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

In November 2019, CPA and its Executive Director, filed a fundamental rights application challenging the decision of the then Cabinet of Ministers to allow President Maithripala Sirisena the continuous use of the residence used by him at the time, and to cover the costs associated with the house with public money.  An overview of the petition filed by the CPA in 2019 is available here
In March 2022 The Supreme Court granted the Petitioners leave to proceed with the matter and also ordered interim relief including suspending the decision of the Cabinet of Ministers. Relevant Social media content on the mater can be accessed from here
The Supreme Court today delivered Judgement determining that the decision of the Cabinet of Ministers was “arbitrary, unreasonable, ultra vires, illegal and amounts to a violation of the Rule of Law and the Fundamental Rights guaranteed to the petitioners and citizens of Sri Lanka under Article 12(1) of the Constitution”
The Court also quashed (permanently invalidated) the decision of the Cabinet of Ministers dated 15th of October, 2019. The reasoning and the decision of the Court is available here.

Written Submissions filed by CPA against the Anti Terrorism Bill in Supreme Court

On 18th of January 2024, The Centre for Policy Alternatives (CPA) and its Executive Director, Dr. Paikiasothy Saravanamuttu filed a Petition in the Supreme Court challenging the proposed Anti Terrorism Bill that was tabled to the Parliament on 10th January 2024. A Brief overview of the Petition filed on behalf of CPA and its Executive Director is available here

CPA and its Director, Dr. Paikiasothy Saravanamuttu submitted that that the Anti – Terrorism Bill is inconsistent with Articles 3, 4, 11, 12(1) and 13(2), 13(4), 13(5), 14(1)(a) –(i), 30(1) and 76(3) Constitution of Sri Lanka and thus cannot be enacted into law, except if approved by the People at a Referendum in addition to a two-thirds vote of the whole number of the Members of Parliament.

The written submissions filed by CPA and its Executive Director can be viewed here.

The annexe to these written submissions filed by CPA on the Anti Terrorism Bill’s clauses on Police Powers and Duties can be viewed here.

Vedukkunari Hill Aathi Lingeswarar Temple

High atop Vedukkunaari Hill in Sri Lanka’s Vavuniya district, an ancient temple stands at the precipice of a religious and legal storm. Revered by the local Tamil community as the Vedukkunaari Aathi Lingeswarar Temple for over 3,000 years, it now finds itself embroiled in a complex dispute with the Department of Archaeology, which claims the site as a Buddhist archaeological treasure named Vaddamana Pabbathaya Vihara. This clash of narratives and claims has ignited a firestorm of accusations, legal battles, and anxieties about cultural suppression, making Vedukkunaari Hill a crucible of faith and friction in contemporary Sri Lanka.

At the heart of the controversy lies the history of the site. Local belief holds that the temple has served as a sacred space for millennia, its existence predating any documented Buddhist activity. The presence of ancient Tamil Hindu inscriptions and remnants of Hindu rituals bolster this narrative. However, the Department of Archaeology argues that excavations have revealed Buddhist monastic ruins, pointing to a potentially earlier Buddhist presence. This interpretation fuels concerns among the Tamil community who see it as an attempt to erase their heritage and undermine their religious claims.

Adding fuel to the fire is the recent incident of vandalism in March 2023. The temple’s statues, including the revered Aathilingam, were desecrated and discarded. While the temple administration points fingers at the Department, accusing them of orchestrating the destruction, the department adamantly denies any involvement. This accusation, coupled with past instances of legal and administrative hurdles placed by the department on the temple’s activities, feeds a narrative of persecution among the Tamil community.

Beyond legal pronouncements, state actors like the police and army have exhibited actions perceived as favouring Buddhist claims. For instance, while the court ruling permitted worship, police allegedly restricted access to the site during festivals, hindering religious practice. Additionally, a recent visit by a group of monks sparked controversy, seen by many as an attempt to assert Buddhist dominance over the site. These actions, coupled with the department’s interpretation of history and alleged involvement in the vandalism, deepen the community’s anxieties about marginalisation and religious suppression.

The dispute has transcended legal battles and ignited wider concerns about religious discrimination and cultural suppression. Protests and condemnations from Hindu organisations and political leaders highlight the simmering tensions. They see the actions of the Department of Archaeology as part of a larger pattern of marginalising the Tamil minority and their cultural heritage. This perception, fuelled by historical grievances and ongoing political divisions, adds another layer of complexity to the already combustible situation.

Vedukkunaari Hill stands as a microcosm of the complex historical and religious tapestry of Sri Lanka. The dispute raises crucial questions about competing narratives, archaeological interpretations, and the protection of minority religious rights. As the legal battles continue and negotiations remain elusive, the future of the temple hangs in the balance. Will it remain a sacred space for the Tamil community, or will the Department of Archaeology’s claims prevail?

Statement on the Online Safety Act No. 09 of 2024

The Centre for Policy Alternatives (CPA) is concerned with the process followed in enacting the Online Safety Act (OSA). It raises serious questions in terms of law-making and its impact on constitutional democracy in Sri Lanka. CPA has previously raised these issues but notes with disappointment the continued practice. The process of drafting the OSA was shrouded in secrecy. The rushed manner of its passage raises questions as to the intentions of the Government in enacting a law that has significant implications for fundamental rights and the rule of law in Sri Lanka. CPA has previously commented on the substance and process followed with the Bill and challenged its constitutionality. In light of recent events surrounding the enactment of the OSA, CPA condemns the enactment of such a draconian law that can further limit freedom of speech and the right to dissent. 

It is with concern that CPA notes the issues surrounding committee stage amendments of 24th of January 2024. With the Supreme Court ruling requiring 31 amendments for the passage of the Bill with a simple majority in Parliament, questions were raised concerning the compliance with Article 78(3) of the Constitution which states that “Any amendment proposed to a Bill in Parliament shall not deviate from the merits and principles of such Bill”. 

CPA at the outset noted that the committee stage amendments proposed were substantial alternations, requiring the Bill to be withdrawn and re-gazetted. Despite this, the Government proceeded with the Bill, while failing to adopt mandatory changes required by the Supreme Court to pass the law with a simple majority. 

For example, the Supreme Court required that the State ensures that all persons involved in investigations maintain confidentiality of information obtained from the subject of investigations. However, the current Act contains no such protection (see page 60 of the determination). It was also determined by the Court that the inclusion of terminology such as “malicious” and “wantonly” was vague (see page 48 of the determination), yet, the OSA continues to use such wording in Section 14. Moreover, it was determined that certain services, such as emails that are the only user-generated content enabled by the service or SMS/MMS services, must be exempted from the OSA (see pages 59 to 60 of the determination). However, these changes were not made and the provisions on which the Supreme Court raised concerns continue under Section 27 of the OSA, thus raising concerns that the Supreme Court’s decision was selectively ignored.

The Government’s rush to enact the OSA and its disregard for the Supreme Court determination has resulted in a constitutional crisis, raising questions about the legality of the OSA. Moreover, by intentionally undermining the determination of the Supreme Court, the Government is setting a dangerous precedent that has implications for the rule of law and separation of powers in Sri Lanka. 

These concerns are also in the context of multiple other issues with the OSA that have been previously raised by CPA such as the broad powers of the Online Safety Commission, vague terminology and the role of experts, among others. 

In light of these and other concerns, CPA urges the Government to review the process and substance of the OSA, take immediate steps to repeal the OSA and introduce a law that genuinely addresses the concerns of online safety. Further, CPA calls on the Government to have a transparent and inclusive law-making process that provides time for stakeholder consultations and review. The processes followed with the enactment of the Personal Data Protection Act No. 09 of 2022 and Right to Information Act No. 12 of 2016 are some examples where sufficient time was taken to ensure the law-making process was transparent and that it factored in diverse viewpoints. Such practices of good governance are fundamental for Sri Lanka at its present stage of recovery and reform.

Click Here to download the statement in Sinhala 

Click Here to download the statement in Tamil

Click Here to download the statement in English

The Anti-Terrorism Law: A Draconian Legacy

The Minister of Justice recently presented to Parliament the Anti–Terrorism Bill, and its first reading took place on the 10th of January 2024. While this Bill is wrought with problems, two main issues with the Bill remain the drafting process and the impact that the Bill will have on the liberties of the people, minorities and dissidents against the Government in particular. 

Originally, the Government presented to Parliament a ‘Counter–Terrorism Bill’ in 2018. While it was challenged in the Supreme Court where parts of the Bill were given the green light, the Government never proceeded with the Bill. Later, in March 2023, a new Bill was published in the Gazette, this time called the ‘Anti–Terrorism Bill’, which, in form was similar to the former CTA, but in substance was more draconian in effect in some aspects. The criticism against this Bill was strong and widespread, with many parts of civil society coming together to voice their concerns regarding the Bill. In response to this, the Government announced that it was withdrawing the Bill, and called for proposals for changes. Thereafter, a new version of the Bill was published on the 15th of September 2023, but despite the public opinions submitted, the new version of the ATA was in most respects identical to the former. The Bill was then published in the draft Order Paper of Parliament, but it was never presented to Parliament. On the 18th of October 2023, the Speaker announced that the Bill had once again been withdrawn. 

The Bill that has now been presented to Parliament now appears to be the same September 2023 version of the Anti-Terrorism Bill. While many steps have taken place in the legislative process with versions of the Bill being presented and withdrawn at various times, one of the most important aspects of the law-making process has been totally neglected – hearing and considering opinions of the public, who are inevitably the most important stakeholders. Calls for public opinion have largely been a farce with the AT Bill, as it often is with laws drafted in Sri Lanka, and the result is a law that is largely unrepresentative of the needs of the people of the Country. 

As has been a trend in Sri Lanka, the drafting of the AT Bill has been done in the dark, and despite the outcry against it, in fact, it is a minority of Sri Lankans who are even aware of this law that will restrict their rights if passed. A poll conducted by Centre for Policy Alternatives in November 2023 revealed that only 38.5% of the Sri Lankan public were aware of the proposed Anti–Terrorism Bill and a major 72.6.% of this number disapproved of the Bill citing that those in power will misuse the Bill for their own benefit.

Effective anti-terrorism efforts must focus on the causes of terrorism, and what drives people into such behaviors. The AT Bill however, for the most part, follows the footsteps of its predecessor, the draconian Prevention of Terrorism Act, which, for decades, has in itself been a tool of State-sponsored terror used to suppress minorities, journalists, human rights defenders and even ordinary citizens who have been in the wrong place at the wrong time. This dark legacy of the PTA and the widespread opposition to its continuance as a part of our legislation should have been considered when drafting a new law. 

The law in itself opens up to be used to deal with more than just serious acts of terrorism. Considering the timing of when the AT Bill was first published, in March 2023, and the broad and vague definitions of the offence of terrorism contained in the Bill, it certainly seems intended to also be used as a tool to quell any protests that may arise against the Government. It also gives the President wide powers, to issue curfews, proscription orders against organizations, and even make prevention orders that make any public or private place off limits to the people. Problems seen under the PTA, primarily that of prolonged Executive Detention also remain a part of this new draft law. 

Both the process of making the AT Bill and its contents make it clear that this is a self–serving piece of legislation, aimed at protecting the Government, but with little to no heed paid to the actual needs of the people. If passed, the country will see itself doomed to more decades of suppression, torture and abuse.

 

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The Online Safety Bill: A Trojan Horse

On the 18 th of September 2023, the Government of Sri Lanka published a Bill titled “Online
Safety” and this was subsequently tabled in Parliament on the 3 rd of October. The Bill aims
to establish an Online Safety Commission with a range of powers, including the ability to
direct persons and internet service providers to remove vaguely defined “prohibited
statements” from online platforms. With the Wickremesinghe-led Government ostensibly
resolved to make the Bill law, one must query the implications of the Sri Lankan online
space being policed with implications for free speech and dissent. Notably, the Online
Safety Bill seeks to imprison and/or fine those who could threaten to disrupt national
security or public order or even cause “ill-will” or “hostility” between different classes of
persons. Further, clauses exist to prohibit online communications that may “outrage
religious feelings” or statements that would cause “alarm” or “fear” to the public which may
have wider implications for fundamental rights and democracy. On the flip side,
proponents of the Bill have lauded it as one which seeks to combat child pornography.
However, these offences, already provided in existing laws, are a minor part of the Bill and
fall short of the abuse that women and children face online.
Civil society and others have critiqued the Bill, with 45 petitions filed in the Supreme Court
of Sri Lanka arguing that the Bill violated the fundamental rights of citizens contained
within the Constitution of Sri Lanka, and could only be passed by a referendum. By the 7 th of
November 2023, the Court determined that the Online Safety Bill could only be passed by
the Parliament of Sri Lanka if 31 amendments were made to the Bill, significantly changing
the scope of what was publicly presented.
Moreover, although at one time the Minister of Public Security promised to withdraw the
Bill and re-produce an amended version, the Bill is scheduled to be heard in Parliament on
the 23 rd of January 2024. This when many concerns continue to persist with no genuine
interest by the Government to engage with the public and others on ensuring the law
protects the rights of citizens and has the required safeguards to prevent abuse.
The timing of the Online Safety Bill is noteworthy. Over the last few months of 2023, the
Government of Sri Lanka, in addition to the Online Safety Bill, has proposed the
implementation of a controversial Anti-Terrorism Bill to replace the Prevention of
Terrorism Act and a Broadcasting Regulatory Authority Bill to regulate the content of
broadcasters. Thus, the Online Safety Bill simply fits into a wider web of laws to restrict
freedom of thought and expression with a chilling impact on our democracy.
The above concerns are in a context when there is a lack of awareness prevalent in the
general public. A poll conducted by the Centre for Policy Alternatives in November 2023
revealed that only 28.4% of the Sri Lankan public were aware of the proposed Online
Safety Bill and 71.1.% of this number disapproved of the Bill citing that those in power will
misuse the Bill for their own benefit. This Bill follows a pattern of a lack of stakeholder

consultation before publication and must be viewed in the context of Sri Lanka’s usage of
legislation to target critics, minorities and others, such as the International Covenant on
Civil and Political Rights. With 71.6% of the Sri Lankan population unaware of the Bill,
there is a clear sign of a majority of the public being oblivious to initiatives that will erode
their fundamental right to free speech.
If the Bill is enacted by Parliament, the public is left with a patchwork statute,
masquerading under the guise of providing safe spaces online but in actual fact
empowering an ‘Online Safety Commission’ to censor critical public opinion and stifle the
dissent of opposing political voices. The fraught hope that such a future does not come to
pass now depends upon Members of Parliament.

Read the full Document in English Click Here

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