Centre for Policy Alternatives on 22 March, 2018

Observations on the Bill to Amend the Voluntary Social Service Organisations (Registration and Supervision) Act No. 31 of 1980

The Cabinet of Ministers approved on 20 February 2018 a proposal to introduce amendments to the Voluntary Social Service Act (VSSO) No. 31 of 1980. The proposed amendments contain far-reaching consequences on the activities and finances of civil society and if enacted in its present form will have a chilling effect on a range of private entities across Sri Lanka. The present move is also in a context when there are several existing laws in place to monitor and regulate non-governmental organisations and other entities that are likely to fall within the proposed amendments.

The Centre for Policy Alternatives (CPA) has prepared a short note containing key concerns on the proposals and process, with the hope of a constructive engagement on this issue and raising with it the necessity and proportionality of what has been proposed.

Download the note in English. Sinhala and Tamil versions will be made available soon.

 

Centre for Policy Alternatives on 16 March, 2018

Understanding a State of Emergency: March 2018

Sri Lanka’s last state of emergency lasted for 28 years, and was terminated in August 2011, having continuously been extended by governments since it was first declared in 1983. On March 6th 2018, President Maithripala Sirisena declared a state of emergency in order to address and contain the violence unfolding in the Kandy district, where violent attacks on the Muslim community saw widespread property damage and two deaths. Recent statements by the Presidential Secretary and the Prime Minister on its extension have raised concern.

This brief illustrates basic information on the terms, legal procedure and concerns regarding the curtailing of citizens’ rights around a state of emergency.

What is meant by a ‘State of Emergency’?

A state of emergency is a situation of exceptional threat, danger, or disaster in the life of a nation, the existence of which is clear to all, in which the government is given extraordinary powers not permitted during normal times to deal with the threat, including powers to restrict certain fundamental rights.

The Sri Lankan Constitution does not provide a formal definition of a state of emergency. Instead, the conditions that may give rise to the need for emergency powers are described in the Public Security Ordinance (PSO). The President may issue a Proclamation of a state of emergency where, “in view of the existence or imminence of a state of public emergency, he is of the opinion that it is expedient to do so, in the interests of public security and the preservation of public order or for the maintenance of supplies and services essential to the life of the community.”

This is therefore (1) a general description of the conditions that would give occasion to the President to proclaim an emergency, along with (2) the aims – national security, public order, and maintenance of essential services – for which such powers are to be used.

 

What is the procedure for the declaration of emergency?

Under Article 155 of the Constitution, a state of emergency is brought into being by a Proclamation made by the President, which brings into operation the provisions of the PSO. This includes the power to make Emergency Regulations by the President, which may override any law, regulation, or provincial statute. Emergency Regulations however cannot override the Constitution.

The sole discretion in issuing a Proclamation declaring a state of emergency is vested in the President. But this must be communicated forthwith to Parliament, which must be summoned for the purpose. The President is empowered to issue a Proclamation that is valid for a period of one month, although he may revoke it earlier. But Parliament must approve it by a resolution within fourteen days. If Parliament does not approve the Proclamation within fourteen days, then it expires. Any continuation of a state of emergency is subject to the approval of Parliament. The President’s decision to declare a state of emergency cannot be challenged in the courts.

 

Was this procedure followed in March 2018?

Yes. The President issued the Proclamation on 6th March, effective for a period of one month. Whether or not the circumstances warranted a declaration of emergency may be debatable, but it is legally irrelevant, because that decision is at the sole discretion of the President (and in any case, on this occasion he did so in consultation with the Cabinet). He also promulgated a set of Emergency Regulations on the same day, which are quite standard. Unless Parliament approves the Proclamation by resolution within fourteen days of the Proclamation, it will expire by operation of law on 20th March. The President can either let it lapse or revoke it himself during this period. If he wants the state of emergency to extend beyond that date, he must get Parliament to approve it. A fresh Proclamation (and parliamentary approval) is needed if the state of emergency is to be extended beyond the initial one month.

 

What are the legal effects of a state of emergency?

The most significant power under a state of emergency is the general law-making power given to the President in the form of Emergency Regulations, which may override any law except the Constitution. This extraordinary power is unusual in that it impacts on the Separation of Powers. Normally, it is only the legislature and not the executive that can make law. Although sometimes the power to make rules is delegated on the executive by some Acts of Parliament, such rules cannot override law. These two aspects – that they are made by the President and that they prevail over other laws – give Emergency Regulations their special character. However, it is also important to remember that Parliament can at any time revoke or amend any Emergency Regulation by resolution. Likewise, the courts will under certain circumstances annul Emergency Regulations that violate the Constitution.

The PSO enumerates various purposes for which Emergency Regulations may be made. These include provision for the detention of persons, commandeering and acquisition of private property, entry and search, and hearings, appeals and compensation for those affected by the regulations. Other than the power to make Emergency Regulations, the PSO also sets down the special powers of the President during a state of emergency, including calling out the armed forces in aid of the civil power, the procedure for arrest, detention and executive review of detention, and the suspension of certain safeguards for the liberty of the individual in the Code of Criminal Procedure.

 

To what extent are citizens’ rights curtailed in this period?

There are a number of criminal law rights that may be curtailed under the PSO, as noted above. The Constitution also permits restrictions to be placed on fundamental rights through Emergency Regulations.

The freedom of thought and conscience, the prohibition of torture, and the right to be heard at a fair trial by a competent court (but excluding pre-trial detention which can be imposed by Emergency Regulations) are not subject to any restriction and are thereby to be considered absolute. These therefore may never be restricted by Emergency Regulations.

The fundamental rights that may be restricted by law (including Emergency Regulations) in the interests of national security and public order are: the presumption of innocence, the burden of proof, and retroactive penal sanctions; equality before the law and non-discrimination; the ordinary procedure for arrests and judicial sanction for detention; and the fundamental rights to freedom of expression, assembly, association, movement, occupation, religion, culture and language.

The Constitution does not establish substantive controls on the extent to which these fundamental rights may be restricted, except that they be imposed by law (for which purpose, ‘law’ includes Emergency Regulations, and is therefore not a control at all). Thus, for example, there is no constitutional requirement that the restriction be proportionate to the harm sought to be averted, and it falls entirely to the goodwill of the executive to act responsibly and/or the courts’ willingness to enforce the rule of law and fundamental rights. Sri Lanka does not have a reassuring record on either.

Independently of emergency powers, the government also has recourse to the Prevention of Terrorism Act (PTA). These antiterrorism powers are extensive, and their use is not subject to the formal requirement of continuous parliamentary approval as in the case of emergency powers.

 

How does the Sri Lankan legal framework for states of emergency align with international standards?

The Sri Lankan framework complies with international standards insofar as it requires a formal proclamation, parliamentary approval for declaration and extension, and there is some judicial oversight over the exercise of emergency powers. However, Parliament is not very good at holding the executive to account even in conditions of normalcy, and historically, it has been even less effective in times of crisis. Presidents usually are also the leaders of the party enjoying the majority of seats in Parliament, and this prevents meaningful scrutiny and accountability of presidential action. The Supreme Court has a mixed record as a checking mechanism. Some judges in the past have been robust especially in the protection of fundamental rights against abuses through emergency powers. At other times, the courts have failed to check the executive through excessive deference.

The Sri Lankan law is not in line with a number of international standards. The Constitution permits restrictions to be placed on a number of fundamental rights through emergency powers which are not allowed by international best practice, including the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka is state-party. As already noted, the Constitution also does not require restrictions on fundamental rights to be proportionate to the legitimate aims of national security. Although this principle has been judicially recognised by the Supreme Court on some occasions, it is not applied uniformly. There is no requirement in Sri Lankan law that emergency measures be consistent with the state’s international obligations, in particular, international humanitarian law and law of armed conflict. Likewise, the Constitution expressly permits restrictions to be placed on the right to non-discrimination during a state of emergency, which is clearly contrary to international human rights law. However, it is required by the ICCPR that a state-party derogating from rights during an emergency should immediately inform other state-parties through the UN Secretary General and Sri Lanka has frequently made these derogation notifications in previous states of emergency.

 

What concerns are raised by the past experience of states of emergency?

Many of the widespread abuses during past emergency periods occurred in the context of a protracted war. Emergency powers frameworks in democratic constitutions – including ours despite all its defects – are predicated on the central distinction between times of ‘normality’ and ‘exceptional’ times of crisis. It is the recognition that exceptional times and crises demand exceptional responses that justifies the grant of extraordinary powers to the executive as well as the restriction of fundamental rights. What happens in conditions of protracted conflict is that the ‘exception’ becomes the ‘normal’, and emergency rule becomes normalised for both the government and citizens who get used to it. This has long-term effects on a society.

We no longer have an active conflict to justify the prolongation of a state of emergency, so it seems likely that the current state of emergency will either lapse or be revoked sooner rather than later. However, this begs deeper questions about the circumstances that necessitated – in the mind of the government – the invocation of these powers. These include the lack of post-conflict reconciliation and inability to embrace diversity, the culture of criminal impunity and selective application of the law, the social tolerance of violence, the deficiencies of the police in relation to their basic responsibility to maintain law and order, the impotence of secular authority in face of religious power, and the similarly medieval ignorance and superstition that allows atavistic tribalism to thrive in our society.

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This brief was prepared by CPA Research Fellow Dr. Asanga Welikala. He has previously authored A State of Permanent Crisis: Constitutional Government, Fundamental Rights and States of Emergency in Sri Lanka, States of Emergency: Issues for Constitutional Design and The state of Emergency in Peacetime.

 

 

Centre for Policy Alternatives on 6 March, 2018

CPA Calls Authorities to Take Swift Action to Prevent Further Violence and to Arrest and Prosecute Individuals Advocating National, Racial and Religious Hatred

March 06th 2018, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) condemns the recent violence unleashed against the Muslim community, which has now claimed the life of Abdul Basith, a youth from Teldeniya and destroyed several Muslim homes and businesses as well as several mosques in the Kandy area. This recent spate of violence accompanied by the incitement of racial and religious hatred is orchestrated as attested to by video footage on social media and statements made by government ministers. According to media reports, the current violence commenced as a consequence of a personal dispute between M.G. Kumarasinghe and a group of Muslim men on 22nd February, which on 3rd March cost Mr. Kumarasinghe his life. The present violence ensued soon thereafter.Media also reported that those accused of attacking Mr. Kumarasinghe were immediately arrested and placed in remand custody.This must be followed by prosecutions in adherence to the law.

CPA is also deeply concerned by the viral circulation of video clips inciting violence against the Muslim community. CPA is in possession of several such clips including one by a person claiming to be a Buddhist monk.The individual in the video uses demonstrably false information as fact to incite violence against the Muslim community and accuses the Chief Prelates of favouring Muslims over Buddhists.

CPA calls on citizens from all communities to refrain from inciting further violence and on the authorities to take swift action to both arrest and prosecute perpetrators within the existing legal framework. Inaction or half-hearted action at this critical junction will deepen mistrust, fear and tension within and among communities, fuel hate and violence and cement a culture of impunity.

The recent incidents in the Kandy area and Ampara are not isolated incidents but highlight the persistence and increase of communal tensions in post-war Sri Lanka. Despite CPA citing the relevant legal provisions when calling upon the law and order authorities to arrest and prosecute perpetrators, including those responsible for the production and circulation of inflammatory videos and hate speech, no prosecutions have to date resulted in any convictions.Yet again, in the spirit of constructive engagement, CPA has today dispatched another letter to the relevant authorities calling for swift and decisive action. If the relevant law enforcement authorities cannot or will not take necessary action, CPA is of the firm belief that they should resign their office or be removed in accordance with the law.  The gravity of the situation, the growing perception of government inability to fulfill it responsibilities in respect of reconciliation, the prevention of religious and ethnic violence and intolerance and the maintenance of law and order, demands no less.

Considering Sri Lanka’s history of violence, these recent events and statements made by individuals inciting racial and religious hatred should not be taken lightly. Immediate action must be taken to arrest this behaviour, which actively plays on the fears of people and seeks to channel that fear to harm persons of other ethnic and religious communities. Sri Lanka is a multi-ethnic and multi –religious country and should be strongly defended as such without fear or favour. In all of this, the President and Prime Minister must give decisive and unequivocal leadership to prevent any future violence, uphold the rule of law and halt the fast erosion of an increasingly fragile peace in post-war Sri Lanka.

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Download the statement in English, Sinhala & Tamil.

Centre for Policy Alternatives on 28 February, 2018

CPA Strongly Condemns Recent Violence in Ampara and Urges Swift Action by Authorities

28th February 2018, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) strongly condemns the recent attacks on a mosque and several places of business in Ampara on the 26th of February and urges the relevant authorities to take action to prevent the spread of violence and to hold perpetrators to account within the existing legal framework in Sri Lanka.

CPA notes the systematic hate campaigns that have targeted minorities in the post-war context and that despite complaints against such incidents and as highlighted by CPA, the existence of adequate legal provisions in the Sri Lankan legal framework, perpetrators have almost never been arrested and prosecuted. Furthermore, there is also abundant video evidence related to such incidents, often disseminated by those claiming to be the perpetrators themselves or by those associated with the perpetrators. In this context of continued failure by the Police, CPA strongly urges the Prime Minister, as the Minister of Law and Order, to ensure that the Police fulfills its responsibilities without fear or favour.

Whilst there has been condemnation by key actors in government, including by President Maithripala Sirisena who condemned the recent incident when he spoke yesterday (27th) at the launch of National Policy on Reconciliation & Co-existence, words must be followed by action to prevent any future violence, eradicate impunity and provide confidence to minorities that this government is committed to coexistence and reconciliation. Inaction at this pivotal juncture in our 70th year of independence will retard the prospects for genuine peace and reconciliation in Sri Lanka.

Download the statement in English, Sinhala and Tamil.

 

 

 

Centre for Policy Alternatives on 16 February, 2018

The Centre for Policy Alternatives vs. Attorney-General SC SD 24/2017 [In re: The Twentieth Amendment to the Constitution]

A Bill titled ‘The Twentieth Amendment to the Constitution’ (the Bill) was placed on the Order Paper of Parliament on 23rd August 2017. The Centre for Policy Alternatives (CPA) and its Executive Director filed a Petition on 28th August 2017 in the Supreme Court, stating that the Bill can only be passed in Parliament with a special majority (two thirds of the Members of Parliament) and with the approval of the people at a referendum.

CPA first argued that the Bill fails to comply with a mandatory procedural requirement for constitutional amendments. Article 154G(2) of the Constitution requires any amendments to the devolution framework established by the Thirteenth Amendment to be referred by the President to every Provincial Council for the expression of their views before being placed on the Order Paper of Parliament. This procedure was not followed in this case. The importance of this requirement is that it enables Provincial Councils to express their views on a Constitutional Amendment Bill, and to give the government an opportunity to accommodate those views before a final Bill is presented to Parliament.

Second, CPA argued that the Bill violates the Constitution’s Article 3, which affirms the sovereignty of the people and recognizes that the franchise is a part of that sovereignty. After the Thirteenth Amendment introduced devolution, this includes the right of citizens in the nine Provinces to elect a Provincial Council of their choice. The Bill negatively affects the people’s franchise because it transfers to Parliament the power of a Provincial Council to decide when that Council should be dissolved. As a result, it delays the opportunity of citizens in Provinces whose Provincial Council terms end before the “specified date” in the Bill, to vote for a new Provincial Council until then. Equally, the mandate citizens have given to Provincial Councils whose terms end after the “specified date” in the Bill is cut short by the Bill.

The Supreme Court in its determination did not hold with CPA’s argument relating to Article 154(G)(2), however, it did accept the position that it is mandatory for the President to refer such bills to Provincial Councils prior to being placed on the order paper of Parliament. Furthermore the Court determined that the postponement of elections envisaged in the Bill violated Articles 3 and 4 of the Constitution (sovereignty of the People) and as such it was required to be passed by a referendum.

Centre for Policy Alternatives on 16 February, 2018

The Centre for Policy Alternatives Vs. Kabir Hashim and others SC (FR) Application No.54/2016

The Centre for Policy Alternatives (CPA) and its Executive Director filed a Fundamental Rights application challenging the appointment of Field Marshal Sarath Fonseka to fill the vacancy created by the death of Mr. M. K. A. D. S. Gunawardana, as a Member of Parliament elected under Article 99A of the Constitution (the National List).

In accordance with Article 99A of the Constitution, CPA’s position was that a person is only entitled to be nominated to fill such a vacancy if their name was included in the district nomination papers or national list submitted by the relevant political party. Field Marshal Sarath Fonseka’s name was not included in the “national list” submitted to the Election Commission by the United National Party, or in any nomination paper submitted with respect to any Electoral District by the United National Party in the 2015 Parliamentary election.

In its Petition, CPA stated that if the appointment of a person as a Member of Parliament is contrary to the provisions of the Constitution, is a violation of several rights guaranteed under the Constitution, in particular the franchise, which is part of the sovereignty of the people. Furthermore, CPA argued that any attempt to interpret legislation in a manner contrary to the provisions of the Constitution would imperil the supremacy of the Constitution, which is a cornerstone of constitutional democracy.

Over the past two decades, CPA has filed several Public Interest Litigation cases relating to the franchise, and in particular, the right to vote. The judgments deriving from these cases have recognized the right to vote as a fundamental right and highlighted the importance of protecting it. CPA has on two previous occasions challenged attempts to appoint to Parliament and to Provincial Councils, individuals whose names were included in the nomination papers submitted for the respective elections.

The matter was taken up by the Supreme Court on May 24th 2016. The Court stated that Article 99(A) of the Constitution does not extend to cover a situation where the seat of a National List member has fallen vacant and the provisions contained in section 64(5) of the Parliamentary Elections Act No.1 of 1981 with regards to filling vacancies would apply. Therefore, the Court refused to grant leave to proceed with the case.

Centre for Policy Alternatives on 16 February, 2018

Sanjeewa Sudath Perera and two others vs. H.E. Maithreepala Sirisena (SC FR 67/2016) (Fundamental Rights application challenging the Tamil version of the National Anthem)

Sanjeewa Sudath Perera and two other persons filed a Petition dated 26th February 2016 in the Supreme Court challenging the decision to sing the National Anthem of Sri Lanka in Tamil at the official Independence Day celebrations in 2016. The Petitioners argued that singing the Anthem in Tamil was contradictory to Articles 7 and 12 of the Sri Lankan Constitution, which relate to the National Anthem and the rights to equality and non-discrimination, respectively.

On March 4th 2016, the Centre for Policy Alternatives (CPA) and its Executive Director Dr. Paikiasothy Saravanamuttu filed an Intervention-Petition, which argued that singing the National Anthem in Tamil was Constitutional. This intervention Petition first referenced Articles 18 and 19 of the Constitution, which state that Sinhala and Tamil are the official and national languages of Sri Lanka. Furthermore unlike subordinate legislation such as acts of Parliament, the Constitution contains no provision, which stipulates that the Sinhala text shall prevail over the Tamil text.  As such the words and music of the National Anthem in the Tamil language are constitutionally recognized by Article 7 read with the Third Schedule of the Tamil version of the Constitution of Sri Lanka.

The intervention Petition further referenced Article 12 of the Constitution, claiming that a declaration that the National Anthem should be sung only in Sinhalese would be a direct violation of Article 12, which in turn would be a violation of the fundamental rights of Tamil-speaking citizens. CPA also supported two additional Intervention-Petitions that supported the constitutionality of singing the National Anthem in Tamil.

The Supreme Court took up the case on the 18th of November 2016, discussing whether the Petitioners made a strong enough case for considering the Petition in the Court. During the discussions, the Deputy Solicitor General (DSG) also referenced Articles 18 and 19 of the constitution recognizing both Sinhala and Tamil as the official and national languages of Sri Lanka, and that the singing of the Anthem in Tamil was not in violation of the Constitution. The court therefore decided that the Petitioners had not disclosed a case to be considered, and subsequently their case was dismissed.