Centre for Policy Alternatives

1. NGO Bill, Petition filed - 16 March 1998, Court Decision - 1 April 1998

2. Gnanamuttu vs Attorney-General, Case argued - 15 March 1999, Court Decision - 5 May 1999

3. Imminent infringement of the right to vote, Petition filed - 11 March 1999, Court Decision - 23 March 1999

4. Universities Bill Case, Petition filed - 27 April 1999, Court Decision - 11 May 1999

5. Chief Ministers Case, Petition filed- 31 May 1999, Court Decision - pending

6. Fundamental Rights Case, Filed by Co-ordinators of the Centre for Monitoring Election Violence (CMEV), Petition Filed - 3 June 1999,
Court Decision - pending

7. Censorship of the private electronic media

8. Equal Opportunities Bill, Petition Filed - 14 October 1999

9. Right to vote, Petition Filed - 4 May 1999, Court Decision - Leave to proceed not granted

10. Misuse of State Resources by the Government for Election purposes, Petition Filed - 9 December 1999, Court Decision - 17 December 1999

11. Petitions on the rights of Internally Displaced Persons, Petition filed - 2 May 2000, Court Decision - no leave to proceed

12. Challenge to the Emergency Regulations 1 of 2000, Petition Filed - 2 June 2000

13. Application to the Human Rights Commission on the Internally displaced Muslims of the Northern Province, Petition filed - 3rd July, 2002

14. Challenge to An Act to Repeal and Replace the Constitution of Sri Lanka, filed 2 August 2000, no leave to proceed, Petition filed - 2 August 2000, Court decision - no leave to proceed

15. Challenge to the proposed 17th Amendment to the Constitution, Petition filed - 4 August 2000

16. Petition to the Human Rights Commission of Sri Lanka requesting the Commission to direct the Commissioner of Elections and the Inspector General of Police to make public all directions, circulars, instructions issued by them to ensure free and fair elections, Petition filed - 15 September 2000

17. Fundamental Rights petition against the Commissioner of Elections by reason of his actions during elections, Petition filed - 22 November 2000, Court decision - 2nd July 2001

18. Petition challenging the Referendum on the 21st August 2001, Petition filed - 27 July 2001

19. Fundamental rights petition challenging the pass system in operation in Vavuniya, Petitions filed - 8 November 2001 & 16 January 2002

20. Fundamental rights petition filed against the Commissioner of Elections, for not ordering a re poll in the Batticaloa District at the General Election of 2001, Petition filed - 2 January 2001

1. THE NON GOVERNMENTAL ORGANISATIONS BILL
(S.C. Application S.D. 1/98, 2/98, 3/98, 4/98, 5/98)

The first case filed by CPA involved a challenge to the controversial Voluntary Social Service Organisation (Registration and Supervision) (Amendment) Bill which had first been tabled in Parliament in September 1995 and aroused considerable opposition from human rights groups and social service associations. The Bill permitted the Minister of Social Services to take over the administration of a NGO or voluntary association, if a Board of Inquiry appointed by him was of the view that there was evidence in support of an allegation of fraud. The Minister could then appoint a Board of his choice to run the organisation.

The Bill gave the Minister the power to decide the length of office of the new Board running the organisation and was ambiguous as to whether the outgoing Board could ever resume control of the organisation. Read with the parent Act, the Bill granted the Minister siscretion to decide how the original inquiry was to be conducted, its procedure and modus operandi.

The implications of the Bill were startling. A donor or other organisation having entered into an agreement with a voluntary association could suddenly find thitself dealing with a group of Ministerial appointees. The Board of a social service organisation of a particular religious denomination could be replaced by any persons of the Minister's choice. The powers given to the Minister undermined the very essence of a Non-Governmental organisation.

After the Bill was introduced in Parliament in 1995, the Civil Rights Movement demanded that it be withdrawn arguing that the Bill would make the already deficient Voluntary Social Service Organisation (Registration and Supervision) (Amendment) Bill even worse. The opposition United National Party (UNP), despite the fact that they were responsible for the parent Bill, opposed the 1995 Amendment Bill. The Government did not proceed with the Bill. The then Minister, Mr. Fowzie, lost his enthusiasm for the Bill, much to the disappointment of influential bureaucrats in the Ministry. The Bill remained dormant for over two years until, on the very first day of the UNP's boycott of Parliament, it was passed with another twenty items in 35 minutes.

The Supreme Court was invited to review, for the first time, the constitutionality of a Bill which Parliament had passed but which had not yet become a Law as the Speaker's certificate (the last stage in the legislative process which converts a Bill into a Law) had still not been endorsed on the Bill. The petition was filed by the Centre for Policy Alternatives and several citizens: Waruna Karunatileke, Charles Abeysekere, and the Directors of CPA, Rohan Edrisinha and Dr. Paikiasothy Saravanamuttu. The latter two decided to argue their cases themselves. K. Kanagisvaran P.C., Dr. Jayantha de Almeida Guneratne and M.A. Sumanthiran represented the other petitioners. Justices Mark Fernando, Dheeraratne and Dr. Asoka de Z Goonewardena constituted the Court.

The Supreme Court of Sri Lanka, decided that the substance of the Bill and the manner in which it was passed were not proper matters for its consideration. The judges cautioned the petitioners against making submissions on the substance of the Bill as they were not convinced that they had jurisdiction to hear the case which they said was time-barred. The contention that the fact that the Bill had remained dormant for such a long time implied that the Bill had lost its life and efficacy, failed to impress the court as did the plea that the absence of deliberation preceding the passage of the Bill was an abdication of Parliament's legislative power, which it exercised on behalf of the People.

The Court's position was that the Constitution only allows a Bill to be challenged for constitutionality within one week of the Bill first appearing on the order paper of Parliament and that, since the petitioners, had missed the one week period where such a challenge was possible, the Court could not review the Bill.

The argument that constitutional interpretation should depart from a strict literal approach in order to promote the values of Constitutionalism failed to move the court.

Given the Sri Lankan Supreme Court's judicial restraint the decision was not surprising. The case, however, highlighted two important issues:
a) the undesirability of the constitutional provisions which provide only for pre-enactment review of just 7 days;
b) The draconian nature of the new law.

A Tamil civil engineer, Joubert Gnanamuttu, was detained at a military check point in the heart of Colombo because he did not have a special registration form. He had in his possession his national identity card and other forms of identification. He was taken to two police stations and after many hours was told that he had to retain a lawyer. A fee was demanded of him. Mr. Gnanamuttu's assertion that he did not want a lawyer and could represent himself were ignored.

CPA sponsored an application before the Supreme Court alleging that Gnanamuttu's fundamental rights had been violated by the military at the check point and also thereafter by the police who detained him. The Supreme Court upheld his application and ordered the State and the main police officer to pay him Rs 50,000 as compensation.

The case, which attracted widespread publicity, was important as it dealt with a form of harassment which many Tamil people living in the Western Province experienced frequently. The registration requirement is itself controversial as it is often applied in a discriminatory manner against Tamil people. The demand that they should carry the form on their person makes it worse. The court clarified that it was not mandatory for the registration form to be so carried.

The case also revealed how the police and unscrupulous lawyers collude to harass and victimise Tamil civilians.

3. Imminent Infringement of Fundamental Rights
(S.C. Application FR. No. 266/99)

The Constitution permits a person to file a fundamental rights case if his or her fundamental rights are infringed or if there is an imminent infringement of such a right. All the fundamental rights cases filed to-date have dealt with rights that had been infringed in the past.

This case was filed by Rohan Edrisinha, Director CPA, and a number of voters in the Western Province after the fraudulent election held in the Wayamba province in February 1999 and before the elections to 5 Provinces. They submitted that in the light of the widespread malpractices which occurred in the Wayamba elections, there was a strong likelihood that their right to vote would be violated. They asked the court to intervene to order the Commissioner of Elections, The Inspector General of Police and the Attorney General's Department to take steps to ensure that the election to the 5 Provinces was free and fair.

CPA knew that the case could not proceed in the same manner as a usual Fundamental Rights case as the decision would inevitably be made after the election. The purpose of the application was to apply pressure on the Government and the departments responsible for free and fair elections to ensure strict compliance with the law.

When the case was heard, the Attorney General's Department presented a set of documents which included correspondence between the agencies, proposals for law reform made by the Commissioner of Elections to the President, directives from the Attorney General's Department indicating to police officers and election officials that countenancing political interference would constitute a dereliction of duty, minutes of meetings of senior police personnel on election duty, etc. These became public documents as a result of the case, which is extremely significant as Sri Lanka does not have a Freedom of Information Act compelling the authorities to release information in the public interest. The media gave wide publicity to the documentation.

As a result of the submission of the above documentation and assurances from the State law enforcement authorities that the mistakes of the previous election in Wayamba would not be repeated, the petitioners agreed not to pursue the application.

4. The Universities Amendment Bill
(3/99, 4/99, 5/99, 6/99, 7/99, 8/99, 9/99, 10/99, 11/99, 12/99)

The Universities Amendment Bill was gazetted on 12 April 1999, just before the long Sinhala and Tamil new year holidays. The limited time period during which a legal challenge to the Bill could be made commenced therefore in the middle of a long holiday period. Fortunately an Opposition MP contacted CPA and CPA was able to publicise the proposed Bill. The Bill dealt specifically with the appointment and dismissal of university registrars and bursars and therefore aroused the concern of university administrative officers and unions. However, the cumulative effect of the Bill was also to increase further the already excessive State control of universities. CPA sponsored and supported 3 applications by university academics, alleging that their freedoms of thought, speech and expression would be seriously jeopardised by the proposed Bill.

The Supreme Court upheld all the submissions of the academics and held that the Bill was unconstitutional. The court stressed the importance of academic freedom and autonomy citing several UNESCO declarations on the subject. In a context where several important institutions have over the years become increasingly politicised as a result of state intervention, protecting the university system from such trends was an important contribution to strengthening civil society, good governance and academic excellence and freedom.

CPA identified a serious anomaly in the Provincial Councils Election Law which undermines representative democracy, the concept of devolution of power, the Thirteenth Amendment to the Constitution and other constitutional provisions. Provincial Council members and Chief Ministers could hold office even though they were not candidates at the elections and were not voted in by the public.

The Provincial Councils Election Act of 1988 permits persons who are not even candidates at the election to become members of the Provincial Council or even Chief Ministers of Provinces ahead of candidates who actually contest the election and obtain preference votes from the voters of these provinces. Would be Provincial Council members or Chief Ministers would only have to persuade or pressurise an elected member to resign, following which, the Secretary of the relevant party could nominate "any person" in his/her place. It is only in the event that such a nomination is not made that the person with the next highest number of preferential votes is declared elected.

Because of this provision persons who did not contest the Provincial Councils elections of April 1999 were able to become Chief Ministers of the Central, North Central, Sabaragamuwa and Uva Provinces. These persons continued to hold office in the central government and after the results were declared, they ordered one of the elected candidates to resign and took their positions in the respective Provincial Councils.

The fact that a provision so clearly detrimental to modern representative democracy was enacted suggests that both the Government and Opposition were solely interested in strengthening the positions of their respective party in Parliament.

CPA sponsored two petitions challenging the replacement of elected persons with non-elected persons on the basis that it undermines devolution of power and basic principles of representative democracy. Dr. Saravanamuttu, Executive Director of CPA, and another voter from the Eastern Province were the petitioners in one petition while the other was filed by Rohan Edrisinha, Director of CPA. Mr. Rohan Edrisinha argued his own case.

In both these writ applications the relief prayed for by the Petitioners was for a writ of certiorari quashing the declaration made by the Commissioner of Elections declaring the Respondents elected as members of the respective Provincial Councils as well as for a writ of quo warranto declaring that the Respondents were not lawfully entitled to hold the office of Chief Minister and to be members of the respective Provincial Councils.

On the date of argument the position of the Respondents were that the literal interpretation of section 65 of the Provincial Council Act of 1988 allows the Secretary of a party to nominate 'any person' to a Provincial Council where an elected member has resigned from his post in such Provincial Council. Challenging this position the counsel for the petitioners argued that with regard to this matter, a mere literal interpretation of the section is insufficient. The counsel for the petitioners further stated that the ambiguity of interpreting this section has arisen mainly as a result of the application of principles of representative democracy in Sri Lanka. The counsel for the petitioners emphasised that in such an environment, it is important to appoint not any person, but a person who would fit the eligibility criteria as specified in the Act and a person who has been voted by the people of that province.

The counsel for the respondents in his argument upheld a unique and a typically Sri Lankan concept of "Party Democracy" stating that the voter votes not for the candidate but for the party, disregarding the principles of representative democracy. He further stated that, therefore, in terms of section 65 of the Provincial Councils Act of 1988, the Secretary of a Party has authority to nominate any person, irrelevant of whether he was in the nomination list.

The petitioners reiterated that the crux of this matter was whether 'any person' in section 65 of the Provincial Council Act, covered a person whose name had not appeared in the nomination list. The petitioners further stated that Sri Lanka's commitment to principles of representative democracy was jeopardised by the literal interpretation of section 65 of the said Act.

6. Fundamental rights case filed by the co-ordinators of the Centre for Monitoring Election Violence.

Dr. Saravanamuttu, Dr. Arjuna Parakrama and Waruna Karunatileke, the main co-ordinators of the Centre for Monitoring Election Violence (CMEV), filed a Fundamental rights application in the Supreme Court stating that their right to freedom of speech and expression, including publication, had been violated.

The CMEV is an independent non partisan organisation established in 1997 to monitor incidents of election related violence in Sri Lanka. The CMEV was set up in order to engage in election monitoring as an ongoing process before and during an election with the object of providing public information on election violence.

CMEV monitoring highlighted the drastic escalation of violence before and during election and the responsibility of the Government in this respect. These reports led to intimidation against CMEV by Senior Ministers and key figures in the Government.

In one particular incident CMEV received a complaint of an occurrence of election related violence. After due investigation as to the accuracy of the complaint, CMEV, as per its normal procedure, issued a media communiqué reporting the aforesaid incident.

Subsequent to such report, the person accused of the violence made a complaint to the police against Dr. Saravanamuttu, Dr. Arjuna Parakrama and Waruna Karunatileke in their capacity as the main co-ordinators of CMEV. They were charged with criminal defamation.

The CMEV officials felt that the police, pressurised by the government, acted arbitrarily and for political purposes, without proper assessment of the facts, without observing proper procedures in law as required for criminal defamation prosecution and without regard to the constitutional guarantees given to citizens in the Constitution.

The actions of the police and the Government impeded the CMEV officials' right to freedom of speech and expression, including publication. In the light of the harassment, the CMEV main co-ordinators went to court on the grounds of a violation of their fundamental rights.

The Supreme Court considered the fact that the Attorney General had issued a direction to terminate all proceedings instituted against the coordinators of CMEV in the Magistrate's Court of Wattala and held that in these circumstances, it was not necessary to proceed with the application, as CMEV has obtained the substantive relief sought by them.

With the Presidential Election due on the 21 December 1999, all 11 candidates launched their election campaigns using both the broadcasting as well as print media. The private TV and radio stations used their airwaves for a wide range of election related programmes, talk shows and campaign advertisements. It was apparent that the Government felt threatened by the negative media coverage it was receiving from the private media and felt that the programmes aired by the private media were not favourable to its campaign.

On the 17 November 1999, at an all party meeting held at the office of the Elections Secretariat, the government party made a proposal that the private electronic media not be allowed to air any programmes related to the forthcoming election. On the same evening the Media Minister, Mangala Samaraweera, and Special Assignments Minister, Sarath Amunugama, called another meeting of the heads of the private electronic media and called for a curb of election related coverage. The private electronic media was told than other than news coverage they should not telecast or broadcast interviews, talk shows or other programmes that might serve as propaganda material for any candidate. It was also said that political advertising by candidates on private TV or radio stations would be prohibited. The media were threatened with a cancellation of their license should the instructions be violated.

This was being done on the basis that state television Rupavahini and the Sri Lanka Broadcasting Corporation were giving equal time for all candidates to explain their plans and policies and that apart from the time allocated by the Rupavahini and the SLBC the law prohibited a candidate from using the media directly or indirectly for furthering his/her campaign.

One immediate effect of this unofficial ban was that MTV, a private television station, refrained from telecasting an interview of Presidential Candidate, Rajeeva Wijesinha, which had already been recorded and scheduled to be telecast on the same evening.

This step towards curbing the private media was considered a most serious act of censorship which threatened the very core of the democratic process in Sri Lanka.

CPA joined other civil society groups including the media in the protest against this curb. CPA also sponsored the application of Presidential candidate Mr. Rajeeva Wijesinha petitioning the Supreme Court on a violation of his fundamental right to equality and freedom of speech.

However due to pressure from various civil society groups as well as the international press groups such as Article XIX (which was facilitated by CPA), the Commissioner of Election made an official declaration that there was no ban on the private electronic media. The MTV station carried the interview of Mr. Rajeeva Wijesinha which they had earlier refrained from telecasting. Therefore the petition by Mr. Wijesinha was not filed as there was no further cause of action.

The CPA took this stand against the curb of the private media because it firmly believes that freedom of expression is the fundamental core of the democratic process.

The Equal Opportunities Bill was presented in Parliament by the Minister of Justice, Constitutional Affairs, Ethnic Affairs and National Integration and Deputy Minister of Finance Prof. G.L. Pieris on 7 October 1999.

The preamble of the Bill introduces it as a Bill to make unlawful discrimination on grounds of ethnicity, gender, religious or political opinion, language, caste, age or disability, in employment, education, access to public places and means of transportation and in the provision of accommodation, goods and services. The Bill was further to provide for the formulation of equal opportunity programmes by employers, to provide for the establishment of an equal opportunity tribunal and for matters connected therewith or incidental thereto.

CPA considered this a much needed and long overdue item of legislation. However, CPA had serious reservations with respect to Section 6 of the Bill on discrimination in education as it infringed the rights of minorities. Whilst section 6 made it unlawful for a person having control over educational institutions to discriminate against a person on the ground of that person's ethnicity, gender, religious or political opinion, language, caste, age or disability, there was a provision in this section which excluded certain educational institutions such as schools conducted by a religious body, or conducted by established practice, or declared to be conducted, solely or mainly for students professing a particular religion or conducted solely for students of the opposite sex to the sex of the applicant.

This qualification designed to protect schools run by proviso was overridden by a another subsection which allowed the Minister of Education to from time to time, determine guidelines in regard to admissions to such schools. CPA considered this provision to be a threat to minority rights and also an undesirable enchroachment of the State into the private domain.

CPA challenged only this particular section. However, due to pressure brought against the government from various Sinhalese groups which challenged the whole Bill, The Attorney General on behalf of the Government gave an assurance to the Court that the Bill would not be passed.

Article 4(e) of the Constitution of the Democratic Socialist Republic of Sri Lanka protects the Sovereignty of the people by guaranteeing the people's right to franchise. It stipulates that ' the franchise shall be exercisable at the election of the President of the Republic and of the Members of Parliament, and at every Referendum by every citizen who has attained the age of 18 years, and who, being qualified to be an elector as herein after provided, has his name entered in the register of electors.'

CPA sponsored five petitioners to file a fundamental rights case on the grounds that their Sovereign right of franchise guaranteed by article 4(e) of the Constitution was infringed.

This case was filed after the Provincial Council Elections which were held on the 6 April 1999. The Elections to the Provincial Councils are held in pursuance of the provisions in the Constitution and the Provincial Councils Elections Act. As stipulated in the Constitution the conclusive evidence of the right to vote is to have one's name entered in the register of electors.

In this case, the petitioners stated that they could not vote at the provincial council election of 6 April 1999 as their names had not been entered in the electoral register. It is the duty of the Commissioner of Elections to prepare, annually revise and maintain these registers. The petitioners claimed that the Commissioner of Elections acted contrary to law in deleting and/or causing the deletion of their names from the Register of Electors.

The Supreme Court did not grant the petitioners leave to proceed. The reason for this refusal was that the registration of electors laws provided adequate provisions for the public to scrutinise the revised registers and object to any irregularities in the register as well as complain to the registering officer to have his/her name entered or retained in the register.

10. Misuse of State Resources by the Government for Election Purposes (C.A. no. 1215/99)

CPA had been instrumental in obtaining a decision from the Supreme Court that the misuse of state property for election purposes caused a serious impediment to a free, equal and secret ballot in an earlier imminent infringement of fundamental rights case (see case 3 above). CPA therefore decided to file a petition to challenge the use of vehicles, personnel and weapons provided by the State for political activities during the Presidential election campaign of 1999.

The election campaign for the presidential election saw a blatant use of government resources for election purposes by the party in power. Some of the most notable instances of misuse of state resources included the use of the state media for election campaigns, the use of state vehicles and the use of Samurdhi Officers (grass roots level officers of the government aid programme benefiting the poorest). Thus, two days after the President declared her intention to seek a mandate from the people, the Minister of Samurdhi Affairs wrote to all Samurdhi Managers and Samurdhi officers in the country requesting them to make arrangements to deliver to each household a letter from the President in her capacity as candidate of the ruling People's Alliance (PA). In a another instance, CPA was informed that the chief organiser of the PA in one electoral district had distributed electoral lists to the Samurdhi officers of the area and instructed them to ascertain and mark the names of those voters who were deceased or had gone abroad.

Rohan Edrisinha, Director of CPA, and Dr. Saravanamuttu, Executive Director of CPA, appeared as Petitioners. The initial intention was to challenge the Government on several issues such as the use of state media and Samurdhi Officers. However, eventhough the media monitoring unit of CPA was engaged in monitor local news on the State electronic media, the lawyers appearing on behalf of the Petitioners felt that there was not enough evidence to prove the misuse of state media. Therefore the petition was limited to the issue of the use of Samurdhi Officers.

The Petitioners asked the Court for an order in the nature of a writ of prohibition against the Minister of Samurdhi Affairs and the Samurdhi Authority prohibiting them from deploying or permitting the deployment of Samurdhi officers for partisan political purposes, and for an order in the nature of a writ of mandamus against the Acting Commissioner of Elections directing him to take appropriate action in respect of the alleged incidents.

The Court order was given on the 17 December 1999. The order recorded that the respondents did not accept the allegations levelled against them. However, they gave an undertaking to Court that they would instruct the Samurdhi Niyamakas not to carry out any political work of candidates in the course of performing their official duties. The Petitioners were satisfied with this undertaking and withdrew their application.

In 1990, approximately 75,000 Muslims were driven out of their homes in the Northern Province by the LTTE and took refuge in Puttalam and other parts of the country. They claim that despite knowledge of the threat of eviction prior to 1990, the government took no steps to safeguard their lives and homes. Once evicted there was initially no effort by the State to provide assistance to those fleeing and they were forced to sell their valuables to raise money to find food and accommodation. Furthermore, they were prevented from travelling south of Puttalam.

1) Lack of land to re-settle - these displaced persons were forced to occupy private property in Puttalam. The government is yet to identify vacant land for them to occupy.

2) Lack of basic facilities such as welfare, health, education and employment opportunities.

3) Lack of documents such as birth certificates or residential certificates which made them non eligibile for government jobs.

4) Violation of their right to vote as youth turned 18 after displacement were not included in the voters list.

Members of The Citizens Committee for Forcibly Evicted People approached CPA and requested us to support their endeavour to redress the grievances of Muslim internally displaced persons following which, CPA filed two Fundamental Rights Petitions.

One focused on IDPs' right to vote and the other combined all the grievances of IDPs. CPA requested the court to recognise IDPs as a distinct category of persons whose grievances needed to be addressed in a special way.

The first case focused on the youth turned 18 after displacement who had not been included in the voters list. The court was requested to declare an imminent infringement of the fundamental rights of the petitioners under Article 12(1) read with 3 and 4 (C) of the Constitution and/or Article 12(2) and /or Article 14(1)(a) of the Constitution and to direct the first Respondent to cause the names of all the Petitioners to be entered in the electoral register for the Puttalam District.

However, the Supreme Court did not grant the Petitioners leave to proceed. The reason for such refusal was that the Registration of Electors Laws provided adequate provisions for the public to scrutinise the revised Electoral Registers and object to any irregularities in the Register as well as complain to the Registering Officer to have one's name entered, retained or struck off from the Register.

Dr. Paikiasothy Saravanamuttu, Executive Director of CPA, Rohan Edrisinha, Director of CPA, and Manjula Sirimanne, Attorney-at-Law filed a Fundamental Rights Petition challenging the Emergency Regulations (Miscellaneous Provisions and Powers) No. 1 of 2000. The Petitioners challenged Regulations 14, 8 and 26 of the Emergency Regulations.

Regulation 14 imposed censorship and was challenged from the perspective of the right to information.

Regulation 8 empowered a Competent Authority to, inter alia, requisition articles and thereafter sell or otherwise dispose of such articles. No criteria was set for such acquisition and sale and compensation was not mentioned either. The Petitioners stated that such sweeping powers were ultra vires of the Public Security Ordinance, arbitrary and therefore unconstitutional. They argued that while the granting of such wide powers had no legitimate nexus with national security, its mere existence on the statute books had an intimidatory effect on people and could stifle legitimate democratic political activity.

Regulation 26 made it an offence to even incite feelings of disaffection against the Constitution, the President, Government or the administration of justice. The petitioners argued that such a restriction was overbroad, an unjustified restriction on freedom of speech and expression and had no logical connection with the maintenance of national security.

In its decision, the court observed that after leave to proceed was granted in this case, another case (Sunday Leader Case, SC 362/2000) which contested the application of the same Emergency Regulation had come up before Court. In that case (Sunday Leader) Court held that there was no provision in the Emergency Regulation in question which provided for the appointment of the Competent Authority and, on that basis, held that the entire process of censorship that was carried out in terms of the said regulations was not valid.The Court did not grant a declaration in the Sunday Leader case that there has been any infringement of a Fundamental Right.

Since the appointment of the Competent Authority has already been declared to be void and of no force or effect in law, the court held that it would be unnecessary to come to any similar findings in this application as well.

The court also noted that at the time leave to proceed was granted, the court had suggested to the Counsel appearing for the State to consider whether the request of the Petitioners that the Regulations in question be modified be accommodated. It was brought to the notice of court that such modification had been done and the entirety of the regulation in respect of which the complaint had been made been repealed and replaced by new provisions by Government Gazette 1/13834 dated 1.7.2000. A further undertaking was given by the Deputy Solicitor General that the Competent Authority would within 10 days of this Order invite media Editors to have a discussion in order to make clarifications and any necessary amendments to the Guidelines that were issued by him.

The court was not willing to consider the other objections raised by the Petitioners regarding Regulations 26 and 8.

In view of the assurances given by the State for further consultations to be held to clarify guidelines, the court terminated the proceedings.

13. Application to the Human Rights Commission on Internally displaced Muslims of the Northern Province

Following the negative response of the Supreme Court to the Fundamental Rights Application made on behalf of Internally Displaced Muslims of the Northern Province ( see case 11 above), CPA sponsored a Petition to the Human Rights Commission of Sri Lanka. The petition addressed a cluster of issues, including the right to vote, employment, land ownership, education and health.

(a) direct the Government to confer on the Muslims who have been forcibly evicted from the Northern Province the status of Internally displaced persons and grant them the rights emanating from such status;

(b) recommend to the Government to introduce an amendment to the Prescription Ordinance to the effect that its provisions will not affect the properties of these Petitioners and other displaced persons in or from the Northern Province;

(c) direct the Commissioner of Elections to register those who have attained the age of 18 after having been displaced as voters in the register of electors in the respective Districts in the Northern Province;

The Human Rights Commission was of the view that it could not make a direction to the Government to confer on the persons who had been forcibly evicted from the Northern Province the status of Internally Displaced Persons and to grant to them the rights emanating from such status. However, they suggested that the Human Rights Commission would take up each grievance separately and would forward it to the relevant Authority and work towards finding solutions for each.

Rohan Edrisinha and Dr. P. Saravanamuttu, Directors of CPA, petitioned the Supreme Court challenging the Bill proposed to repeal and amend the existing Constitution. This Bill was brought to the Supreme Court bearing an endorsement of the Secretary to the Cabinet of Ministers made in terms of Article 122(1) of the Constitution stating that, in the view of the Cabinet of Ministers, this Bill was presented as being "urgent in the national interest." CPA intervened stating that a Bill to introduce a Constitution should not be brought in as an urgent Bill. The Bill had not been made available to Civil Society for in depth study as would befit a document of such fundamental importance to the people. CPA claimed that, while this Bill was introduced consequent to a series of meetings held during a period of six months between the Peoples Alliance, the United National Party and several parties, these deliberations were kept secret from the people and there was no opportunity for civil society to participate in the review process.

The provisions in proposed Article 28(1) that all existing written law and unwritten law shall be valid notwithstanding any inconsistency with the Constitution offends basic principles of constitutional democracy and the mechanisms set down in the said Article are insufficient alternative as Parliament is not mandated to revise legislation in accordance with the Commissions report. WHAT
Article 168 (2) is contrary to the unequivocal acceptance of the principle of the Supremacy of the Constitution through judicial review of legislation and creates an artificial division between persons whose rights are violated within the two year limitation period and those whose rights are violated after this period and therefore will have no remedy.
Remedies for violation of fundamental rights are available only against the State in the proposed Constitution [Article 30(1)] while they should be made available for violations carried out by private actors as well.

The Supreme Court refused to entertain this petition stating that it did not have jurisdiction in respect of the Bill under Articles 120, 121, 122, 123, 124 and 125 of the Constitution and therefore was "relieved of the task of making any determination with regard to the petitions."

Petition filed - 4 August 2000
Court decision -

Parallel to the Bill to amend the Constitution (see case 14 above) the People's Alliance (PA) Government introduced another piece of legislation to amend the electoral laws. This 17th Amendment provided for the Legislature to be increased to 298 members from 225 memebers provided for under both the present Constitution and the Proposed new Constitution. Of these, 168 were to be elected on a first past the post system. A further 100 were to be appointed from party lists on a district basis according to the proportion of votes each party had polled in the course of the election of the 168 members. A further 30 were to be elected from the National List on the basis of the votes polled by each party nationwide.

This Bill was presented to the Supreme Court by the Government as being "urgent in the national interest". The question before Court was whether it would suffice to pass this Constitutional Amendment by a two thirds majority in Parliament or whether it should also be put to the people at a referendum. A two thirds majority in Parliament as well as a referendum would be required if this Bill was considered to be inconsistent with the franchise which is said to be part of the sovereignty of the people in terms of Article 3 of the Constitution.

Dr. P. Saravanamuttu, Executive Director of CPA, and Rohan Edrisinha, Director of CPA, in a separate petition, challenged this Amendment. Sunila Abeysekera of INFORM was also a petitioner. The petitioners alleged that this amendment affected fundamental provisions of the Constitution relating to the electoral process and therefore required a two thirds as well as a referendum. They stated that Article 3 of the Constitution specifies that sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and franchise. They further stated that franchise had no meaning unless it was interpreted as the basic power of the citizen to govern the body politic thorough persons elected by the exercise of that franchise and that a particular electoral system therefore has a crucial impact on the right to vote of a citizen. Therefore, it was further argued that extra vigilance had to be exercised by judicial institutions when considering laws which affect the electoral process. They also contended that proportional representation being an essentially fairer system than the simple plurality system, the dilution of proportional representation under the 17th Amendment adversely affected the citizens' right to franchise.

The court enumerated several amendments which had been made to the voting system since 1978 without the holding of a referendum. The court failed to take in to account the petitioners arguments as to why those earlier amendments were distinguishable from the present one in terms of principle. The court decided that the 17th amendment to the Constitution did not need to be passed at a referendum.

Note - The Bill titled 17th Amendment to the Constitution was later withdrawn from Parliament.

16. Petition to the Human Rights Commission of Sri Lanka requesting the Commission to direct the Commissioner of Elections and the Inspector General of Police to make public all directions, circulars, instructions issued by them to ensure free and fair elections

Dr. P. Saravanamuttu, Executive Director of CPA, Rohan Edrisinha, Director of CPA, and Manjula Sirimanne, Attorney-at-Law, petitioned the Human Rights Commission of Sri Lanka requesting the Commission to direct the Commissioner of Elections and the Inspector General of Police to make public all directions, circulars, instructions issued by them to ensure free and fair elections.

The petitioners stated that they were concerned about the integrity of the democratic process and the people's franchise guaranteed by Article 3 of the Constitution and that, as citizens of the country facing Parliamentary Elections, they wanted to ensure that they could exercise their right to vote freely and without fear of bodily harm or intimidation.

The main concerns addressed in the petition were the politicisation of state institutions, such as the Police Department, and State interference with, and intimidation of, the Commissioner of Elections undermining his independent status and raising fears of an infringement or and imminent infringement of the petitioners fundamental rights as voters.

The petitioners drew the attention of the Human Rights Commission to a series of incidents which had already arisen. These included a case where the Commissioner had printed stickers which were to be affixed to the polling card so as to prevent impersonation at polling stations. Consequently, the Commissioner's actions were discovered by the CID and the President requested the Inspector General of Police to investigate the matter. The individual who was assigned the task of printing the stickers was taken into custody under the Prevention of Terrorism Act.

The petitioners were concerned about the harassment and intimidation by the State of the Commissioner of Elections. They felt that in printing these stickers the Commissioner acted within the constitutional and statutory powers vested in him as an independent officer. The petitioners complained that action of the State in coercing and intimidating the Commissioner of Elections amounted to an infringement of their right to vote.

The petitioners further stated that as civic minded citizens they and their fellow citizens have a legitimate right to be informed as to whether the Commissioner of Elections and the Inspector General of Police (cited as the 1st and 2nd Respondents respectively in this case) have taken all maximum precautions to ensure the conduct of free and fair elections by issuing all directions, circulars, instructions to officers under their command.

At the hearing of this petition the Commissioner of Elections and the Inspector General of Police forwarded the directions, circulars and instructions which they had issued to officers under their command to ensure the conduct of free and fair elections.

The Petitioners forwarded written submissions to the Human Rights Commissions making suggestions as to what further steps they felt the Commissioner of Elections and the Inspector General Could take in order to ensure free and fair elections.

17. Fundamental Rights petition against the Commissioner of Elections by reason of his actions during elections

Dr. Arjuna Parakrama Co-convenor of the Centre for Monitoring Election Violence, and Director of CPA, petitioned the Supreme Court alleging a violation of his fundamental right of equality and freedom of expression. In his petition he claimed that the fundamental right of the people of this country including his right of exercising the franchise was violated by the violence and malpractices which occurred during the election and the response of the Commissioner of Elections which lacked a rational basis or criteria.

In his petition he claimed that the people of this country were prevented from exercising their franchise duly, freely and properly, that a free and fair election was not held, that the will of the people was not properly manifest in the result of the election and that the members of Parliament were not representative of the desire and wish of the Sovereign people of this country.

Dr. Parakrama cited the Commissioner of Elections, the General Secretaries of recognised political parties and the Attorney General as Respondents.

In his petition, Dr. Parakrama stated that the Commissioner of Elections was a public officer and his actions and decisions during the elections were inter alia arbitrary and capricious and that he had acted in a haphazard manner in relation to the election results.

The petitioner requested in his petition that it was in the interest of all citizens that proper and explicit guidelines be given by the Commissioner of Elections as to the conduct of elections and the criteria for responding to malpractices and irregularities. These guidelines, it was urged, should be transparent and accessible to the public.

When this petition was first heard before the Supreme Court on the 22nd November 2000 the Judges requested clarification concerning the standing of the petitioner. Counsel for the petitioner sought further time to support with necessary authorities Dr. Parakrama's right to appear as a petitioner in this case. It wassubmitted that Dr. Parakrama had locus standi by virtue of being a citizen of the country and also in his capacity as co-Convenor of CMEV, an organisation which had earned a reputation for commitment in the area of elections monitoring. The court granted the petitioner leave to proceed.

A three judge bench headed by Chief Justice Sarath N. Silva directed the Election Commissioner to draw up a practical programme to prevent election malpractices including vote rigging on the 2 July 2001.

Dr Saravanamuttu and Rohan Edrisinha, Directors of CPA, filed applications for a Writ of Certiorari quashing the order made by the President calling for the conduct of a Referendum on the Constitution and a Writ of Prohibition prohibiting the Commissioner of Elections from holding the aforesaid Referendum.

The petitioners contended that, in the Republic of Sri Lanka, sovereignty is in the people and the people of Sri Lanka in the exercise of their sovereign power have vested in the president particular powers including duties and obligations and one of the primary obligations and duties of the president is to act all times bona fide and in the interest of the people.

It was argued that the question posed by the president to be answered by the public was vague, irrational, unreasonable, complicated and unconstitutional and therefore the question asked from the public could not be answered by a 'Yes' or a 'No' as per the terms of section 2 of the Referendum Act of 1981.

It was also argued that any Bill to repeal and replace the constitution should contain provisions of the proposed new Constitution, in term of Article 82(2), and any extra constitutional methods do not have any force or avail in Law. In the aforesaid circumstances they submitted that the president had ordered the Referendum for a collateral purpose and acted mala fide in the exercise of the powers vested in her.

The case will be heard in the Court of Appeal on Thursday 2 August. Mr. Romesh de Silva P.C. and J.C. Weliamuna appear for Dr. Saravanamuttu and the Centre for Policy Alternatives. Judgement was fixed for 11th of September 2001.

The three petitions challenging the Referendum was withdrawn on the 12th of September 2001 as the result of the Gazette notification issued by the President revoking the Referendum.

19. Fundamental rights petitions challenging the pass system in operation in Vavuniya

CPA sponsored two fundamental rights applications on behalf of Lakshan Dias and Arumugam Peter Vadivelu challenging the pass system in Vavuniya.

In Lakshan Dias v the Defence Secretary and others, the petitioners' main contention was that his work, which involved human rights education of internally displaced persons in Vavuniya District was impeded by the application of a pass system.

The Petitioner argued that, according to the UN Guiding Principles on Internal Displacement formulated by the UN Special Representative on Internal Displacement, national authorities have a duty to facilitate unimpeded access to the internally displaced. The Petitioner contended that Article 12(1) of the Constitution of Sri Lanka guarantees the principle of equality before the law and Article 14(1) (h) freedom of movement of all citizens within Sri Lanka, free from arbitrary and unjustified restrictions. The petitioner further contended that the travel pass constituted an arbitrary and unreasonable restriction of those fundamental rights and was not authorised by law or regulation as required by the Constitution.

The Petitioner also argued that the pass system applicable to travel between Vavuniya and Colombo and the manner in which it was implemented constituted an imminent infringement of Articles 12(1) and 14(1) h as in the future persons would be liable to arrest if they did not have travel passes.

The court held that the facts on which the petitioner relied to substantiate the alleged violation of his fundamental rights were time barred and that the issue of imminent infringement could no longer be at issue since the pass system had been withdrawn.

In the case of Arumugam Peter Vadivelu vs the Defence Secretary, the petitioner, a displaced person living in the Sithambarapuram camp in Vavuniya District claimed that the requirement to obtain a pass to travel from Vavuniya to Colombo was an infringement of his fundamental rights guranteed in Articles 11, 12(1), 12(2) and 14(1)(h) of the Constitution. The respondents argued that the pass system restricting movement of persons was implemented in the interest of national security reasonable and necessary at the time.

The court held with the petitioner stating that the travel pass system had violated the petitioners fundamental rights guaranteed in Article 14(1)(h) by executive action as restrictions of movement could only be imposed by law according to Article15(7) and the said restrictions were not authorised by law. The court however refused to grant relief under Article 11 alleging that, while the pass system was ' burdensome,' it did not amount to cruel inhuman or degrading treatment. The court also refused to grant relief with regard to Articles 12(1), 12(2) on the basis that the travel pass did not apply only to those living in Welfare Centers and those living in Vavuniya but also to those travelling to Vavuniya from the South.

20. Fundamental rights petition filed against the Commissioner of Elections, for not ordering a re poll in the Batticaloa District at the General Election of 2001

The Petitioners, citizens of Sri Lanka, registered voters and farmers by occupation are presently residing in the uncleared areas in the Batticaloa District. On the morning of the General Election (5th December 2001) the Petitioners, a segment of the approximately 64,499 voters in the uncleared areas of Batticaloa, set out from their respective residence to exercise their right to vote. They were compelled to pass from the uncleared areas of the Batticaloa Lagoon to the clustered polling stations in the cleared areas of the Batticaloa District. On reaching the checkpoints they were informed by the respective Army Officers manning the checkpoints that they could not be allowed to proceed further as the checkpoints had been closed. Due to their extreme perturbation in not being allowed to proceed further to exercise their right to vote, they were not able to discern the identity of the officers manning these checkpoints.

CPA sponsored an application before the Supreme Court alleging that the closure of the checkpoints obstructed the registered voters in the uncleared areas of Batticaloa from exercising their right to vote. This resulted in them being treated unequally from the registered voters in the rest of the country and consequently violating their fundamental rights under Article 12(1) and also their right to franchise secured by Article 14(1) (a)

The decision to close the check point made by the then Lt. Gen. Lionel Balagalle, the Commander of the Sri Lanka Army, was carried out without the consent of the Commissioner of Elections, in the manner inherent to the constitutional and statutory provisions governing the conduct of elections in the country but instead in consultation with the IGP of police and was moreover a decision politically motivated and not by a genuine security need.

The Petitioners sought relief from the SC to declare that their right of franchise under Article 14 (1)(a) and right to equality under Article 12 (1) had been violated by the failure of the Commissioner of Elections and/or Sinnathamby Shanmugam, Returning officer of Batticaloa to conduct a proper poll at the aforesaid polling stations. It was also contended by the petitioners that their rights under Article 12(1) and 14 (1) had been violated by the inaction of the Commissioner of Elections to order a re-poll at the clustered polling stations set up for the 69,499 voters of the uncleared areas.

The initial hearing was on the 29th of January 2002, and leave to proceed was granted. Due to the delay in receiving the objections of the Respondent, the day on which the case was to be argued was postponed from the 2nd of April 2002 to the 28th of May 2002.