Govt.

in hot water if 20A gamble backfires

by C.A.Chandraprema-September 16, 2017, 7:52 pm

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 SCs
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, its 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 peoples 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 Presidents 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 Lankas
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!
Posted by Thavam