Centre for Policy Alternatives on 5 May, 2020

Centre for Policy Alternatives v Attorney General – Fundamental Rights Application challenging the dissolution of the Eighth Parliament and the decision to hold elections for the Ninth Parliament on the 20th June 2020 [SC FR 86/2020]

The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu filed a Fundamental Rights application challenging the decision of H.E the President to dissolve Parliament on the 2nd March 2020 and the decision of the Elections Commission to reschedule elections on the 20th June 2020.

Articles 70 and 33(2)(c) of the Constitution permit the President to dissolve Parliament prior to the completion of its five-year term, after the passage of four and a half years from its first sitting. The President used this power to dissolve the Eighth Parliament on the 2nd of March 2020 by Gazette Extraordinary no. 2165/8 and fix the 25th of April 2020 as the date for election of the Ninth Parliament. This was despite the fact that Covid-19 was spreading across the world, and Sri Lanka too was taking steps to combat it.

The declaration of Covid-19 as a pandemic, and its rapid spread resulted in the Election Commission making a decision to postpone the election. Thereafter, on 20th of April 2020, the Commission issued Gazette Extraordinary no. 2172/3 fixing the election for the 20th of June 2020.

The Gazette by which the Eight Parliament was dissolve fixed the date for the first meeting of the Ninth Parliament for the 14th of May 2020. The Petitioners have stated that while the said Gazette remains in place, a new date for the election of the Ninth Parliament cannot be fixed beyond the 2nd June 2020.

The Petitioners argued that regardless of how it is dissolved, Article 70(5) of the Constitution provides a mandatory time limit within which a new Parliament should meet, i.e. three months from the date of dissolution. The Petitioners state that if the 2nd March 2020 dissolution is permitted to stand, this would have required the new Parliament to meet for the first time by the 2nd June 2020. Thus, a decision to hold the election on the 20th of June 2020 is unconstitutional, and a violation of their fundamental rights.

The Petitioners have observed that it is impossible to hold a free and fair election in the context of the Covid-19 crisis. The health risk would seriously impede campaigning efforts and voter turn outs, which are essential for a free and fair election. Further, it would be difficult for election officers and voters to maintain social distancing during the election and the preparation for the same, which would increase the risk of the spread of the virus. As such there is a likelihood that elections could be further postponed beyond the 20th June.

The lack of a functioning Parliament for more than three months undermines the sovereignty of the people and undermines the rule of law. In light of all these circumstances, the Petitioners have requested the Supreme Court to declare that their fundamental rights under Articles 12(1) and 14(1)(a) of the Constitution have been violated.

Centre for Policy Alternatives on 27 April, 2020

COVID 19 Testing Report

Despite the best efforts of health workers on the frontlines in combatting the virus thus far, recent increases in the number of cases demonstrate that the public health crisis presented by COVID-19 is far from averted.

This report will illustrate the importance of high levels of testing in formulating an effective response, as we attempt to phase out of lockdown. It explores the various factors influencing the testing process in the Sri Lankan context and suggests ways that testing capacity and coverage may be increased. It will also highlight issues of confidentiality, media ethics and the use of state power with regard to testing; examining how the protection of individual rights does not hinder, but instead facilitates the achievement of positive public health outcomes.

Download the report as a PDF here.

Centre for Policy Alternatives on 22 April, 2020

CPA Statement on the Election Commission’s announcement setting the 20 June 2020 as the date on which parliamentary elections will be held

22nd April 2020, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) notes the Election Commission’s announcement that parliamentary elections will be held on 20 June 2020. This announcement comes during a period in which the number of persons who have tested positive for Covid -19 continue to increase and the “curfew” and quarantine measures imposed by the Government continue to be operational in several parts of Sri Lanka.

The Constitution requires that Parliament be summoned three (03) months from the date on which it is dissolved. The new date set for elections by the Election Commission falls outside this time period and is clearly unconstitutional. The Constitution requires a functioning Parliament to be in place in the Republic in order to ensure the functions of Government can be carried out. The only exception to this is the period in which Parliament is dissolved for elections. However even in this exceptional situation, the Constitution makes ample provision to ensure that Parliament can be called upon to perform its functions as and when the need arises. These constitutional provisions are not an accident, they are the personification of the fundamental idea that Sri Lanka is a Constitutional Republic.

CPA is also concerned that in light of the continued global pandemic and the ground situation within Sri Lanka, there does not exist a conducive environment for the conduct of a free and fair election. Elections are a process and the right to franchise is not protected unless citizens can freely participate in the entire electoral process. As the Government’s own guidelines demonstrate, there is a need to maintain social distancing and follow precautionary measures even when the “curfew” is no longer in operation. As such there is a need for several changes to the election law, at least on a temporary basis, to deal with this reality and to ensure the citizens right to franchise is protected. These changes can only be made by Parliament and cannot be imposed by executive action.

CPA has already raised concerns regarding the absence of a functioning Parliament and highlighted the implications of this on public finance and oversight over the Government’s response to the Covid–19 pandemic. Furthermore, Parliament will have to make changes to existing laws or enact new laws in order to ensure continued economic activities in light of the challenging situation created by the Covid–19 pandemic.

In these circumstances, the course of action most consistent with the Constitution is to summon the dissolved Parliament, which can continue until the end of August 2020. CPA notes that this is also the course of action that would be most in line with protecting public health and the citizens’ right to franchise.

CPA therefore requests the President to summon the Parliament that has been dissolved in order to address these concerns and ensure that the functions of government can continue in a lawful manner and that citizens can participate in the electoral process without endangering public health.

Centre for Policy Alternatives on 22 April, 2020

Fundamental Rights Applications challenging the decision to pardon Sunil Ratnayake

The Centre for Policy Alternatives v Attorney General  

Fundamental Rights Applications challenging the decision to pardon Sunil Ratnayake

Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu filed Fundamental Rights applications challenging the decision of H.E the President to pardon Sunil Ratnayake, who was convicted for his role in the Mirusuvil Massacre which occurred in December 2000. It was first reported that Ratnayake, who was on death row, had been pardoned by the President on the 26th of March 2020, while the country was grappling with the Covid-19 crisis.

Nine civilians, who were internally displaced persons from Mirusuvil in Jaffna had visited their houses on the 19th of December 2000. The group included several teenagers and a five-year-old child. On their return to their temporary residence, they were stopped by two Military personnel, who proceeded to blindfold and assault the group. One youth was able to escape, but the other eight were massacred, and their bodies were later found buried nearby.  Ratnayake was convicted on several counts of murder and assault by a trial-at-bar in the High Court of Colombo in July 2015, and sentenced to death. Due to several delays, it took almost 13 years to complete the trial.

Ratnayake appealed his sentence in the Supreme Court, and a bench of 5 judges heard his appeal. On the 25th of April 2019, their Lordships’ of the Supreme Court upheld 9 counts on which he was convicted, which included 8 counts of murder. Thus, due process of the law was followed, and the death sentence imposed on Ratnayake was confirmed by the highest court of the land. This was a rare instance, despite the delays, when justice was served for serious violations that occurred during the war years.

Under Article 34 of the Constitution the President has been given the power to grant pardons but several additional procedural steps must be followed when the convict is on death row. Additionally, the President is required to exercise any power reasonably, and in the public interest.

In this case it is the position of the Petitioners that the decision to pardon Ratnayake is arbitrary, unreasonable, ultra vires and has not been done in the interest of the public interest. This is especially so for the reason that Ratnayake was afforded due process, and there was no miscarriage of justice. The Petitioners have also taken up the position that to pardon a convict of a crime of this gravity when 5 judges of the Supreme Court have affirmed his sentence undermines the independence of the Judiciary and is an affront to the rule of law. The pardon is thus a violation of the sovereignty of the people, and the Fundamental Rights guaranteed under Article 12(1) of the Constitution.

[UPDATE: 12. 10.2023]

The Supreme Court today (12th October 2023) granted leave to proceed to the Petition filed by CPA and its Executive Director challenging the pardon granted to Sunil Ratnayake, who was convicted for his role in the Mirusuvil Massacre which occurred in December 2000.

The Court granted leave to proceed on the violation of Article 12(1), after considering several Petitions filed by CPA and several others including family members of the victims of the massacre. The Attorney General’s department undertook to tender to the Supreme Court several documents relating to the pardon. The Supreme Court granted time for the Respondents to file their objections to the Petitions and for the Petitioners to respond to those objections and fixed the matter for hearing on 17th May 2024.