Centre for Policy Alternatives on 12 August, 2013

Human Rights Commission of Sri Lanka (HRCSL): CPA complaint against the Independent Television Network of Sri Lanka (ITN)

12 August 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) and its Executive Director filed a complaint (Complaint No: HRC/3083/13) before the Human Rights Commissions of Sri Lanka (HRCSL) this afternoon against the Independent Television Network of Sri Lanka (ITN) and its Chairmen. The complaint was on the basis that a news item appearing on the 7:00pm Sinhala language news broadcast of ITN on Sunday 14th July 2013 violates several fundamental rights of both CPA and its Executive Director which are guaranteed under the Constitution to all citizens of Sri Lanka.

CPA had previously written to the Chairman of ITN on the 16th July 2013 requesting that the erroneous news report be corrected and a formal apology be tendered to both CPA and its Executive Director within one week. However neither of these two requests was acceded to.

Against the backdrop of the Ministry of Mass Media and Information attempting to introduce “a code of media ethics” for Private sector media institutions CPA finds it abhorrent that a state owned and publicly funded media institution would be allowed to engage in irresponsible, unprofessional and deceitful reporting of this nature.  Even more troubling is the unwillingness of the said media institution to accept that a mistake has been made and take remedial action once the error has been brought to its attention.

The only possible explanation to this callous disregard of the most basic media ethics is that it is part of a larger scheme to systematically undermine civil society organizations perceived to be critical of the government. It is clear that the state media apparatus is being used as one of several instruments to intimidate civil society organizations.

The erroneous and fabricated news report of 14th July 2013 is only one of several instances in which CPA and other civil society actors have been intimidated using the state media apparatus.  CPA hopes that the relief sought in its complaint –if granted- would result in the formulation of processes within state owned and publicly funded media institutions that would result in more accurate, fair and balance reporting and also act as a deterrent against malicious and fabricated reporting.

CPA is hopeful that the HRCSL will conduct a full and independent investigation into its complaint and grant reliefs prayed for therein.

A copy of the complaint can be downloaded from here or viewed online here.

Centre for Policy Alternatives on 11 August, 2013

Interview with Dr. Paikiasothy Saravanamuttu on Weliweriya violence

Transcript of an in-house interview with CPA’s Executive Director, Dr. Paikiasothy Saravanamuttu on the recent violence in Weliweriya. See also CPA’s press release in this regard.

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I think the most important thing with regards to what happened in Weliweriya is the simple fact that it is now becoming standard operating procedure that when citizens in this country exercising their democratic right to protest come out the police abdicate its responsibility for control and calls in special forces who then come in with live ammunition and presumably orders to shoot- and shoot to kill. Because we have on the instances of the export processing zone, in the instances of those in Chilaw and now in Weliweriya innocent people –unarmed innocent people being shot and killed.

If this is a functioning democracy there has to be a chain of command, there has to be someone in authority who takes responsibility for what happened. We have to know as to whether specific orders are given as to whether this has become de facto – by default- a standard operating procedure. In addition to that consider the political fallout in terms of international scrutiny of human rights situation and even two former representatives of Sri Lanka in the international community at the human rights council in Geneva in particular coming out and talking about the credibility and legitimacy of a state that behaves in this fashion with regard to its own citizens. One of them has talked in terms of lending credibility to the argument that was originally made way back in 2005 and 2006 about the need for a field office of the High Commissioner for Human Rights in Sri Lanka.

Politically also I think an incident of this nature especially in a village like Weliweriya brings to the fore the question of if the special forces, if the army can behave like this as far as citizens in the South are concerned how did they actually behave in respect of civilians in the North. Are these allegations of war crimes – egregious human rights violations – the stuff of myth and slander or are they actually things that happened? We have now the account of the priest for example in the church; of the nuns in the church… something needs to be done and done fast.

If the position of the government is that now with CHOGM coming up with the High Commissioners visit before that everything should appear to be peaceful and calm, that the best way of ensuring that is to come out heavy handed against anyone who decides to demonstrate or show dissent, I think they are being very stupid, apart from anything else, apart from the criminality and the purely narrow political point of view, I think it’s really stupid to do this because what it does at the end of the day is it deepens the gap, the deficit with regards to reconciliation, with regard to governance, with regard to human rights protection, with regard to democracy.

Instead of throwing responsibility at each other I think there needs to be a unified and strong demand for a credible independent investigation, which gets to the bottom of the shooting, those who behaved in this way should be prosecuted and convicted and there should be a clear example set that this is not government policy, this behaviour is totally unacceptable in a functioning democracy, I think the opposition should use this as an opportunity to rally people behind the point about restoring rule of law and accountability in this country.

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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