23 October 2014, Colombo, Sri Lanka: It has been strongly suggested by government sources in recent days that there is to be an early presidential election in January 2015. In this connection, there has been public discussion whether or not President Mahinda Rajapaksa is legally entitled, under the terms of the Eighteenth Amendment to the Constitution, to seek a third term. It has been widely assumed following the abolition of the presidential two-term limit by the Eighteenth Amendment that President Rajapaksa would seek a third term at some point.

However, the former Chief Justice, Sarath N. Silva, P.C., has strongly argued that President Rajapaksa is legally disqualified from seeking re-election. He has argued that in terms of the principles of interpretation set down in the Interpretation Ordinance 1901 (as amended), the Eighteenth Amendment should have made the abolition of the term limit applicable to the incumbent president by express words. In the absence of such express words, he further argues, President Rajapaksa became disqualified immediately upon being re-elected for his second term in January 2010. The weight of academic authority has been added to Mr Silva’s interpretation by the written legal opinion of Professor Suri Ratnapala of the University of Queensland commissioned by the Bar Association of Sri Lanka.

The government and commentators writing in support of its position maintain that there is no legal prohibition or restriction on President Rajapaksa seeking a third term or his decision to call an early presidential election. Their position is that the provisions of the Eighteenth Amendment are clear in their favour on both these issues. It is possible that the Supreme Court may be moved in the coming days, by way of a presidential reference or by an individual application, for a determination of these constitutional issues. It would be crucial for the Supreme Court to demonstrate its independence, impartiality, and integrity to the highest international standards given the political sensitivity and constitutional significance of these issues.

Having considered the views expressed in the public domain, CPA firmly believes that the position advanced by Mr Silva and Professor Ratnapala is more persuasive on the legal merits. We do not believe that those supporting the government’s position have adequately answered the issues raised by Mr Silva and Professor Ratnapala. Our position therefore is that notwithstanding the abolition of the term limit by the Eighteenth Amendment in September 2010, President Rajapaksa remains disqualified by virtue of the unrepealed Articles 31(2) and 92(c) applying to him at the time of his second election in January 2010. In the absence of an express provision in the Eighteenth Amendment specifically or generally including the incumbent president within its terms, relevant provisions of the Interpretation Ordinance, which are themselves principles developed by the common law over a long period of time and are part of the general principles of the Sri Lankan legal system, operate to deny retroactive application of the Eighteenth Amendment. For these reasons, the incumbent president, as well as any other person twice elected to the office of president prior to the Eighteenth Amendment, remains disqualified.

If this is the true legal position with regard to the relevant constitutional provisions, a potential constitutional crisis is created if President Rajapaksa nonetheless seeks re-election in January 2015 without an authoritative settlement of the doubts. If he is re-elected in such a context, moreover, persistent questions about the legality and legitimacy of his position would also inevitably follow. Needless to say, it is undesirable for such doubts to attach themselves to the office of the President of the Republic.

Download a PDF of this press release here. Available in Tamil here. Available in Sinhala here.

10 October 2014, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is aware of an article in the Colombo Telegraph website published on 10 October 2014.

The article contains a number of allegations against the organisation and certain members of the staff.

As the Executive Director is travelling on work, CPA will post a response to these allegations on his return to Sri Lanka in the next two weeks.

2 October 2014, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is deeply concerned about the recently concluded proceedings of the Presidential Commission of Inquiry to Investigate into Complaints Regarding Missing Persons (the Commission). More than a year into its mandate and in light of the practices that were evident at the recently concluded sittings, CPA questions as to whether the Commission is able to conduct investigations into its now expanded mandate. A more fundamental question must be posed – is not the failure to genuinely address the grievances of over 19,000 complainants a stark reminder of the flaws in and failures of domestic processes that are meant to investigate violations?

These questions are raised after observations of public sittings of the Commission and CPA reiterates to the Commission and the authorities that immediate steps must be taken to answer them. The absence of action in this respect, only serves to cast aspersions on the integrity and credibility of the Commission and on the possible outcomes of the present process. Lack of genuine steps at this juncture, will severely undermine efforts to arrive at truth, justice, accountability and reconciliation in Sri Lanka.

Some concerns from the recently concluded sittings:

1. Poor translations: CPA monitored the proceedings in both the Mulankavil and Pooneryn areas held between 27-30th September and noted the extremely poor quality of translations. In several instances the translated information was very different to the testimony provided. We highlight three examples:

*Commission: Did you have a makeshift house there?
Translator: Unkalukku veedu ontru irukkiratha? Veedu irukkutha ange? (Do you have a house there? where?)
Commission: Did you have a temporary shelter?
Translator: Neenkal niranthara oru mukamil iruntheerkala (Were you in a permanent camp?)

*Commission: You don’t know from where the shelling was coming from?
Translator: Enthe mukamil irunteerkal endru solla mudiuma? (Can you tell us the camps where you were at?)

*Commission: How many people came to take her?
Translator: Unkaloda eththanai per antha idaththil thanki iruntharkal pathukappu thedi thanki iruntharkal eththinai per irukkum? (How many people were staying in that place with you, how many people were staying there for security?)

2. Witness and Victim Protection: CPA has continuously called for credible witness and victim protection mechanisms for the safety of those who appear before the Commission. We repeat this call. At the Commission sittings on the 29th September at the Pooneryn Divisional Secretariat, individuals identifying themselves as military intelligence attended the sittings and photographed persons waiting to give testimony to the Commission. Furthermore, CPA noted the presence of several military personnel outside the venue. Photographs of the said incident can be found here. CPA believes that such tactics result in the intimidation of people wanting to come forward and exacerbate the fear of possible reprisals for speaking out publicly about past violations. This in turn will impact the testimony received by the Commission, raising questions of as to whether it has been able to have hearings, which are free from interference and whether the information received is not extremely limited and/or one-sided. Having attended previous sitting, CPA notes that this is not the first instance that military intelligence has attended, intimidated those in attendance and collected information on them. CPA notes that the danger posed to those attending the hearings is very real in the heavily militarized context of the North. Although a bill titled “Assistance to and Protection of Victims of Crime and Witnesses” was issued on 11th August 2014, the legislation is yet to be enacted and there is yet to be change on the ground that provides for effective protection. CPA has raised concerns on this issue and released a statement incorporating them.

3. Line of Questioning by the Commission: CPA notes that the Commissioners posed leading questions to those providing testimony. This implies bias and could lead to influencing testimony and subsequent findings. CPA is extremely concerned about this and strongly urges independence and impartiality in the line of questioning. An example of this is captured below:

Q: Was there shelling? A: Shell attack continued nonstop.
Q: Shell attack was to prevent you from crossing, no? A: We were allowed to go into the army- controlled area and army was there with us and they were directing us to move into the area. And shells started to hit behind.
Q: Shells came from behind you? A: No the shells started to hit behind. It came over our head.
Q: That means from the LTTE side, no? A: Yes. We were moving from the LTTE side into the Army side. And the army was there with us and they were directing us. And the shells started to go over our heads into our back side.
Q: That is, LTTE was shelling in order to prevent you from crossing over to army side? A: We can’t identify that. We wanted to safeguard our life. We were in fear for our life. We can’t say as to who could have shelled.
Q: Did LTTE encourage you to cross over to army side? A: Not so, not like that. At the beginning stage we were obstructed, we were stopped from going into army- controlled area.
Q: The LTTE was trying to cover themselves with you all being there? A: We can’t see that. The situation was such that we can’t say that. There was commotion. We can’t see that.

In addition to concerns with the proceedings, CPA also wants to raise the status of investigations before the Commission. Media reports indicate that the Commission has approached President Rajapaksa to appoint an investigating team to pursue cases of disappearances. Having observed the type of complaints that are heard at the Commission’s sittings, CPA is concerned by this request that can undermine efforts at a process that is meant to be independent and impartial. For example, a significant number of complaints of persons missing post-surrender to the Sri Lanka Army (SLA) have been provided to the Commission. Given that the President is also the Minister of Defence and Commander in Chief, CPA raises questions as to how such a request can lead to an independent team and process. Furthermore, CPA notes that the framework used to appoint the Commission provides it with the mandate to investigate and/or to apply for assistance from public officials in order to carry out its mandated tasks. CPA urges that the Commission reexamines powers within its mandate and explores the creation of an investigative team that is within the Commission and which is beyond possible interferences from external actors.

Background
In March, CPA produced a commentary on the proceedings of the Commission, highlighting the Commission’s inability to carry out a comprehensive, independent and transparent inquiry into the matters mandated, due to structural flaws of the Commission of Inquiry mechanism in Sri Lanka. Although the Commission did not adopt most of recommendations made in the policy brief, CPA continues to engage with the Commission reiterating the importance of procedural safeguards to protect the Commission’s integrity and credibility in facilitating a legitimate truth seeking process for those still seeking their loved ones, five years after the war.

In July, CPA issued a statement raising concerns about the expansion of the Commission’s mandate to include inquiry into a wide range of issues including violations of International Humanitarian Law and International Human Rights Law. We fear that the primary focus of inquiring into the large number of unresolved cases of disappearances will be diluted by the expanded mandate. Furthermore in September, CPA highlighted the pace of the proceedings and the need for a better methodology to approach the issue of disappearances, now compounded by the expanded mandate of the Commission.

Download a PDF of this press release here.