Centre for Policy Alternatives on 12 September, 2018

CPA Intervenes on the Challenge to the Proposed Twentieth Amendment to the Constitution

12th September 2018, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu, filed papers today intervening in the petition filed by Udaya Gammanpila, MP challenging ‘The Twentieth Amendment to the Constitution’ (The Bill), a Private Member’s Bill tabled in Parliament on 5th of September 2018 by Vijitha Herath, MP. The proposed Bill seeks to make significant changes to the office of the Executive President. In terms of the Bill the President would no longer be the Head of Government and would be elected for a five-year term by a simple majority in Parliament.

CPA’s intervention in this case is a reiteration of its longstanding position on the need to abolish the Executive Presidency. The promise to abolish the executive presidency has received the continuous support of the citizens of Sri Lanka including affirmation at every Presidential election since 1994. CPA has consistently advocated this position and was the only civil society organization that challenged the 18th Amendment to the Constitution which expanded the powers of the Executive Presidency in an arbitrary and anti-democratic manner. CPA also supported the 19th Amendment to the Constitution which sought to curtail some of the powers provided by the 18th Amendment and ushered in key reforms. At this time, CPA thus sees the proposed Bill as the most viable avenue of reform in order to achieve the single most important pledge on which the current President and Government were elected to office in 2015.

Download this statement in English, Tamil & Sinhala

Centre for Policy Alternatives on 3 September, 2018

Confronting Accountability for Hate Speech in Sri Lanka: A critique of the legal framework

Post-war Sri Lanka has witnessed numerous incidents of ethno-religious violence. From Aluthgama in 2014 to Gintota in 2017 to Ampara and Digana in 2018, instances of ethno-religious violence have escalated to the point of property damage, grievous injury, and—in the cases of Aluthgama and Digana—death. Violence of this nature is not restricted to the Buddhist and Muslim communities, as seen in these examples, nor is it a novel phenomenon. Anti-Tamil riots in 1958 and 1977, the events of Black July in 1983, the 1915 Sinhalese-Muslim riots, the 2001 Mawanella riots, and numerous other instances, stemmed from festering tensions between ethnic or religious communities. In fact, the incidence of ethno-religious violence in modern Sri Lanka can be traced as far back as the Kotahena riots of 1883, which involved clashes between Buddhist and Christian communities.

This latest bout of ethno-religious violence has prompted demands for the prosecution of both hate crimes as well as the hate speech that is believed to have led to such violence. As pointed out by numerous parties in response to the government’s attempts to introduce new hate speech legislation in 2015, Sri Lanka’s legal framework already contains a number of provisions addressing hate speech. However, the dearth of prosecutions or convictions under this framework despite the recurrence of these incidences is cause for concern. Inaction by successive governments has also contributed to increasing fears among minorities and strengthened a sense of impunity among perpetrators. The events of the past few years have made it apparent that neither the incidence of hate speech nor the severity of its consequences are likely to diminish without serious and tangible action being taken.

In light of this, there is a need to evaluate the existing Sri Lankan legal framework which provides for the prosecution of hate speech to determine whether the lack of action on the issue is a product of legal gaps; practical issues of a lack of capacity or resources; or other, more complex reasons stemming from the current political context and dynamics.

The Centre for Policy Alternatives has prepared this report to assess the legal framework on hate speech in Sri Lanka. The report identifies gaps in the framework and overbroad provisions that may not curb hate speech, lead to violations of fundamental rights and freedoms and facilitate excessive censorship. The report also fills a gap in the literature by shedding light on the limited number of steps taken to address accountability in this regard despite a broad legal framework addressing the issue. The report accordingly provides a range of recommendations for potential legal, policy and structural reforms. The report reiterates that swift and decisive action is needed by the Government and other stakeholders to prevent future incidents and strengthen the rule of law. The report is, however, not an attempt to document incidents of hate speech, as this task has been initiated by others.

The report begins with a brief theoretical discussion on freedom of expression and hate speech in the remainder of this introductory chapter. The following chapters examine the legal framework pertaining to hate speech in Sri Lanka by laying out the key legislation—the ICCPR Act, the Penal Code, the Prevention of Terrorism Act and the Police Ordinance—and examining judicial decisions arising from these provisions. This analysis reveals a number of practical challenges which confront the application of these laws to hold perpetrators to account and thus result in limited prosecutions and convictions. The chapters accordingly provide a number of ideas for action and reform. The concluding chapter collates and summarises these reform proposals to address lacunae in the existing legal framework.

Download the report here.

Read ‘Liking Violence’, CPA’s 2014 report on online hate speech in Sri Lanka, here.

Centre for Policy Alternatives on 10 August, 2018

CPA Asks the Steering Committee to Publish ‘Draft Zero’

August 10th 2018, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) notes the media coverage surrounding a document described as ‘Draft Zero’ – evidently produced by some legal experts resourcing the Constitutional Assembly process – which is reported to have been submitted to the Steering Committee. According to reports, this document sets out a scheme for a new constitution based on the recommendations of the Sub-Committees of the Constitutional Assembly which reported in 2016, and the Steering Committee’s Interim Report of 2017.

While this document has not been made public by the Steering Committee, it is clear from the detailed critical commentaries on its contents that are appearing in the national media that the document has been leaked. We are thus in an extraordinary situation in which critics of constitutional reform are shaping the public debate on a future constitution, while proponents of reform as well as the general public remain in the dark about the proposals before the Steering Committee. This has removed any reasonable justification based on confidentiality which has so far prevented the publication of this document.

It may be the case that the government’s conduct of the reforms process, or lack thereof, has by now almost entirely squandered the political opportunity for a new constitution created by the landmark elections of 2015. But the government continues to owe a duty of basic candour to the public that twice mandated and entrusted it with the responsibility for constitutional reform in 2015. CPA accordingly demands that the document known as ‘Draft Zero’ be published forthwith. It is the least the government can do to demonstrate some respect for the goodwill and credulity of its citizens.

Download the statement here.

Centre for Policy Alternatives on 1 August, 2018

Digital Dangers: CPA Flags Continued Use of Disinformation, Propaganda and Hate Speech in Sri Lanka

Disinformation, propaganda and hate speech continues to distort the digital space in Sri Lanka, the Centre for Policy Alternatives (CPA) noted during a panel discussion organised by the Information Safety and Capacity (ISC) Project, which provides information security and capacity building assistance to civil society organisations, rights activists and independent media. The discussion was held in Washington DC on June 4, and CPA were the only participants representing South Asia.

These distortions in the digital space deepen divisions along lines of race and religion that persist post-war, CPA noted, alongside panelists from Venezuela, Macedonia, Ecuador, South Africa and Ukraine.

CPA flagged the spread of hate speech on social media during riots targeting the Muslim community in the Central and Eastern Province of Sri Lanka, resulting in the government blocking social media platforms Facebook, Instagram and WhatsApp, while delaying the immediate detention of the perpetrators responsible for the violence.

Other topics raised included a recent spike of bot accounts following key accounts on Twitter, targeting journalists, activists, lawyers and diplomats in April, which affected countries across South Asia, including Hong Kong, Myanmar, Cambodia and other countries. The weaponisation of social media using bots and troll accounts by political figures on Twitter, including by Joint Opposition MP Namal Rajapaksa was flagged as a point of concern. Parallels were drawn with the situation in Macedonia, where the State actively uses ‘troll farms’ to spread State-sponsored propaganda and disinformation, while the Ukranian panelist spoke about the Russian influence on disinformation within the country.

In Venezuela, the integration of citizen’s biometric data with social welfare programmes raises privacy concerns similar to those raised by Sri Lankan civil society after the introduction of a digital Identity Card in Sri Lanka, late last year.

CPA also noted impingements of freedom of expression online, with 13 websites blocked by the Telecommunications Regulatory Commission since 2015.

In the lead up to the panel discussion, CPA participated in the ISC Project’s annual workshop, bringing together tech-developers and activists. CPA led sessions highlighting the situation in Sri Lanka pertaining to freedom of expression online, to an audience of tech-developers, representatives of established social media platforms and activists from across the world.

Centre for Policy Alternatives on 19 July, 2018

Civil Society Concerned with Implementing the Death Penalty & Providing Police Powers to the Military

19th July 2018, Colombo, Sri Lanka: The undersigned civil society activists and groups in Sri Lanka express our deep concern about the decision of the Cabinet of Ministers to take steps towards implementing the death penalty. The death penalty has not been implemented in Sri Lanka since 1976, though it continues to remain as a punishment for certain categories of offences. According to media reports, the Cabinet of Ministers approved a proposal by President Maithripala Sirisena to take steps towards implementing the death penalty regarding persons who have been sentenced to death for drug offences and “who continue to operate the drug racket from their prison cells”.

We reiterate the objections made by several stakeholders in stating that;

  • There is no empirical evidence to support the assertion that the death penalty has a deterrent value and that it reduces crime;
  • Once imposed the death penalty cannot be reversed as such individuals could to be punished with death for crimes they did not commit;
  • Enforcing the death penalty is contrary to Sri Lanka’s international obligations; and
  • It is not the way a civilised society deals with crime, especially complicated crime in the nature of trafficking narcotics.

In this regard we welcome the observations of the Human Rights Commission of Sri Lanka (HRCSL) contained in letter dated 13th July 2018 addressed to President Sirisena which echoes the its previous letter to President Sirisena in January 2016 requesting him to take steps to abolish the death penalty. We urge the President, Prime Minister and the other members of the Cabinet of Ministers to seriously consider these recommendations by the HRCSL, which is statutorily mandated to advise the government in matters relating to the promotion and protection of human rights.

We are also concerned by a proposal reportedly approved by the Cabinet of Ministers at its meeting on 10th July 2018 to draft legislation that would allow the security forces to exercise some police powers for a period of two years to purportedly help the Police in “eradicating the drug menace in the country”. The military exercising police powers is unacceptable in a context where there is no on-going armed conflict. Military involvement in civilian activities has been a problem in post war Sri Lanka and the Government of Sri Lanka since 2010 has continuously promised to reduce the role of the military in civilian life. Whilst progress in this regard has been slow, this proposal if passed into law would be a mistake and a step in the wrong direction. The military’s training does not equip it to carry out policing functions effectively, as was seen when the military was summoned to deal with a protest in Rathupaswala in 2013, forcing the military to engage in policing functions can have disastrous consequences. Whilst the proposed bill is for a specific period of time, Sri Lanka’s experience with other similar legislation has shown that these types of laws eventually become a permanent fixture in the legal system.

There is no doubt about the need to curb narcotics in Sri Lanka, however the response of the Government of Sri Lanka needs to be carefully considered so as not to exacerbate existing problems. If the Government of Sri Lanka is serious about dealing with narcotics and drug trafficking it needs to among other things, focus on training the Police to deal with narcotics related crime and invest in modern equipment and technology to help investigations. The Government of Sri Lanka also needs to address the strong perception in society that politicians are involved in trafficking narcotics and/or are direct beneficiaries of money derived from such activities. Implementing the death penalty and using the security forces would do little to solve the problem and in the long run would only compound the rule of law problems in Sri Lanka.

Signatories

Individuals

  1. D. Rajani
  2. R.A Ramees
  3. Aaranya Rajasingam
  4. Ainslie Joseph
  5. Anithra Varia
  6. Annouchka Wijesinghe
  7. Anoma Wijewardene
  8. Anushaya Collure
  9. Aritha Wickramasinghe
  10. Asma Rahman
  11. Gowthaman
  12. Bishop Kumara Illangasinghe
  13. Bhavani Fonseka
  14. Brito Fernando
  15. Chandra Jayaratne
  16. Chandraguptha Thenuwara
  17. Chulani Kodikara
  18. Cyril Pathiranage
  19. Danesh Casie Chetty
  20. Deanne Uyangoda
  21. Deekshya Illangasinghe
  22. Daya Somasundaram
  23. P. Saravanamuttu
  24. Selvy Thiruchandran
  25. Faaiz Ameer
  26. J. M. Joseph Jeyaseelan
  27. Sarath Iddamalgoda
  28. Gamini Viyangoda
  29. Godfrey Yogarajah
  30. Iromi Perera
  31. Ishara Danasekara
  32. Jayanta de S Wijeratne
  33. Jayanthi Samaraweera Gunewardena
  34. Jeanne Samuel
  35. Juwairiya Mohideen
  36. Aingkaran
  37. S. Ratnavale
  38. Lahiru Kithalagama
  39. Lionel Guruge
  40. Luwie Ganeshathasan
  41. Mahaluxmy Kurushanthan
  42. Mario Gomez
  43. Mujeebur Rahman
  44. Nagulan Nesiah
  45. Nigel Nugawela
  46. Muthulingam
  47. Prabodha Rathnayaka
  48. Jayadeva Uyangoda
  49. Raisa Wickrematunge
  50. Ramya Chamalie Jirasinghe
  51. Rohana Jayaratne
  52. Rohini Weerasinghe Weerasinghe
  53. Ruki Fernando
  54. P Pushpakanthan
  55. Sakina Moinudeen
  56. Sampath Samarakoon
  57. Sandun Thudugala
  58. Sanjana Hattotuwa
  59. Sarah Arumugam
  60. Selvaraj Rajasegar
  61. Senel Wanniarachchi
  62. Shalini Wickramasuriya
  63. Shalomi Daniel
  64. Sharanya Sekaram
  65. Shreen Saroor
  66. Noeline Christine Fernando
  67. Subha Wijesiriwardena
  68. Sumika Perera
  69. Sunela Jayewardene
  70. Sunethra Bandaranaike
  71. Tanuja Thurairajah
  72. Samuel J. Ponniah

Organisations

  1. Alliance Development Trust
  2. Centre for Human Rights Development
  3. Centre for Policy Alternatives
  4. Families of the Disappeared
  5. Hashtag Generation
  6. INFORM Human Rights Documentation Centre
  7. Institute of Social Development
  8. International Centre for Ethnic Studies
  9. Law and Society Trust
  10. Manawa Shakthi Padanama, Galle
  11. Mannar Women’s Development Federation
  12. Muslim Women Development Trust
  13. National Peace Council
  14. Rights Now Collective for Democracy
  15. Rural Development Foundation
  16. The Grassrooted Trust
  17. Women’s Action Network
  18. Women’s Resource Centre

 

 

 

Centre for Policy Alternatives on 17 July, 2018

A Brief Guide to the Judicature (Amendment) Act No 9 of 2018

This brief guide is prepared by the Centre for Policy Alternatives (CPA) to raise awareness on salient points in relation to the Judicature (Amendment) Act No 9 of 2018 enacted in May 2018. As the guide indicates, if fully implemented, the present legislation can address delays with justice with specific cases in Sri Lanka. While this is legislation addresses several areas requiring reforms, CPA also notes several concerns that require further attention and urges the authorities to also consider addressing delays in relation to other areas.

Download in English here.

  1. What is the Judicature Act?

The Judicature Act is an act of Parliament which provides the legal basis to establish the system of courts of first instance in Sri Lanka. The Act also defines the jurisdiction of these courts.

  1. What is a court of first instance?

A court in which a case will be first heard is a court of first instance. Legal proceedings begin in courts of first instance and these courts will often hear evidence and make the first ruling about a case.

  1. What was the recent amendment to the Judicature Act?

The Judicature (Amendment) Act, No. 9 of 2018[1] was passed by Parliament in May 2018. This Act allows for certain High Courts to function as “Permanent High Courts at Bar”.

  1. What is the Permanent High Court at Bar?

It’s a permanent High Court consisting of three Judges sitting together to hear and determine cases relating to a number of financial and economic offences. The cases will be heard on a day to day basis (i.e. on consecutive dates). The Act provides for more than one Permanent High Court at Bar to be set up.

  1. What do “financial and economic offences” mean?

The Act does not define these terms. Instead it provides a schedule (the Sixth Schedule) which contains a list of offences which could be tried by the Permanent High Court at Bar.

  1. Will every case where a person is charged for an offence mentioned in the Sixth Schedule of the Act get heard by the Permanent High Court at Bar?

No. After considering several criteria, the Attorney General or the Director General for the Prevention of Bribery and Corruption (when directed by the Commission to Investigate Allegations of Bribery or Corruption) can refer such cases to the Chief Justice to ask whether criminal proceedings for such offences should be taken in a Permanent High Court at Bar or elsewhere.

If the Chief Justice is satisfied that one or more of the criteria has been satisfied, s/he can direct the Attorney General or the Director General for the Prevention of Bribery and Corruption to institute criminal proceedings in the Permanent High Court at Bar. [Section 12A(4a)]

  1. What are the criteria to be considered by the Attorney General or the Director General for the Prevention of Bribery and Corruption, and then the Chief Justice?
  • the nature and circumstances of the offence
  • the gravity of the offence
  • the complexity of the offence
  • the impact on the victim or the impact on the State [Section 12A(4a)]
  1. Who nominates the judges sitting in the Permanent High Court at Bar?

The Chief Justice nominates the judges who will sit in this court [Section 12A(1)]

  1. Did Sri Lanka already have provision for Trials at Bar?

Yes, it did.

Prior to the present amendment the Sri Lankan legal system had already recognised Trials at Bar. The Judicature Act allows for Trials at Bar to be held by the High Court for offences punishable under the Penal Code and other laws. The Chief Justice has the power to nominate a Bench of three Judges of the High Court to these Trials at Bar. [Section 12]

Under section 450 of the Code of Criminal Procedure Act, the Chief Justice can decide to hold a Trial at Bar for any offence punishable under Sections 114, 115 or 116 of the Penal Code[2], taking into consideration:

  • the nature of the offence
  • the circumstances relating to the commission of the offence
  • in the interests of justice

The person accused of the offence will be tried before a Trial at Bar by three Judges without a jury.

  1. How are the Permanent High Court at Bar different from Trials at Bar?

Unlike Trials at Bar, which are established on a case by case basis, the Permanent High Court at Bar will be permanent and will hear the cases referred to it by the Chief Justice (See answer to question 4)

  1. Do we have enough High Court judges to have dedicated Permanent High Courts at Bar? Will other cases get delayed?

The Judicature (Amendment) Act, No. 26 of 2017[3] increased the maximum number of High Court judges from 75 to 110. With this increase of the number of High Court Judges, the Permanent High Court at Bar can be established without diverting judges from existing High Courts. This would allow the existing workload of the High Court to be spread among more judges in more court rooms.

  1. Is there a problem of delays in High Court cases ? Is there a backlog of cases?

A report of Parliament’s Sectoral Oversight committee on Legal Affairs (anti-corruption) & Media, found that:[4]

  • The actual period between the date an indictment was filed and the date the prosecution commenced (Average) – 3.7 years
  • The period between commencing recording evidence and the ruling of the case at High Court (Average) – 1.8 years
  • The period for the completion of the two appeals in the Court of Appeal and the Supreme Court (Average) – 0.7 years

According to the Ministry of Justice, there is a considerable backlog of cases in the High Courts.

Date No of Cases Pending in High Court
30th September 2017 17,143[5]
31st December 2016 16,366[6]
31st December 2015 16, 259[7]

However it has to be noted that this represents ALL cases before the High Courts and not just criminal cases.

  1. Is the backlog of cases only due to the delays in the Courts?

No. Some of the problems that cause these delays are related to investigation agencies and the Attorney General’s Department, whilst at least part of the problem is the delays caused by the heavy workload of existing courts and postponement of cases.

Some problems that cause these delays can be solved through increasing resources available to the investigation agencies and the Attorney General’s Department and judiciary. This would mean recruiting more skilled personnel, providing more training, investing in equipment and technology to increase efficiency and streamlining administrative procedures.

Other problems require legislative fixes. These include streamlining court procedures and providing for more judges and court rooms (see answer to question 14).

These solutions are not mutually exclusive.

  1. How do these amendments to the Judicature Act hope to ensure cases are concluded faster?
  • By setting up court rooms to exclusively hear a particular category of cases, progress on these cases is sped up.
  • By taking away a particular category of cases from the other High Courts, the workloads in those courts are reduced.
  • The cases in the Permanent High Court at Bar are expected to be heard on a day to day basis (i.e. on consecutive dates), this prevents long gaps between dates and would help to ensure cases are progressed quickly. [Section 12A (5)]
  • As opposed to having two appeals (one to the Court of Appeal and one to the Supreme Court) there is only one appeal from the Permanent High Court at Bar. This appeal is heard by five judges of the Supreme Court (the same as Trials at Bar) [Section 12B]
  1. What are the other benefits of having a dedicated Court hearing a particular category of cases?
  • During their tenure in the Court, the judges will be able to focus on a specific category of cases. Considering that these crimes are highly technical and require specialised knowledge this would help judges focus on developing the necessary skills to adjudicate such cases.
  • Having dedicated Court rooms makes it easier to allocate specialised resources (i.e. specialised translators, audio visual equipment etc.)
  1. What guarantees are there that the Permanent High Court at Bar will be independent?
  • The Judges in the Permanent High Court at Bar are High Court judges. High Court judges are appointed by the President[8] on the recommendation of the Judicial Services Commission (JSC)[9]. The JSC in turn makes its recommendations in consultation with the Attorney General.
  • The Chief Justice appoints Judges to the Permanent High Court at Bar from among existing High Court Judges.
  • The Chief Justice decides (based on cases forwarded by the Attorney General and the Director General for the Prevention of Bribery and Corruption) which cases get referred to the Permanent High Court at Bar.
  • Despite these safeguards to prevent against political interference there still continues to be concerns (see below) in this regard.
  1. Why does the Chief Justice have such an important role to play in the entire process?

The Chief Justice appoints judges to the Permanent High Court at Bar and makes the final decision on which cases are heard by the Permanent High Court at Bar.

In the original gazetted Bill it was up to the Attorney General or the Director General for the Prevention of Bribery and Corruption to decide which cases would be referred to the Permanent High Court at Bar.[10] However based on several Petitions filed challenging the constitutionality of this, the Supreme Court said that this power should be with the Chief Justice.[11]

The gazetted Bill also enabled the JSC as well as the Chief Justice appointing judges to the Permanent High Court at Bar.[12] However the Supreme Court determined that this power should solely be with the Chief Justice.[13]

  1. What are the risks associated with having a dedicated Permanent High Court at Bar?
  • The main risk is that the Permanent High Court at Bar would not have the desired impact and would not be able to conclude cases within a short period of time. This could happen if;
    • The necessary resources are not allocated to these courts;
    • Causes for delays within investigation agencies and the Attorney General’s Department are not adequately addressed;
    • The judges do not adhere to the requirements specified in the amendment act including of day to day trial and not granting postponements unless in exceptional circumstances.
  • The role of the Chief Justice is also less than ideal in that it gives one individual a lot of power (see answers to question 16 and 17 above). There could be a situation where these powers are misused to scuttle attempts to prosecute financial crimes or to target political opponents. The original proposal of giving this power to the JSC[14] would have been an improvement. However it should be remembered that with the 19th Amendment to the Constitution, the executive wields much less influence over the Chief Justice than before but there continues to be a need for greater safeguards to protect the integrity of the judiciary and other key state structures.
  • Concerns have also been raised with specialised courts that there is the risk of stereotypes being developed which can be prejudicial to either the prosecution or to the accused. This could result in more verdicts of such courts being more likely to be overturned in Appeal. Therefore in order to ensure that there is a fair trial process there should be specially trained judges hearing cases on rotation.
  • There is only one appeal from a verdict of the Permanent High Court at Bar and five judges of the Supreme Court will hear such an appeal. This will add to the workload of the Supreme Court and could potentially create more backlogs in the Supreme Court.

 

[1] The Judicature (Amendment) Act, No. 9 of 2018, certified on 15th May 2018, Available at  http://www.documents.gov.lk/files/act/2018/5/09-2018_E.pdf

[2] Offence punishable under sections 114, 115 or 116 of the Penal Code are waging or attempting to wage war,  or abetting the waging of war against the State, Conspiracy to waging of war against the State and Collecting arms with the intention of waging war against the State

[3] The Judicature (Amendment) Act, No. 26 of 2017, certified on 17th November 2017, available at   http://www.documents.gov.lk/files/act/2017/11/26-2017_E.pdf

[4] “Recommendations Pertaining to the Expeditious and Efficient Administration of Criminal Justice”, Sectoral Oversight committee on Legal Affairs (anti corruption) & Media, 20 September 2017, at pg 3, available at http://www.parliament.lk/uploads/comreports/1510738363068517.pdf

[5] Progress Report, Ministry of Justice , January – September 2017, pg 42, available at http://www.moj.gov.lk/web/images/pdf/progress_report/14.11.2017/English.pdf

[6] Progress Report, Ministry of Justice , January – December 2016, pg 41, available at http://www.moj.gov.lk/web/images/pdf/progress_report/pr_january_december_2016_en.pdf

[7] Ibid.

[8] See Article 111(2)(a) of the Constitution.

[9] The Judicial Service Commission comprises of the Chief Justice and the two most senior Judges of the Supreme Court appointed by the President. See Article 111D of the Constitution.

[10] Clause 12A(7), Judicature Amendment Bill, Published in the Gazette on 6th February 2018, available at http://www.parliament.lk/uploads/bills/gbills/english/6082.pdf

[11] SC SD 7 – 13 of 2018 , available at http://www.parliament.lk/uploads/bills/scdet/6082.pdf

[12] Clause 12A(2), Judicature Amendment Bill, Published in the Gazette on 6th February 2018, available at http://www.parliament.lk/uploads/bills/gbills/english/6082.pdf

[13] SC SD 7 – 13 of 2018 , available at http://www.parliament.lk/uploads/bills/scdet/6082.pdf

[14] Judicial Service Commission comprises of the Chief Justice and the two most senior Judges of the Supreme Court appointed by the President. See Article 111D of the Constitution.

Centre for Policy Alternatives on 6 July, 2018

Civil Society Raises Concerns with the Office for Reparations Bill

The undersigned civil society activists and groups in Sri Lanka express our deep concern with aspects of the draft Bill titled ‘Office for Reparations’ (the Bill) gazetted on 25th June 2018. While the undersigned have several concerns with the process and content of the draft Bill, two issues regarding the powers and functions of the proposed Office stand out as the most pressing concerns. If these are not addressed forthwith, further engagement with the process will be moot. Therefore, we request amendments to the draft Bill to address these issues. We also urge any future action to be preceded by meaningful consultations on the content of the draft Bill allowing civil society and other stakeholders to make further submissions regarding other outstanding concerns.

Paramount concerns regarding the draft Bill are as follows:
1) The proposed Office has no decisional power with respect to policies and guidelines on reparations. In fact, policies and guidelines formulated by the proposed Office will only be adopted upon approval by the Cabinet of Ministers (clause 11(1)(g)). This unnecessary requirement of designating the Cabinet of Ministers as the key decision-maker on the adoption of reparations policies and guidelines is hugely problematic as the latter may delay or even refuse approving the recommended policies on reparations. It can also lead to cabinet approving policies and guidelines in an ad hoc manner, as done in the past, potentially undermining the coherence of the scheme proposed by the Office.

2) Furthermore, according to the draft Bill, policies and guidelines approved by the Cabinet of Ministers and authorizing the disbursement of funds must be placed before Parliament for its approval (clause 22(4)). This procedural requirement is unnecessary and redundant given that the proposed Office has its own Fund for the carrying out of its mandate. Therefore, this adds another unnecessary layer of Parliamentary oversight and thereby further dilutes the Office’s input on reparations policies and guidelines.

These two clauses are cause for grave concern as they take away any decision-making power from the proposed Office regarding the adoption of reparations policies and guidelines. In essence, the inclusion of such problematic clauses reduces the proposed Office to a another bureaucratic layer in the adoption of policies, a far cry from what the proposed Office was meant to be in terms of defining and implementing reparations policies and programmes.

Reparations are a critical component to rebuild the lives of those whose rights have been violated. As such, if properly implemented, reparations will have a significant impact across Sri Lanka. However, for reparations to be transformative, they must be prompt, effective, and inclusive and the process must be transparent. Thus, an independent Office, free from political interference and vested with powers to define and implement reparations is essential. It is in this context that we call on the government to use this opportunity to fulfil their commitments made in 2015, taking note of the findings of the Consultations Task Force (CTF) and enact legislation establishing a mechanism that can fully address the needs of victims across Sri Lanka.

Signatures

Institutions
1. Centre for Equality and Justice
2. Centre for Human Rights and Development
3. Centre for Policy Alternatives
4. Families of the Disappeared
5. Institute of Social Development
6. International Centre for Ethnic Studies
7. Law and Society Trust
8. Mannar Women’s Development Federation
9. Muslim Women Development Trust Puttalam
10. National Fisheries Solidarity Movement
11. National Peace Council
12. Northern Muslim Civil Society
13. Rights Now Collective for Democracy
14. South Asian Centre for Legal Studies
15. Women’s Action Network

People
1. Anushani Alagarajah
2. Asma Rahman
3. Bhavani Fonseka
4. Chulani Kodikara
5. Daya Somasundaram
6. Deanne Uyangoda
7. Dinushika Dissanayake
8. Dylan Perera
9. Isabelle Lassee
10. Juwaira Mohideen
11. Louise Dargan
12. Mahalaxumy Kurushanthan
13. Mario Gomez
14. Medhaka Fernando
15. Nigel Nugawela
16. Nilshan Fonseka
17. Paikiasothy Saravanamuttu
18. Periyasamy Muthulingam
19. Prabodha Rathnayake
20. Sahira Lafeer
21. Sarah Arumugam
22. Shreen Abdul Saroor
23. Sumika Perera
24. Tanuja Thurairajah
25. Thyagi Ruwanpathirana
26. Uween Jayasinha
27. Father Veeresan Yogeswaran
28. Visaka Dharmadasa

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