11 May 2011, Colombo, Sri Lanka: The Executive Director of the Centre for Policy Alternatives (CPA), Dr. Paikiasothy Saravanamuttu, filed a fundamental rights application (SCFR 161/2011) in the Supreme Court on 4th May 2011 alleging that the Election Commissioner’s failure to hold elections to the Colombo Municipal Council constitutes a continuing violation of his right to the franchise and his right to equality before the law. The case was filed in his personal capacity, as a citizen entitled to vote at elections to the Colombo Municipal Council.

CPA in turn expresses its deep concern over the continuing erosion of the right of Sri Lankans to exercise their franchise at local government elections. The government is responsible for this erosion through the abuse of the President’s power to promulgate Emergency Regulations (ERs) under the Public Security Ordinance (PSO). CPA also fears that any legislation resembling the publicly released outlines of the proposed Jana Sabha and Colombo Metropolitan Corporation Bills will deprive citizens of the fundamental civil right to elect decision-makers at the local authority level.

The most basic of expectations in a democracy is that elections are held periodically according to law. We are concerned that the government is steadily undermining this expectation in relation to the local government level. The appointment in July 2009, through E.R. No. 1 of 2009, of a Competent Authority who continues to exercise all the powers otherwise exercisable by elected members of the Colombo Municipal Council portended this trend. In January of 2011, the President once again used his power to promulgate ERs to artificially extend the term of office of the members of 22 local authorities until the 30th of June 2011, thus preventing elections from being held at four year intervals as demanded by law. While the government publicly cited the Cricket World Cup as the reason for the postponement of elections, more than eight weeks after the conclusion of the World Cup, there is still no sign of elections being held. Instead, in March 2011, E.R. No. 3 of 2011 further extended the term of office of the members of the same 22 local authorities to 31st December 2011.

We are unequivocally of the view that the use of emergency powers in day-to-day governance in peacetime is an abuse of those powers and unacceptable in a democracy. The use of emergency regulations to execute the presidential fiat in relation to local government is not only plainly illegal and beyond the scope of the powers conferred by the PSO, but it is also a partisan usurpation of and interference with the democratic structures that are closest to the people. This evinces not only the dangers of the continuation in force of the state of emergency and the normalisation of these extraordinary powers in civil administration, but also the government’s tendency to centralisation and executive unilateralism.

Meanwhile, Cabinet has reportedly authorised plans to set up a Colombo Metropolitan Corporation, which by all accounts will be chaired by an unelected official directly appointed by either the President or a Cabinet Minister. This body will reportedly exercise supervisory and executive authority over the existing local authorities in the Colombo metropolitan area. With the Bill expected to be presented to Parliament later this year, CPA fears that voters in the Colombo area will not be able to meaningfully exercise their franchise at the local level. Cabinet has also decided to proceed with the country-wide establishment of Jana Sabhas with similar supervisory and executive authority over local authorities. The membership of these Jana Sabhas will not be limited to elected officials, who will likely find themselves a minority within these bodies, which will comprise civil servants, direct ministerial appointees and heads of local authorities.

Taken together, CPA believes that these interferences and initiatives with regard to local government represent a grave assault on the franchise and associated fundamental human rights, which constitute the democratic entitlement of Sri Lankan citizen.

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9 May 2011, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) notes the reports in the Daily Mirror and Lankadeepa newspapers of 5th May 2011, which disclose that the government is intending to bring further constitutional changes before Parliament soon. Citing government sources, the reports say that the proposed Nineteenth Amendment to the Constitution seeks to introduce a five-year limit on the tenure of office of the Chief Justice, and to vest the power of appointment of the Secretary to the Judicial Service Commission (JSC) in the President.

At present, the tenure of the Chief Justice, in common with all Judges of the Supreme Court, is constitutionally secured until the incumbent reaches the stipulated retirement age of 65 years. This is established in Article 107 (5), which it is important to note is a provision that appears under the sub-heading ‘Independence of the Judiciary’ within Chapter XV: The Judiciary, of the Constitution. The proposed amendment would impose a limitation whereby the Chief Justice is required to relinquish office upon completion of five years in office or the attainment of 65 years of age, whichever occurs sooner. The news reports provide no indication as to the purpose and rationale of this proposal.

The self-regulating modality of an independent JSC, an important aspect of which is the power to appoint its own Secretary, is a widely accepted method of ensuring judicial independence and the separation of powers. The power of the JSC to appoint its own Secretary from among senior judicial officers of the Courts of First Instance is presently established by Article 111G of the Constitution, and supports the autonomy of the JSC in relation to the administration of the judicial system. Removing this power from the JSC and vesting it in the President would compromise the separation of powers and invite executive interference in the administration of justice.

The constitutional provisions dealing with these two specific matters currently in force are generally consistent with international best practice and accepted principles relating to the independence of the judiciary. If the above-mentioned news reports accurately reflect the government’s intention to amend them, then it is incumbent on the government to, fully and openly, explain its reasons for doing so. This is particularly important not only because the proposed constitutional changes involve one of the most fundamental principles of a democratic society, namely the independence of the judiciary, but also because they appear to further strengthen an executive presidency that has already been bolstered by the Eighteenth Amendment barely six months ago.

We earnestly hope that the hurried, secretive, and unacceptable process adopted in the enactment of the Eighteenth Amendment will not be repeated, and that, if it is indeed the intention of the government to introduce further constitutional change, it will provide the information and facilitate the space necessary for a full public debate on the issues prior to enactment.

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