Centre for Policy Alternatives on 11 May, 2011

Fundamental Rights application filed in Supreme Court seeking an election for Colombo Municipal Council

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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Centre for Policy Alternatives on 9 May, 2011

Is the government intending to introduce more constitutional amendments?

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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Download as English PDF here. Sinhala version here, Tamil version here.

Centre for Policy Alternatives on 5 May, 2011

Dr. P. Saravanamuttu Vs. Mahinda Deshapriya (SC FR 161/2011)

This case was filed on 5th May 2011 by Dr. P. Saravanamuttu, the Executive Director of CPA. The Petitioner who is a resident of Colombo and a registered voter on the electoral register who is entitled to vote at elections to the Colombo Municipal Council. The subject matter of this application concerns the failure of the Elections Commissioner to hold elections in respect of the Colombo Municipal Council in terms of Sections 24 and 25 of the Local Authorities Elections Ordinance read with Sections 10 and 11 of the Municipal Councils Ordinance.

The Petitioner further stated that the failure of the Elections Commissioner to hold the election in accord with the applicable laws amounts to a continuing infringement of his right to equality before the law and equal protection of the law guaranteed by Section 12(1) of the Constitution as well as a violation of the right to freedom of speech and expression guaranteed under Article 14(1) of the Constitution.

The case was withdrawn by counsel, reserving the right to file a fresh application after the court indicated that written submissions should be filed before the court hears the matter on its merits, on the question of whether an affidavit firmed by the petitioner must necessarily state his religion. In view of the delay a preliminary inquiry may result in, counsel withdrew the application. A fresh petition was filed thereafter and is outlined in 5) below.

Centre for Policy Alternatives on 25 March, 2011

The Eighteenth Amendment to the Constitution: Substance and Process

Download the full document here.

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Introduction

The 18th Amendment to the Constitution marks an important event in Sri Lanka’s constitutional evolution. It achieves what one might have thought was previously unthinkable, it makes Sri Lanka’s over-mighty executive even more powerful. The 18th Amendment removed the two term limit on holding the office of the President and removed important checks on the exercise of executive power. Yet, such important changes that have a devastating effect on the democratic process were hatched in secrecy and enacted in to law, with no public consultation and little debate. Key actors that ought to have played a greater role in a process of constitutional amendment, such as the Supreme Court, took little notice of both the substance and process of the amendment. This volume of essays examines the process, substance and political implications of the 18th Amendment.

Chapter I by Dr Paikiasothy Saravanamuttu analyses the implications for Sri Lankan politics and political culture under the 18th Amendment. Defenders of the 18th Amendment argued that since economic development is the overarching priority, a stronger executive as facilitated by the 18th Amendment is required to ensure the political stability that is necessary for economic development. Yet, if one were to look at Sri Lanka’s past, a strong executive under President J R Jayawardene did not translate in to strong economic development. Rather, a stronger executive in part contributed to tendencies towards authoritarianism and insurgencies in both the north and south, which drained the country of many opportunities and resources.  The 18th Amendment also represents both a consolidation of power in the hands of the Rajapaksa family and a transformation of Sri Lanka’s political culture from a vibrant and unruly South Asian democracy to a more homogenous and disciplined East Asian system.

Chapter II by Aruni Jayakody examines the substance of the 18th Amendment. In terms of substance it is important to understand the 18th Amendment as a mechanism that achieved more than just the removal of the two term limit.  In addition to removing the two term limit, it also repealed important checks on executive power introduced by the 17th Amendment.  The President now has unfettered power to make all key public service appointments. For example, the President has been given significantly greater control over the entire legal system, as it is solely at his discretion that the Attorney General, Judges of the Supreme Court and Judges of the Court of Appeal are appointed. Further the 18th Amendment also reduces the powers of key bodies such as the Public Service Commission, Election Commission and National Police Commission. In particular, the Election Commission no longer has the power to prevent the abuse of state resources including state media.  More worryingly the Election Commission has been given power to issue guidelines to not only the state media but also the private media during election times. Thus, not only is the President allowed to run for an innumerable number of terms but the mechanisms that regulate the integrity and independence of elections have also been removed.

Chapter III by Rohan Edrisinha & Aruni Jayakody examines the process used to enact the 18th Amendment. The Amendment was tabled before Cabinet, reviewed for constitutionality before the Supreme Court, debated in Parliament and enacted in to law within a mere ten days.  Such a process violates the first principles of constitutionalism and demonstrates a shocking disregard for basic, internationally accepted norms of constitution making.  The bill was deemed urgent in the national interest in order to expedite its progress through the legislature.  Yet, there were no compelling reasons why the 18th Amendment was urgent or in the national interest.  The Supreme Court as a superior court with special responsibilities as the custodian of the Constitution took little note of the shortcomings in neither the process nor substance of the 18th Amendment.

Chapter IV by Niran Anketell critiques the Supreme Court determination on the 18th Amendment. The determination is sadly noteworthy, for what it fails to state. For example in response to the Intervenient petitioners’ arguments that the removal of the two term limit undermines the sovereignty of the People, the Court was content to note that this was not the case as the voters would be given a wider choice including the choice of a candidate who had already been twice elected to the office. Similarly despite numerous arguments as to the inappropriateness of using the urgent bill process to effect constitutional change, the Court refused to address this issue altogether in its determination. The Court seemed impervious to the argument that the removal of institutions that promoted independence and depoliticisation affected the sovereignty of the People.

Chapter V by Asanga Welikala examines the removal of the two term limit in light of the gradual erosion of the fixed term and offers a comparative perspective on the use of term limits.  With respect to the erosion of the fixed term, the President can now not only run for innumerable number of terms but can also call for elections at the most politically opportune moment after the first four years into a term.  Further a comparative perspective on term limits illustrates that the trend is towards their enactment, reflecting a broader trend in favour of liberal principles and a limited executive.

We have also included a set of documents which are important to a discussion on the 18th Amendment.  These are the texts of the 17th and 18th Amendments; a table that highlights in summary form the substance of the changes brought under the 18th Amendment and the special determinations by the Supreme Court on the 17th and 18th Amendment bills.  We have included the documents relating to both the 17th and 18th Amendments, in order to draw attention to the significance of what has been repealed under the 18th Amendment.

We hope that this collection of essays proves to be a useful tool in facilitating greater understanding of the changes brought under the 18th Amendment.

Rohan Edrisinha & Aruni Jayakody

Editors
Centre for Policy Alternatives
March 2011

Centre for Policy Alternatives on 2 March, 2011

Mariyathas Basilraj Vs. Gotabaya Rajapaksha SC FR 387/2011 – and other Navaanthurai Fundamental Rights Applications – SC FR 387, 388, 389, 394, 391,396,395,407,408, 399, 397, 398, 402, 405, 406, 400, 401, 384, 385, 392, 393, 414/2011

CPA supported lawyers and human rights organisations in Jaffna to collect information relating to the incident in Navaanthurai, Jaffna District on 22nd and 23rd August 2011 where around 100 civilians were assaulted by the Sri Lanka Army and police. Further, support was provided for lawyers in Jaffna to draft papers to be able to file Fundamental Rights Petitions in the Supreme Court in September 2011.

The Petitioners are residents in Naavanthurai and filed Fundamental Rights applications in light of the assault and arrest in Jaffna in August 2011. The Petitioners stated that the assaults inflicted on them and the subsequent arrests constitute infringement of the Petitioner’s Fundamental Rights guaranteed under and in terms of Article 11, Article 12(1) and Article 13(1) of the Constitution. The Petitioners also stated the violation of language rights guaranteed under Articles 22(1) and 22(2). Leave to proceed was granted by the Supreme Court in March 2012. These cases are presently before the Supreme Court and the next hearing is fixed for 15th November 2012.

On the 8th of October 2013, counsel appearing on behalf of Petitioners moved that he be permitted the indulgence of filing counter objections to the papers filed by the Respondents. The Registered Attorney for the Petitioners by way of a motion on the 29th of April 2014, requested further time to file Counter Affidavits.  This case will be taken up for argument on 24th November 2014.

Case details are as follows:

1)  Mariyathas Basilraj Vs. Gotabaya Rajapaksa and others, SC FR 387/2011

2)  Arumaithurai Thamilmaran Vs. Gotabaya Rajapaksa and others, SC FR 388/2011

3)  John Peter Jeyaninthan Vs. Gotabaya Rajapaksa and others, SC FR 389/2011

4)  George Venijus Vs. Gotabaya Rajapaksa and others, SC FR 394/2011

5)  Kanthan Thavarasa Vs. Gotabaya Rajapaksa and others, SC FR 391/2011

6)  Murugesu Gurunathan Vs. Gotabaya Rajapaksa and others, SC FR 396/2011

7)  Jesuthasan Sujeeevan Vs. Gotabaya Rajapaksa and others, SC FR 395/2011

8)  Michael Milton Vs. Gotabaya Rajapaksa and others, SC FR 407/2011

 9)  Ramachandran Rajenthiran Vs.Gotabaya Rajapaksa and others, SC FR 408/2011

10) Jesuthasan Keethanjan Vs. Gotabaya Rajapaksa and others, SC FR 399/2011

11) John Bosco Consentine Vs. Gotabaya Rajapaksa and others, SC FR 397/2011

12) Selvarasa Wigneswaran Vs. Gotabaya Rajapaksa and others, SC FR 398/2011

13) Arulappu Quinson Vs. Gotabaya Rajapaksa and others, SC FR 402/2011

14) Alexander Kingsly Vs. Gotabaya Rajapaksa and others, SC FR 405/2011

15) Perilo Sumanan Vs. Gotabaya Rajapaksa and others, SC FR 406/2011

16) Anthonythan Anthony Jude Vs. Gotabaya Rajapaksa and others, SC FR 400/2011

17) Juvaraj Velorajah Vs. Gotabaya Rajapaksa and others, SC FR 401/2011

18) Iruthayanathan Veenas Regi Vs. Gotabaya Rajapaksa and others, SC FR 384/2011

19) Wilfred Appa Hildar Vs. Gotabaya Rajapaksa and others, SC FR 385/2011

20) Kunarasa Rasakumar Vs. Gotabaya Rajapaksa and others, SC FR 392/2011

21) Jesuthasan Stanislas Vs. Gotabaya Rajapaksa and others, SC FR 393/2011

22) Balathurai Sahayarasan Vs. Gotabaya Rajapaksa and others, SC FR 414/2011

Centre for Policy Alternatives on 15 February, 2011

Citizens Peace Award for 2010

The Executive Director of the Centre for Policy Alternatives (CPA) Dr. Paikiasothy Saravanamuttu was awarded the Citizens Peace Award for 2010 by the National Peace Council of Sri Lanka. Dr. Saravanamuttu was selected from 52 nominations received following the announcement of the award in November 2010.

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15 February 2011, Colombo, Sri Lanka: The Executive Director of the Centre for Policy Alternatives (CPA) Dr. Paikiasothy Saravanamuttu was awarded the Citizens Peace Award for 2010 by the National Peace Council of Sri Lanka. Dr. Saravanamuttu was selected from 52 nominations received following the announcement of the award in November 2010.

Dr. Saravanamuttu has consistently articulated a political solution to the ethnic conflict in Sri Lanka. During and after the end of war, as head of CPA and in his own personal capacity as a political commentator, Dr. Saravanamuttu has written and spoken steadfastly on behalf of a just peace, human rights and democracy.

As noted by the National Peace Council of Sri Lanka, this award recognizes in particular two aspects of Dr. Saravanamuttu’s work and life. Firstly, the courage he has shown in word and deed to mitigate the culture of fear stemming from impunity, extra judicial killings, terrorism and intolerance of free expression of political opinion. He has thereby given leadership to many others in civil society and media to express their own views and engage in debate in accordance with the freedoms and ideals of political life in a democracy. Secondly, the timely action on behalf of temporary Tamil residents of Colombo city threatened with mass expulsion by government decree during the height of the war in 2007. As head of CPA, he filed legal action in the Supreme Court and prevailed, thereby inspiring confidence that the processes of justice continued to be available to vindicate the rights of citizens.

The Citizens Peace Award was established in 2010 by the National Peace Council to honour and encourage those individuals in civil society who have demonstrated courage and consistency in the protection of and respect for human rights; peaceful settlement of disputes and promoting increased understanding between and among communities. Other criteria considered included work in hostile conditions, sacrifices made and being a Sri Lankan citizen working within Sri Lanka. The selection of the winner was by the nine member Board of Directors of NPC and ratified by its 20 member Governing Council from recommendations made by a five member nominations committee after calling for nominations in the print media in the national languages and its website. The prize is made possible by funds received from the Soroptimist International of Osaka Izumi, Sakai City’s Peace Contribution Award and the National Peace Council.

Centre for Policy Alternatives on 2 February, 2011

1) Mavai Somasundaram Senathirajah Vs. Gotabaya Rajapaksha (Registrations in North)(SC FR 73/2011)

In February 2011, CPA supported several Parliamentarians from the North to file a fundamental rights petition challenging the registration conducted by the military in the area. CPA supported the case by drafting the Petition, bearing the cost of litigation and assisting with field research on the impugned practice – and has continuously monitored the human security situation in the areas. This case was filed in the Supreme Court by five Tamil National Alliance (TNA) Members of Parliament (MPs) seeking relief and effective redress in respect of the infringement of the Fundamental rights and Language rights of a large section of Sri Lankan society, who have been and are being further discriminated against, treated in a degrading manner. The subject matter of the case concerns the recent registration of the residents in Jaffna and Killinochchi, conducted by the military and civil administration of the area which was a violation of the rights of the civilians in this area. This case was taken up in March and the state gave an undertaking to court that the respondents would immediately suspend the registration.