Press Release on SC SD 7/2017 [Code of Criminal Procedure (Special Provisions) Act No 2 of 2013 (Amendment) Bill]

6th June 2017, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) welcomes the decision of the Government to withdraw the “Code of Criminal Procedure (Special Provisions) Act No 2 of 2013 (Amendment) Bill” (the Bill). The undertaking was given today in the Supreme Court by counsel appearing for the Attorney General’s department when the special determination was taken up to hear Petitions challenging the constitutionality of two provisions in the Bill, including a Petition filed by CPA and its Executive Director (SC SD 7/2017).

CPA argued that Sections 6A(2) and (6) of the Bill’s Clause 2 were inconsistent with Articles 3, 4 (d), 11, 12(1), 13(1), 13(2), 13(3), 14(1) and 17 of the Constitution. These provisions, if enacted, will allow an Officer in Charge of a police station to deny lawyers access to detainees and the premises of the police station if such access would be “prejudicial” or shall “affect” the investigation being conducted. Because of this, these provisions are inconsistent with the rights of persons in custody guaranteed under the Constitution and the law.

CPA argued that the right to a fair trial under the Constitution includes the right to a lawyer for anyone in custody. Sections 6A(2) and (6) of Clause 2 of the Bill are drafted in a way that is too broad with no objective criteria to determine the prejudice or effect a detainee’s access to a lawyer or the lawyer’s access to a police station may have on an investigation being conducted. This restricts the ability of a lawyer to adequately represent their client. The provisions are also open to abuse as they may allow further violations of detainee’s rights, including the right not to be tortured.

CPA notes that while these provisions are proposed to operate only temporarily, similar temporary legislation such as the Prevention of Terrorism Act (PTA) became permanent over time. CPA’s concerns with the Bill were raised previously when it was gazetted on 6th March 2017. In light of the undertaking given in court, CPA urges the Government to call for submissions in this regard and have a consultation with all relevant stakeholders, ensuring that the process is transparent and inclusive.

Download the full release in EnglishSinhala and Tamil.

 

 

 

The Centre for Policy Alternatives vs. Attorney-General (SC SD 7/2017)

June 1st 2017, Colombo, Sri Lanka: The Bill titled “Code of Criminal Procedure (Special Provisions) Act No 2 of 2013 (Amendment) Bill” (the Bill) was placed on the Order Paper of Parliament on 25 May 2017. The Centre for Policy Alternatives (CPA) and its Executive Director filed a Petition on 31 May 2017 in the Supreme Court (SC SD 7/2013) challenging the constitutionality of two provisions in the Bill.

CPA argued that Sections 6A(2) and (6) of the Bill’s Clause 2 were inconsistent with Articles 11, 12(1), 13(1), 13(2), 13(3), 14(1) and 17 of the Constitution. These provisions, if enacted, will allow an Officer in Charge of a police station to deny lawyers from accessing detainees and police stations if such access would be “prejudicial” or shall “affect” the investigation being conducted. Because of this, these provisions are inconsistent with the rights of persons in custody guaranteed under the Constitution and the law.

The right to a fair trial under the Constitution includes the right to a lawyer for anyone in custody. The provisions are drafted in a way that is too broad with no objective criteria to determine the prejudice or effect a detainee’s access to a lawyer or the lawyer’s access to a police station may have on an investigation being conducted. This restricts the ability of a lawyer to adequately represent their client. The provisions are also open to abuse as they may allow further violations of detainee’s rights, including the right not to be tortured.

CPA notes that while these provisions are proposed to operate only temporarily, similar temporary legislation such as the notorious Prevention of Terrorism Act (PTA) became permanent over time. CPA further notes that the provisions in the Bill are inconsistent with the government’s stated commitment to a zero-tolerance policy towards torture.

 

A Call to President Maithripala Sirisena: Establish the Office of Missing Persons Immediately

1st June 2017, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is deeply concerned with the inaction of the Government of Sri Lanka in realising key promises made to a significant number of its citizens about the search for their disappeared and missing loved ones. Despite the numerous calls for action including persistent protests by victims, their pleas have gone unheeded. The ambitious promises made in 2015, including the establishment of the Office of Missing Persons (OMP) and the criminalising of enforced disappearances, are yet to be fulfilled.

Legislation to establish the first permanent and independent mechanism to investigate enforced disappearances and missing persons was enacted by Parliament in August 2016. Despite shortcomings in the drafting process, CPA welcomed the legislation as a genuine opportunity to break from the past and provide answers to victims. More than nine months after the legislation was enacted, CPA is disappointed that the OMP remains yet another elusive mechanism. Moreover, CPA is concerned that rather than establish the OMP, the Government has introduced draft legislation to diminish the OMPs ability to enter into agreements necessary to achieve its mandate. This amendment could potentially impede the functioning of the OMP as an independent and effective institution. CPA is informed that the OMP Amendment Bill (Office on Missing Persons (Establishment, Administration and Discharge of Functions) (Amendment) Bill) is presently listed for debate in Parliament on 7th June 2017. In such a context, CPA reiterates its previous calls and urges President Maithripala Sirisena to fulfil his constitutional duty and take steps to establish the OMP, appoint independent and experienced individuals to the OMP and provide for the necessary resources and assistance for its effective functioning. Any new amendments to the legislation should be done in good faith and should not vitiate the purpose of the OMP.

Enforced disappearances and missing persons are issues that have plagued Sri Lanka for several decades, with successive governments appointing numerous commissions and committees with little or no follow up action. CPA has commented on the numerous flawed state initiatives that failed to deliver on truth and justice to victims, with many initiatives re-traumatising victims and giving false hopes. In effect, such initiatives made a mockery of the dignity of victims, with the delays and inaction further exacerbating the culture of impunity. These are reminders as to why another committee, as indicated in recent statements by President Sirisena, will be a mistake. It will further compound the notion that the Executive President, by design or omission, is more inclined to perpetuate the silence and impunity that fosters deep divisions and mistrust than assist thousands of his fellow citizens in finding answers about the disappearance of their loved ones.

Decades of wrongs by the State and non-state actors have had a profound impact on citizens across Sri Lanka and contributed to a legacy of violence. Inaction and apathy now will strengthen the hands of the critics waiting for the Government to squander this unique opportunity to usher in reforms for truth, justice and reconciliation. More than eight years after the end of the war and two years into the “Yahapalanaya government”, time is of the essence for the Government to deliver on some of its most crucial promises. President Sirisena must act now!

CPA’s previous statements and documents on the OMP and related issues can be found at: www.cpalanka.org and www.tjsrilanka.org

Download the full release in EnglishSinhala and Tamil.

Effective Action and Accountability Needed Now to Counter Religious Violence and Tension

May 23rd 2017, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is deeply concerned about recent attacks and threats against Muslim places of worship and businesses as well as the use of inflammatory and insulting rhetoric against Islam.  CPA unreservedly condemns these actions and calls on the government and the law enforcement agencies to hold to account without delay those responsible for them and take preventative measures against such actions without delay.  The failure to do so will nourish the politics of hate and harm and the culture of impunity, both of which were roundly rejected by our fellow citizens in 2015.

The need of the day is for reconciliation, peace and amity between all the peoples of our country.  There is no place for hate and division. The government must honestly and actively pursue reconciliation. It must acknowledge the divisions within society and put in place mechanisms at the community and national level to heal them and prevent further division.  Moreover, the basic tenets of good governance require that the law of the land be applied equally to all, without fear or favour, irrespective of the identity of the perpetrators of division and hate.  The peace and prosperity that this country deserves will be seriously retarded if such actions are allowed to go unchecked and unpunished.

CPA reiterates that the existing legal framework provides law enforcement authorities with ample tools to prevent such incidents and arrest perpetrators.  It is deeply troubling that law enforcement authorities use the existing legal regime to prevent and stifle other forms of peaceful protests and gatherings but continuously fail to show the same degree of enthusiasm and efficiency in apprehending the perpetrators of these attacks.

The President and current government, voted into office with the support of our fellow citizens of all ethnicities and faiths, must act with courage and foresight to halt this frightening and fatal trend.   None of our fellow citizens should have to live in fear or be subjected to abuse and violence on religious grounds or indeed on account of deliberate falsehoods spread against them by purveyors of hate.

This government must act -fast and without room for any doubt.  By word and by deed, it must send out a clear and cogent message that it stands for a united Sri Lanka with peace, amity and security for all of its peoples.

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

THE NEED TO REBOOT RECONCILIATION IN POST-WAR SRI LANKA

May 19th 2017, Colombo, Sri Lanka: The eighth anniversary of the end of the war draws attention to the progress made and prospects for meaningful reconciliation. At the expense of the multi-faceted challenge of transitional justice and reconciliation, attention, in recent years, has focused heavily on the last stage of the war, in particular the allegations of international crimes against both sides, the demand for accountability, the modalities and the mechanism in respect of it.  Consequently, many Sri Lankans remain deeply divided and aggrieved on account of the decades of structural injustices, political violence and other egregious failures of governance by successive governments and non-state actors.

Worryingly, over two years into the present government, the full realization of governance reforms is under severe challenge and reconciliation increasingly elusive. In such a context, the Centre for Policy Alternatives (CPA) urges the government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe to launch a programme of action to expedite realisation of the promises made in 2015 on constitutional reform, transitional justice and governance. It must be a truly national programme, capitalising on the unique feature of the victorious coalition of 2015 as the largest and broadest in our post-independence history. This design and execution of this programme of action should be treated as a matter of the utmost national priority with the support and participation of the public galvanized, accordingly.

Over the years Sri Lanka has missed several opportunities for conflict transformation and peace building. The opportunity for reconciliation presented by the end of the war was ignored by an authoritarian and triumphalist regime with no interest in addressing the grievances of victims and affected communities. Instead, it sponsored and presided over unprecedented levels of militarization, corruption, nepotism, disregard for dissent and free speech, attacks on minorities and the entrenchment of the culture of impunity. Promises to investigate past abuses resulted in tokenistic efforts of appointing commissions of inquiries and investigations, which failed to provide answers to the thousands of our fellow citizens searching for truth and justice.

January and August 2015 saw significant numbers of Sri Lankans rejecting this authoritarianism by voting in an unprecedented coalition government promising a new and democratic political culture and a genuine process of reconciliation. More than two years after, the prospect for change is fast diminishing, with little to show in the public domain by way of tangible change. Despite some early progress such as the enactment of the 19th Amendment to the Constitution and Right to Information legislation, many Sri Lankans continue to be left out of key processes that define their future and that of the country. The persistent protests by victims and affected communities across Sri Lanka is a sign of the many areas requiring urgent attention and the growing perception that this government is no different to previous ones. Recent months have also evinced a near shut down of citizen engagement in policy reform, increased secrecy in the drafting of legislation and policies accompanied by the introduction of legal frameworks with disastrous implications for rights protection and due process. Furthermore, despite the rhetoric of reconciliation, this government has yet to engage with a cross section of society on a policy aimed at reconciliation and coexistence. In doing so it will be confronted with and hopefully comprehend, the complexities and challenges associated with it. Moreover, the initial enthusiasm for confidence building measures such as land releases and the addressing of issues of enforced disappearances has stalled, with the Office of Missing Persons yet to be established. None of the mechanisms promised in 2015 to address transitional justice have been established to date.

There is no easy prescription for the deep divisions and mistrust caused by decades of violence and injustices. Reconciliation is a long and messy process that must examine, acknowledge and recognise the painful and divisive past. It is a process that requires visionary leaders willing to take risks and transcend narrow and self-serving positions, steering citizens through tumultuous times and in the process, building trust between deeply divided communities. The ambivalence by sections of the governments towards the full implementation of reforms and reckoning with the past is, perhaps, not surprising, considering the exigencies of coalition government. But in a post war context where ambitious promises were made, the apparent absence of leadership transcending this and the squandering of a unique opportunity for reform, is indeed both disappointing and disturbing. The onus is on President Sirisena and Prime Minister Wickremesinghe to champion what was promised and reenergise the reform project. Inaction and apathy now will dash the hope of meaningful reconciliation and pave the way to greater authoritarianism.

Download the statement in EnglishSinhala and Tamil.

 

 

‘They Promised Us Answers’: Justice delayed for the disappeared

This feature follows CPA’s extensive work on the topic of enforced disappearances, in terms of monitoring of commissions or recommendations for strengthening of the legislation of the Office of Missing Persons. It is compiled of interviews and photos from several protests demanding justice across the Northern Province, by way of the return of family members and children who are among the disappeared.

Two of the longer on-going protests have been in Vavuniya and Kilinochchi, with mothers and families of the disappeared calling for justice and answers. Over the last two years, the key calls have been for state mechanisms to efficiently provide the solutions promised to the citizens. Now, affected populations have lost faith in the mechanisms, commissions, resolutions that have been written, passed and appointed to serve them.

They just want their loved ones back.

The story, created on Microsoft Sway, can be accessed here and has also been embedded below.

CPA Working Papers on Constitutional Reform | Working Papers 15 to 18

The Centre for Policy Alternatives (CPA) is delighted to publish four new papers in its CPA Working Papers on Constitutional Reform series.

In Working Paper No.15, A Constitutional Court for Sri Lanka? Perceptions, Potential and Pitfalls, Dr Tom Gerald Daly asks, what promise does the possible establishment of a constitutional court hold out for Sri Lanka in the context of the ongoing constitution drafting process? This Working Paper, building on the recent Working Paper No.13 by Dr Nihal Jayawickrama, aims to encourage reflection on three inter-related overarching questions: What, overall, do we expect a constitutional court to do that an alternative (e.g. reform of the Supreme Court) could not achieve? What powers and jurisdiction would a constitutional court have? Considering experiences in other countries, what possible pitfalls need to be considered? The fundamental message of this paper is to guard against expecting too much from a constitutional court, and that the potential of any constitutional court would lie in the details of not only whether Sri Lanka provides fertile soil for such an institution, the achievement of wider structural reforms, and how it is constructed, but also on unknown factors such as whether judges on a constitutional court would take an assertive approach.

The next two papers are concerned with aspects of electoral reform. In Working Paper No.16, A System of Electoral Representation for Sri Lanka: The Principles behind the Choice, Kåre Vollan and Luwie Ganeshathasan, consider recent discussions about a Mixed Member Proportional system (MMP) to replace the current system. The authors argue that in approaching electoral reform, it is important to bear in mind the objectives and principles of reform. It is only once there is, to the extent possible, clarity and agreement on these that a system may be designed to achieve them. Some principles may be mutually contradictory and different people would weigh the relative importance of the objectives and principles in different ways. The solution will therefore have to be a compromise, balancing the various qualities of the system. The aim of this Working Paper is to discuss various principles behind a system of representation for the lower house of Parliament, and how an MMP system can fulfil these principles.

In Working Paper No.17, Representative Democracy and the Role of the Member of Parliament, Rohan Edrisinha reflects on recent developments that have highlighted the question of the role of the Member of Parliament in a democracy, in particular the importance of the freedom of conscience of Members of Parliament, and the indispensable nexus between this fundamental principle and a truly representative democracy. The decline in the authority of Parliament is not only due to the concentration of power in the Executive Presidency, but also due to the development of the dangerous, ‘anti-people’ theory of ‘party democracy’. Moreover, he argues, in more recent times we have witnessed another ‘anti-people’ phenomenon that undermines credibility in process and encourages corruption: Members of Parliament crossing the floor from the opposition to the government lured by positions and perquisites in the executive. This Working Paper discusses some of the constitutional issues that arise as a result of floor-crossing, and critiques some of the early judicial decisions for failing to consider many of these constitutional issues. It argues in favour of a compromise that seeks to protect the freedom of conscience of Members of Parliament, while also discouraging floor-crossing for less altruistic and legitimate reasons, in the context of the Constitutional Assembly deliberations on the introduction of a new Mixed Member Proportional (MMP) model of representation.

The last paper in this set takes an historical turn in looking at the constitution-making process that led to independence, through the prism of the key role played by the academic constitutional lawyer who was the architect of the independence constitution. In Working Paper No.18, ‘Specialist in Omniscience’? Nationalism, Constitutionalism and Sir Ivor Jennings’ Engagement with Ceylon, Dr Asanga Welikala considers the historical lessons and precedents that might inform contemporary constitution-making in respect of models of Sri Lankan nationhood and constitutionalism.

Download the PDFs of the Working Papers here.

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All Working Papers in the series can be downloaded from http://constitutionalreforms.org

The series is a product of the partnership between CPA and the Edinburgh Centre for Constitutional Law in support of the Sri Lankan constitutional reform process.