The Limited Scope of the CFA
by Wakeley Paul, Esq., Attorney at Law, N J [retired]. Barrister at Law, Middle Temple, London. Former Crown Counsel, Ceylon.
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This must, by necessary implication, include those who can be proved to be acting as agents on behalf of either party to the Agreement. The problem here is satisfying the burden of proof to establish this connection, not redefining the meaning of “paramilitary” or “alternate power” or any other term one wishes to use to describe them. That is an exercise in futility.
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The long rambling article by Mirak Raheem entitled “Paramilitaries: The need to rethink,” (Daily Mirror, February 8, 2006 ) is an uncalled for effort to revise the CFA drastically, by resorting to details that are either already covered by the broad terms of the CFA, or including subjects that should form no part of this Agreement.
The first fundamental to grasp is that the CFA is defined as “An Agreement on a Ceasefire between the Democratic Socialist Republic of Sri Lanka and the Liberation Tigers of Tamil Eelam.”
Its limitations are explicit. It covers a “Ceasefire” and does not extend to such concepts as Human Rights Violations, which are controlled by other organizations, such as the Human Rights Commission in Geneva, and it is restricted to the two parties to the Agreement. This must, by necessary implication, include those who can be proved to be acting as agents on behalf of either party to the Agreement. The problem here is satisfying the burden of proof to establish this connection, not redefining the meaning of “paramilitary” or “alternate power” or any other term one wishes to use to describe them. That is an exercise in futility.**
The broad overall objective, as stated in the Preamble, is to find “a negotiated settlement to the ongoing ethnic conflict in Sri Lanka,” “bringing an end to the hostilities,” and “improving the living conditions of all inhabitants affected by the conflict.”
Proceeding from these broad objectives outlined in the Preamble, let us analyze some of its general terms.
Article 1.2 states that “Neither party shall engage in any offensive military operation,” which includes a host of specifically designed forms of “offensive activity.”. Does Mr Raheem imagine that this does not encompass any group proved to be acting as agents on behalf of either party to the Agreement? The problem, as I stated earlier, is proving the connection between the third party and the party to the agreement. No redefinition of the terms “paramilitary” or “alternative powers” or whatever other term one uses to describe them, could overcome that problem.
Article 1.3 emphasizes the right of the SL government to safeguard the sovereignty and territorial integrity of SL, without engaging in offensive operations against the LTTE. It is the function of the GOSL, not the LTTE, to maintain the Sovereignty and territorial integrity of the nation, making a reciprocal obligation on the part of the LTTE to do the same, superfluous.
The final relevant paragraph is 1:8, obliging the GOSL to disarm “Tamil paramilitary groups” by D-day plus 30.”. This clause was obviously founded on the recognition by the then GOSL that these groups were acting as their agents. The huffing and puffing by the present government, trying to downplay this admission by its predecessor is defied by the very wording of this paragraph. The government cannot at this stage deny the position to which they were committed by their predecessor, on the ground that the predecessor was a rival political party, whose actions they opposed. Solemn Agreements bind them, regardless of which political party bound them to these obligations.
However, the 30 day limitation has to extended, by virtue of the fact that the meeting to revitalize the terms of the original Agreement is well past this 30 day limitation. The obligation to disarm the Tamil military groups, however, remains unaltered. The issue as to which particular kind of military groups were referred to in the Agreement may involve obtaining a statement from Mr Wickremesinghe as to whom they specifically referred when agreeing to abide by this obligation. The Royal Norwegian government, as the intermediaries on that occasion, may be able to provide a more reliable answer to that question, based on their notes or the recorded transcripts of the proceedings on that occasion.
Mr Raheem’s broader concerns are of a political, not a legal nature. He ignores the fact that we are dealing with a legal agreement, not an overall political solution to the problems that confront us. The fact that Sinhalese racism has increased to an alarming degree; and methods used by the GOSL to contain this evil phenomenon are totally lacking, cannot be solved by the CFA. The fact that the opposite is true, namely, that this government and others have fanned these hatreds and capitalized on them politically, is again, not a matter that can be solved by the CFA.
The GOSL must develop the flair and imagination to realize that the Tamils and other ethnic groups can hardly be expected to acknowledge their inherent racism with unbounded admiration. It can hardly be expected to command or inspire their loyalty to the Sinhalese Sri Lankan governments. The International Community must, in turn, realize that the only way to move Sinhalese governments away from this inherently prejudicial path is to ensure that the Tamils have substantial regional autonomy in the NorthEast. This is the only way to protect the Tamils from the irreversible prejudices that the Sinhalese governments have always exhibited, but tried without success to disguise.
Under the present Unitary Constitution, we are not in control of the cards that are dealt to us. The GOSL controls the deck. We cannot choose the parts we are to play. Our daily fate remains as uncertain as the movement of the erratic ball on the roulette wheel. The time has come when we can finally say to ourselves, “Today is the first day of our new life.” We hope the International Community can ensure that this becomes a reality, not through the CFA, but by using the requisite political pressure that could make this so. The GOSL is certain to use every conceivable ploy to shatter this hard won right to regional autonomy, but who can honestly sympathize with them?
Mr Raheem’s effort to solve this multiplicity of complex issues by resorting to the CFA is unquestionably misplaced. These can only be solved by the proper use of political pressure by the only forces that are capable of fashioning a just solution to this long drawn and seemingly endless nightmare.
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The burden of proof should be on a balance of probabilty, to wit, more likely than not, e.g. the Karuna group acting with impunity within areas under the tight control of the Sri Lankan army.
wakeleypaul@sbcglobal.net
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