Centre for Policy Alternatives on 6 August, 2013

Constitutionality of bill titled ‘The Twenty First Amendment to the Constitution’

A Bill titled “The Twenty First Amendment to the Constitution”, a Private Member’s Bill presented by the Ven. Athuraliye Rathana Thero, M.P. of the Jathika Hela Urumaya (JHU), was placed on the Order Paper of Parliament on 18th June 2013. The proposed Bill, if passed by Parliament would have the effect of repealing Chapter XVIIA of the Constitution, which was introduced by the Thirteenth Amendment to the Constitution. The Centre for Policy Alternatives (CPA) filed a petition in the Supreme Court on 24th June 2013 challenging the constitutionality of this Bill.

According to Article 154(G)(2) of the Constitution, no Bill for the amendment or repeal of the provisions of Chapter XVIIA becomes law, unless it has been referred by the President, after its publication in the Gazette and before it is placed to the Order Paper of Parliament, to every Provincial Council. Since no Provincial Council had been consulted in respect of this Bill, CPA contended that it cannot be enacted into law unless there was due compliance with the mandatory provisions of Article 154(G) (2). CPA believes this is an important procedure designed and included in the Constitution to encourage consultation and co-operation between Provincial Councils and the central government, and as a crucial safeguard for provincial autonomy under the scheme of devolution introduced by the Thirteenth Amendment.

During the course of argument before the Supreme Court, the judges hearing the case raised the concern – shared by Counsel representing the Attorney General’s Department as well as the Intervenient-Petitioners – that the Court’s jurisdiction is limited to Article 120 proviso (a) in the case of a Bill for the amendment of the Constitution. In response to this suggestion, CPA in its “further written submissions” contended that Article 154(G)(2) was a specific provision brought about by the Thirteenth Amendment for safeguarding devolution, which was not contemplated at the time of the enactment of Article 120 in 1978. Since Article 154(G) (2) creates a specific requirement of consultation in relation to a specified and limited category of constitutional amendments (i.e., those affecting the provisions of Chapter XVIIA), it seemed clear to us that the specific provisions of Article 154(G) (2) must be given effect to in this case, where the impugned Bill sought to abolish Chapter XVIIA as a whole. This contention was based on the need to give provisions of the Constitution a purposive and workable interpretation, as opposed to an interpretation, which would make certain provisions meaningless and irrelevant. Therefore it was CPA’s position that after the enactment of the Thirteenth Amendment, the restrictive interpretation suggested in relation to Article 120 was no longer reasonably possible.

There was a further objection that Section 3 of the Parliament (Powers and Privileges) Act precludes the Supreme Court from inquiring into the validity of the process by which Bills are placed on the Order Paper of Parliament. In response, CPA contended that the identical objection had been taken up in a previous case in which the Court had dealt exhaustively with the reasons as to why this objection was not correct. CPA also drew the attention of the Court to several of its own judgments, which inquired and pronounced upon the question of as to whether a Bill was properly placed on the Order Paper of Parliament.

In its Special Determination on the Twenty First Amendment to the Constitution Bill, which was placed before Parliament on 12th July 2013, the Supreme Court stated that:

  • In terms of Section 3 of Parliament (Powers and Privileges) Act incorporated into Article 67 of the Constitution, the placement of the Bill on the Order Paper was part of parliamentary proceedings that took place on 18th June 2013, and that the Supreme Court is denuded of jurisdiction to impeach proceedings in Parliament.
  • The petition filed by the petitioner is misconceived in law and premised on a footing in contravention of the jurisdiction conferred on the Supreme Court by proviso (a) to Article 120 read with Article 124 of the Constitution.

Beyond this, the Supreme Court did not address any of the arguments addressed to it by CPA (specifically in its further written submissions) and held that it cannot grant the determinations that CPA had prayed for in its petition. Finally, it may also be added that in a curious break from past practice the petitioner’s name does not appear on the face of the record of the Supreme Court’s determination published in the Official Report of the Parliamentary Debates on 12th July 2013, although the names of the Intervenient-Petitioners are as usual mentioned.

Centre for Policy Alternatives on 6 August, 2013
1 Comment

Statement on the violence in Weliweriya

6th August 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) notes with the greatest alarm and anxiety the distressing events that transpired at Weliweriya in the Gampaha District of the Western Province last Thursday, 1st August 2013. It is not the first instance in post-war Sri Lanka of unarmed citizens exercising their democratic right to protest being tear-gassed, fired upon and killed by the security forces: in the export processing zone at Katunayaka in 2011 and in Chilaw in 2012, respectively, 01 innocent citizen was killed. Likewise, media personnel covering the event were manhandled and their equipment confiscated, damaged or destroyed. The number of fatalities recorded in Weliweriya currently stands at 03, with many more injured.

These incidents of the killing of unarmed citizens – and in the Weliweriya incident, two young students reportedly not directly involved in the protest – are tragic and shameful reminders of the collapse of the rule of law in our country, and most importantly, of the mind-set of the government in respect of the exercise of democratic rights by its citizens. Serious and fundamental questions come to the fore with regard to the rule of law and the maintenance of law and order by the government, in the context of the complete disregard of the constitutional and legal framework governing the circumstances in which the armed forces may legitimately be called out in aid of the civil power. In this extra-legal sphere, is it now a standard operating procedure for the police to abdicate its responsibilities for law and order, on account of incapacity or otherwise, and call in special forces and the army?  What are the orders given to the latter in such a situation? Use live ammunition? Shoot and shoot to kill? Indeed, who gives such orders? Who takes responsibility for them? What is the operational chain of command and who answers to Parliament? What are the prospects for an unhindered judicial process?

An internal inquiry has been ordered by the new Commander of the Army, on whose first day of office, this reprehensible event occurred. There is also, apparently, an on-going police investigation. The Human Rights Commission too, has commenced an investigation. Adding insult to injury, government spokespersons are also quoted as alleging foreign involvement in the event, political party sponsorship of the violence, and ascribing responsibility to the media for the events.  Not only does it seem that the Sri Lankan state is fast becoming a predator rather than a protector of the people, but also that it holds the credulity and goodwill of its citizens in utter contempt.

Nothing short of a credible, independent and impartial investigation, the findings of which should be made public, can allay the concerns of the citizens of Sri Lanka as to the alarming extent of the collapse of the rule of law and law and order in the country. The failure to conduct such an investigation, and the necessary judicial punishment of the perpetrators, would be a major miscarriage of justice, a fundamental failure of the primary duty of protection that the state owes its people, and an invitation to continued adverse international attention to Sri Lanka’s human rights record. The government and its political allies including sections of the clergy would do well to heed these considerations in their response to the Weliweriya incident.

The fullest demonstration of the government’s genuine commitment to the rule of law and law and order with regard to this incident should be seen in turn as a measure of its willingness and ability to ensure democratic governance in Sri Lanka.  Its failure to do so will only further increase the burgeoning democratic deficit and retard our prospects for reconciliation, unity and prosperity.

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Download PDF of statement here, or read online here. Download statement in Tamil here and in Sinhala here.

Centre for Policy Alternatives on 16 July, 2013

Letter to Independent Television Network (ITN)

Mr. Rosmand Senaratne,
Chairman,
Independent Television Network (ITN),
Wickramasinghepura,
Battaramulla.

16 July 2013

Dear Mr. Senaratne,

I am writing with reference to the Sinhala language 7 pm news broadcast of the Independent Television Network (ITN) on Sunday 14th July 2013.

An item on this news bulletin stated that the Centre for Policy Alternatives (CPA) and I, organised a meeting in Ampara on Sunday to further the interests of the LTTE and that the meeting was cut short due to the intervention of the Buddhist clergy and public of the area. The visuals used in the news item did not show any member of CPA or me or any banner or poster naming or in any way representing CPA or myself as the organisers of the meeting. The language used in the news item too was clearly defamatory and intended to arouse public opinion against CPA and myself and bring us into public disrepute.

I am writing therefore on behalf of myself and CPA to request a categorical public apology from ITN on its next news bulletin, as neither CPA nor I, organized any meeting in Ampara on Sunday 14 July 2013. Furthermore, no employee of CPA, including myself, was present at such a meeting. I wish to further state that such an apology be given the same prominence in your news bulletin as the original news item.

It is indeed both deeply shocking and regrettable that any media organization in this country would permit such irresponsible, unprofessional and partisan journalism – even one that is effectively under the control of the state.

I look forward to your swift response, within one week hereof. I wish to also state that in the absence of a satisfactory response I will be considering other remedies including legal action to recover the full extent of the damage caused by the aforesaid wrong news item.

Please note that I will be releasing this letter to the media in the public interest.

Yours sincerely

Dr. Paikiasothy Saravanamuttu
Executive Director

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Read this letter in Sinhala here.

Centre for Policy Alternatives on 24 June, 2013

Sri Lanka and the culture of impunity: Recording of LSE event

Sri Lanka and the culture of impunity: human rights challenges in a post-war and post-conflict environment

Thursday 20 June 2013
Speakers: Dr Paikiasothy Saravanamuttu; Asanga Welikala; Uvindu Kurukulasuriya
Chair: Professor Chetan Bhatt

Sri Lanka’s civil war, which spanned more than a quarter of a century, ended in 2009. With more than 100,000 war casualties and one million refugees, it represented one of Asia’s most violent, destructive and intractable conflicts. Four years since active military hostilities ended, there has been no progress towards constitutional and political reforms addressing the problems of pluralism and democracy that lay at the heart of the conflict, nor a legitimate process of truth and accountability for war-time abuses. Instead, Sri Lanka is steadily moving in the direction of becoming an authoritarian state, with the rule of law and governance under attack, the ascendance of majoritarian ethno-religious intolerance, and an overall decline in democratic and human rights standards. This event will explore the pervasive culture of impunity in Sri Lanka, both with regard to past abuses as well as post-war governance. The broader challenge of transition from a post-war to a post-conflict situation will be discussed in relation to ongoing efforts regarding peace and good governance.

See LSE event page here. Download original MP3 from here, or listen to it below.

Centre for Policy Alternatives on 11 June, 2013

Reviews and Responses to The Republic at 40

11th June 2013, Colombo, Sri Lanka: We are pleased to note that the two-volume publication, The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, edited by Asanga Welikala and published by CPA in December 2012, has been extremely well received by both Sri Lankan scholars and comparative constitutional lawyers.

Reviews of the book by Laksiri Fernando, Kalana Senaratne, Judith Large and Kumudini Samuel have already been published on Groundviews and elsewhere, and are reproduced on the book’s dedicated website.

Shorter responses to the book by a diverse range of distinguished international scholars including Anthony Bradley, Neil DeVotta, Detmar Doering, Harshan Kumarasingham, Nikhil Narayan, Arun Thiruvengadam and Mark Tushnet can also be read on the same webpage.

The Republic at 40 is available to download as complete volumes or individual chapters from here.

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Centre for Policy Alternatives on 5 June, 2013
1 Comment

Statement on Proposed Constitutional Amendment

5 June 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is deeply perturbed by recent media reports that the government is planning on amending several provisions of the Thirteenth Amendment to the constitution. Over the past several weeks there were contradictory statements made by senior MPs of the United Peoples Freedom Alliance (UPFA) as to whether discussions are under way to amend the constitution. However,all such reports were denied by the (acting) cabinet spokesperson who at the weekly cabinet news briefing whilst purporting to represent the official position of the government stated that;

“The President expressly said a Parliamentary Select Committee consisting of all the political parties can discuss if there will be any changes to the present Constitution, especially to the 13th Amendment. In that scenario, no steps have been taken to change the status quo.”

However several media organizations reported this morning that the government is topropose amendments to several provisions of the Thirteenth Amendment and that theseamendments will be introduced in the form of an urgent bill. The proposed amendment reportedly includes:

  • Removing the safeguards in Article 154(G)(3) of the constitution to permit the centre to pass legislation in relation to subjects in the Provincial CouncilList by a simple majority provided that a majority of PCs agree to the said legislation.
  • Repeal Article 154(A)(3) which allows Parliament to provide for two or three adjoining provinces to form one administrative unit.
  • In these circumstances CPA is compelled to raise the following concerns in relation to the proposed amendments as indicated by several news reports.

Process of Constitutional Amendment
A constitution derives the moral authority to bind all citizens only if it is a result of a consultative process which takes into consideration all perspectives in a plural society. The proposed amendments have far reaching implications both in terms of preserving democratic values and achieving post-war reconciliation. As such it is highly disconcerting that the proposed amendment is a result of a process that was shrouded in secrecy and only limited to some constituent elements of the UPFA government. CPA has critiqued the lack of transparency and public participation in the law making process – the process that formulates constitutional amendments and broad sweeping legislation –since its inception. However despite promises– including the proposals of the present government in terms of its ‘National Human Rights Action Plan’ – successive governments have exploited these deficiencies in the law making process and have not demonstrated any willingness to remedy these failings.
The incumbent government has repeatedly adopted the process of classifying constitutional amendments as ‘urgent bills’ and thereby further limited the existing space for public debate and judicial scrutiny. Considering the serious and irreversible impact the present amendment would have on the post-war reconciliation process. CPA strongly urges the government that in the event they do propose legislation amending the Thirteenth Amendment to the constitution, they desist from adopting the proposedurgent bill procedure.
Amendments to the Thirteenth Amendment

CPA has repeatedly critiqued the Thirteenth Amendment as being inadequate in devolving power to the Provinces. The Thirteenth Amendment is replete with provisions which weigh the balance of power in favour of the centre. Considering the weaknesses of the Thirteenth Amendment, all subsequent power sharing proposals – from the Mangala Moonesinghe Committee proposals to the Majority Report of the All Party Representatives Committee – in initiatives under successive governments, have reiterated the need to move beyond the provisions of the Thirteenth Amendment.

Article 154(G)(3) is a safeguard built into the provisions of the Constitution to prevent the central government from legislating on subjects allocated to the Provincial Councils (PCs) without first obtaining the consent of all PCs. In the event where one or more PC does not consent to a proposed bill, the central government has the option to either pass the bill by a simple majority, in which event the bill will become law applicable only to the Provinces for which the PCs agreed to the bill, or to do so by a two thirds majority in which case the bill will become law applicable to the entire country. Removing this safeguard will render the Thirteenth Amendment worthless as a mechanism to devolve legislative power, as the central government at any given time could take away any or all powers vested in the PCs by passing legislation with a simple majority.

This unilateral act by the government to completely negate the existing devolutionary framework would be an historical mistake. The specific proposals to amend the Thirteenth Amendment betray the government’s inability to comprehend the historical roots of the ethnic conflict in Sri Lanka, and its inability to learn lessons from similar mistakes made by past governments. Moreover it casts serious aspersions on the government’s good faith in formulating a political solution acceptable to all communities.The Thirteenth Amendment– being part of the existing constitution that must be fully implemented – represents the absolute minimum basis on which a process of constitutional negotiations towards a new power-sharing settlement may be initiated, in order to effect the transition in Sri Lanka from the post-war to a post-conflict phase.

CPA further states that such a unilateral act would amount to a violation of specific undertakings of the present government to the international community that it would work to formulate a political solution acceptable to all communities, and specifically to the undertakings given to the government of India that any future political solution would go beyond the framework ofthe Thirteenth Amendment. Regardless of these statements of intent, the government has demonstrated no credible commitment to negotiating a post-war power-sharing settlement.

Therefore CPA strongly urges the government to not proceed with the proposed constitutional amendment and to recommence an inclusive dialogue with a view to developing a consensus amongst all major stakeholders on a political solution acceptable to all communities.

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Download as PDF here and in Sinhala here.

Centre for Policy Alternatives on 15 May, 2013

Arunasalam Kunabalasingham and 1473 others Vs. A. Sivaswamy and 2 others CA (Writ) 125/2013

The Centre for Policy Alternatives supported filing a writ application, CA (Writ) 125/2013 on 15th May 2013. The Petitioners, Arunasalam Kunabalasingham and 1473 others, who were landowners of a land located in the Northern Province in what was previously considered to be a High Security Zone (HSZ). The case was filed against steps by the government to take over the traditional lands constituting approximately 6381 acres for a purported public purpose. The reason for the supposed land requirement is to establish a ‘Defence Battalion Headquarters’ and presently the petitioners are being prevented from returning to their lands.

The petitioners state that the purported notices are unlawful as the said notices refer to “regularizing handover of area on which High Security Zone (Palaly and Kankesanthurei) is established’’ despite the lands within the area specified in the notice not forming part of any HSZ recognized by law as there are no HSZ in existence after the lapse of Emergency regulations in 2011. Further the Land Acquisition act in section 2 (2) states that the notices have to be in the Sinhala, Tamil and English whereas the said notices were published only in Tamil, and is therefore illegal. For the above reasons the petitioners have sought a writ of Certiorari to quash the notice and a writ of Prohibition preventing the implementation of the notice.

The matter came up on 20th May 2013 in the Court of Appeal, when the case was taken up, court was informed by counsel for the petitioners that it had been brought to the petitioners’ attention after the case was filed, that an order for urgent acquisition purportedly under section 38 proviso A of the Land Acquisition Act had also been published in a Government Gazette, which also the petitioners wish to challenge and have quashed by court. A motion was filed on behalf of the petitioners, presenting the Gazette publication to court. Counsel further stated that both the purported notice under section 2 of the Land Acquisition Act and the purported order under section 38 proviso A of that Act by the Minister of Land, were bad in law and liable to be quashed by court in the light of well-established principles of administrative law. Court permitted the petitioners’ application to amend the petition.

As it was brought to the attention of the court that this case has to be supported along with CA 135/2013 it was fixed for support on 30th May 2013. When the matter came up for objections on 24th February 2014 as the Attorney General’s Department had not filed objections (despite being given time on three previous occasions), The court granted further time to file objections on 9th May 2014. At the request of the Counsel for the Petitioners’, the court made 9th of May as the final date of objections. The matter will be mentioned on the same day.