Centre for Policy Alternatives on 6 February, 2013

Centre for Policy Alternatives and another Vs. D. M. Jayaratne and others. SC FR 23/2013

A Fundamental Rights application was filed by Centre for Policy Alternatives (CPA) and its Executive Director on the 15th January 2013, seeking a declaration by the Supreme Court that the Parliamentary Council (which includes the 1st to 5th Respondents) established by the 18th Amendment to the Constitution cannot make observations to the President with regard to the appointment of a Chief Justice until the incumbent Chief Justice (Dr. Shirani Bandaranayake) is removed from office through a lawful process or until she reaches her age of retirement. On the same basis the petitioners further sought a declaration by Court that former Attorney General Mohan Peiris (the 6th Respondent in the case) cannot accept the post of Chief justice or engage in the functions of that office.

On the day the matter was filed the 6th Respondent was appointed as the Chief Justice in terms of the provisions of the 18th amendment to the constitution. The case was fixed for support for interim relief and leave to proceed on the 6th of February 2013. On the 28th of January2013, a motion was filed by the Attorney-at-Law for the Petitioners requesting a full bench, excluding the 6th Respondent to hear and determine this case.

On 6th February the counsel for the Petitioners raised Objections to the 6th Respondent’s involvement in the matter. The matter was fixed to be mentioned on 5th March 2013. When the matter was taken up on 11th of July 2013, before a bench of 5 judges, the Counsel appearing for the petitioner submitted that all Supreme Court judges should be appointed to hear the case. The Attorney General’s Department objected to the said submission and the case was re fixed for the 16th July 2013 before the same bench.

On 16th July 2013, The counsel appearing for the Attorney General’s Department stated that in terms of the Constitution the ‘Chief Justice” has to appoint judges hear any particular case. On the 25th of July 2013, the Counsel for the Petitioner withdrew from appearing in the case on the basis that no person can judge a case in which he has an interest (Nemo Judex in causa sua) which is a basic principles of Natural Justice. In these circumstances court issued notice on the Petitioners and  their  registered Attorney-at- law to appear before court on 26th September 2013. The Petitioners through a motion filed on 18th September 2013 informed court that they do not wish to further participate in the disposal of this case.

The judgment was delivered on 24th March 2014, the 5 judge bench upheld the preliminary objections raised by the learned Attorney- General on the 16th July 2013. The application filed by the Petitioners was dismissed without costs. The court was on the view that,

  • any of the relief prayed for by the Petitioners cannot be granted in these proceedings in view of the immunity of the President contained in Article 35(1) of the Constitution; as the 6th Respondent has been appointed as the Chief Justice of Sri Lanka by a warrant issued by the President in terms of Article 107(1) of the Constitution.
  • any of the relief prayed for by the Petitioners that would have the effect of removing the 6th Respondent from office ;cannot be granted,  as he has been appointed in terms of Article 107(1) of the Constitution of Sri Lanka.
Centre for Policy Alternatives on 22 January, 2013

Regrettable, not surprising: Interview with Dr. Paikiasothy Saravanamuttu on impeachment of Chief Justice

The appointment of Mohan Peiris as Chief Justice is regrettable, though not surprising, in the backdrop of growing authoritarianism and undermining of the county’s Constitution, says Dr. Paikiasothy Saravanamuttu, Executive Director, Centre for Policy Alternatives (CPA) in an interview with Ceylon Today.

Read the full interview online here or as a PDF here.

Centre for Policy Alternatives on 22 January, 2013

Disinformation campaign against a Senior Researcher of CPA

21st January 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) has been informed of a disinformation campaign against a Senior Researcher of the organisation and unequivocally condemns the generation and dissemination of this false and misleading information.

The campaign, currently active over various online fora including blogs, Facebook and Twitter as well as via email, is without any merit and has no basis in fact whatsoever.

Such attempts to vilify the institution and its staff are not new. In pursuing its organisational mandate within a charged context, CPA is likely to face repeated attempts to broadcast spurious allegations.

We strongly urge restraint and caution in engaging with baseless rumours and the spread of disinformation.

Download this PR as a PDF here or view online here.

Centre for Policy Alternatives on 18 January, 2013

Launch of Republic at 40 website

Republic at 40

18 January 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) is pleased to announce the launch of a website complementing the print edition of The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, first published in December 2012. The website contains the complete contents of the two volume publication as freely downloadable PDFs, and other related content.

As noted by Asanga Welikala, the book’s Editor in his introduction to the web version,

…[this] website represents an experiment with publishing scholarly thinking on issues of constitutional significance in the public interest, which I hope will be successful in informing the way we approach, and think critically about, the great political issues of the day in our country. These debates are too often conducted in an environment of apathy or a lack of comparative and theoretical insights; or, in what is a disconcerting new development, straightforward untruths and deliberate disinformation, as the recent constitutional crisis with regard to the impeachment of the Chief Justice has shown. Your patronage of the site therefore is greatly appreciated and I hope it will lead to similar initiatives in the future.

In 2012, Sri Lanka marked the fortieth anniversary of the founding of its republic. With the promulgation of the first republican constitution on 22nd May 1972, Ceylon severed its remaining constitutional links with Britain that had survived the grant of independence as a dominion in 1948.

Both the process adopted in the making of that constitution as well as its substance were historic – a decisive ‘constitutional moment’ – reflecting dramatic political currents that had dominated the late-colonial and post-independence period. It established a constitutional order that has, despite being replaced by a second republican constitution in 1978, retained its essential substantive character as a highly centralised unitary state to the present.

In terms of both the consolidation of constitutional democracy and in addressing the challenges of ethnic, religious and cultural pluralism that post-war Sri Lanka must settle in order that causes of past conflict are not reproduced in the future, the historical, political and constitutional issues that prevailed in 1972 are as relevant as ever.

This two-volume edited collection brings together a series of reflections on those issues – now available in electronic form through this site – by a distinguished group of Sri Lankan and international scholars from multiple disciplines as well as political practitioners, with a view to informing the contemporary debate on strengthening democracy, constitutionalism, and reconciling the constitutional form of the Sri Lankan state with its rich societal pluralism… I hope you enjoy the site and its contents, and I look forward to receiving your comments. I hope even more that the many excellent chapters in it will receive the scholarly and critical attention they deserve.

Centre for Policy Alternatives on 11 January, 2013

Impeachment motion against the Chief Justice of Sri Lanka

11 January 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) vehemently condemns the resolution passed by Parliament today to impeach Sri Lanka’s Chief Justice, Dr. Shirani Bandaranayake. This follows CPA’s statement issued on 8th January 2013 welcoming the judgment of the Court of Appeal and determination of the Supreme Court and calling for Parliament to comply with the law.

This unnecessary and regrettable move by the legislature today has deeply debilitating consequences for constitutional governance, and demonstrates the contempt in which basic principles of democracy and the rule of law are held in Sri Lanka today.

Notwithstanding this, CPA hopes that the constitutional crisis facing us may yet be addressed responsibly, with restraint and in adherence to the Constitution.

Centre for Policy Alternatives on 9 January, 2013
2 Comments

Launch of ‘The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice’

The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, a collection of scholarly essays edited by Asanga Welikala, Senior Researcher, Legal & Constitution Unit was launched at the 80 Club, 25, Independence Avenue, Colombo 07, on 21st December 2012.

CPA’s latest publication, in association with the F riedrich Naumann Stiftung für die Freiheit (FNF), marks the 40th anniversary of the establishment of the Sri Lankan Republic.

Speaking at the launch were its Editor as well as Dr. Nihal Jayawickrama and Dr. Radhika Coomaraswamy.

Photos and videos from the launch can be seen below.

Dr. Nihal Jayawickrama – The Sri Lankan Republic at 40 from Centre for Policy Alternatives on Vimeo.

Dr. Radhika Coomaraswamy – The Sri Lankan Republic at 40 from Centre for Policy Alternatives on Vimeo.

Centre for Policy Alternatives on 8 January, 2013
1 Comment

Statement on judgements by Court of Appeal and Supreme Court on impeachment process of Chief Justice

8 January 2013, Colombo, Sri Lanka: The Centre for Policy Alternatives (CPA) welcomes the judgment of the Court of Appeal quashing the decision of the majority of members of the Select Committee of Parliament delivered on 7th January 2011, and the determination of the Supreme Court issued last week in respect of the question of constitutional interpretation referred to it by the Court of Appeal. The determination of the Supreme Court held that the investigation and proof of charges brought against a judge in an impeachment motion must be exercised by a body established by an Act of Parliament, and not by one established by Standing Orders of Parliament. The Court further held that matters concerning the mode of proof, burden of proof and standard of proof relating to the charges in an impeachment motion must also be specified by legislation.

The Court’s robust defence of the “immutable Republican principle of the independence of the judiciary,” and its reiteration of the fundamental importance of the rule of law underpin its interpretive arguments. For this reason, the determination represents an important precedent for the supremacy of constitutional values over claims of parliamentary immunity. Moreover, by asserting the jurisdiction to review the legality of Standing Orders that affect the rights of citizens, the determination decisively rejects the notion that Parliament is supreme. The idea of parliamentary supremacy is as much colonial – being a feature of English constitutional law – as it is obsolete. The Court’s determination, which emphasizes the sovereignty of the people and the supremacy of the constitution, is an important judicial reminder that the plausibility of constitutional arguments must be judged by reference to first principles of constitutionalism, and not inappropriate invocations of unconstitutional values and outdated doctrines.

Of more immediate relevance, given that questions over the legality of the impeachment process against the Chief Justice have now been settled definitively by the Supreme Court and Court of Appeal, it is imperative that all parties concerned comply with the law. Failure to do so will not only be in open contempt of court, but will also precipitate a dangerous constitutional crisis that the country can ill afford. In this respect, we are deeply concerned that the government has taken steps to hold a debate on the Resolution against the Chief Justice. We express our sincere hope that the rule of law will prevail, and that judicial determinations will be fully complied with.

Download this press release as a PDF from here or view on the web here.

Download this Press Release in Sinhala here.