Centre for Policy Alternatives on 8 February, 2020

Centre for Policy Alternatives v Attorney General (SC FR 32 /2020)

7th February 2020, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu filed a Fundamental Rights application challenging some powers granted to the Commission of Inquiry to Investigate Allegations of Political Victimization During the Period Commencing 08th January 2015 and Ending 16th November 2019 (The CoI), appointed by Gazette (Extraordinary) No. 2157/44 of 9th January 2020.

By Gazette (Extraordinary) No. 2159/16 of 22nd January 2020, the original Mandate of the said CoI was amended. Through this amendment, among other things, the CoI was granted broad powers to:

“To ascertain all complaints the investigation of which was first allegedly decided upon by the Investigation Unit referred to in the Warrant and thereafter investigation thereon initiated and those complaints made in relation to officers of the Tri-forces and Sri Lanka Police that affect the national security and in the case of inquiries, investigations and legal proceedings held causing prejudice to some person in the administration of laws or administration of Justice due to pressure being exerted by a third party and in the case of inquiries, investigations and legal proceedings held in relation to the Tri-forces and Sri Lanka Police and the Public Service affecting the National Security and /or where prejudice was deemed to have been caused in any manner whatsoever and take immediate necessary measures to prevent prejudice being caused and National Security and Public Services being adversely affected.” (emphasis added)

These far reaching and broad powers granted to the CoI are beyond the scope of the powers that can be legally granted to a Commissions of Inquiry as provided by law. If left unchallenged these powers would, enable the CoI to make orders which prevent, impede and/or otherwise prejudice “inquiries, investigations and legal proceedings” which are on-going or which could commence during the mandate of the CoI. In its Petition CPA noted that the law already provides safeguards to protect any person from being unfairly prosecuted and investigated. These powers granted by Gazette No. 2159/16 of 22nd January 2020 to the CoI would operate outside the established legal structures and would cause serious prejudice to victims of crimes and could potentially further delay cases which have been on-going for several years.

According to media reports, the CoI has already exercised these broad powers by ordering the Attorney General’s Department to not proceed with several cases pending in Court until the CoI decides whether the said individuals are “political victims”. It was later reported that the Attorney General’s Department had refused to follow this particular order. Whilst the Attorney General’s Department was able to refuse in this particular instance, CPA fears of more steps that can be taken by the CoI to impede any other inquiries, investigations and legal proceedings. As such, CPA has filed this Petition on the basis that these powers cannot be legally conferred on the CoI in terms of the Commissions of Inquiry Act (as amended), and that they violate the Separation of powers and the Rule of Law guaranteed in the Constitution. Thus, the granting of such powers and any attempt by the CoI to exercise these powers are in violation of the Fundamental Rights guaranteed under Article 12(1) of the Constitution.

Centre for Policy Alternatives on 23 January, 2020

CPA Statement on Constitutionality of Proposed UNP National List Appointment

24th January 2020, The Centre for Policy Alternatives (CPA) is concerned by several media reports that the United National Party (UNP) intends to name Mr. Saman Rathnapriya to fill the National List seat which fell vacant by the resignation of Dr. Jayampathy Wickramaratne. CPA notes that Mr. Rathnapriya’s name was not included in the list of persons qualified to be elected as Members of Parliament, in terms of Article 99A of the Constitution (the “National List”) submitted by the UNP for the Parliamentary Election held on 17th August 2015.

CPA’s position is that in terms of the Constitution only a person whose name was included in one of the district nomination papers or national list submitted by the relevant political party, is entitled to be nominated to fill such a vacancy. CPA has maintained this position consistently and has raised concern when such appointments were made previously, including by challenging several such appointments in Court.

CPA notes that the UNP, United People’s Freedom Alliance / People’s Alliance have on previous occasions made similar appointments to Parliament. These political parties hide behind Section 64 (5) of the Parliament Elections Act No 1 of 1981, which authorizes them to appoint “any member” of the political party to fill such a vacancy. CPA states that the said provision of the Parliament Elections Act violates the clear and unambiguous provisions of the Constitution, particularly Article 99A and Article 101(H). Additionally the said practice of appointing “any member” of a political party, who was not nominated at the relevant election, violates the franchise of the people which is part of the sovereignty of the people. If as the Constitution suggests the people are indeed the sovereign of the Republic, then the people should know before an election who the political party intends to appoint to Parliament.

Allowing political parties to appoint whomever they wish to fill such vacancies that arise in Parliament, undermines the value of the franchise of the people and unnecessarily and arbitrarily inflates the power of the leadership of political parties. CPA thus calls on the UNP and all other political parties to respect the provisions of the Constitution and the franchise of the people and only nominate a person entitled to be nominated in terms of Article 99A of the Constitution to fill such vacancies. CPA also calls upon all political parties representing Parliament to take steps to amend Section 64 (5) of the Parliament Elections Act, in order to bring it in line with Article 99A and Article 101(H) of the Constitution.

Download this statement in Engish, Sinhala, and Tamil.

Centre for Policy Alternatives on 11 December, 2019

Aftermath and reportage of incident involving alleged abduction of Swiss Embassy employee

11 December 2019, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is deeply concerned with recent events in the aftermath of the incident in which an employee of the Embassy of Switzerland in Sri Lanka was allegedly abducted, sexually harassed, and questioned by unidentified persons regarding embassy related matters, on or about the 27th of November 2019.

Whilst it is too early to comment on official processes underway investigating these incidents, CPA is alarmed with the conduct of several media institutions, including State media and others, who have acted in a manner to deliberately reveal the identity of the alleged victim and that of her family which raises serious issues of privacy and protection. This is also a blatant violation of media ethics and disregard for the victim’s right to privacy. Section 365C of the Penal Code makes it an offence punishable with imprisonment for up to two years to print or publish the name or any matter which may make known the identity of a person who is alleged to be a victim of several offences including sexual harassment. Further, the Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 gives victims of crime the right to be treated with equality, fairness and with respect for their dignity and privacy.

CPA urges media institutions to respect and adhere to the law and ethics, including giving due attention to victim’s rights. Continued disregard in this area raises serious concerns and will require attention and necessary action by the authorities.

CPA also notes that certain public authorities and officers holding official positions have publicly accused the alleged victim of fabricating facts, despite ongoing investigations. Such statements cloud the partiality of investigations being carried out, and CPA urges authorities to remain independent when investigations are underway and to ensure there is no interference of such processes.

Finally, CPA calls on members of the public to exercise responsibility and compassion when publishing and sharing information on social media. Our society is plagued by a high occurrence of incidents of sexual harassment, and it is important that victims are free and able to make complaints of the same without the fear of facing further harassment for doing so. Additionally, until and unless an independent investigation is carried out, the facts cannot be disproved or verified, and thus it is essential that the authorities are allowed to function without undue pressure.

Download this press release in English, Tamil, and Sinhala.

Centre for Policy Alternatives on 9 December, 2019

Centre for Policy Alternatives Annual Report 2018

FOREWORD

The year 2018 was a memorable year. It marked the 70th anniversary of Sri Lanka’s independence, which CPA in turn marked with a Survey on people’s expectations of Democracy, Government and Governance. It also marked the lowest and highest points in our political and constitutional evolution on account of the October 26th constitutional coup launched by the President and the landmark decision of
the Supreme Court that led to its resolution, reaffirming the institutions and processes of liberal democracy in Sri Lanka.

In the drama that unfolded CPA was an active participant, upholding the integrity of our democratic processes, the role of Parliament and the Judiciary. CPA was the only civil society organization to petition the Supreme Court on the unconstitutionality of the dissolution of Parliament and at all times maintained that the rule of law, the institutions and procedures of democracy had to be observed and maintained.

Once the constitutional coup was averted, public discourse and speculation shifted to the impending Presidential election and the likely candidates, and in particular the issue of Mr Gotabhaya Rajapaksa’s dual nationality and his ability to revoke his US citizenship in time to contest the Presidential election. In addition there were the attempts to petition the Supreme Court on the issue of whether the current President was entitled to an extra year in office. CPA maintained that the Nineteenth Amendment was clear that this was not possible.

The fast pace of events during 2018 militated against the organization working on a strategic plan for the next three years, whilst on a retreat. CPA has always maintained that the winning platform of the 2015 election was one that it took a lead in designing and defending since its inception in 1996 and therefore the organization has a responsibility to ensure that the agenda is not forsaken but fulfilled. This could entail working with government to achieve this purpose as opposed to working for government, thereby risking the compromise of its organizational integrity as a civil society actor. The Strategic Plan will have to factor this in and come up with innovative ways of ensuring that the 2015 platform is not abandoned but fulfilled.

Members of the organization continued to be invited to international conferences on constitutional reform and transitional justice. Right to Information petitions were filed to impress upon the public the importance of the RTI regime for governance and the key point that RTI was for all citizens and not just for media actors. Another successful activity was the campaign to raise awareness of greater female participation in politics and the monitoring of the Local Government Election in which the party formed by former President Rajapaksa, the Sri Lanka Podujana Peramuna triumphed triggering off the search for a new Prime Minister by the President and culminating eventually in the Constitutional Coup in October.

In 2018, CPA and indeed the country surmounted key challenges. The repercussions of all of this will no doubt spill into 2019. Consequently the organization will have to ensure that it has the ability to sustain itself in terms of resources and the political will and commitment to continue to pursue its mandate and mission.

 

Dr. Paikiasothy Saravanamuttu
Executive Director

 

Full report available at CPA Annual Report 2018

Centre for Policy Alternatives on 18 November, 2019

Centre for Policy Alternatives v Attorney General ( SC FR 449/2019)

14th November 2019, The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu filed a fundamental rights application challenging the decision of the Cabinet of Ministers to allow President Maithripala Sirisena the continuous use of the residence currently used by him, and to cover the costs associated with same. In their Petition, the Petitioners stated that the residence occupied by President Maithripala Sirisena on Mahagama Sekara Mawatha (also referred to by some as Paget Road) is of great financial value and is a valuable asset of the Country.

The benefits received by former President’s and their widows are regulated by the Presidents Entitlements Act, No. 4 of 1986. CPA stated that, the Supreme Court has previously recognised that the terms of the Presidents Entitlements Act, have to be strictly interpreted and applied. As such the CPA argued that, the allocation of a public asset of such financial value for the personal use of a former President who is no longer carrying out the functions of a Head of State is irrational, arbitrary and illegal, especially because the said residence was designed/constructed in a manner befitting a President / Head of State. CPA further argued it is wrong for the Cabinet of Ministers to decide on the benefits of a retiring President before s/he ceases to hold office.

Because of these reasons, CPA contended that the fundamental rights of the Petitioners’ and the fundamental rights of the citizens of Sri Lanka guaranteed under Article 12(1) [Right to Equality] of the Constitution have been violated by the above-mentioned decision made by the Cabinet of Ministers.

CPA recognises that a former President is entitled to certain benefits in terms of the Presidents Entitlements Act, and to security in view of security concerns. As such the Petitioners limited their challenge to only the decision to provide continued use of the Mahagama Sekara Mawatha residence and the costs associated with same.

Centre for Policy Alternatives on 13 November, 2019

Anomalies with affidavit submitted by Sri Lanka Podujana Peramuna Presidential Candidate Gotabaya Rajapaksa

13 November 2019, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) and the Centre for Monitoring Election Violence (CMEV) are deeply concerned with recent developments that may impact the Presidential Election due on 16th November. These stem from recent media reports that highlight to several anomalies with the affidavit submitted by Mr. Gotabaya Rajapaksa, candidate of the Sri Lanka Podujana Peramuna, on 7th October and a subsequent and different affidavit shown by his counsel, Mr. Ali Sabry PC. Apart from the basic question as to why two distinct affidavits were produced in support of Mr. Rajapksa’s candidacy, a question is also raised as to whether Mr. Rajapaksa meets the criteria provided in the Constitution as per Articles 91 and 92 of the Constitution in terms of whether he continues to be a citizen of the United States of America. The fact that two different certificates claiming loss of nationality were publicly shared contributed to the confusion and months of debate, with no credible answers provided by the candidate or his team to quell doubt.

In addition to the above, we are also alerted to a third affidavit shared by Mr Sabry on his Facebook page which was attested by a Mr. Kularatne with no signature belonging to Mr. Rajapaksa. Whilst we are not able to comment on the authenticity of these documents, we note that all affidavits were produced by the candidate’s legal team and urges the authorities to immediately investigate the legality of these affidavits and take necessary action. This is essential in the presence of multiple documents that may mislead the voter and rob them of an informed choice. Such conduct also begs the question whether an attempt is being made to subvert the electoral process and the rule of law in Sri Lanka.

In a matter of days Sri Lanka will elect a new President and it is imperative that no doubt remains as to the eligibility of the person elected to the office of first citizen in Sri Lanka. It is also paramount that the Election Commission and other officials are independent and impartial and take all necessary steps to protect the integrity of elections.

Finally, we call for legislative reforms that provide the relevant authorities the power to verify documentation submitted by candidates and to take necessary action to prevent confusion and chaos in the future.

Download this press release as a PDF here.