8 June, 2015

Mr. Maxwell Paranagama,

Chairman
Presidential Commission to Investigate into Complaints Regarding Missing Persons
No. 9/8, Suranimala Place,
Colombo 06.

Dear Sir,

Raising Concerns with the Work and Progress of the Commission 

The Centre for Policy Alternatives (CPA) has monitored and engaged with the Presidential Commission to Investigate In to Complaints Regarding Missing Persons (COI) since its appointment in 2013. CPA has monitored its public sittings and raised concerns about protection and procedural issues such as witness protection, translations and investigations. In the spirit of constructive engagement, CPA has also regularly met with the COI and shared concerns. CPA therefore writes to the COI to raise several new concerns.

• Interim Report– Although the information in the public realm indicates that the interim report of the COI was handed to President Maithripala Sirisena on 10 April 2015, this document is yet to be made public. CPA is concerned with the lack of transparency regarding this report which one hopes sheds lighton the progress of the work of the COI, any investigations that have commenced, future plans and other related issues. The Lessons Learnt and Reconciliation Commission (LLRC) publicly issued interim recommendations in September 2010, thereby raising issues that required urgent attention by the State. Given this precedent, CPA urges that the COI make public its interim report and commence a dialogue on key issues with the necessary parties including government agencies, victims, families and civil society.

• Nature of Public and Private Sittings– CPA has learnt from media reports that several military officials including Major General Jagath Dias and Major General Kamal Gunaratnehave been interviewed by the COI. These media reports state that Major General Shavindra Silva is to be interviewed by the COI upon his return to Sri Lanka. While the COI has a mandate to offer sittings either in public or private, CPA is concerned with the secrecy of the latter and those conducted so far. Our concern is compounded by the non-availability of the option of a private sitting for all the victims, families and witnesses who have come before the COI. This in a context when some of them have faced security issues. 

• Status of Investigations– In addition to the two issues raised above, there is concern regarding the status of investigations, if any, initiated by the COI. Although media reports indicate to the COI highlighting the issue of investigations, there is no information publicly available on whether investigations have commenced and on the nature and scope of such investigations. CPA urges the COI to publicly share the status of investigations and plans for the future.

The issues raised in the present letter, coupled with issues raised previously by CPA regarding the mandate and operation of the COI begs the question of whether there is genuine willingness by the Government to address issues of truth, justice and reparations.

Media reports indicate that the COI is to issue its final report in August. However the COI office clarified to CPA that this final report only deals with the expanded mandate of the COI to look into matters beyond disappearances, i.e. International Human Rights Law and International Humanitarian Law violations. As on numerous occasions, the COI’s focus has thus shifted from its original mandate to conduct investigations and of truth seeking on the issue of disappearances, to now looking into other matters. Such developments highlights that the new Government too is relying on the tactics of the former regime to delay any independent and credible truth and justice mechanisms.

Furthermore, CPA is concerned with the thousands of complaints that have yet to be heard and processed by the COI and as to whether any information will be shared with the victims, families and affected communities who have testified before it. CPA urges that more information on the process and future plans be released to the public and that that any future process and mechanism are victim- centered, transparent and inclusive.

In light of the issues raised and its implications for transitional justice and reconciliation, CPA will be forwarding this letter to key government actors and media.

Thank you,

Yours Sincerely,

Dr. P. Saravanamuttu
Executive Director

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Download a PDF of this letter here. Also see the following:

• REPORT: Commentary on the Presidential Commission to Investigate Missing Persons, March 2014
• REPORT: The Presidential Commission to Investigate into Complaints Regarding Missing Persons: Trends, Practices and Implications, December 2014
• PR: Concerns on the Expansion of the Mandate of the Commission of Inquiry to Investigate into Complaints Regarding Missing Persons, July 2014
• PR: Concerns on the Proceedings of the Presidential Commission to Investigate into Complaints Regarding Missing Persons, October 2014
• INFOGRAPHIC: Presidential Commission on Missing Persons, September 2014

5 June 2015, Colombo, Sri Lanka: It is now more than a month after the 23rd of April 2015, promised as the date for the dissolution of Parliament in the 100-day programme of the National Democratic Front presidential election manifesto. It is becoming increasingly clear that the momentum generated by the historic January 2015 presidential election is being exhausted, and that the minority government appointed for the sole purpose of executing the 100-day reform programme is drifting aimlessly.

After the enactment of the Nineteenth Amendment, the reform process itself has become mired in an ambiguous and perplexing morass of competing political self-interests. The current balance of power in the institutions of the state is incongruous and unsustainable, with a President elected in 2015 to undertake thoroughgoing constitutional reforms, on the one hand, and a Parliament elected in 2010 under entirely different circumstances, on the other.

In this context, the need for a Twentieth Amendment embodying electoral reforms before the dissolution of Parliament, arose as a necessary quid pro quo in exchange for the support of the UPFA parliamentary majority for the Nineteenth Amendment. Given the lack of a coherent position on the part of the UPFA on electoral reforms, it is now even clearer than before that this demand was entirely tactical. Moreover, there has been absolutely no transparency or public consultation in the preparation of the Twentieth Amendment and if current proposals serve to undermine the principle of proportional representation, that would constitute regression not progress from the current system.

We value President Sirisena’s courage in coming forward as the common opposition candidate in what was a challenging political environment under the previous regime, and applaud his demonstrable commitment to successfully enacting reforms to the executive presidency, even if they have not gone far enough. What is most important to remember about the democratic mandate of the last presidential election, however, is that the people of Sri Lanka voted for fundamental reforms to strengthen and consolidate democracy as much or more than they voted for the winning candidate. This mandate requires not only substantive reforms but also a transformation in the way government and governance is conducted. It cannot be squandered because of political indecisiveness or expediency, repeating the mistakes of the past where Sri Lanka’s enormous potential has been retarded time and again due to the absence of leadership and political maturity.

In this context, there is a rising perception of crisis and instability, which cannot be allowed to take root. The economy cannot afford this lack of political direction for much longer, and as importantly, the hope and aspiration created by the change of government in January demands both clarity in promises being kept and further progress in reforms, especially with regard to devolution and power-sharing. The time is ripe therefore for fresh parliamentary elections which would allow the people of Sri Lanka to have their say on reforms already enacted and to mandate the direction of the government for the next five years.

We therefore call upon the President to dissolve Parliament immediately, in keeping with his mandate of January 2015.

Download a PDF of this statement here.

Signed

Organisations

Association of War Affected Women (AWAW)
Centre for Human Rights and Development (CHRD)
Centre for Policy Alternatives (CPA)
Centre for Women and Development, Jaffna
Families of the Disappeared
Home for Human Rights (HHR)
Inform Human Rights Documentation Centre
International Centre for Ethnic Studies (ICES)
Janawaboda Kendraya
Lawyers Collective
Lawyers for Democracy
Mannar Women’s Development Federation
National Peace Council (NPC)
Rights Now Collective for Democracy
Right to Life Human Rights Centre
Women’s Action Network
Women and Media Collective

Individuals

Mrs. Rohini Adikari
Mr. Hilmy Ahamed
Mr. Niran Ankitell
Ms Lacika Chathurani
Mrs. Sandra Cooray
Mrs. Matilda Costa
Mrs. Danushka Damayanthie
Ms Marisa de Silva
Ms. Visaka Dharmadasa
Ms. Hasanah Cegu Isadeen
Mr. Britto Fernando
Mrs. D.Rosemary Fernando
Mrs. A.Krishanthi Fernando
Dr. Nimalka Fernando
Mrs. Padma Fernando
Mr. Ruki Fernando
Mr. Luwie N. Ganeshathasan
Mr. Sudarshana Gunawardana
Mr. Lionel Guruge
Mr. Sanjana Hattotuwa
Dr Mrs. Kumudini Kalubovila
Mrs. Sumana Kodikara
Dr. Sepali Kottegoda
Ms. Mahaluxmy Kurushanthan
Mrs. Sriyani Mallika
Mrs. Mariya Madalena
Mrs. Lalitha Madurawala
Mrs. K. D. Malkanthie
Mrs. M. A. P. Malkanthie
Mrs. Rita Maxima
Mrs. Nishanthie
Mrs. Therese Perera
Mrs. K. Violet Perera
Mrs. Rita Perera
Mrs. Sulari Perera
Dr. Jehan Perera
Mrs. R. M. Punchimanike
Mrs. K. Pushpa
Mr. K.S. Ratnevale
Ms Kumudini Samuel
Dr. Paikiasothy Saravanamuttu
Ms Shreen Abdul Saroor
Mr. Raja Senanayake
Mrs.Samurdika Shivanthi
Ms. Vanie Simon
Ms. Saroja Sivachandran
Mr. J.C. Weliamuna
Dr. Asanga Welikala
Mr. Lal Wijenayake
Mrs.Swarna Wijenayaka
Ms Sriyani Wijesundera
Ms Sherrine Xavier

30^th May 2015, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) expresses its serious concern at the lack of clarity in the public discourse on electoral reforms in the country that has generated widespread misconceptions and confusion in the minds of the public. Many individuals and organisations have indicated support for the proposed Twentieth Amendment to the Constitution without appreciating that doing away with preferential voting is just one aspect of the reform proposals, and that critically assessing what will replace preferential voting, and the other features of the proposed Amendment, is very important. This is exacerbated by the fact that the public have had no opportunity to witness, let alone debate, the various proposals of political parties with regard to electoral reform, or at least the text of the Twentieth Amendment Bill, of which moreover there seem to be several different versions. What can be gathered from media reports, however, is that the current proposals seem to contemplate a largely first-past-the-post system with a minor element of proportional representation. For reasons below, CPA finds it misleading to describe this as a Mixed Member Proportional (MMP) system as some have done. On the contrary, the current proposals deviate significantly from constitutional first principles of democracy, diversity and accountability, follow no known tried and tested international model applicable to the specific circumstances of Sri Lanka, and would adversely affect the quality and nature of legislative representation. Changes as constitutionally important and as technically complex as electoral reforms cannot be undertaken this way.

PREFERENTIAL VOTING

We need to remember that while preferential voting has adverse consequences, its virtue is that it strengthens the power of the voter at the expense of the party leadership. It is the voter who chooses the party of his/her choice and the candidate from that party. Any new system must ensure that the voter retains the power to choose rather than abdicating the power to choose candidates completely to the leaders of political parties. It should also be noted that while claims are largely true that the preferential voting system intensifies intra-party competition, and in this way encourages violence and corruption, this is more an indictment of our political culture than of the voting system. Eliminating preference voting will not resolve the deeper structural problems of violence and corruption, which can only be addressed by changing patterns of political behaviour and leadership, and by citizens refusing to reward with their preferences those who engage in violence and corruption.

A MIXED SYSTEM: FIRST-PAST-THE-POST AND PROPORTIONAL REPRESENTATION

There was since 1994 a widespread consensus that the system of proportional representation introduced by the Constitution of 1978 should be replaced by a new system that combines the best features of both proportional representation (PR) and the first-past-the-post system (FPP). The manifestos of both the People’s Alliance and the United National Party at the 1994 elections pledged to introduce a mixed electoral system based on the German model. Such a system will ensure that the country would be divided into electorates so that the voter can choose MPs for each electorate. It will also ensure that the overall composition of Parliament is in proportion to votes received by parties, i.e., correspondence between votes and seats in Parliament, the essence of proportional representation.

The voters’ power is retained and his/her choice expanded under such a genuinely Mixed Member Proportional (MMP) system. All parties will have to submit a PR list, which is a closed list. This requires political parties to specify the rank order of its nominees on the PR list before the election, which cannot be changed by the party leaders subsequently. Though the voter will lose the right to indicate a preference, at least by specifying the order before the election, the voter will have some influence over who is high on the list as the parties will have an incentive to add qualified, competent people, and persons diverse in terms of gender and other backgrounds, as leading candidates on the PR list. Since women’s representation in Parliament in Sri Lanka is one of the lowest in the region, such a system will act as an incentive for parties to nominate competent women high on their PR lists. 

STRENGTHENING THE POWER OF THE VOTER

In a properly designed MMP system, a voter will be given TWO ballot papers – one for his/her constituency MP; the other to choose the party of his/her choice.  The voter’s power to choose is therefore greater; a person can vote for the candidate who may be the best constituency MP while voting separately for the party s/he prefers.  Such a system is easy for the voter to understand and also for the Elections Commission to administer.

Once the seats won by political parties on the basis of FPP are determined, the total number of seats that each party is entitled to is calculated on the basis of the “party votes” in proportion to the votes received. Parties will then “top up” their seats from the party PR lists; parties will have a total number of candidates elected from their winning FPP candidates and from the closed PR list, in proportion to the votes received. The best of both the FPP and PR systems are thus retained under this system. Such a system is practiced in Germany, New Zealand and Scotland.

CONCLUSION

One of the primary objectives of a constitution is to protect and empower the people vis-a-vis the politicians who wield political power. Politicians and party advisors designing and amending constitutions without the people’s engagement and approval, is illegitimate and contrary to constitutional first principles. The process by which the Nineteenth Amendment was adopted, with the public in the dark as to what was proposed and opposed on the day it was passed, was a constitutional scandal. Repeating such a process for the introduction of the system by which the people elect their representatives will be utterly unacceptable. CPA calls for a transparent process with public engagement and where the final text of the Twentieth Amendment is available for public scrutiny before it is debated in Parliament.

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Download as a PDF here. Download in Sinhala here.