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by Prof. Kumar David, Dean (Engineering), Hong Kong Polytechnic University

It has been suggested that an Interim Administration (IA) be established in the Northern and Eastern Provinces (N&E) to bridge the period between the Memorandum of Understanding (MoU) and the date when a new constitutional dispensation reached through negotiations is inaugurated. It is envisaged that the IA will administer social, infrastructure development and certain economic and revenue collection measures and will have a role in police and judicial matters. This article is concerned with the last-named law and order aspect in the context of the dilemma that this complex issue poses in the N&E of Sri Lanka.

Opposition to the creation of an IA has been voiced. It has been argued that the fundamental issues, also sometimes called the 'core issues', should be resolved first and that the interim arrangements be implemented as transitional administrative arrangements that dovetail smoothly into the final constitutional formation. Superficially, this approach emphasising the transitional rather than the interim, has the advantages that it can be better designed and directed towards a known endpoint; there is less danger of the process being hijacked and a more plural political climate can be sustained throughout the transitional period.

However, plausible as it may sound, this approach is impractical. Why? The core constitutional issues that need to be resolved are highly contentious and since the country is just coming out of a civil war a cooling off period is needed before the two sides dare make the concessions essential for a final constitutional consensus. It only makes mention of a few basic issues to drive home the point. For example, federalism or another form of autonomy and devolution, land, finance and development issues, the arrangement in respect of Muslim and Singhalese minorities in the East, relevance or otherwise to the N&E of the place of Buddhism as underwritten in the current Constitution.

Time and cool heads are needed to negotiate these issues and to secure constitutional ratification and adequate public endorsement. Stability and economic improvement in the N&E are also needed to repair much damaged trust.

However, the present arrangement of neither war nor peace nor properly constituted interim administration cannot be allowed to drag on for the duration envisaged above. Anyone who has encountered the pointless and time-wasting roadblocks (bureaucratic waste with no value added) on the A-9 has witnessed but the tip of the iceberg. Consider the LTTE taxation system with no accountability for revenues or auditing of expenditures, or bemoan the impasse in decision-making in any government or private capacity in the N&E, or ponder much else, and you will quickly agree that a formally constituted administrative system is now needed. An Interim Administration of the N&E has to be set up soon.

When in the context of the proposed IA one turns to a consideration of the police, legal and judicial system some very great difficulties arise. The issue is threefold, the non-congruence of the ceasefire boundary with the provincial borders, the need to protect freedoms of the population and thirdly the question of which body of laws to recognise and by whom administered.

In many instances of a ceasefire, for example Cyprus, the Balkans, East Timor or Kashmir, the line demarcating the cessation of hostilities was also the administrative border of the post conflict entities - not so in our case. Large and indeed the populous and economically and strategically significant portions of the N&E are in government hands but inhabited by Tamils though not exclusively. Unless one is exceptionally naive it should also be obvious that the proposed IA of the N&E would be directly or indirectly controlled, or at least very significantly under the influence of the LTTE.

The military on both sides should be confined to barracks and kept out of public life once the IA begins to function. Hence the nature and control of the police force assumes exceptional importance as the organ responsible for public order and security in the day-to-day sense. This poses a dilemma for the government which would not want to give away security related powers in territories which it has not, or not yet, lost on the battlefield.

Furthermore, Trincomalee poses a special case. Clearly, the question of the composition and the control of the police force throughout the N&E would be an important concern when determining the powers and scope of authority of the IA.

The second issue, that of popular rights and freedoms, is closely related. Once the military is confined away from public life, and since the LTTE does posses residual armed power even in territories on the other side, so to speak, of the cease-fire line, control of the police force by an LTTE dominated IA would amount to monopoly of power. This is infeasible in practical terms in the Eastern Province because of the substantial Muslim and Singhalese populations. The composition and control of the police force will have to reflect demographics district by district and locality by locality.

Hence the new Thamil Eelam police force that is functioning and expanding in the LTTE-controlled parts of the Vanni cannot be allowed to attempt to bring Muslim and Singhalese territories under its exclusive ambit.

Jaffna District and other parts of the Northern Province now under government control are, therefore, where the difficulty arises. Should all power over policing be handed over to the IA and an expanded Thamil Eelam police force notionally under IA and actually under LTTE control? There are those who insist that even if the LTTE provides the most ardent protestations of preserving public freedoms and political rights, the actuality will be repressive.

Though one needs to be concerned more about the public at large, universities, businesses and religious organisations than about political parties opposed to the LTTE, the fact is that these two sides of the matter cannot be separated. The third matter is the body of laws, criminal and civil, and the administration of justice in the territory of the IA.

There is a legal code and system for the dispensation of justice operating alongside a police force in the LTTE-controlled territories. It would not be correct to dismiss these laws or the police organisation without knowing much more about them. Consequently the discussion here is limited to the question of whether their jurisdiction should be extended to the whole of the territory falling within the purview of the proposed IA.

The answer clearly is that any attempt to do this would lead to a complete social crisis and a breakdown of the economic system in its present form. Let us leave personal and criminal law to one side. Contract, tort, commercial, property and a whole such body of law and jurisprudence underpins the Capitalist and petty bourgeois economy.

Furthermore, the drive for attracting new investments and the needs of economic reconstruction also require a stable legal system and a reliable framework for the dispensation of justice. The laws and the judicial system of Sri Lanka are in this respect far more appropriate than a sudden transplant of the type mentioned above. (This is true despite the perversions and distortions inflicted on democracy, laws and the judiciary by successive Sri Lankan governments).

Taking these considerations into account it is not possible to avoid the conclusion that the legal system in the territory of the IA, that is in the N&E, should continue to be the legal system of Sri Lanka.

This means that the laws of Sri Lanka should continue to be the sole system of laws and the legal and judicial system should continue to be 'under the centre'. The concept 'under the centre' to be read here as referring to the role of the Attorney General and the judicial and appellate powers of the subsidiary and Supreme courts not the horrors of interference by the government in Colombo. This remark is also made without any prejudice to the powers to be eventually vested constitutionally in a post settlement regional legislative body and new structures for the dispensation of justice. The discussion here is confined to the tenure of the IA only.

There are two alternative designs worth considering for post-IA police powers. One option is to ensure that the control of the police force continues to be under the centre, that is, to leave the control and command structure much the same as at present for the duration of the IA. This is similar to Malaysia where though the country is a federal state the police force is under central control. The composition of the force, of course, must be changed to incorporate a substantial local input including the Thamil Eelam police force. The latter has close grass roots links with the people and policing can thus be made more efficient and effective. Again, this is said without prejudice to any new system of policing that may emerge in the eventual constitutional settlement.

A second option is a more complex one invoking local, central and international components. There could be a local police force with a certain scope of activities and another responsible to the centre for activities that have political implications; for example, restrictions on political meetings, publication and speech, or investigations directly against the LTTE can be dealt with separately. (In the US there are State and Federal forces and offenses, but of course with functions different from envisaged here).

Appropriate command and co-ordination structures have to be evolved. More importantly, both the local and central components have to be separated from political party control. The international component should include personnel vested with magisterial powers of entry, search, confiscation and detention and should be backed by adequate military powers to execute their obligations.

The LTTE-controlled areas of the Vanni have been excluded from consideration in this article. There is a case to be made for attempting to include these areas in the scheme proposed here in respect of police and legal matters. If this is not acceptable to the LTTE, the Vanni will have to be left as it is for the time being.

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