Centre for Policy Alternatives on 9 November, 2011
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Arbitrary Blocking and Registration of Websites: The Continuing Violation of Freedom of Expression on the Internet

Download this press release in Tamil here, and in Sinhala here. English PDF can be downloaded here.

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9th November 2011, Colombo, Sri Lanka: We the undersigned civil society organisations and individuals express grave concern over the press release issued by the Director General of the Department of Government Information on 5th November 2011, which requires all ‘websites carrying any content relating to Sri Lanka or the people of Sri Lanka… uploaded from Sri Lanka or elsewhere’ to ‘register’ for ‘accreditation.’ We also condemn the actions of the Telecommunications Regulatory Commission (TRC) that has, according to a Sunday Times news report, moved to block a number of specific websites in line with this. While it is unclear whether the two measures are part of a single initiative or not, they represent an unacceptable incursion into free expression in Sri Lanka.

Websites including www.lankanewsweb.com, www.srilankamirror.com, www.srilankaguardian.org and www.lankawaynews.com were blocked on the day the press release was issued without any consultation or forewarning, raising concerns about the government’s real objectives and the freedom of expression in Sri Lanka.

We note that the Information Department press release does not state what the process of ‘registration’ will entail and whether any sort of liability or conditions will be imposed. We further note that this move by the government is the first step in the realisation of plans mooted by the TRC in 2010 to draft legislation that would make it compulsory for news websites to register with the authority. We also have additional concerns about the press release. Firstly, the press release does not establish with sufficient clarity the categories of either websites or persons who are required to register with the Ministry. Secondly, it is not clear whether and how the requirement for registration will apply to international news websites and websites operated by international organisations that publish news on and in Sri Lanka. Finally, in the interests of transparency, consistency and equal treatment, the Information Department and TRC must explain the legal framework and process under which registration of this nature can be enforced.

This requirement of registration coupled with the blocking of websites, which potentially constitutes a form of prior-censorship, not only produces a chilling effect on the freedoms of expression and information on the Internet, but also constitutes a prima facie violation of a number of constitutionally protected fundamental rights, including Article 14(1)(a) of the Constitution of Sri Lanka, which guarantees an individual’s right to freedom of opinion, expression and publication. The obligations of the government with respect to international standards are made clear by Sri Lanka’s ratification of enforceable international legal instruments, which includes the International Covenant on Civil and Political Rights (ICCPR). Needless to say, these measures also do not meet broader standards of international best practice as reflected for example in the report of Frank La Rue, the UN Special Rapporteur for the Freedom of Expression and Opinion submitted to the UNHRC on 16th May 2011.

Concerns about defamation and the right to privacy notwithstanding, the government has failed to provide a legitimate rationale for the registration process consistent with the values of a democratic society or international standards on permissible legal restrictions on the freedom of expression. While under the law of Sri Lanka there is ample scope for legal redress in case of defamation or an invasion of privacy, the measures the Ministry has taken so far are also inappropriate and disproportionate to its stated aim of ensuring online media ethics. Furthermore, the practicability of such arbitrary blocks is questionable. Any attempt to impose widespread blocks on websites would lead to an increased interest in them and the use of easily and widely available circumvention tools (and proxies) to access these sites.

The blocking of websites is unconstitutional, illiberal and technically infeasible. The consequence of such arbitrary and extra-legal action is that restrictions are based on the subjective judgement of government authorities in the protection of narrow partisan interests, the complete infringement of international freedom of expression standards, and the quashing of dissent. We are also concerned about the submissive acquiescence of Internet Service Providers (ISPs) with arbitrary orders issued by the government for the blocking of websites, and remind them that such conformity makes them complicit in the violation of fundamental rights.

We reiterate that the fundamental right to freedom of expression, information and opinion includes wide access to diverse sources of information on the Internet and call upon the government to rescind the requirement of registration contained in its press release.

Signatories:

1. Anoma Rajakaruna
2. Association of War Affected Women
3. Cedric de Silva
4. Centre for Policy Alternatives
5. Chandra Jayaratne
6. Chandragupta Thenuwara
7. Chulani Kodikara
8. Deanne Uyangoda
9. Dr. Devanesan Nesiah
10. Dilrukshi Handunnetti
11. Emil van der Poorten
12. EQUAL GROUND
13. Families of the Disappeared
14. Floating Space Theatre Company
15. Free Media Movement
16. Gowthaman Balachandran
17. Herman Kumara, National Fisheries Solidarity Movement
18. INFORM
19. IMADR Asia Committee
20. J.C. Weliamuna, Attorney-at-Law
21. Jayathilaka Kammallaweera
22. Jovita Arulanantham
23. Juanita Arulanantham
24. K.S. Ratnavale
25. Prof. Kalinga Tudor Silva
26. Kaushalya Attygalle
27. Kanishka Ratnapriya
28. Lakshman Gunasekara, President, South Asia Free Media Association – Sri Lanka Chapter
29. Lanka Nesiah
30. Lal Wijenayake, Attorney-at-Law
31. Lawyers for Democracy
32. Luwie Ganeshathasan
33. Mahendran Thiruvarangan
34. Dr. Mario Gomez
35. Marisa De Silva
36. Mothers and Daughters of Lanka
37. Muslim Women’s Research and Action Forum
38. National Peace Council of Sri Lanka
39. Nirmanusan Balasundaram
40. Peter Rezel, Management and Development Consultant
41. Priya Thangarajah
42. Priyadarshanie Ariyaratne, Social Democratic Solidarity
43. R.M.B Senanayake
44. Right to Life – Human Rights Centre
45. Rights Now Collective for Democracy
46. Ruki Fernando
47. Dr. Selvy Thiruchandran
48. Sharmini Boyle
49. Shanthi Sachithanandam
50. Sharni Jayawardena, Writer and Photographer
51. Shifan Ahmed
52. Subha Wijesiriwardena
53. Sumathy Sivamohan
54. Shyamala Gomez
55. VILUTHU
56. Women’s Centre – Ja Ela
57. Women and Media Collective
58. Women’s Political Academy

Centre for Policy Alternatives on 2 November, 2011

The Centre for Policy Alternatives Vs Attorney General (Town and Country Planning Amendment Bill) (SC SD 03/2011)

In November 2011, CPA challenged the Town and Country Planning Amendment Bill which if enacted would have expanded the scope of the Town and Country Planning Act; expanded the powers of Ministers to regulate private property by defining areas to be “sacred areas”, “conservation areas”, “architectural areas” or “protection areas”; enable acquisition properties falling within such areas and finally, deem all existing urban development areas to be sacred areas. CPA challenged Parliament’s authority to enact a Bill in respect of the subject of land without first obtaining the views of the Provincial Councils. A three judge bench of the Supreme Court upheld the objections of the Petitioner and declared that the Bill cannot become law until the views of the Provincial Councils were obtained and the court further held that the Bill could not have been placed on the Order Paper of Parliament before the President had first obtained the views of the Provincial Councils.  The Court declined to examine the other grounds for challenge.  The Bill was subsequently withdrawn from Order Paper.

CPA has raised awareness regarding the merits of the issue with key stakeholders including disseminating information among Provincial Councils.

CPA prepared an advocacy note on the draft Town and Country Planning [Amendment] Bill – The note highlighted the potentially harmful aspects of the Bill, and was shared publicly including with members of the different Provincial Councils who were to vote on the issue.

Centre for Policy Alternatives on 2 October, 2011

M.A Sumanthiran Vs. R.P.R Rajapaksha and others (Land Circular Petition)

 (SC FR 494/2011 and Writ 620/2011)

In October 2011 the Court of Appeal heard the petition filed by Member of Parliament of the Tamil National Alliance Mr. M.A. Sumanthiran, Attorney-at-Law, seeking an interim order restraining the Land Commissioner General and other respondents from implementing the Land Circular No. 2011/04. This Circular deals with land in the Northern and Eastern provinces in Sri Lanka.  The Court of Appeal issued a stay order on the operation of the Public Notice requiring people from the North and East to register lands by 20th November 2011. The Attorney General’s Department informed court that the State is reconsidering the Land Circular and that a committee maybe appointed for this purpose. The Circular was withdrawn by the government in January 2012 as a result of the case. This matter is to be taken up in the Court of Appeal in July 2012.

A Fundamental Rights petition was filed on the same matter in the Supreme Court and is to be taken up in 31st July 2012. Proceedings are continuing. The writ application (620/2011) challenging the Land Circular issued in 2011 was withdrawn on 12th July 2012 with the proviso that a fresh application on the same matter could be filed in the future. The present case is terminated on these grounds.

CPA organized a workshop in Jaffna in October 2011 on land issues in the North and East including implications with the said land circular and was organized in coordination with the University of Jaffna and the Bar Association in Jaffna. CPA also conducted other forms of advocacy on the issues.

Centre for Policy Alternatives on 23 September, 2011

CPA Statement on the new Regulations under the Prevention of Terrorism Act

23 September 2011, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) condemns the government’s decision to perpetuate a number of the most widely used Emergency Regulations, such as those relating to detainees, purported ‘surrendees’ and local authorities, in the form of regulations under the Prevention of Terrorism Act (PTA). We believe that the reintroduction of regulations of this nature, just over a week after the President declared that the need for the state of emergency no longer exists, is dishonest and wholly incongruent with the President’s promises to Parliament. Further, it will lead to disillusionment among the public who were led to believe that the end of emergency meant the country would now function “democratically under the ordinary law.”

The replacement of Emergency Regulations by the expedient method of PTA regulations confirms the concerns expressed by civil society over a long period that unless and until the PTA is repealed, the termination of the state of emergency offers no genuine promise of improvement in the protection of human rights, especially for minorities and those in the North and East of the country. The fact that the PTA regulations took effect at midnight on 29th August – twenty four hours before the state of emergency lapsed – is a worrying but telling indicator of the fact that the government never intended to relax emergency laws when it announced the termination of the state of emergency.

CPA notes that Section 27 of the PTA, which enables the making of regulations by the Minister of Defence, should not permit the kind of expansive executive rule-making power, which the new PTA regulations have required. Since the PTA is not even remotely concerned with many of the matters dealt with in the new regulations, such as those concerning local authorities, and the manner in which the application of previous Emergency Regulations are sought to be extended without regard to what is permitted under the PTA, these regulations appear to be illegal.

CPA therefore calls on the government to rescind forthwith the PTA regulations promulgated on 29th August, release detainees and surrendees held under lapsed Emergency Regulations, desist from interfering with the administration of local authorities, and take steps to repeal the PTA. CPA also calls on the government to remove forthwith all restrictions relating to areas that were previously demarcated as High Security Zones under lapsed Emergency Regulations, given that there is no continuing legal basis for such restrictions.

Download PDF of press release in English here. Download it in Sinhala here.

Centre for Policy Alternatives on 21 September, 2011

A Short Guide to ‘Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces’ Circular: Issues & Implications

Download the full report as a PDF here or view it online here.

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The Government recently unveiled a policy regarding land in the North and East through the introduction of a Cabinet Memorandum (memo) titled ‘Regularize Land Management in Northern and Eastern Provinces,’ which was subsequently followed by a Land Circular (circular) titled ‘Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces’ (Circular No: 2011/04) issued on 22nd July by the Land Commissioner Generals Department in Colombo in order to operationalise the memo.

Since then, the Centre for Policy Alternatives (CPA) has been informed that notices and forms have been issued in areas of the North and East for people to register their land under the Bimsaviya project to ensure title registration of their property.[1] At the time of writing, it was unclear whether this specific process was the same as the one set out under the circular. Contradictory information was received from the different divisional secretariat units (DSs) where the forms were distributed; increasing confusion regarding the process and the rights of those owning and claiming land in the North and East.

The memo and related circular mentioned above are the most recent policy initiatives undertaken by the Government with regard to land in the North and East.[2] This short note attempts to map out some of the key elements in the circular and provide recommendations. This short guide by CPA is part of a wider advocacy campaign on land issues in the context of man-made and natural disasters undertaken by CPA for over a decade.

This current policy initiative if implemented will have far-reaching implications for key issues including how land claims can be decided, how land is to be alienated, and types of ownership and control that can be provided, which in turn will impact the process of post-war normalisation and development projects. The focus is on state land but the policy initiative will have implications for private land.

Given the complexity of land issues in the North and East and the fundamental importance of land to multiple processes including reconstruction of permanent houses, rehabilitation of war-affected families, return to one’s land, development and strengthening co-existence, there is an urgent requirement for the Government to provide a policy framework to deal with the issue of land taking on board the rights, vulnerabilities and needs of affected communities and in line with legal obligations and human rights standards. While some of the land issues such as lack of awareness relating to ownership, competing claims, loss of documentation, secondary occupation of land by other civilians or state actors, including the military, may not be unique to the North and East, the context of the war resulted in complicating and increasing the scale of these problems.[3]

Key Concerns: CPA recognises the necessity to formulate policies and processes to address the complex land issues in conflict-affected areas and thus welcomes the overall aim of this current initiative. CPA is, however, concerned with the present circular that contains certain provisions, which are problematic and unclear and may exacerbate fear and apprehension among affected communities. Some of the key concerns include:

  • The policy aims to advantage the land claims of those who left during the war, but the circular does attempt to recognise the rights of other civilians who secured control over these lands and have developed them land. In such situations the circular suggests that alternate land can be provided for the original claimants. However, given that the circular also recommends that land transaction taken during the period of the war be ruled void as it was under “terrorist influence” the status of these claims is by no means clear. Thus, there is a risk that landowners and claimants, including some of whom secured government documentation for ownership, may be dispossessed.
  • The involvement of the military in the different committees set out in the circular is particularly problematic.
  • The policy fails to reference the National Land Commission that has not yet been established as per the Thirteenth Amendment.
  • The lack of information on this process, both among government officers who are meant to take this process forward and to the general public, is a fundamental problem. The Government’s failure to develop a public awareness program has intensified the confusion and apprehension among the general public in the North and East. The memo does make reference to the Diaspora; hence, the publicity strategy for the circulation needs to be both national and international.
  • There is a lack of clarity on who needs to apply for this process or whether all land owners and claimants in the entire North and East should comply.
  • Lands acquired for national security and development purposes are exempt from the process laid out under the circular. Hence, there is lack of clarity on how the land rights of affected families will be guaranteed and how they will be compensated and restituted.
  • There are stipulated brief time periods for applications of land claims and appeals, which may prove inadequate.
  • There was limited consultation of actors from the two provinces during the planning stages, and mainly limited to government officers. It is not clear whether the process is flexible to address problems that may crop up during the implementation.

[1] CPA has been informed that forms titled- ‘Bimsaviya: National Programme on Land Title Registration’ were distributed in areas in the North in August 2011, subsequent to the issuing of the Land Circular in July 2011. Information collected from the areas indicate that actors in the area including some government officials are unclear whether the form is issued under the Land Circular or the Bimsaviya project. These are separate programmes but both coming under the Ministry of Lands in Colombo.

[2] For more information of policy and other initiatives related to land, refer to- ‘Land in the Eastern Province: Politics, Policy and Conflict’- Bhavani Fonseka and Mirak Raheem, Centre for Policy Alternatives, 2010; forthcoming report on land issues in the North (to be printed in October 2011)

[3] Mass displacement of civilians, challenges to government administration, the involvement of a variety of armed and political actors, and the destruction of land records are some of the key factors that contributed to this situation.

Centre for Policy Alternatives on 2 September, 2011

The Centre for Policy Alternatives Vs. Gotabaya Rajapaksha and others (SC FR 453/2011)

This public interest case was filed by CPA in September 2011. The petition challenged the introduction of new regulations under Section 27 of the Prevention of Terrorism Act (Temporary Provisions) Act No.48 of 1979. The Petitioner argued that the Regulations which reproduced many of the provisions in the lapsed Emergency Regulations such as those relating to detainees, purported ‘surrendees’ and local authorities, were ultra vires of the Prevention of Terrorism Act.

CPA drafted a short document related to this case and conducted advocacy on legal issues and implications. CPA is presently preparing for follow up work on this case and related issues including monitoring the implementation of the PTA regulations.