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A budget presented amid celebrations and acquittals

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by Malinda Seneviratne

Over the last few weeks there has been a concerted campaign in social media attacking President Gotabaya Rajapaksa. The ‘Gota Fail Campaign,’ as it was, promoted a strong response questioning the success of the President’s detractors. The campaign was clearly targeting the President’s first anniversary celebrations and the impending reading of the budget. The campaign failed or rather, now that the moment has passed, the campaigners have taken a break.

It was a week marked by celebrations. We had Mahinda Rajapaksa celebrating his 75th birthday. President Gotabaya Rajapaksa completed his first year in office and addressed the nation to mark the occasion. The first budget of the Government that came to power in early August was presented. Secretary to the then President (Mahinda Rajapaksa) Lalith Weeratunga (also the ex officio Chairman of the Telecommunications Regulatory Commission) and Anusha Palpita (former Director General, TRC) were acquitted of all charges of misappropriation by the Court of Appeal.

Quite a week, to say the least.

Ranjan Ramanayake, predictably, ridiculed Prime Minister and Minister of Finance Mahinda Rajapaksa ‘for not standing while presenting the budget.’ Leader of the Opposition Sajith Premadasa rapped Ramanayake on the knuckles for doing so, in a gesture of good grace rarely seen in Parliament.

Obviously, Mahinda Rajapaksa is no longer the energetic man he used to be. This of course does not necessarily mean he is infirm in mind. He still remains one of the most effective communicators in our tribe of politicians. He’s had his good days and bad ones, like anyone else. He receives praise and blame, which again indicates strong passion, fierce loyalty and, on the part of his detractors, equally intense sentiments which include envy, fear and disgust.

That said, as ‘The Gadfly,’ a regular contributor to the website www.theleader.lk observed, when the post-independence history of this country is written, there will be a special chapter devoted to Mahinda, whereas the likes of Ranil Wickremesinghe, Sajith Premadasa, Rajitha Senaratne an Wijedasa Rajapaksha would get, at most, a line or two. Again, depending on who is writing the history, someone might say. However, Mahinda’s’s mark is unmistakable and certainly hard to brush aside.

Some argued that he should have gracefully retired in 2015. Maybe he should have. On the other hand, ‘Mahinda Rajapaksa’ is not just a man but a brand and moreover a name that’s etched in the political consciousness of the nation, and, as the August 5 results indicated remembered with gratitude that obliterates memory of his blemishes. If Gotabaya Rajapaksa was captain-designate and Basil Rajapaksa the man chartering course, Mahinda Rajapaksa was the name of the ship (with a tagline, ‘Sri Lanka Podujana Peramuna’) and ‘MR’ a signature that was on every element of the vessel.

So, let us wish him, belatedly (on account of circumstances), a very happy 75th birthday, good times ahead, good health, continued guidance of his younger brother the President in matters political and restraint in deference to changed times and more importantly the leadership and power that is constitutionally granted to Gotabaya Rajapaksa.

The budget is still being debated. Predictably Harsha de Silva has come down hard on it. He tweeted, ‘the most boring budget speech in years,’ adding ‘…a weak n inspiring (he probably meant ‘uninspiring’) budget w totally unrealistic revenue figures…a shift towards protectionist n failed ‘Import Substitution Industrialization’ model.’ Having opened the debate for the Opposition, he then tweeted ‘a short edit’: 1. Figures fudged. 2. No stimulus package. 3. About to explode foreign debt issue ignored. 4. Import Substitution Model has failed; need bridges not walls.’

Now de Silva is a fear-mongerer if ever there was one. There was a time when again he was in the Opposition, when he would issue dire predictions of imminent economic collapse almost on a weekly basis. The man had to keep quiet when the UNP regime he was a part of mishandled the economy. He had nothing to say on the Central Bank bond scam.

He might have been thrilled when that regime wagered on the West coming to Sri Lanka’s help, but he didn’t contradict his then leader Ranil Wickremesinghe who, when ‘Brexit’ happened, suddenly said ‘we will look East.’ This after badmouthing China in the run-up to the January 2015 presidential election. We remember Harsha posting selfies with the Port City construction in the background at the time when his party was swearing to put a stop to the project. Finally, his government signed an agreement even less favorable to Sri Lanka. This was to be expected; after all the Yahapalana Government cheered itself while compromising sovereignty by way of Resolution 30/1 in Geneva. Anyway, neither de Silva, Wickremesinghe, Premadasa and pretenders to various political crowns now in the Opposition seem to have cottoned on to the fact that the USA is no longer the big boss in the global economy and that the sun set on the British Empire a long time ago.

Nevertheless, the onus is on the Government to respond to the charge that figures were fudged. As for the revenue plan, we will certainly assess it, realistic or otherwise, as time goes by. The rest is obviously Harsha rattling off received (non) wisdom about things economic.

Stimulus packages hinge on the erroneous premise that the private sector is the one and only engine of growth, where ‘growth’ itself is a concept that is contentious at best in the development discourse and has by and large been rubbished considering what that model has done to the world, the health of the planet and of course the most vulnerable sections in the global population.

Pertinent here, as has been editorially pointed out in www.gammiris.lk is Harsha’s myopia about the Bretton Woods institutions. Here’s a quote:

 

He (Harsha) does not seem to have gone through Nobel laureate Joseph Stiglitz’s Globalization and its Discontents, which talks in succinct detail how these institutions operate, particularly in underdeveloping countries. A pity, because Stiglitz took the trouble of writing on Sri Lanka, and more to the point, of cautioning the then administration against hedging its bets on the IMF-World Bank paradigm of, what else, “globalizing and liberalizing.’

Siglitz, interestingly, observed, that if Sri Lanka is to progress, it should start “learning to produce, learning to export, and learning to learn.” Harsha of course can’t think beyond the outdated and erroneous neoliberalism model. The budget has sought to empower local production. This is not the same as import-substitution, though. All framed by Covid-19, one must add.

It must be pointed out that the strategy laid out doesn’t make sense if the banking institutions are not focused on development. The Bretton Woods institutions have always been against development banks. There has been talk of setting up a cooperative bank, but the details are still to be worked out. This was an opportunity to get it down in black and white.

Meanwhile a delegation of the European Union and the Embassies of France, Germany, Italy Netherlands, and Romania issued a statement slamming the government’s trade policy, ‘with an obligatory non-sequitur to human rights,’ again editorially observed by ‘gammiris.’

‘Thanks to the EU’s special Generalized System of Preferences (GSP+), Sri Lanka enjoys competitive, predominantly duty- and quota-free access to the EU market,” they said. Trade, they pointed out, ‘not a one-way street,’ and observe (gravely) that ‘a prolonged import ban is not in line with World Trade Organization regulations.’ They interjected the par-for-the-course HR reference (Resolution 30/1) and said ‘we are concerned.’

The hypocrisy of Europe crying foul over human rights is well known. But why talk of WTO rules here? Just last year Indonesia complained to the WTO over EU restrictions on palm oil imports. Both Germany and France blocked their own exports of crucial personal protective equipment (PPE) at the height of the COVID-19 pandemic. Hypocrisy much, eh?

Well, if the EU’s ‘concerns’ (threats?) do translate into action, it would only push Sri Lanka even further into the Chinese circle of influence. Sri Lanka would have no option but to promote domestic production and rebuild as per the demands of the home market.

Gotabaya Rajapaksa completed one year in office. Not given to pomp and pageantry, his first year has been relatively subdued. He promised ‘work’ and ‘systems.’ Covid-19 was an obvious dampener. And yet, in this one year, we saw a mandate overwhelmingly reiterated. We also saw the passage of the 20th amendment which resolved the confusion of the 19th Amendment with respect to who really rules the country. The 19th, let’s recall, as acknowledged by its authors themselves, is full of flaws. The Supreme Court shot it down and the then regime introduced what was almost a fresh document; and in clear contravention of established parliamentary procedure (in the UK, the House of Lords can make changes but only minor ones). Here, there were wholesale changes at the committee stage. In contrast, the 20th it a) retained certain elements of the 19th such as term limits and b) incorporated the observations of the Supreme Court).

The President’s anniversary speech was essentially a rehashed version of his ‘throne speech.’ He didn’t detail the modalities of getting the ‘One-Country, One-Law’ going. He probably should have explained the controversial circular on ‘Other State Lands’ over which he has been getting a lot of flak. It was a no-frills anniversary speech quite in keeping with the personality he has projected or even the person he is seen to be. The proof of everything is in the ‘works’. Work is where he will be judged eventually.

Given the announcement that the Government is planning to introduce a new constitution, the buzz over the 20th seems silly. The Government, of course, could have incorporated the 20th into a new constitution and seek passage in one go.

Covid-19 has framed the president’s first year. He has had to balance coping mechanisms with keeping the economy going. The Opposition, as pointed out in a television discussion on Thursday by Deputy Editor, The Island, Shaminda Ferdinando, was bailed out by Covid-19. Now they have something to talk about, he said. There are charges of mishandling. The rise in numbers is certainly worrying. The Government does have a plan and it is as reasonable as any given multiple constraints.

However, it is certainly ridiculous that so many government officials and healthcare professionals are commenting and contradicting each other on Covid-19. The Government should authorize a single person to do this. Others should obtain from what this person says and not act as though they are epidemiologists. That goes for the opposition and political commentators as well, of course.

In Canada, for example, according to a Sri Lankan who is a long time resident there, ‘there’s a chief medical officer giving daily recaps at the federal level with Prime Minister Trudeau offering a daily non medical brief. At the provincial level, the chief provincial medical officer gives a daily briefing. All financial assistance information is conveyed by Trudeau since it’s all federal at this stage. In Sri Lanka, in contrast, everyone except the Minister of Health is an authority on the pandemic!’

Finally, the court decision on Lalith Weeratunga and Anusha Pelpita. Now they were acquitted not by judges appointed by this government. The charge that the court was politically motivated is therefore silly. In this regard it is pertinent to point out that the President has nominated the six most senior judges for promotion to the Supreme Court. Seniority was spurned out of hand by the much-celebrated Constitutional Council of the previous regime. Friendship and loyalty were rewarded. Good move by the President but one which he ought to apply across the board in the matter of appointments/promotions.

The 62-page verdict notes, ‘There is no dishonest intention with which both accused appellants have acted. They were not actuated by men rea or actus reus. There has been a bona fide exercise of their powers and duties. Neither accused was enriched. Whilst the board authorized a transaction which is protected by law and corporate social responsibility, it is a travesty of justice that only two members of the TRC had to endure the traumatic experience of a selective prosecution at a prolonged trial, causing a senior public servant of long years of meritorious public service humiliation and anguish.’

Intention of course is always assessed subjectively. It’s the act that the court has to assess. The court was of the view that the prosecution failed to establish the ingredients of the offenses laid in the indictment. The court also determined that the circumstances in which the presiding judge came to hear the case created a serious doubt on the impartiality and validity of proceedings adopted. In other words, there was selectivity and deliberate maneuvering to obtain a pre-arranged outcome.

Weeratunga is a seasoned public servant. He probably knows the Establishments Code inside out. He probably knows not only what’s possible and what’s not but all the loopholes that can be used and abused. He was obviously following orders from the top on sil redi, but, as the Court has determined, in a legal manner. He didn’t benefit personally. Neither did Palpita. One can argue that had Mahinda Rajapaksa won in January 2015, whether or not the sil redi issue was a factor, both would have benefited. At the very least they wouldn’t have been subjected to the obvious harassment meted out by overzealous yahapalana operatives (who essentially turned the FCID into a kangaroo court and operated from the Prime Minister’s office). That’s however in the territory of speculation. Courts are not in that business.

The court has ruled. That’s that.

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Politics

Innocence and guilt in accusation and punditry

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by Malinda Seneviratne

It’s a Covid19-dominated week. Well, what week in the last nine months or so has not been dominated by the deadly virus, one may ask. This is true. The numbers pertaining to what is now called ‘The Second Wave’ are far more alarming than those we saw during the initial stages of the outbreak.Covid-19 may not be here forever, but it certainly is going to be around for quite a while. The experts have put together a strategy and various institutions are engaged in doing their parts in combating the pandemic. While there are containment measures being put in place whenever a cluster is identified, there’s no indication of an island-wide lockdown being imposed. Protection protocols are now well known by one and all. They are imposed in various degrees of strictness by all institutions, public and private. Lapses there were, are and will be. This is to be expected and this is unfortunate because all the good work of authorities working tirelessly and at great risk can be undone by one errant individual or a relaxing of protection regimes by any institution.

That’s Covid. Covid or no Covid, as the Opposition has often enough argued, the economy must function. Obviously, this throws sand in the wheels of the Opposition’s oft-expressed horror about constitutional reform. The fact of the matter is that parliamentarians are required to make laws, not administer Covid tests.

So let’s move to the ‘usual’ matters of the week. Last week court absolved the then President’s Secretary Lalith Weeratunga and the Director General, Telecommunications Regulatory Commission of any wrongdoing over the much publicized sil-redi case. This week, former Eastern Province Chief Minister Sivanesathurai Chandrakanthan alias Pillayan was granted bail by the Batticaloa Magistrate’s Court. Pillayan was arrested on October 11, 2015, more than five years ago. No trial. Hold on to that.

Now we have various people complaining about LTTE cadres being held without trial. Among them are NGO personalities, representatives of various countries and UN agencies and political commentators. None of them saw anything wrong about Pillayan being held for so long. Was it because it was their friends (the Yahapalanists) during whose watch he was put behind bars? Is it then about friends and not about principles?

They appear to have abandoned the LTTE suspects (political prisoners, they call them) and have Hejaaz Hizbullah as their pinup boy of the moment. Hizbullah is being held under the Prevention of Terrorism Act. His case has not come up for trial. He could be held for years. Just like Pillayan. If one applied the principle, ‘innocent until proven guilty,’ then one has to be seriously worried about sloth in the judicial system which makes it possible for anyone to be held indefinitely (five years in the case of Pillayan, more than 10 in the case of LTTE cadres and who knows until when in the case of Hizbullah?).

Interestingly, the horror-stricken alluded to above have been and still are comfy in making out that accusation amounts to guilt. The Sri Lankan security forces have been berated over their heads for more than a decade with this twisted club. They don’t seem to realize that the same instrument can be used on Hizbullah.

Interestingly, the twist works in the other direction as well. If accusation does not amount to guilt (as those defending the Sri Lankan security forces often claim) then the patently nasty treatment of Hizbullah is out of order. Out of order too is a government that does not insist that this is unfair. Out of order also on account of the long and unexpected delay on the part of the prosecution with respect to Hizbullah.

This week, we also saw former President, Maithripala Sirisena in the news. He does cut a sorry figure considering that his newsworthiness is solely dependent on appearances at the Commission of Inquiry into the Easter Sunday attacks. Yahapalanists who were crowing that the 19th Amendment effectively clipped the executive wings of the president and made the Prime Minister (that’s Ranil Wickremesinghe) all powerful, ought to defend Sirisena, but they don’t. Neither do they blame Ranil Wickremesinghe. Easter Sunday is an egg laid by some unknown hen, as far as they are concerned.

Speaking of the Easter Sunday attacks, what really happened to that parliamentary committee on national security appointed by the previous government? A sectoral oversight committee on National Security submitted a report ‘for (the) formulation and implementation of relevant laws required to ensure national security that will eliminate “New Terrorism” and extremism by strengthening friendship among races and religions.’ That’s what’s on the title page of over 300 paged report. It was presented to Parliament on February 19th, 2020, days before Parliament was dissolved and the curtain officially fell on the Yahapalana circus.

The committee was chaired by Malith Jayathilake and included Shehan Semasinghe, Vijitha Herath, Weerakumara Dissanayake, Buddhika Pathirana, M.S. Thowfeek, Palitha Thevarapperuma, S Viyalanderan, Dharmalingam Siddarthan, A A Wijethunga, M.A. Sumanthiran, Chandima Gamage, Kavinda Jayawardane, Mayantha Dissanayake, Bandula Bandarigoda, Muhammad Ibrahim Mansoon and Ashu Marasinghe.

Some of the above are still members of the current Parliament. Regardless, it is a comprehensive report with what appears to be pragmatic measures. The President and his party repeatedly said that national security is a ‘Number One Priority’. The report covers important areas such as education, attire that makes identification impossible, national security policy, amendment of immigration and emigration laws to be in line with new national and international developments, media (print, electronic and social), amendment of the Muslim Marriage and Divorce Act, empowerment of Muslim civil society, non-governmental organizations, amendment of the Waqf Act, stopping the registration of political parties that are based on ethnicity and religion, issuance of national identity cards that affirm a Sri Lankan identity, establishment of a ministry for religious affairs that includes all faith-communities, the conduct of religious schools and centers, guidelines for the use of religious iconography, and Halal certification, Why can’t this report be taken as a base document to formulate relevant acts with ‘national security’ as the desired outcome?

The leaders of the political coalition who pushed for this committee are silent. The government is silent. The silence obviously doesn’t sit well with sections of all ethnic and religious communities that are wary of extremism and suspect that politicians are hedging bets with narrow political objectives in mind.

The government is also cagey on the issue of burials, i.e. the disposal of the bodies of Muslims who have succumbed to Covid19. The Government has not spoken in one voice on this matter. No decision to allow burials, Cabinet Spokesperson and Media Minister Keheliya Rambukwella said. It will be allowed, opined Chamal Rajapaksa. A Muslim organization said ‘Justice Minister Ali Sabry said it will be allowed.’ Sabry did bring it up in cabinet, but no such decision was taken. The President has insisted that response to Covid-19 is framed by the advice given by health professionals. Well, the health professionals can give a clear determination on the matter without twiddling thumbs and indulging in navel-gazing. They will have to take into consideration the science which informed the decisions taken by other countries. For the record, almost all countries have sanctioned burials. If issues of water contamination are worrisome, then a way to circumvent the problem can be found, not just for Muslims who died of Covid-19 but in the case of anyone from any community whose family prefers internment to cremation.

The sooner the better. Faith is a personal thing, yes. Faith sparks emotion, more than reason. Fears need to be taken into consideration. Science needs to drive decision-making. Above all, the thinking needs to be logical and moreover communicated clearly, without ambiguity or convoluted arguments. The onus is on the government.

Let’s give the budget some play here. Once again, Harsha de Silva of the Samagi Jana Balavegaya had to bat for the Opposition with regard to foreign policy. Perhaps this is because he was associated with that ministry during the previous regime; Mangala Samaraweera, the subject minister, although he hasn’t retired his mouth, has retired or at least taken a break from parliamentary politics.

De Silva claims that the government has a confused foreign policy. Dinesh Gunawardena didn’t do himself any favors by alluding to the non-aligned concept. De Silva pounced on it. However, the degree and choice of alignment in a complex international system was spelled out recently by the President when he met the US Secretary of State Mike Pompeo: a) friendly relations with all nations, b) China has been a long-time friend, c) nothing will be done to jeopardize India’s national security concerns, d) investment welcome more than aid. The President didn’t speak on foreign policy during the budget debate obviously, but the position should have been emphasized.

That said, what are De Silva’s credentials when it comes to foreign policy? Back in the day he spoke of ‘economic diplomacy’. It translated into ‘whatever Uncle Sam says.’ However, the Brexit Moment, so to speak, brought this theory and application crashing to the ground. His former boss said ‘We will look East.’ As though he had been sleeping for twenty years!

De Silva claims that diplomacy is about honesty, sincerity, civility and responsibility. That’s a fairytale if ever there was one. In any case, such things were non-existent in the foreign policy doctrine of the previous regime. Servility on the other hand was observed as though it was an article of faith. If his party had got it all right, how come nothing tangible resulted?

De Silva speaks of servility replacing meritocracy and ability. Servility or loyalty (if one wants to be polite) does seem to be a key factor in diplomatic appointments/promotions. The Yahapalana Government was no different (which is not an excuse for the Gotabaya Rajapaksa regime to follow suit). De Silva knows about the appointments of J.C. Weliamuna, Lal Wickramatunge, A.S.P. Liyanage and Lalith Allahakoone among others, as well as rubbishing seniority within the service in promotions. He knows how sovereignty was compromised by Mangala Samaraweera via co-sponsorship of Resolution 30/1. Amazing how one’s skills, knowledge, competence and capacity to govern seem to increase -as soon one leaves the government and sits in the Opposition. He knows how low-ranking US civil servants were offered VIP treatment violating all established protocol. Maybe he believes it is ‘civility.’An FB comment on De Silva is applicable to many in the Opposition including those currently in the Government who once sat on that side of the House: ‘Amazing how one’s skills, knowledge, competence and capacity to govern seem to increase -as soon one leaves the government and sits in the Opposition.’ And this is another comment that says a lot about diplomacy in general: ‘Sri Lanka’s ambassadors have no mandate to serve the host nations interests. They have a duty to uphold ours. There is nothing diplomatically great about begging and pleading big bullies to keep us on their friends lists. His lack of reference to Sri Lanka’s ties with any nation which doesn’t conform to capitalist models is evidence that for de Silva a diplomatic win is only a win with the West. All other victories are not worth talking about. This is also how Colombo liberals think.’In other matters that might have gone under the radar, Russia has pledged to improve ties with Sri Lanka. Sarath Weerasekera, who got the most number of preferential votes from the Colombo District has been sworn in as the Minister of Public Security. More importantly, two ministries have been brought under the purview of President Gotabaya Rajapaksa. He will now handle the subjects of Defense and Technology. Perhaps the President has decided it is time to get things moving without allowing Covid-19 to bog him down. A response system has been put in place, as mentioned above. People with decent track records are in charge. He obviously trusts their judgment. They will no doubt do the best they can given constraints of a) resources, b) the need to balance response with economic and social imperatives, c) the as yet unknown factors of how the virus behaves. The President can and should take a break. His leadership is required elsewhere now. malindasenevi@gmail.com.

 

www.malindawords.blogspot.com.

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Politics

The Burghers of Ceylon/Sri Lanka- Reminiscences and Anecdotes

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Remembered Yesterdays

by J. Godwin Perera

“The Burghers were a riotous lot With song and dance and many a ‘shot’ Were drivers, guards in the Cee Gee Ar For higher jobs were below par”

This is only partly true. It was a small segment of Burghers who worked in the CGR and as they would have said ‘did a bloody, damn good job.’ But, there were Burghers and Burghers. Let’s give credit where credit is due. Higher in the social hierarchy were the Planters. Many, having been ruggerites in their colleges, it was an easy jump to the central hills where they were appointed as ‘Sinna Dorays’ (SDs) and later Periya Dorays (PDs) in the tea plantations. They had the endurance and intelligence to rule their kingdoms (‘Thottams’), very, very, successfully. Some ended up as CEOs in the head offices of the agency houses which managed the estates in which they worked.

There were other Burghers who adorned the pages of our nation’s history with outstanding contributions in areas ranging from the academic to sports. In what follows there may be errors and there will be omissions. For both a sincere apology is given.

On February 4, 1948, our Lion flag fluttered proudly in the freedom of newly won Independence. On July 31 of that year the Lion flag fluttered proudly at the London Olympic Stadium when Duncan White skimmed over the hurdles (400M) to claim the Silver medal. It was only 52 years later in 2000, at the Sydney Olympics, that our country won another medal – But that is another story. In fact it’s a story within a story. It was also at the London Olympics that Eddie Gray, the first head of the Ceylon Mounted Police, boxed in the Lightweight Class.

But Eddie Gray has to be remembered with a very sad incident four years later. Early morning on March 21, 1952 our first Prime Minister D. S. Senanayake suffered a stroke and fell off his horse while riding on Galle Face Green. Eddie Gray who was also riding on Galle Face Green, was quickly at the PM’s side. He took him to Central Hospital where the ‘Father of the Nation’ passed away on March 22.

In the academic field there are two names which will always be remembered by generations, past, present and future. The first was Edmund Blaze, founder of Kingswood College Kandy, which started as Boy’s High School in 1891 with just 11 pupils. It was Blaze who introduced rugby to schools. The first ever inter-school rugby match was between Kingswood and Trinity on August 11, 1906. Fittingly it ended in a six- all draw. Kingswood was also the first school to introduce rowing. On the Kandy lake? And one of the first to have a cadet platoon.

The second name is that of Prof. E.O.E. Pereira. He was the Founder Dean of the Faculty of Engineering at the University of Ceylon and quite appropriately referred to as the ‘Father of Modern Engineering Education in Sri Lanka’. He was later appointed Vice- Chancellor of the University of Ceylon, Peradeniya. It was Prof E.O.E. who was responsible for moving the Faculty of Engineering from its cramped space in Colombo to a more spacious and salubrious place within the Peradeniya Campus.

Think of authors. Think of Carl Muller. Dismissed from three schools, he ended up at Royal College, barely avoiding dismissal. In later life he blossomed to become a prolific and award winning author. His writings were exuberant, witty, sarcastic with a prominent vein of sexuality. He was best known for his trilogy – Jam Fruit Tree, Yakada Yakka and Once Upon a Tender Time. The first was published by Penguin Books and won for him the Gratiaen Memorial Prize in 1993.The State bestowed on him the title ‘Kala Keerthi’.

More famous is the Sri Lankan born, Canadian domiciled, multiple award winning, editor, essayist, novelist and filmmaker, Michael Ondaatje. His best known work ‘the English Patient,(1992)’ won him the prestigious Booker Prize. It was out of this prize money that Michael Ondaatje founded the Gratiaen Trust named after his mother Dorris Gratiaen and from this Trust came into being the Annual Gratiaen Award for the best English literary work written by a resident Sri Lankan. And now the curtain rises for that vivacious, attractive, actress, Jacqueline Fernandez, much in demand in Bollywood. She together with another Burgher- Alston Koch starred in the controversial movie ‘According to Matthew’ which was based on the life story of an Anglican priest (his first name was Matthew) who was convicted of murder. Army Commander from November 1966 to September 1967 was Major General B. R. Heyn. He represented Ceylon in cricket and can best be remembered for the One-Day match against the Australians.

 

The Burghers…

 

The scoreboard read Donald Bradman caught R. L.. de Kretser bowled B. R. Heyn – 20 runs. A perfect Burgher combination ! Col. F. C. de Saram was the doyen of cricket both as player and coach. Playing for Oxford University he scored 128 against the Australians of which 96 came in boundaries. He captained the Ceylon team from 1949 to 1954. But alas! Like another all time cricketing great, better known as ‘Satha’ ‘FC’ too had a spell in the Welikada jail. This was because he led a coup in 1962. He and his co-conspirators were sentenced to 10 years imprisonment. But on appeal to the Privy Council the sentence was overruled. ‘FC’ will be always remembered for cricket. Not the coup. On the subject of cricket mention must be made of another record. The Reid brothers who played for St. Thomas’s College in the 1960s. There were five of them – Claude, Ronnie, Buddie, Barney and Johaan.

Commissioner General of Prisons – C. T. (Cutty ) Jansz was Deputy Commissioner General when the notorious massacre of Tamil political prisoners took place in Welikade on July 1983. He valiantly tried, but could not prevent it. Many years later after retirement as Commissioner General in an interview about execution of prisoners sentenced to death, he stated about the ‘gut wrenching’ experience of having to witness a prisoner being hanged. ‘The whole prison mourns. It becomes a funeral house.’ Moving on to Doctors. There was Dr P. D. Anthonisz the first Ceylonese to obtain both the MRCP and FRCS qualifications. As a member of the Legislative Council he was mainly responsible for the construction of the railway line from Colombo to Matara. The land-mark clock tower in Galle Fort was erected in his memory by a grateful public. Then there was Dr Noel Bartholomeusz who very graciously gifted his Colombo 07 residence to the College of Surgeons of Sri Lanka. In the late 1960s Dr Noel became a surgeon by day and a patient by night. He had to undergo a dialysis procedure for 12 hours, three days a week in his home. This was done by his wife Nora. Next we come to Dr R .L. Spittel – often misspelt as Spittle. He can best be described as a city surgeon, jungle doctor and author. His knowledge of the of the Veddha community about whom he wrote, is unrivalled to this day. Wycherley International School along Bauddhaloka Mawatha was originally Wycherley Nursing home in which Dr R. L. Spittel had his practice. Justices of the Supreme Court – In the post-independence era alone there were six of them. But let’s refer to two. Oswald Leslie de Kretser III has another claim to fame. A species of fish- the mulpulutta kretseri was named after him. The other is Noel Gratien. It was due to his inspiration that the Warden of St Thomas’s – Cannon R. S. de Saram introduced Rugger into the sports curriculum.

Photographers- Dedicated to wild-life photography, Eric Swan while on a photographic safari in Thamankaduwa in the Polonnaruwa district observed a single elephant detached from the herd. The elephant turned and curled its trunk. Eric Swan clicked. It was his last photograph. It was the last moment of his life. The elephant charged killing him on the spot. But let’s not end on a melancholy note. Let’s consider the tasty, savoury, Burgher contribution to our cuisine. There’s Lamprais, and Rich Cake also called Christmas Cake, and Love Cake and Patties and Frickadel (meat balls, similar to cutlets) and Breudher and Milk Wine and yes indeed there’s that delicious sweetmeat served during Sinhala Avuruddha called Kokkis. The Burghers alas ! have left our shores. There are more Burghers in Australia than in Sri Lanka. And yet we know that in every Burgher heart there is a place which will forever be Sri Lanka. Once the vicious tentacles of Covid 19 have been untangled and the second wave has been calmed, they will come. In droves. Let’s greet them and say ‘Ayubowan.’

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Politics

The need for a new Constitution

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* Covid-19 continues to dominate headlines

* 20A now legally effective but inadequate

* Focus shifts from CC to Article 35(1)

by C.A.Chandraprema

As in March/April this year, Covid-19 has once again eclipsed everything else with a fresh outbreak more virulent than the previous one. As this issue hits the news stands, a curfew prevails over the Western Province. On a daily basis, anything between 250 to 500 or more new patients are being discovered. The quarantine centers are full and new systems are being introduced by requiring suspected cases to quarantine at home. The health authorities are keeping the public informed about what is happening. As fresh cases are confirmed, news alerts are going out even late at night obviously in the hope that the more awareness there is of the spread of the disease, the more precautions the people will take.

The encouraging signs that have emerged is that the Brandix cluster which started off the present wave of infections, now appears to be receding and hardly finds mention anymore. Now the center stage has been taken by the Peliyagoda fish market cluster. The high hundreds that were reported initially seem to have come down to mid-hundreds and as the days go by will obviously come down further as in the case of the Brandix cluster. Even though the entire Western Province is under curfew, even while the curfew was in force, the lock downs imposed on several villages in the Kalutara district were lifted because no more fresh cases were reported from those areas. Lock downs are being imposed on limited areas as and when necessary. The signs are that it may take the month of November to bring the latest outbreak under control. In the middle of all this, one feather in the cap for the government was the holding of the 2020 A/L examination.

 

Everybody was full of praise for the Elections Commission for the manner in which the parliamentary election of 2020 was conducted despite the Covid-19 situation. Similar praise is due to the Education Ministry and the health authorities for the manner in which the A/L examination was carried out without a hitch. As this is being written the examinations is now nearing the end with subjects taken only by a few students now being held. The very fact that nobody hears anything about the still ongoing A/L examination in the news is the measure of its success. Most people in this country have decided by now that life has to go on despite Covid-19 and things like elections and examinations and even marriages which cannot be postponed beyond a point have to be held in whatever way possible. That the A/L examination was held even in the midst of the most virulent Covid-19 outbreak, is undoubtedly a feather in the cap for the new Minister of Education Prof. G.L.Peiris and the education ministry.

 

There was an element of risk in deciding to hold the A/L examination despite unprecedentedly high daily infection rates. The government took the call, and has delivered. If the government manages to wrestle the present outbreak down as they did the previous ones, that’s going to put this country in the international spotlight. No country can remain Covid-19 free unless it’s a hermit kingdom like North Korea or Bhutan which has very little contact with the outside world. Sri Lanka in contrast is well connected to the outside world. When the number of patients in this country goes down, the repatriation of expatriate workers begins and every planeload brings dozens of Covid-19 patients into the country. So it’s not the presence of patients in the country that’s at issue but how well the pandemic is kept in check. This country has so far been able to overcome all outbreaks since March and the signs are that they will succeed once again. Compared to what has been going on in other countries, even the highest daily rate of over 900 patients counts for nothing. If this number looks large to us, that’s because we were so successful in containing the spread of the disease. Despite the virulence of the present outbreak, GMOA President Dr Anuruddha Padeniya has gone on record as stating that patients have been reported only from 28 of the 350 Health Officer’s Divisions in the country, and from 68 of the 490 Police Divisions. This also explains why curfew has been imposed only on one out of nine provinces. So the picture is not as gloomy as one would imagine.

 

Constitutional Damoclean sword

 

With the speaker appending his signature to the 20A ensuring that the country keeps running without paralysis of the system is not just the responsibility of the executive branch of the government. Even after the 20A, absolutely ANYTHING done or omitted by the President can be the subject of litigation before the Supreme Court – the sole exception being the declaration of war and peace which cannot be the subject of litigation before the SC. Under Clause 5 of the 20A, if the President appoints a judge of the Supreme Court or even the Chief Justice in this manner, under Article 35(1) it could be called in question in the Supreme Court itself. Some readers may recall that in 1997, when then President Chandrika Kumaratunga who had the full panoply of presidential powers including immunity from suit, appointed Ms. Shirani Bandaranayake to the Supreme Court, there was a generalized revolt within the legal fraternity and several fundamental rights suits were filed against that appointment in the Supreme Court. The list of lawyers who appeared in this case against Shirani Bandaranayake read like a who’s who of the Sri Lankan legal fraternity of that time.

 

The case was heard by a seven member bench headed by Justice Mark Fernando. Two separate judgments were delivered by the seven judges both refusing leave to proceed with the case, with Justice Fernando holding that the President in exercising the power conferred by Article 107 (appointment of Supreme Court and Appeal Court judges) had a “sole discretion” which means that the eventual act of appointment is performed by the President and concludes the process of selection. The other group of judges held that the appointment in question is a matter which falls within the purview of the President and that Article 35(1) provides that while any person holds office as President, no proceedings shall be instituted or continued against him in any Court or Tribunal in respect of anything done or omitted to be done by him either in his official capacity, or private capacity and this provides blanket immunity to him from having proceedings instituted or continued against him in any Court in

respect of any act or omission on his part.

 

Thus it was the then Article 35(1) which enabled President Chandrika Kumaratunga to appoint Ms. Shirani Bandaranayake to the Supreme Court. Today however, the old Article 35(1) lies defanged and any and every appointment made by the President can technically be challenged in courts, the only thing standing between the President and a flood of vexatious litigation being the power conferred on the Supreme Court to grant or withhold leave to proceed.

 

The SC’s 19A burden

 

However the Supreme Court itself is not insulated against a flood of politically motivated litigation which will overwhelm the court. No court can tell the public not to bring cases to it and whether the cases are frivolous or vexatious can be decided only by examining them. Arguments can always be found to make a case look important. The only thing that will act as a restraint on vexatious litigation against acts of the President will be the concern that if the SC refuses leave to proceed, the petitioners will end up with egg on their faces. One has to acknowledge that this will act as a powerful curb on vexatious litigation, and the SC may also start looking askance at litigants who appear once too often in courts with obviously frivolous and insubstantial arguments against everything that the President does. Such litigants may even lay themselves open to contempt of court charges. The danger however is that interested parties could always find third parties to put forward for such purposes.

 

Trying to illustrate this point by the use of Ms. Shirani Bandaranayake’s appointment in 1997 is perhaps a bad example to take because there would be so many people who would feel that it would have been better for everyone concerned if the Supreme Court had been able to shoot down Shirani Bandaranayake’s appointment when it was first made! Indeed given the way things finally turned out, it would have been better for her as well. However, it must be noted that it’s the duty of the President to make suitable appointments. If the President makes the wrong choices, he or she will have to face the consequences at the hustings. It’s a moot point whether good decisions by a President can be guaranteed by allowing presidential decisions to be challenged in courts and expecting the courts to keep the President on the straight and narrow.

 

Today the protection provided to the executive by old Article 35(1) as it stood before the 19A when 122 MPs in Parliament filed a parallel action in the Court of Appeal seeking a Writ of Quo Warranto Against Prime Minister Mahinda Rajapaksa and 48 others functioning as Cabinet Ministers, State Ministers and Deputy Ministers, the Court of Appeal issued an interim order restraining Prime Minister Rajapaksa from functioning in that position and all Cabinet Ministers and Deputy Ministers from functioning in their positions until the final hearing and determination of the suit. This would give us an idea of what may happen when the Executive does not have immunity from suit. When a matter comes up before courts, the courts naturally have to order that things be put on hold until they decide on the matter. It’s easy to see why the Ceylon Constitution Order in Council of 1946, the First Republican Constitution of 1972, the Second Republican Constitution of 1978 and the Indian Constitution all had provisions conferring immunity from suit on the Executive. When immunity from suit is conferred on a nominal Head of the Executive it provides cover for the actual wielders of executive power as well as we see in India.

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