to provide anything to their constituents in terms of public sector jobs, funds, security, language rights or other important benefits. Is this democracy or managed apartheid?

Jehan Perera, for instance, mentions the dangers of one party - the LTTE - having control over the ISGA for such a long time. He does not bring up the current state of affairs in which most decisions for the NorthEast today are made in Colombo with no input whatsoever from the NorthEast. Remember that the LTTE has already had administrative experience in Jaffna before 1995 and in the Vanni and the East today and has maintained the trust of its people under extremely adverse circumstances.

In Bosnia, and now in Iraq, it has been understood that some time needs to separate the war from elections. Displaced people need to return to their homes, a culture of war and violence must give way to a culture of peace, civilian life must start to take precedence over the military, the economy must start to revive and people must start to feel secure before elections can reasonably be held. Constructive suggestions about these matters should be made by all those deploring the length of time before elections. In particular, it must be clear that many of those advocating early elections want these elections before displaced people can return. They want to preserve the 'spoils of war.' Those loudly asserting that 60% of the East is not Tamil anymore need to ask - if true - how this happened and if it is a permanent state of affairs once Tamils return to their homes, land and businesses.

Military matters

The ISGA proposal does not deal with military matters. There is not a single reference to the almost 100,000 troops stationed in the NorthEast and how to manage their relationships with civilians and the ISGA. At the moment military judgement takes precedent over the Government Agents' in 'cleared' areas. For the ISGA proposal to work, law and order must revert to being a function of the police and the military would have once again to turn their attention to external threats, rather than internal ones.

The ISGA also does not address the issue of LTTE shipping, although this has been a serious problem for the ceasefire. Presumably the LTTE believes that it has the right in current circumstances to engage in shipping, or this is an agenda item for negotiations. Perhaps they believe that it is such a sensitive subject with both Sri Lanka and India that they will just leave it gray.

Land

The ISGA proposals stipulate that the ISGA will have control over the use of land that is not in private hands. Until today control of this non-private land has been held by the central government with little to no local input into its use. The central government has used its power for state-sponsored colonization to alter the ethnic composition of the NorthEast, with the most serious consequences in the East.

Nearly one quarter of the island's population was moved from the Wet Zone in the southwest to the Dry Zone in the northeast between 1946 and 1971. The 1921 census found that in Trinco, for example, the Sinhalese population was 4%, while the 1981 census found that the Sinhalese constituted 34% of the population as a deliberate result of government policy and the input of vast government and international resources, notably the Mahaveli development scheme. Between 1881 and 1981 the Sinhalese population of Trincomalee increased by 9134%, while the Tamil population increased by 502% during the same period. In addition to changing the ethnic composition of the region, colonization was used in an attempt to break the contiguity of the NorthEast. Such intervention by the state without local consultation is unacceptable.

Of interest, also, are the large areas, frequently called High Security Zones, that have been appropriated by the military. Here is where military and land issues intersect. It is also a perfect example of how the central government is perceived as being engaged in a land-grab for its own interests. How this problem will be resolved is unclear.

Separate state

Much noise has been made about the ISGA proposal being a stepping stone to a separate state. Most of this is hot air can be put in the same category as the protests about the Federal Party's proposals and agreements being a similar stepping stone thirty and forty years ago. It is an expression of a Sinahala nationalist belief that the whole island is rightfully theirs. As Jehan Perera insightfully comments "With its proposals for an Interim Self Governing Authority, the LTTE has given concrete form to its expectations in a manner that is essentially compatible with peaceful coexistence in a united Sri Lanka."

If this is not recognized and appreciated for what it is and built on in a constructive manner, then we must turn to Prabakaran's message in his Heroes' Day speech, "But if the Sinhala chauvinistic ruling elites continue to deny the rights of our people and oppose reconciliation and if the conditions of oppression continue, we have no alternative other than to secede and form an independent state invoking the right to self-determination of our people. We urge the Sinhala political leadership not to create the objective conditions that would drive our people to seek this ultimate option." Prabakaran has been giving this same message for years and, hopefully, the Sinhala elites will listen to it this time and agree to a form of government acceptable to Tamils because of their interest in a united island.

Federalism implies exclusive local jurisdiction in specified areas. Spelling out those areas is part of the process of defining the terms of the federal concept in the Sri Lankan context. Those who regard the definition of these areas of internal self-determination as a stepping stone to independence do not know what federalism means.

The ISGA proposal deals only with the areas over which the local government will have jurisdiction and leaves the areas of joint jurisdiction to be spelled out another day, along with powersharing at the center and military matters. It is to be hoped that the negotiators can move on to these other areas expeditiously after approval of the ISGA proposal.

Once the ISGA is in place, the hard part begins - to provide the conditions for a fruitful life to the population after a long and destructive war and to co-exist with former adversaries in a hard and dangerous world.

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Posted December 10, 2003