Centre for Policy Alternatives on 12 May, 2021

An Update on the Legal Framework to Address the COVID-19 Pandemic in Sri Lanka

12 May 2021, Colombo, Sri Lanka: Since late April 2021, the number of COVID-19 cases in Sri Lanka has increased exponentially. The average number of new infections reported each day has reached a new high, now reporting more than 2,000 patients daily. The number of COVID-19 related deaths has  also been rising, mainly due to the heightened pressure on already overwhelmed health infrastructure  and medical staff. A collective of medical professionals including the Sri Lanka Medical Association, the  Government Medical Officers Association, the Association of Medical Specialists, and the SLMA  Intercollegiate Committee, have pointed out in a letter to President Gotabaya Rajapaksa that the  national healthcare system has reached a breaking point. The identification of several new varieties of the COVID-19 virus has caused further concern among medical professionals as well as the general public. Sri Lanka is in an unprecedented health crisis with the likelihood of further deaths, economic hardship and much more if immediate measures are not taken to effectively respond to the pandemic.

It has been proved from experience in other countries battling the rapid spread of the virus that the adoption of stringent travel restrictions, ramping up the testing process, strengthening healthcare facilities and accelerating the vaccination process are the best steps to be taken in such a situation. However, the lack of proper information available to the general public and the resulting atmosphere of fear and misinformation has weakened the COVID-19 response of Sri Lanka. Additionally, increasing arbitrary action, especially with regard to the vaccination process, and isolation and quarantine procedures could potentially put the health and lives of citizens at risk.

Against this dire backdrop, it is critical to ensure laws and policies are in adherence to the constitutional and legal framework and not arbitrary and ad-hoc. The Centre for Policy Alternatives (CPA) has consistently reiterated the need to adhere to the principles of democratic governance and the rule of law in Sri Lanka’s efforts to address the COVID-19 pandemic and this remains the case at present.

Several guides and policy briefs were issued previously by CPA on a range of legal and policy issues linked to COVID-19, including a Q and A on the Regulations issued under the Quarantine and Prevention of Diseases Ordinance. The present document reassesses and re-examines recent developments in this regard, in light of the regulations issued under the Quarantine and Prevention of Diseases Ordinance as well as other relevant legal and regulatory frameworks.

Download the full document here.

Centre for Policy Alternatives on 3 May, 2021

CPA Commentary on the Port City Bill

May 3rd 2021, Colombo, Sri Lanka: Sri Lanka is presently debating the legal framework for the Colombo Port City Special Economic Zone (hereinafter sometimes the Colombo Port City). At the outset it must be noted that the Colombo Port City has the potential for the promotion and advancement of the Sri Lankan economy. However, the process of enacting laws and their substantive contents must be closely scrutinized and debated.

In this brief commentary CPA raises the potential implications of the CPCEC Bill, and highlights some key concerns relating to the Bill, as was Gazetted on the 24th of March 2021.

The areas of concern flagged by CPA include the powers and composition of the Colombo Port City Economic Commission, the Commission’s compliance with existing regulatory authorities, the powers of the President under the Bill, accountability and transparency, the undermining of Parliamentary powers including law making and control over finance, as well as its impact on the judicial proceedings.

Read the full commentary in English, Sinhala and Tamil.

See more on the petition filed by CPA.

 

Images capturing key points (based on the Bill Gazetted on 24th March 2021):

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Centre for Policy Alternatives on 21 April, 2021

A Commentary on the PCoI and the Special PCoI on Political Victimization

April 21 2021, Colombo, Sri Lanka: This commentary by the Centre for Policy Alternatives (CPA) provides a brief analysis of the Commission of Inquiry (CoI) on political victimization and the subsequent establishment of the Special Presidential Commission of Inquiry (SPCoI).

CPA notes with concern that the concluded proceedings of the CoI and the on-going proceedings of the SPCoI are both politicized and problematic, and may have grave implications on the rights of citizens as well as the independence of the judiciary, rule of law and democracy in Sri Lanka.

The commentary consists of two sections. The first section of the commentary provides an overview of the background and the legal framework of the CoI on political victimization, followed by a timeline flagging key dates and developments of its proceedings, and a table listing key recommendations and their implications. The second section of the commentary examines the SPCoI to implement the recommendations of the CoI, with an outline of its legal framework with reference to several past SPCoI initiatives, and the mandate of the on-going SPCoI proceedings.

CPA hopes that the commentary may facilitate critical engagement with the proceedings and outcomes of the CoI and the SPCoI.

Download the full report in English, Sinhala or Tamil.

Also read CPA’s:

Short Note on the Resolution Seeking Parliamentary Approval to Implement the Recommendations of the CoI on Political Victimization here.

Initial Concerns with the Report of the Commission of Inquiry to Investigate Allegations of Political Victimization and Subsequent Action here.

Centre for Policy Alternatives on 19 April, 2021

Short Note on the Resolution Seeking Parliamentary Approval to Implement the Recommendations of the CoI on Political Victimization

19 April 2021, Colombo, Sri Lanka: On 9th April 2021, Prime Minister Mahinda Rajapaksa tabled a Resolution in Parliament seeking approval to implement the recommendations of the ‘Commission of Inquiry to Investigate Allegations of Political Victimization During the Period Commencing 08th January 2015 and Ending 16th November 2019’ (The CoI). The motion is listed to be debated in Parliament this week.

The CoI was established on 9th January 2020 and its final report was handed over to the President on 8th December 2020. Approval of the Cabinet of Ministers was granted to submit the report of the CoI to the Parliament and implement the recommendations of the CoI on 18th January 2021. Accordingly, on 29th January 2021, a Special Presidential Commission of Inquiry (SPCoI) was appointed to implement the recommendations of the CoI.

The SPCoI is mandated to investigate the respondents mentioned in item No. 08 of the CoI report (relating to the Anti-Corruption Committee) and recommend whether they should be subjected to civic disability. The Resolution tabled on 9th April seeks to obtain parliamentary approval to implement the decisions and recommendations mentioned in Item No. 09 and 10, omitting Item No. 08, in the Final Report of the CoI.

This would include referring decisions and recommendations made by the CoI on the complaints in Item No. 09 to the relevant authorities, including the Commission to Investigate Allegations of Bribery or Corruption, the Public Service Commission, the Inspector General of Police, the Minister in-charge of the relevant Ministries and the Secretaries to the Ministries, for implementation.

The resolution seeks the approval of Parliament to initiate criminal prosecution of police officers, lawyers, officers of the Attorney General’s Department, witnesses and others involved in the cases. It also seeks approval for the dismissal of several cases currently pending in court, undermining the independence of the Judiciary and the rule of law.

If the Resolution were to be passed in Parliament and subsequent action is taken, this would have both legal and political ramifications. In this short note, the Centre for Policy Alternatives (CPA) makes brief observations on the impact of such a Resolution and subsequent action. CPA will also be releasing a report commenting on the CoI, SPCoI and broader implications shortly.

Independence of the Judiciary

At the core of the CoI, SPCoI, and the Resolution lies the faulty suggestion that the Judiciary did not arrive at its findings during the time period under purview in an independent and impartial manner. This is inimical to both the independent functioning of the Courts and tribunals, as well as the public trust placed in the legal system. If the findings of the CoI were to be given effect to, the decisions of the Judiciary would be reassessed in a process external to the established Court system. This is an unprecedented step and would violate the sovereignty of the People, whose judicial power shall be exercised through Courts[1], according to the Constitution. CPA also notes that this is the latest attempt by the Executive to undermine the work of the Judiciary and this must be robustly countered to ensure each arm of government is able to work independently.

Moreover, this would have larger ramifications on the law enforcement and justice sector in general and further politicize entities required to work independently. This action would open the door to politically motivated action against investigators and prosecutors for carrying out their duties. This would result in a climate of fear and paralysis among investigators and prosecutors, stifling all current and future investigations involving persons of political influence. This would have an adverse impact on victims and witnesses, who may be deterred from coming forward due to fear of reprisal.

Furthermore, the impugning of the findings of a competent Court would also be in derogation of fair trial and due process rights which are safeguarded in the Constitution and upheld by the Courts.

Politicization of the Process

Despite seeking to alleviate incidents of political victimization, CPA notes that the CoI itself has become subject to criticisms of politicization. The procedure adopted in arriving at findings of political victimization, its mandate, and findings have been criticized and challenged by several Parliamentarians and others. CPA notes several areas that raise serious attention including due process concerns, acting outside its legal mandate, and reversing almost all judicial findings pertaining to political matters. This has led to criticisms relating to the politicization of the CoI.

Separation of Powers

If the Resolution tabled were to be passed, regardless of the legal validity of the resolution, the CoI, SPCoI and Parliament would override the judicial process, in violation of the principles of the Separation of Powers and the Rule of Law in a constitutional democracy. If the Legislature will be able to second-guess and reverse decisions of the Judiciary, this would lead to the undermining of the judiciary as well as the usurpation of the judicial power of the people by the Legislature.

The list below includes the complaints in Item No. 09 for easy reference:

  1. Complaints against criminal investigations into several cases such as the case of alleged abductions involving Admiral Wasantha Karannagoda and others, the assassination of MP Nadaraja Raviraj, the death of Wasim Thajudeen, the murder of Lasantha Wickrematunge, the assassination of former MP Joseph Pararajasingam, the Welikada prison massacre, the disappearance of journalist Prageeth Ekneligoda and the abduction of Keith Noayhr.
  2. Complaints against the investigations of alleged financial irregularities and misappropriation of public funds in the Divi Neguma Department, the Tourism Development Authority, Co-operative Establishment (Sathosa), the Sri Lankan Embassy in the United States etc.
  3. Complaint against the investigation of allegations of cheating and misappropriation against MP Udaya Gammanpila.
  4. Complaint against the investigation into alleged misappropriation of public funds by former Minister Rohitha Bogollagama
  5. Complaint against the investigation into misappropriation of public property in launching the Carlton Sports Network (CSN)
  6. Complaint against the investigation into the alleged misappropriation of funds allocated for the Tharunyata Hetak Organisation
  7. Complaint against the imprisonment of Duminda Silva
  8. Complaint against the suspension of DIG of the Northern Province for the charge of aiding the escape the prime suspect in the Vidya murder case
  9. Complaint against the investigation into the Avant Garde controversy
  10. Complaint against the investigation into the Rakna Araksha Lanka company
  11. Complaint against investigation into smuggled gold released to the Navy
  12. Complaint against allegations of misappropriation of public funds in the Litro Gas case
  13. Complaint against the investigation regarding the MiG aircraft deal with Ukraine
  14. Complaints against disciplinary action and inquiries against several public officers including chairman of the National Lottery Board, employees of the Sri Lanka Broadcasting Corporation (SLBC)/ Rupavahini Corporation (SLRC), Ceylon Petroleum Corporation, former School Principal Upali Gunasekara
  15. Complaint against accusation of fraudulent transfer of funds related to the Hyatt Regency case

The complaints in Item No. 10 include

  1. Complaint against the investigation into the purchase of a land by the D.A. Rajapaksa Foundation
  2. Complaint against the investigation into the 16 acre land in Malwana alleged to have been bought by the former Economic Development Minister Basil Rajapaksa using public funds
  3. Complaint against allegations of misuse of public funds against Commissioner of the Colombo Municipal Council
  4. Complaints against removals of several public officers due to various allegations

[1] Article 4 (c) “the judicial power of the People shall be exercised by Parliament through Courts, tribunals and institutions created and established, or recognized, by the Constitution or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members wherein the judicial power of the People may be exercised directly by Parliament according to law”

Download the full PDF in English, Sinhala and Tamil.

[Also read CPA’s: Initial Concerns with the Report of the Commission of Inquiry to Investigate Allegations of Political Victimization and Subsequent Action here.]

Centre for Policy Alternatives on 17 April, 2021

The Centre for Policy Alternatives (Guarantee) Limited and Dr. Paikiasothy Saravanamuttu vs. The Attorney General [SC SD 4/ 2021] [in re the Colombo Port City Economic Commission Bill]

15th April 2021, The Centre for Policy Alternatives and its Executive director (the Petitioners) challenged the constitutionality of the Colombo Port City Economic Commission Bill (the Bill). The matter is listed to be taken up before five judges of the Supreme Court on 19th of April 2021.

CPA notes several concerns in this brief comment, some pertaining to provisions in the Bill, others on process and broader implications. The Petitioners argued that the Bill violates Articles 3, 4, 12 and 14 of the Sri Lankan constitution and thus requires to be passed by the people at a referendum in addition to being passed by two thirds majority of Parliament. The Bill establishes a parallel administration known as the Colombo Port City Economic Commission (CPCEC) which will inter alia exercise sweeping executive power, control over public finance and to an extent some law / rule making power within the Port City area. The CPCEC has the ability to give entities access to sweeping tax concessions and other benefits with little or no objective criteria. Whilst it exercises these broad powers, the CPCEC is not accountable to Parliament and is appointed at the sole discretion of the President (or if it is assigned to a Minister, by the said Minister).

The Petitioners argue that among other things the sweeping tax concessions granted by the Bill are arbitrary and discriminatory and will have a detrimental effect on the national economy. The Bill directly excludes the operation of a swath of legislation enacted by Parliament including tax legislation, it could also indirectly exclude the operation of the provisions of the Companies Act and the Banking Act in relation to companies’ operating within the Port City area. Thus, the Bill attempts to put in place a framework to create a business environment where a few well-connected entities will be able to obtain substantial benefits and an unfair competitive advantage to the detriment of citizens of Sri Lanka.

Further, CPA is concerned with the speed with which the government is proceeding with a Bill that has such serious implications. To date there has been little to no public consultation on the contents of the Bill and its implications. CPA notes that over a period of several years, including during the previous government’s tenure, media reports informed of the drafting of this Bill. However, no specific information was provided to the public on this. This raises a serious question as to which stakeholders, if any, were in fact consulted during this long-drawn-out drafting process. Moreover, the government is also attempting to rush through the Bill by placing it on the order paper of Parliament just prior to the Sinhala and Tamil New year celebrations and amidst a slew of public holidays. Such behaviour is a clear attempt by the government to prevent citizens from scrutinizing and challenging the Bill, raising concerns as to the intentions of the government.

Amidst these concerns, CPA also notes that the Bill raises other fundamental concerns. This government has been vigorous in its opposition to any international involvement in the protection of human rights in Sri Lanka, terming such interventions “foreign interference with Sri Lanka’s sovereignty”. Despite such claims, this Bill in its present form represents the most far-reaching involvement of non-citizens in Sri Lanka’s economy and would result in far more invasive foreign involvement than was envisaged in relation to any proposed human rights mechanism. For example, it would be possible for all members of the CPCEC to be foreign nationals, an entity that is provided significant powers as per the Bill. Further, the proposed International Commercial Dispute Resolution Centre would also see the participation of international arbitrators and lawyers in the compulsory arbitration proceedings in relation to disputes that arise in the Port City area. It is also hypocrisy of the highest order to accept international participation in entities provided in the Bill and decry it in relation to proposed human rights mechanisms. CPA has previously commented on the participation of foreign individuals in proposed mechanisms in Sri Lanka and notes that the present proposals with much wider implications will require much more careful study and debate.

Centre for Policy Alternatives on 9 April, 2021

CPA Statement on the Arrest of the Mayor of Jaffna

9th April 2021, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) condemns the arrest of Mr. Viswalingam Manivannan, the Mayor of Jaffna, under the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 [PTA Act] and calls for his immediate release.

Details surrounding the arrest are limited but based on the statement issued by the Police spokesperson and statements made in Parliament today (9th April) the arrest is based on a uniform worn by several individuals recruited to the Jaffna Municipal Council. The Police spokesperson’s statement alleges that this uniform was “similar to the uniforms worn by the de facto LTTE police during the war” but provides little details on what the similarities are. The spokesperson also states that the arrests were carried out on the instructions of the Minister of Public Security.

Whilst details remain unclear, on the face of it, this seems to be a dispute about the functions of a unit set up by the Jaffna Municipal Council. The Constitution and other laws provide for mechanisms to resolve such issues. It is deeply troubling that the government is resorting to the criminal legislation such as the PTA in order to stamp its authority over decentralized government entities and to detain an elected official on such tenuous grounds. CPA has over the decades noted the deeply problematic use of PTA to detain individual for prolonged periods of time without charge and with limited due process safeguards. It is a draconian law which should have no place within a democracy. Further, CPA calls on the government to respect the democratic process and to desist from using criminal law to resolve any disputes that might occur with decentralized government entities. Such highhanded actions are unwarranted and, as seen in the past, will be counterproductive to the long term peace and security of the Sri Lankan state.

Download the full statement in English, Sinhala and Tamil.

UPDATE/ 10th April 2021, Colombo, Sri Lanka: Despite initial media reports that the Mayor of Jaffna was arrested under the PTA, information from court proceedings indicate that provisions in the Penal Code were used. CPA also notes that the Mayor was subsequently released on Bail on Friday night. Nevertheless, concerns raised by CPA in its statement issued prior to these developments still remain valid.

Centre for Policy Alternatives on 3 April, 2021

Centre for Policy Alternatives v Attorney General (SC (FRA) 91/2021)

The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu, filed papers challenging the Prevention of Terrorism (De-radicalization from holding violent extremist religious ideology) Regulations No. 01 of 2021, published Extraordinary Gazette No. 2218/68 dated Friday, March 12, 2021. While the Petitioners maintain the need to integrate a process of rehabilitation into the criminal justice system, they note that the impugned regulations violate several of the Constitutionally guaranteed Fundamental Rights, of the Petitioners as well as of the general public.

The Petitioners argue that the impugned regulations serve to enable the denial of due process, due judicial protection and a fair trial, and result in an arbitrary deprivation of liberty, entailing infringement and/or imminent infringement of the Fundamental Rights guaranteed under Articles 12(1), 13(2), 13(3), 13(4) and 13(5) of the Constitution. They also argue that the impugned regulations, and the broad language contained therein, entail provisions that may result in degrading treatment of persons and deny persons the safeguards provided by law in cases of detention and imprisonment and thus and otherwise entail infringement and/or imminent infringement of Articles 10, 11, 14(1)(a), 14(1)(c), 14(1)(e) and 14(1)(f) of the Constitution.

The Petitioners also maintain that the impugned regulations are ultra vires as they have not been promulgated by the proper authority and thus and otherwise entail infringement of Article 12(1) of the Constitution. They further argue that the impugned regulations have the effect of conferring and/or transferring discretion required to be exercised (as may be duly conferred upon it by law) by the judicial arm of government, to the executive arm of government in a manner inconsistent with Articles 3 and 4 of the Constitution and thus and otherwise entail infringement of Article 12(1) of the Constitution.

The Petitioners have prayed for inter alia declarations that the impugned regulations violate the Fundamental Rights guaranteed by the Constitution, and that they are null and void and of no avail in law.