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by A Special Correspondent

Since the early 1990s the LTTE has militarily dominated certain parts of the North and East. The Sri Lanka Armed forces and the Police have not been able to go into these areas. The normal civil administration is carried out by the Sri Lanka Government. The Government has no way of enforcing its authority and in reality control is with the LTTE. Those areas of LTTE control were identified in the Census of 2001.

In the areas which are military dominated by the LTTE the relevant courts of law are also unable to function within their respective jurisdiction.

In order to prevent lawlessness and anarchy in the areas controlled by them, the LTTE established their own system for maintenance of order and settlement of disputes. The LTTE established the Tamil Eelam Department of Justice and Law in July 1994 headed by Eliyathamby Pararajasingham who had been a Member of Parliament for the Eelam Revolutionary Organisation of Students (EROS) militant group in the 1989 Parliament. Since then, the LTTE established a number of law and order offices throughout the North and East referring to them as 'Courts.'

After the February 2002 Ceasefire, some of these offices which are of a temporary nature, such as in Batticaloa, have been made into permanent institutions. It is through these offices that the LTTE has been able to maintain order and resolve disputes in areas under their control.

Pararajasingham stated recently in Batticaloa that the duty of these institutions was "to maintain law and order as mandated by the LTTE leadership". Therefore, it may be concluded that these are institutions of the LTTE organisation, which militarily dominates certain parts of North and East, that are carrying out the law and order mandate of the LTTE.

The Chief Justice, in a recent interview, stated that the LTTE cannot exercise judicial power. He stated "the LTTE can have a conciliation mechanism if they want. But they have no judicial authority. Judicial power is part of the sovereignty of the people and it cannot be exercised by any other person than those who are vested with it. If someone else is administering justice then he is doing it on his own accord. For example, in the 1988 and 1989 period, the people were apprehended by the JVP and dealt with - now that was no judicial power. It is an example of someone assuming authority and administering what they believed to be justice."

This definition may be applicable to the LTTE law and order offices as well. But the recent media reports about the existence of these institutions, in which they have been referred to as 'Courts', have caused apprehension.

The Government has stated very categorically that it will not allow any such other institution in areas under the Government. It is also the objective of the Government to ensure that, in the political settlement of the conflict, the courts exercising the judicial power of the people will function throughout the North and East.

This is a part of the negotiations that are ongoing.

While the mechanism the LTTE has established to prevent anarchy in the areas controlled by them has to be acknowledged, these offices should not be equated as institutions that are a system that is parallel to the courts of law.

A court in the United States held, in Isbill V. Stovall, that "an agency of the sovereign created by it directly or indirectly under its authority consisting of one or more offices, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorised to exercise its powers in due course of law at times and places previously determined by lawful authority."

To equate the LTTE law and order institutions ("LTTE courts", as referred to by some) with a 'courts system' is to acknowledge that there is an exercise of judicial power, which is not the case. Once one acknowledges the courts as having judicial power,then the judicial power has to be seen as being granted by a sovereign entity. In Sri Lanka, the sovereign entity which granted judicial power before Independence was the British government. After Independence, it was by the Sri Lankan State as provided for in the Constitution - i.e. the judicial power of the people is vested in Parliament and exercised through the courts.

The only sovereign entity is the Democratic Socialist Republic of Sri Lanka. Those who insist that LTTE institutions are exercising jurisdiction power are also acknowledging that the jurisdiction power has been granted by a sovereign entity, that is, a separate state of Tamil Eelam, which has not been proclaimed even by the LTTE.

At the moment, LTTE has stated that it is for "internal self-determination" within a unified Sri Lanka. Therefore, at such a stage, it would not be constructive for anybody to engage in a debate which ultimately leaves for the recognition of a separate sovereign State.

This does not mean that these LTTE law and order institutions should not be scrutinised and monitored.

It is important these new mechanisms are critically examined. It must be ensured that these tribunals are not equated with the exercise of judicial powers.

But the debate has to be kept within this framework of argument, otherwise there could be an implicit acknowledgment of a separate State.

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