The Centre for Policy Alternatives filed a fundamental rights petition in December 2008, over the appointment of the Attorney General by the President unilaterally, which is inconsistent with the provision under Article 41C of the Constitution. Article 41 states that “No person shall be appointed by the President to the office of Attorney General unless such appointment has been approved by the Council upon a recommendation made to the council by the President”. In addition there was a speculative report published in ‘The Morning Leader’, an English weekly newspaper, saying that Mr Mohan Pieris, President’s Counsel and legal advisor to the Defence Ministry, was tipped to be the new Attorney General. The appointment of Mr Pieris was a clear infringement of the Fundamental Rights of the petitioner and the Sri Lankan people, guaranteed under Article 12(1) of the Constitution. The Acting Attorney General, President’s Counsel Priyasath Dep, Deputy Solicitor General Eva Wanasundara, and the Additional Solicitor General Palitha Fernando, were all senior to Mr Pieris in the AG’s Department.

The matter was mentioned in court on 10^th February 2009, 2^nd March 2009, 9^th March 2009 and 29^th June 2009. Application was taken up on the 12^thof November 2011.The case 578/2008 was taken up together with the case S.C F.R 297/2008 as the main issue to be discussed was similar.  The alleged act or omission committed by H.E the President, with regard to the non-appointment of the Constitutional Council under former Article 41A, was dealt with;

By the time of hearing, Article 41 to the constitution was amended and the Constitutional Council was no longer in existence. In that context the amendment to Article 41 was challenged in the Supreme Court under Article 121 to the Constitution and a five member Bench made a determination on the constitutionality of the said amendment and the bill has become law in terms of Article 80(1) of the Constitution. Accordingly in terms of Article 80 (3) of the constitution, the Supreme Court has no jurisdiction to consider the validity of the said law.

In October 2008, CPA filed a Fundamental Rights case seeking relief and effective redress in respect of the infringement of the fundamental rights of a large section of Sri Lankan society. The arbitrary, unfair and inconsistent practices of the Election Commissioner and the other respondents, deprived registered voters of their right to franchise constituting an infringement of their fundamental Rights under Articles 12(1), 12(2) and 14(1) (a) of the Constitution.

The subject matter of this case is the violation of franchise rights, and the fundamental right to equality and freedom of expression during the Provincial Council Elections in the North Central Province and Sabaragamuwa Province held on 23^rd August 2008. The application was filed on behalf of the registered voters in the North Central and the Sabaragamuwa Provinces and CPA in its petition, further set out issues relating to temporary identification documents of the registered voters. The case was taken up in court on 29th October and the CJ asked the petitioner to make representations to the Elections Commissioner. CPA was not granted leave to proceed or a further date granted thus the case is effectively pending in Court.

This was an instance where the President made a reference under Article 129(1) of the Sri Lankan Constitution on whether;

1) The legal provisions enacted to give statutory recognition to the rights contained in the International Covenant on Civil and Political Rights (ICCPR) adhere to the general premise of the Covenant and whether individuals within the territory of Sri Lanka would derive the benefit and guarantee of rights as contained in the ICCPR through the medium of the legal and constitutional processes prevailing in Sri Lanka.

2) Whether the rights recognised in the ICCPR are justiciable through the medium of legal and constitutional process prevailing in Sri Lanka.

This reference was made during a time where there was considerable international pressure placed on Sri Lanka in the wake of an earlier ruling by the Supreme Court (Nallaratnam Singarasa V. Attorney General S.C. Spl(LA) No. 182/99) that ratifying the Optional protocol to the ICCPR -which gave the Human Rights Committee the ability to receive complaints (individual communications) from Sri Lankans- was a violation of the Sovereignty of the people of Sri Lanka. The Centre for Policy Alternatives intervened as an “intervenient petitioner” in this case and made submissions to the effect that many of the rights guaranteed in the ICCPR are not protected in the Sri Lankan legal system and even the rights which are protected are subject to restrictions which are not permissible under the ICCPR.

In a decision by a bench consisting of five Judges of the Supreme Court, the Court held that both questions directed to it by the President – by communication dated 4^th March 2008 –  should be answered in the affirmative.

In November 2008, a fundamental rights application was filed by CPA along with several Media Organizations seeking relief and effective redress in respect of the infringement of fundamental rights guaranteed by Article 10, 12(1),12(2) and 14(1)(a) of the Constitution. The Petitioners respectfully sought an interim order suspending the impugned regulation of Private Television Broadcasting Stations gazetted on October 10^th2008 (Gazette (Extraordinary) No. 1570/35) under Sri Lanka Rupavahini Corporation Act , No. 6 of 1982.

The Petitioners reiterated that the purpose of SLRC Regulations is the establishment of a new licensing regime pertaining to private television broadcasting stations and the monitoring and regulation of such broadcasting stations. The said Regulations do not, in any manner or form, relate to the issue of public security. Therefore they stated that the said SLRC Regulations does not fall within the ambit of “Law” as defined by Article 15(7), and is not a legitimate means by which the fundamental rights of the people guaranteed by article 14(1)(a) of the Constitution may be restricted in the interests of, inter alia, national security, public order and the protection of public health or morality.

CPA obtained leave to proceed and the case was mentioned on 2^nd March 2009, and 2^nd April 2009. The proceedings were terminated on 27^th April 2009.

In September 2008, The Centre for Policy Alternatives through its intervention managed to obtain a Supreme Court order on the 15^th of December staying the operation of a purported amendment to the Emergency Regulations which allowed the Executive to detain a person in police custody for a prolonged period. According to the petition the Gazette notification 1561/11 issued on 5^th August 2008, alters the scope of the law relating to detention under emergency law granting extraordinary discretion to the executive to decide place, manner and period of detention, severely affecting personal liberties and placing the subjects at great peril by allowing a person to be under police custody for 1 ½ years. The law under the Code of Criminal Procedure embodies distinct provisions as to the procedure to be followed immediately after an arrest is made by a police officer. Persons arrested and detained as above will necessarily be only ‘suspects’. Such prolonged detention of a suspect would deprive a person of his liberty and expose him to various forms of torture, and other cruel and inhuman or degrading treatment. Thus a power in the nature of the above amendment introduced by Gazette 1561/11, would have given opportunity for abuse of such discretion otherwise allowed under the exceptional circumstances affecting national security.

The Supreme Court granted Leave to proceed on 22^nd September 2008. The proceedings were terminated on 15^th December 2008 and the detention period of “18 months” was declared invalid.

In September 2008, CPA was successful in its challenge of the validity of the Extraordinary Gazette 1562/1, dated August 11, 2008, vesting power in the President to extend the services of public and judicial officers appointed by him beyond the compulsory retirement age.  A fundamental rights application was filed by the Centre for Policy Alternatives and Rohan Edrisinha, challenging the validity of the said Gazette. The Supreme Court on September 22nd granted leave to proceed.

President Mahinda Rajapaksa, by this Gazette extended the compulsory retirement age of public officers appointed by the President. Responding to the Fundamental Rights Petition, the Supreme Court issued an Interim Order staying the operation and/or giving effect to the Gazette and emphasized that an individual including the president did not have the authority to amend such an act, with only parliament having such law making privileges.

The matter was fixed for argument on 6^th October 2008. On 16^th December the Supreme Court quashed the impugned gazette, and accordingly the application was allowed.