Govt. in hot water if 20A gamble backfires
Posted on September 16th, 2017

by C.A.Chandraprema Courtesy The Island

With just 15 days to go for the Sabaragamuwa, North Central and Eastern provinces to automatically stand dissolved, the coming week will be a make or break period for the yahapalana government. The 20th Amendment to the Constitution is to be taken up for debate on Wednesday. The Supreme Court we believe has already conveyed its determination on the constitutionality of the proposed 20th Amendment to the Constitution. It was all over the social media that the SC had determined that the 20th A needed a referendum to be passed into law. No surprise in that. If fact the surprise would have been if the SC had determined that no referendum was necessary to extend the terms of the PCs and to postpone elections. In any event the SC’s determination is to be announced in Parliament by the Speaker on Tuesday before the 20th  Amendment is taken up on Wednesday for debate.

Since 20A had already been certified as a Bill to amend the Constitution, the role of the SC is to determine whether it needs to be approved at a referendum in addition to a two thirds majority in parliament. In this respect, the determination of the SC was a foregone conclusion. The aim of the Amendment was firstly to extend the terms (without an election) of most of the provincial councils for periods ranging from two years to several months, and secondly, ipso facto, postponing the elections to these councils. The provincial councils are elected for a period of five years and according to Article 154E of the Constitution, they stand dissolved automatically on the day they complete five years from the first meeting of the provincial council. In such circumstances, it’s a near impossibility to extend the term of the PC or to postpone elections to a PC without impinging on entrenched Article 3 of the Constitution which guarantees the franchise.

To say that all the legal big guns had come out against 20A would be an understatement. This was the first time since 1975 that a proposal was made to extend the life of an elected body through legislative fiat. (Even though J.R.Jayewardene also postponed elections in the 1980s, he at least held a referendum and won it. Even if an election had been held he would have won that too, but not with the majority he got in 1977, so his postponement of elections was not simply to hold on to power but to retain the majority he got in 1977.) Many in the legal fraternity realized the importance of opposing the 20A. They would have realized that once we start going down this slippery slope of using legislative fiat to postpone elections, there is no telling where the country and the entire political system will end up. The first to file a petition in the SC against 20A was Prof. G.L.Peiris, himself a Professor of law.

Legal luminaries to the battlefront

He was represented by Romesh de Silva PC. Manohara de Silva PC appeared for Udaya Gammanpila who also petitioned the SC. They were among a dozen other petitioners. On the first day, Romesh de Silva spent four hours on his feet presenting his case against the 20A. In his submissions, de Silva made the following points on behalf of his client Prof. Peiris. According to Article 154E of the Constitution, the term of a provincial council is fixed at five years. The only two grounds for dissolution are laid out in 154B(8)(c) of the Constitution and Section 5A of the Provincial Councils Elections Act No 2 of 1988. Both these provisions are extremely stringent and the Governor can use his powers in very limited grounds. Under Section 5A of the Provincial Councils Elections Act No 2 of 1988, a PC will stand dissolved if more than one half of its membership disavows obedience to the constitution. Under Article 154B(8)(c) and (d) The Governor may dissolve the Provincial Council in accordance with the advice of the Chief Minister. In these circumstances de Silva stated that it is only in a set of narrow circumstances that an early dissolution can take place.

He stated that the clear structure of the Constitution is that a Provincial Council once constituted must run for five years. All voters vote on the basis that the Provincial Council operates for a period of five years. The consequences of the proposed 20th Amendment are such that the period of some of the Provincial Councils will be extended and Parliament will fix the date on which all the provincial councils shall stand dissolved regardless of when they were constituted. De Silva argued that the franchise of the People will be adversely affected in that the people’s right to vote after a period of five years will be affected. Furthermore, the Amendment has the effect of acting retrospectively, which affects the franchise already exercised.

Some PCs whose term will be extended will exercise executive and legislative powers for a period of time in respect of which they have not received the mandate of the People. In other words, they will govern without the consent of the people.  The 20th Amendment Bill is therefore repugnant to Article 3 as it seeks to infringe and alienate the Sovereignty reposed in the People by violating fundamental rights and the franchise.

Manohara de Silva PC represented Udaya Gammanpila and he said the following in the course of his submissions: Although the declared primary objective is to have elections of all provincial councils on the same day, a careful examination of the provisions of this Bill reveal that it seeks to Amend Article 154E to extend the term of office of PCs. If the objective was only to have all elections on the same day the state could have achieved that objective without any opposition if the date of the election was advanced and not postponed. The Local Authorities elections have been postponed for almost two years without any prospect of the same being held. Therefore it appears that postponement of elections has now become a pattern of governance to deprive the people of the franchise.

The submissions made before the Supreme Court against the 20th Amendment all drew reference to previous judgments made by the SC regarding the application of Article 3 of the Constitution which guarantees the franchise of the people. Article 3 has been analyzed and reanalyzed so many times that it is now impossible to argue that the extension of the term of an elected body without an election and the postponement of an election will not impinge on the franchise. If there was any anxiety at all in the country that the SC may determine that a referendum was not necessary for the 20th Amendment to become law, that was entirely the result of the fact that the yahapalana government started their rule by terrorizing the Supreme Court by sacking a sitting chief justice with just a chit from the President’s office. Since the news coming down the grapevine indicates that the SC has stated that a referendum is necessary, one may say that the SC has not succumbed to the yahapalana terror.

Disappearances Bill, the next peril

The Office of Missing Persons Act was gazetted into operation last week by the President. This is one of several institutions to be established ‘to deal with the past’ in terms of the UNHRC resolution that the Yahapalana government co-sponsored with the Western powers in October 2015.   Even though it is described as an ‘office’ the proposed OMP will be a tribunal for all practical purposes which can examine witnesses, issue summons and hold hearings. Its officers can enter without warrant, at any time of day or night, any police station, prison or military installation and seize any document or object they require for investigations. Anyone who fails or refuses to cooperate with the OMP may be punished for contempt of court. According to Section 21 of the draft legislation, the OMP will have the power to receive funding directly from any foreign source.

Government bodies at all levels including the armed forces and intelligence services are mandatorily required to render fullest assistance to the OMP and the provisions of the Official Secrets Act will not apply to the proposed institution. According to Section 12 (c) (iii) the OMP can admit as evidence any statement or material disregarding the criteria laid down in the Evidence Ordinance. The provisions of the Right to Information Act will not apply to the work of the OMP. No court, not even the Supreme Court can order any officer of the OMP to submit to courts any material communicated to him in confidence. Given all this, making the OMP Act operational is certainly bad news – especially because this body can obtain funding from overseas. The Western powers have taken over various UN bodies by funding them and it is a foregone conclusion that the OMP will be operated not so much by the government of Sri Lanka as by the West.

Despite this, the OMP Act is nowhere near as dangerous as the Bill to incorporate into local law the provisions of the International Convention for the Protection of All Persons from Enforced Disappearance. Though many tend to confuse the Office of Missing Persons Act with the Disappearances Bill, these are two different matters. The OMP refers to a body that is to be set up in Sri Lanka with foreign funding. The  ‘Bill to incorporate into local law the provisions of the International Convention for the Protection of All Persons from Enforced Disappearances which is to be taken up in parliament on Thursday on the other hand seeks to give foreign countries complete and untrammeled criminal jurisdiction over Sri Lankans in relation to the offence of enforced disappearances.

Clause 8 of this Bill which is before Parliament says that where a request is made to the Government of Sri Lanka, by the government of a convention state for the extradition of any person accused or convicted of causing an enforced disappearance, the Minister shall, on behalf of the Government of Sri Lanka, forthwith notify the government of the requesting state of the measures which the Government of Sri Lanka has taken, or proposes to take, for the prosecution or extradition of that person for that offence. Clause 21 of the Bill says that the Minister may issue guidelines or directions to give ‘full effect’ to Sri Lanka’s international obligations under the Convention. Clause 23 states that this new law is to override all other written law. Clauses 8, 21 and 23 of this Bill have to be read together with the provisions of the International Convention against Disappearances to realize the gravity of the legislation the government is trying to get passed by Parliament.

Article 2 of the International Convention against Disappearances makes the Convention applicable only to State Actors which means that this is aimed only at the armed forces and terrorist movements like the LTTE are expressly excluded. Article 10 of this Convention makes it clear that any State in whose territory a person (who can be a citizen of any other member state) suspected of having committed an offence of enforced disappearance is present, can take that person into custody. According to Article 11, after making an arrest in that manner, the member state concerned can take one of three alternative courses of action – (a) extradite that person to another country in accordance with its international obligations, (b) prosecute that person under its own laws or (c) hand him over for prosecution to an international criminal tribunal whose jurisdiction that member state has recognized.

Article 13 of the international convention also states that any member state may request the extradition of a person suspected of being responsible for enforced disappearances in any other member state and all member states are supposed to respect such requests for extradition. Because Sri Lanka is now a signatory to the International Convention for the Protection of All Persons from Enforced Disappearance, the provisions of Articles 10, 11 and 13 form a part of our obligations under this Convention. Article 32 of the international Convention (which the Sri Lankan government has accepted by a separate declaration) enables any member State to complain to the 10-member ‘Committee on Enforced Disappearances’ in Geneva that Sri Lanka is not fulfilling her obligations under this Convention and the Committee can investigate such complaints.

When this was first to be presented to Parliament, there were protests from the Maha Sangha and from opposition activists due to which the government temporarily withdrew the Bill. After withdrawing it, the government launched a propaganda offensive to justify the proposed law. Their main argument was that the law will take effect only after it is passed and will not therefore have retrospective effect. This was contested by the Joint Opposition on the grounds that the proviso to Article 13(6) of the constitution will automatically make this legislation applicable to the past. What this proviso states is that it will be legal to try and punish any person for a crime which at the time it was committed, was criminal according to the general principles of law recognized by the community of nations.

Apart from Article 13(6) of the Constitution, there are provisions in the Disappearances Bill before parliament to make it applicable to the past. For example, Clauses 20(1) & (2) of this Bill read together with Clause 14 makes it very clear that any disappearance that this law will be ipso facto retroactive. The ‘non-enforcement’ of Clause 14 that is spoken of in Clause 20 is about people not knowing the whereabouts of disappeared persons irrespective of when they disappeared. The inherent retroactivity of this proposed enabling legislation has been cleverly concealed. Within three months of a person becoming aware that he has still not received news of what happened to someone 10 or even 20 years ago, that person can make an application to the High Court under Clause 20, asking for relief under Clause 14. So the law is retroactive despite anything the government may say.

Making Pinochets of our war veterans

Another contention the government has put forward is that no Sri Lankan can be hauled before the International Criminal Court even if the Bill to introduce into local law the International Convention against Disappearances is passed, because Sri Lanka is not a signatory to the Rome Statute and therefore does not come under the jurisdiction of the ICC. Interestingly the government has not tried to argue that our war veterans cannot be taken to be tried in other countries, because that in fact is the very purpose of this law. Allowing our war veterans to be tried in other countries for alleged crimes committed here is as bad if not worse than being tried by an international criminal tribunal. At least one could argue that an international criminal tribunal is a multilateral body whereas another country is a different matter altogether.

What matters here are the provisions of the ‘International Convention for the Protection of All Persons from Enforced Disappearance’ which has been signed and ratified by the Sri Lankan government. When you read Articles 10, 11 and 13 of the International Convention Against Enforced Disappearances together with Clauses 8 and 21 of the Bill that had been presented to Parliament to give effect to that convention in Sri Lanka, it is clear that once the Convention becomes operational in Sri Lanka, foreign countries which are members of the International Convention will have complete jurisdiction over Sri Lankans who are alleged to have been involved in causing enforced disappearances in Sri Lanka. This has been accepted by the yahapalana government by signing and ratifying the International Convention against Enforced Disappearances. Any member state of this international convention can get a Sri Lankan extradited to their country, and arrest, prosecute and punish a Sri Lankan for such an offence.

When a foreign country which has complete jurisdiction over Sri Lankans in that manner arrests a person on suspicion over an offence relating to this convention, and that foreign country also happens to be a member of the International Criminal Court, that person can be handed over to the ICC to be dealt with as they would a citizen of the foreign country that carried out the arrest. The only standing international criminal tribunal in the world is the ICC in the Hague. The other international criminal tribunals are ad hoc tribunals. What is important here is whether the country carrying out the arrest has accepted the jurisdiction of the ICC or not. If it has, then any Sri Lankan who is arrested in such a country or is extradited to such a country by our own government under the proposed enabling legislation can in fact be handed over to the ICC.

Even if a person believed by foreign states to have been involved in enforced disappearances in Sri Lanka happens to be in Sri Lanka, any interested foreign government can request the Sri Lankan government to extradite that person to their country to be prosecuted or handed over to an international criminal tribunal to be prosecuted. By signing and ratifying the International Convention against Enforced Disappearances Sri Lanka has accepted that its citizens can be handed over to an international criminal tribunal for prosecution under Article 11. Countries like the United States, Britain, Australia and Canada, never even signed this Convention. Denmark, Finland, Norway, Sweden, Ireland and India signed it ten years ago in 2007, but never ratified it. Many countries have kept away from this Convention altogether for the obvious reason that its provisions have the potential to violate the individual rights of citizens of the States that join it. But here we are now faced with the prospect of legislating into law an international convention that was avoided even by the countries that have been getting resolutions passed against us in the UNHRC!

4 Responses to “Govt. in hot water if 20A gamble backfires”

  1. Dilrook Says:

    A good round up.

    Most likely PC elections for Sabaragamuwa, north central and east will be held soon. All parties are getting ready for it. Some have even proposed Gotabhaya for the NPC CM post while UNP may field Fonseka and SLFP will field Chathurika Sirisena.

    OMP law will not alter the position of US, etc. citizens in Sri Lanka’s war. It will affect uniformed soldiers and officers. However, no foreign country can file action against a war hero if he/she is not in that country. That will spare most uniformed war heroes.

  2. SA Kumar Says:

    how long they can run ??? 20 years or 25 years ? staying in jail 90/ 100 is more paint fully.

  3. Fran Diaz Says:

    Re The OMP :
    Why has the OMP excluded Terrorist outfits such as the LTTE ?
    Why include to prosecute ONLY State persons such as the Tri-Forces, politicos, etc ?

    What about War Heroes from the Tri-Forces ?
    They are Heroes to the State of Lanka & most of the People of Lanka, but not so to LTTE sympathisers.
    Even children as young of 11 yrs were recruited by the LTTE, and those who did not agree to comply with LTTE orders were made to ‘disappear’ thru killings. What about such hundreds of killings ?

    Scott free for Tamil Leaders V’koddai Resolution – Eelam through Violence (1976) which REsolution was the starting point for the formation of the LTTE which has killed many thousands of Lanka citizens, & also persons involved in the nearly 30 yrs of LTTE Terror in Lanka ?

    Sri Lanka is becoming not only neo-colonised, it is also neo-terorised through Draconian Laws for outsiders to use !

    What a farce by Yahap, mocking the Law – fearful, or bribed, or both ?

  4. Ananda-USA Says:

    In what way is SUPPRESSING ELECTIONS SOOOOO LOOOONG, a “Yahapalanaya”? Gimme a BREAK for God’s SAKE!!

    What we have is an UTTERLY UNDEMOCRATIC UNPATRIOTIC SELLALA YAMAPALANAYA OF Serial Bunglers, BY Serial Bunglers, FOR Serial Bunglers!
    Election monitor tells government to dissolve all Provincial Councils next month

    Sun, Sep 17, 2017, 01:46 pm SL Time, ColomboPage News Desk, Sri Lanka.

    Sept 17, Colombo: The Campaign for Free and Fair Elections (CaFFE), an election monitor in Sri Lanka has requested the President and the Prime Minister to dissolve all Provincial Councils before the 2nd of next month and immediately hold discussions with the Chief Ministers and Governors of the Provincial Councils to reach an agreement.

    In a statement issued today, the election monitor says the government should not get discouraged by the opposition to the 20th Amendment and requests the government to not abandon the commendable effort it took to hold all Provincial Council elections on the same day.

    “If the 20th Amendment to the Constitution, presented to postpone the elections for the Eastern, North Central and Sabaragamuwa Provincial Councils without a referendum, cannot get passed, the President and the Prime Minister without getting discouraged should look at alternative options for holding all provincial council elections on the same day,” the CaFFE said.

    The election monitor points out that additional expenses and unnecessary time spent on conducting several elections and the misuse of public property could be avoided by conducting all the elections on the same day.

    However, CaFFE says, as it has repeatedly emphasized, it can be done only by dissolving all the provincial councils on the same day, October 2, 2017, with the concurrence of Chief Ministers and Governors.

    Not only will it result in fair electoral system that everyone can agree, but also will give the opportunity for a transparent process, CaFFE emphasized.

    CaFFE Executive Director Keerthi Tennakoon said that the next election could be held in 2022 under a mixed electoral system as promised by the good governance election campaign if all provincial councils dissolved on 2nd October.

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