The bane of this country has been ethnicity and religion based politics. It first began among the ‘Ceylon’ Tamils in the north and east with the rise of the Ilankai Tamil Arasu Katchi which put the idea of an exclusive Tamil state into the minds of the people of those areas. The rise of communal politics in the north and east was followed by the transmogrification of trade unions among up-country Tamils into political parties. The final addition to the mix was the Sri Lanka Muslim Congress which came to the fore in 1987 on the charge that the UNP government of the day had sold the eastern province Muslims down the river by agreeing to “temporarily” merge the northern and eastern provinces, thus placing the Muslims living in those areas under Tamil overlordship.
Because the senior-most communal political party in the country was the ITAK, all other minority political parties defer to it. In fact, it’s the ITAK which still sets the benchmark for what constitutes minority rights and aspirations. If a political party makes noises that are sympathetic to the political demands of the ITAK led Tamil National Alliance, that is seen as being minority friendly even by the Muslims and Up-country Tamils. Yet in actual fact, the TNA’s demands are diametrically opposed to the interests of the Muslims as well as the Upcountry Tamils. This became glaringly obvious after 2015 when the UNP, JVP, the TNA, the SLMC, the ACMC and the Upcountry Tamil political parties all got together and elected a President of their choice who through the manipulation of the SLFP, was able to provide that government with a two thirds majority.
One of the things that the yahapalana government formed in this manner did, was to formulate a new constitution to satisfy the political demands of the Tamil National Alliance. As could be expected, the new constitution had provisions that would shift all real power from the central government to the provincial councils. Everything ranging from industries, agriculture, education, health care, law and order, land, and the formation of policies on all those matters were to be transferred from the centre to the provinces.
All powerful provincial
If that constitution had been passed, there would have been no point in contesting for the presidency or parliament as all power would have been transferred to autonomous provincial governments. (You have to read that draft constitution in order to come to an understanding of the extent of devolution envisaged – any attempt to describe it in a few words will always be inadequate.) That constitution also had provisions which would make it impossible to reverse the process of devolution once that constitution had been passed into law. All that had been neatly tied up with a provision that would allow the merger of the northern and eastern provinces – a cornerstone ITAK/TNA demand. The merger of the northern and eastern provinces would have given the Tamils of those areas – the so called Ceylon Tamils – a unitary state whereas all other ethnic groups in the country including the Sinhalese, Muslims and Up-country Tamils would have to make do with a federal state. The arrangement envisaged in that constitution would have given the ‘Ceylon’ Tamils untrammeled control over the entire north and east and the Sinhalese would have had untrammeled control over the remaining seven autonomous units.
The Muslims and Up-country Tamils would not have control over anything anywhere. Since the centre was powerless there was no use in having influence at the centre. What counted was the clout each community would be able to wield within each autonomous provincial unit. The merger of the east with the north would have deprived the Muslims of the two Muslim majority districts in the country – the Digamadulla and Trincomalee districts. In the rest of the country the Muslims will be scattered among the other eight provinces without having a significant share of power in any of them. Even though the Up-country Tamils are by definition concentrated in the Upcountry areas, their people will be scattered among three or four provinces without being able to make a mark anywhere – except perhaps to a limited extent in the Central province which has the largest concentration of Upcountry Tamils.
As of now, the Muslim and Upcountry Tamil political parties have to deal only with one central government. If the country is broken up into nine or eight autonomous provincial units, each provincial unit will need to have its own Muslim and Upcountry Tamil leaderships. Hakeem is from the Central Province, so the Eastern Muslims will have to be under someone else. One or two leaders sitting in parliament will not be able to give leadership to Muslims all over the country as they do at present. Each province will almost be an independent country in everything except the name. When power is devolved, leadership has to be devolved along with it.
If Digambaram chooses to remain in the Nuwara Eliya district, someone else will have to lead the Upcountry Tamils in the Uva province. Hakeem will have the same problem if he chooses to remain in Kandy. The Muslim leader of the Southern province will have no reason to take orders from Hakeem because within his province, he will be Hakeem’s equal in the provincial legislature. Furthermore, the communal leaders in each province will have to negotiate separately with their provincial governments. The Southern provincial government for example will have no reason to take any notice of a Muslim legislator or minister in the Central Province.
The only communal outfit that will not have this problem of being splintered by devolution will be the TNA which will have its unitary state in the north and east. R.Sampanthan sitting in Trincomalee will be able to lead the Tamils in Jaffna and the Vanni as well as in the Batticaloa and Ampara districts because all those areas will come under one provincial government.
The only minority community leadership that has any interest in the devolution of power is the TNA and its offshoots in the north. The Muslim and Upcountry Tamil leaderships seek a place for themselves in the central government. Their bargaining power will disappear if the TNA inspired constitution is passed. As a result we have never heard any Up-country Tamil or Muslim leader ever expressing support for the TNA inspired constitution. It’s not only due to Sinhala opposition that the TNA inspired constitution was never passed, it’s due to the indifference or passive resistance of the Upcountry Tamil and Muslim leaderships. This is why the government of 2015 which was formed by the vast majority of the minority voters combined with a significant minority of Sinhala voters and had a two thirds majority in parliament never passed that constitution into law.
Some people that this writer spoke to think the TNA constitution was not passed because Ranil Wickremesinghe was not interested in pushing for it. If Ranil Wickremesinghe had pushed for it, he too would have been committing political hara kiri because the Up-country Tamil and Muslim leaderships would never have agreed to a constitution that would have turned them into political nonentities in eight separate autonomous provinces. This glaring reality that the interests and aspirations of the northern Tamil lobby are diametrically opposed to the interests of other minority communities like the Muslims and Up-country Tamils is the elephant in the room that nobody seems to be willing to talk about. Everybody, the Sinhalese, the Up-country Tamils and Muslims fall over one another to pay pooja to the demands of the TNA, because they need the TNA’s votes for their political power projects. But after they get the votes of the Tamils of the north and east, they have no further use for the TNA until the next election comes along and the TNA’s persistent demands for the devolution of power become an inconvenience and an embarrassment as we saw happening in the case of the yahapalana government.
When Prime Minister Ranil Wickremesinghe introduced the TNA inspired draft constitution in Parliament in early 2019, he basically disowned it saying that it was not his draft, nor that of the UNP or the yahapalana government but a draft prepared by a panel of experts. If the TNA had 16 seats in Parliament the Muslims and Up-country Tamil political parties together had the same or even more. Thus the Tamils of the north and east would have become like the minority voters in the USA who are stimulated and titillated at election time to vote for a certain political party; and after the election, they are forgotten till the next election. Sumanthiran will be shuffling around till he is Sampanthan’s age, touting his draft constitution which does not have a snowflake’s chance in hell of being passed into law.
Given the demographics of the country where the largest concentration of Muslims lives in the eastern province and 52% of all Tamils (including all Up-country Tamils) permanently live outside the north and east, means that the TNA’s political project will always remain a pipe dream. The demands of one minority community stymied by the interests of other minority communities – the typical circular firing squad. The only feasible arrangement in this country is the unitary state with political parties sharing power at the centre. For decades, the ITAK made it a policy to label anyone cooperating with the Colombo government as traitors. If they start cooperating with a political party at the centre like the short lived experiment from 1965 to 1968 under Dudley Senanayake, they too may be rejected as traitors by the people of the north.
There will be other Tamil groups like the party led by C.V.Wigneswaran which will be only too happy to replace the ITAK as the main political force in the north and east. The Upcountry Tamil political parties and the Muslim political parties do not talk about devolution or any kind of constitutional reform for that matter. It’s only the northern Tamil lobby that is obsessed with the devolution of power – a condition which goes back more than six decades into the 1950s. There is a need for the TNA and the entire northern Tamil lobby to pause a little and take stock of things. But politics does not always follow a rational path. The release of the TNA’s latest manifesto for this parliamentary election shows that they are still treading the same old path which leads nowhere.
Northern Tamils vs. other minorities
Today there is little point in the TNA continuing to demand further devolution of power because the Upcountry Tamils and Muslims have shown that they are not willing to commit political suicide so that the northern Tamils can get what they want. When it comes to minority politics, it’s every community for itself and may the devil take the hindmost. Prabhakaran was in fact right. There’s only one way for the northern Tamil lobby to get what they want in Sri Lanka and that is to get it by the force of arms. There isn’t a snowflake’s chance in hell of getting it through negotiations and political manoeuvres because of the opposition coming from other minority groups.
The TNA is demanding a unitary Tamil state for themselves while dishing out federalism to everyone else. None of those for whom federalism is being proposed by the TNA is keen to have a federal form of government. Neither are they keen to let the TNA have the Tamil unitary state they desire because the Muslims consider a good part of that Ceylon Tamil homeland to be their areas of habitation. The TNA’s politics needs a reset, but how can there be a reset when they don’t seem to be aware that a problem exists? To be sure, the circular firing squad nature of minority community communal politics became apparent in this country in the form that we now see it, only after 2015. But that experience should be enough to show that change is necessary. You can’t keep doing the same thing over and over again expecting a different result at every repetition.
Leaving aside the Sinhalese who also have a say in all this, there is no way that the TNA’s ambitions are going to be compatible with those of the Muslim political parties and the Up-country Tamil political parties. One of the quirks of northern Tamil politics is that for the past sixty years and more, they have been touting devolution of power for the whole country just so that they can get their unitary ‘Ceylon’ Tamil state in the north and east of the country. The powers that they require for the Tamil state are the same powers that they recommend for other provinces outside the north and east. This is essentially the format in which the northern Tamil demand for an autonomous state has been presented to the people of Sri Lanka ever since the Bandaranaike-Chelvanayagam Pact of the 1950s. The reason for pushing for devolution for the whole country may be to make the northern Tamil demand for a unitary ‘Ceylon’ Tamil state look less like the exclusivism and separatism that it actually is. However, no other community wants the devolution that the TNA lobby is trying to force on them.
We have now reached a period comparable to 1948 when G.G.Ponnambalam realized that he will have to change tack if he was to keep the Ceylon Tamils in the mainstream in independent Ceylon. To his credit, it must be said that he was able to make the transition from making communal demands during the last few years of British rule, to participating in the government of an independent Ceylon. The question now is, does the TNA have the ability to change course in that manner? Despite the visibility of other minority communities in this country, most international players involved in Sri Lanka’s ethnic politics tend to give priority to the northern Tamil lobby and takes the other minority communities for granted. They assume that somehow, what the TNA wants for the Ceylon Tamils is compatible with what the Muslims and Up-country Tamils want for their communities.
This is obviously a carry forward from the war era, when only the LTTE counted in peace negotiations and the Muslims and Up-country Tamils counted for nothing. Now however the war is over and everyone has only the ballot as a weapon and the playing field between the northern Tamils and the other minority communities in this country have been levelled. It’s certainly to be hoped that these realities are taken into account and a reset takes place in minority politics in this country at least after the 2020 parliamentary election.
The New Old Left turns 50
by Malinda Seneviratne
Revolutionaries, self-styled or otherwise, are hard to imagine as old people, the exception of course being Fidel Castro. Castro grew old with a Cuban Revolution that has demonstrated surprising resilience. Che Guevara was effectively stilled, literally and metaphorically when he was just 39, ensuring iconic longevity — and the wild haired image with a star pinned on a beret is a symbol of resistance and, as is often the case, used to endorse and inspire things and processes that would have horrified the man.
Daniel Ortega at 75 was a revolutionary leader who reinvented himself a few decades after the Sandinistas’ exit was effectively orchestrated by the USA in April 1990. He’s changed and so has the Sandinistas. Revolutionary is not an appropriate descriptive for either.
Rohana Wijeweera is seen as a rebel by some, naturally those who are associated with the party he led for 25 years, the Janatha Vimukthi Peramuna (People’s Liberation Front), widely referred to by its Sinhala acronym, JVP. He led two insurrections and was incarcerated alive on November 13, 1989 in the Borella Cemetery during the UNP regime that held stewardship during the bloodiest period in post-Independence Sri Lanka.
If he was alive today, he would be almost 78-years old. Imagination following the ‘ifs’ probably will not inspire comparison with Castro or Che. Not even Ortega, for the Nicaraguan actually helped overthrow a despotic regime and, as mentioned, succeeded in recapturing power, this time through an election.
Wijeweera did contest elections, but he is not remembered as a democrat. Neither he nor his party showed any success at elections during his leadership. In any event, as the leaders of what was called the ‘Old Left’ as well as people who are seen as ‘Left Intellectuals’ have pointed out, the 1971 insurrection was an adventure against a newly elected government whose policy prerogatives were antithetical to the world’s ‘Right.’ As such, although the JVP had the color and the word right, moment and act squarely placed it as a tool of the capitalist camp, it can be argued.
As for the second insurrection, the JVP targeted leaders and members of trade unions and political parties who, although they may have lost left credentials or rather revolutionary credentials, were by no means in the political right. That such individuals and groups, in the face of the JVP onslaught, ended up fighting alongside the ‘right’ is a different matter.
Anyway, this Sunday marks the 50th anniversary of the first insurrection launched by the Wijeweera-led JVP. Of course that ‘moment’ was preceded by preparation and planning that was good enough to catch the United Front government led by the SLFP by surprise, but the entire adventure needs to be examined by the longer history that came before.
Wijeweera belonged to what was called the Peking Wing of the Communist Party, formed after the USSR and China parted political/ideological ways. When Wijeweera broke away from the Peking Wing he was barely out of his teens. What he and others dubbed as the ‘Old Left’ were at the time seen as having lost much of its previous revolutionary zeal. Entering into pacts with the ‘centrist’ SLFP gave credence to this perception. There was, then, a palpable void in the left half of the political spectrum. Wijeweera and the JVP sought to fill it.
It’s easy to play referee after the fact. April 4, 1971 was inauspicious one could argue. The entire strategy of capturing police stations, kidnapping/assassinating the Prime Minister, securing control of the state radio station etc., describe a coup-attempt rather than a revolution. There was no mass movement to speak of. There wasn’t even anti-government sentiment of any significance.
Nevertheless, it was an important moment. As Prof Gamini Samaranayake in his book on the JVP pointed out, the adventure revealed important things: a) the state was weak or rather the security apparatus of the state was weak, and b) armed struggle was now an option for those who aspired to political power. Indeed these two ‘revelations’ may have given some ideas to those Tamil ‘nationalists’ who would end up launching an armed struggle against the state and would so believe that victory was possible that they would try their luck for 30 long years!
Had April 4 not happened, would we have ever had an armed insurrection? If we did, would it have been different from April 1971 and 1988/89? That’s for those who enjoy speculation. Maybe some creative individual with an interest in politics and thinks of producing fiction based on alternative realities might try his/her hand at it. It would probably make entertaining reading.
The April 4 adventure ended in an inglorious defeat. Wijeweera himself was captured or, as some might claim, planned to be captured (a better option than being killed, as hundreds of his followers were). The captors did not know who he was until he himself confessed. He spilled the beans, so to speak, without being urged to do so.
The JVP, thereafter, abandoned the infantile strategy adopted in April 1971. The party dabbled in electoral politics for a while after J.R. Jayewardene’s UNP offered a general pardon that set Wijeweera free. Wijeweera and the JVP would focus mostly on attacking the SLFP thereafter. Others who were arrested opted go their individual ways. Some went back to books and ended up as academics (Jayadeva Uyangoda or ‘Oo Mahaththaya’, Gamini Keerawella and Gamini Samaranayake for example).
Others took up journalism (Victor Ivan alias Podi Athula and Sunanda Deshapriya). A few joined mainstream political parties (e.g. Loku Athula). Many would end up in the NGO sector (Wasantha Dissanayake, Patrick Fernando and Sarath Fernando). Their political trajectories, then, have been varied.
The JVP is still around. For the record, the ‘Old Left’ is still around too, although not as visible as the JVP. We still have the CP (Moscow Wing) and LSSP, as well as their off-shoots. Individuals who wished to be politically active, either joined the SLFP or the UNP or else were politically associated with such parties, even if they didn’t actually contest elections.
The JVP still talks of Wijeweera but this has been infrequent. It’s nothing more than tokenism, even then. The party has politically aligned itself with the SLFP and the UNP at different times and as of now seems to have been captured by the gravitational forces of the latter to a point that it cannot extricate itself or rather, finds itself in a situation where extrication allows for political crumbs and nothing more. The Marxist rhetoric is gone. Red has been replaced by pink. There’s no talk of revolution.
The high point in the post-Wijeweera era was returning some 40 members to parliament at the 2004 elections in a coalition with the SLFP. However, the decision to leave the coalition (UPFA) seems to have been the beginning of a serious decline in political fortunes. It demonstrated, one can argue, the important role that Wimal Weerawansa played in the party’s resurgence after the annihilation of the late eighties. In more recent times, the party suffered a more serious split which had a significant impact on its revolutionary credentials. The party’s radicals broke ranks and formed the Frontline Socialist Party, led by Kumar Gunaratnam, younger brother of the much-loved student leader Ranjithan (captured, tortured and assassinated sometime in late 1989).
The JVP, led by Anura Kumara Dissanayake, has done better than the FSP in elections thereafter, but the split also saw the former losing considerable ground in the universities, the traditional homelands of recruitment if you will. The spark went out as well. There’s palpable blandness in the affairs of the party. At the last general election the JVP could secure just 3% of the vote.
The JVP is old. Too old to call itself the ‘New Left’ (by comparing itself with the LSSP and CP). The FSP is ‘new’ but it poses as the ‘real JVP’ and as such is as old. There’s nothing fresh in their politics or the ideological positions they’ve taken. In fact one might even argue that now there’s no left in the country. It doesn’t mean everyone is in the right either. There’s ideological confusion or, as some might argue, ideology is no longer a factor in Sri Lankan politics. It’s just about power for the sake of power. That’s not new either, but in the past ideological pretension was apparent whereas now politics is more or less ideology-free. Of course this means that a largely exploitative system and those in advantageous positions within it are the default beneficiaries.
Can the JVP reinvent itself? I would say, unlikely. There’s a name. It’s a brand. It’s off-color. It is politically resolved to align with this or that party as dictated by the personal/political needs of the party’s leadership. Wijeweera’s son Uvindu is planning to jump-start the party with a new political formation, but adding ‘Nava’ (new) doesn’t make for the shaving off of decades. Neither does it erase history. Its potential though remains to be assessed. Maybe a decade or two from now.
So, after 50 years, are we to say ‘we had our first taste of revolution or rather pretend-revolution and that’s it’? The future can unfold in many ways. A half a century is nothing in the history of the world. It’s still nothing in the history of humankind. Systems collapse. Individuals and parties seemingly indestructible, self-destruct or are shoved aside by forces they unwittingly unleash or in accordance with the evolution of all relevant political, economic, social, cultural and ecological factors.
People make their history, but not always in the circumstances of their choice. The JVP is part of history. They were in part creatures of circumstances and in part they altered circumstances. Left a mark but not exactly something that makes for heroic ballads. Time has passed. Economic factors have changed. Politics is different. This is a different century and a different country from ‘Ceylon’ and the JVP of 1971.
The JVP is not a Marxist party and some may argue it never was, but Marx would say that a penchant for drawing inspiration from the past is not the way to go. One tends to borrow slogan and not substance that way. April 4, 1971. It came to pass. It was followed by April 5. The year was followed by 1972. Forty nine years have passed. A lot of water has flowed under the political bridge. Good to talk about on anniversary days so to speak. That’s about it though.
[Malinda Seneviratne is the Director/CEO of the Hector Kobbekaduwa Agrarian Research and Training Institute. These are his personal views.]
WHAT’S WITH THE SINOPHARM VACCINE?
by Sanjeewa Jayaweera
In the last month or so, the government’s attention and the public have been on Geneva, the purported sugar scam, illegal deforestation, and now contaminated coconut oil. The concern over Covid-19 and the faltering vaccination programme has taken a back seat. It might be because of the decline in the daily positive cases. Some have, however, attributed the decline more to reduced testing and tracing than getting on top of the virus.
Most countries have not been able to get on top of the pandemic other than for a very few. Till recently, India was lauded for having brought the virus under control. There was even talk of India having achieved herd immunity. However, in the last two weeks, there has been a sharp increase in the number of positive cases, and it looks as if India is facing its third wave.
Europe is also in the midst of a third wave, and in the USA., despite a vigorous vaccination programme, the daily numbers are once again increasing. The numbers coming out of Brazil regarding both positive cases and deaths are a damning indictment of a President who has mismanaged the fight against this dreaded illness by disregarding basic public health precautions that most other countries have embraced.
In Sri Lanka, we have done better. In a recent TV talk show, a member of the ruling party said that it is only because the government is on top of the pandemic that opposition politicians concentrate on sugar scams, illegal deforestation, and contaminated coconut oil when elsewhere the main topic is about Covid-19. In a perverse way, he is correct!
However, Sri Lanka can certainly do better, and the current comedy surrounding the approval of the Sinopharm vaccine from China is a case in point. On March 20, the Pharmaceuticals Production State Minister Prof. Channa Jayasumana said that The National Medicines Regulatory Authority (NMRA) of Sri Lanka had approved the use of the COVID-19 vaccine ‘Sinopharm’ manufactured by China.
A couple of days later, it was announced that NMRA had only approved the vaccine’s receipt as a donation and not for use! A few days later, it was announced that only Chinese nationals residing in Sri Lanka could receive the vaccine. I am confused because if the vaccine is not safe for use in Sri Lankan arms, how is it safe for Chinese nationals living here? Are we to assume that Lankan lives are more important than Chinese lives? Is the Government of Sri Lanka not responsible for the lives of Chinese nationals living in Sri Lanka?
A couple of days ago, the cabinet spokesman, who I believe was also a medical practitioner, said that the phase four trials information on the Sinopharm vaccine is only in Chinese and need to be translated to English before the NMRA can decide. In any case, we need to wait until the World Health Organisation (WHO) approves the vaccine.
This is the first time that I have heard of phase 4 trial data for a vaccine. For all other vaccines, the data from phase 3 has been the basis for approval. So, I am not sure whether the cabinet spokesman has got his wires mixed? The comment about the information being available in only Chinese seems a bit stretched.
The rationale for awaiting WHO approval is a bit puzzling, although some others have said the same. Most of the countries that have approved the use of various vaccines have not waited for WHO approval. They have been approved by their own approving authority. Why Sri Lanka needs to await WHO clearance is puzzling and seems to be a bit like passing the buck.
WHO has not endeared itself to many during the pandemic. Many feel that its inaction at the beginning of the pandemic contributed to the spread. As I recall, the WHO was critical of countries closing their borders and banning overseas arrivals at the pandemic’s inception in February 2020. They were also slow on recommending the mandatory wearing of masks and initially questioned its efficiency. They have, of course, subsequently gone back. The only aspect of what Donald Trump uttered during the pandemic that made sense to me was his call for the WHO to be investigated for their actions during the pandemic’s initial stages.
Some have accused the government of reconstituting the NMRA to replace some eminent personnel because they were preventing the approval of the Sinopharm vaccine. If this is indeed true, then it is regrettable because such organizations need to be independent and free of government interference.
Medical professionals also need to exercise a degree of flexibility in dealing with the pandemic. I know that most medical and engineering professionals have a great affinity towards what is manufactured in the West (the USA. and Europe). I suppose this is due to us being ruled for many centuries by the British, Dutch and Portuguese. We tend to accept whatever comes from the West but derides those produced in China and India. I remember in the 1970’s we used to laugh about the lack of quality of Japanese cars. The belief was that if you are involved in a severe accident driving a Japanese car, then your chances of survival were minimal. Today the story is very different, although a colleague did say that even now in Colombo, if you drive a European vehicle, your social status is much higher!
Sinopharm is approved for general use in China, UAE, and Bahrain. It has been approved for emergency use in 16 countries and limited use in two countries. UAE. granted emergency approval for the use of the vaccine on health care workers in September 2020 and, on December 9, 2020, granted general approval for the use of the vaccine.
The phase 3 trials of the Sinophram vaccine were conducted in the UAE, Morocco, Argentina, Peru and several other countries with over 60,000 participants. The UAE. authorities announced that the vaccine has a 86% efficacy against COVID-19, whilst Sinopharm said that the efficacy was 79.34%. According to the company, the discrepancy was the result of differences in how the trials were run. In January 2021, Hungary authorized the vaccine making the country the first European nation to use a Chinese vaccine. Sinopharm plans to raise the annual output of its vaccine to three billion doses a year. It appears that the Oxford-AstraZeneca vaccine, known as Covishield manufactured by the Serum Institute India, is going to be in short supply with India ramping up their vaccination programme in the face of a third wave. Most of the poorer nations are banking on this vaccine, and the demand is massive. As to where Sri Lanka will fit in the priority list of countries to receive their orders may well depend on the generosity of the Indian government.
Having not endeared ourselves to the Indian government due to the unprofessional manner in which GOSL unilaterally cancelled the East container Terminal agreement, the country’s options in procuring an effective vaccine are limited. In light of that, the comedy of errors blighting the approval of the Sinopharm vaccine to be used in Sri Lanka in the public’s full gaze is both unprofessional and unnecessary.
“As the health crisis is eroding economic and social stability, a functioning judiciary is more essential than ever”- Justice Iddawala
Address by Justice Neil Iddawala at the ceremonial sitting of the Court of Appeal held on 24th March 2021.
Thank you, Mr. Attorney General and Mr. Kalinga Indatissa for your kind and stimulating words. May I commence by thanking you all for honoring me by your presence. I consider myself privileged to be a Justice of the Court of Appeal at a time of unprecedented challenges for the justice system not only in Sri Lanka but across the world created by the COVID-19 pandemic.
Locking down courts might be necessary to protect the health and safety of justice professionals and court users but the challenge is to do this in a careful manner as it results in an important limitation of access to justice and further case backlogs. More attention than ever before must be paid to due process and fair trial standards if courts are unable to hold trials in person.
The functioning of the courts with regard to case management systems and data collection is a special challenge during this health crisis. Judges, Registrars, court officials, should continue to monitor and manage cases according to their responsibilities, even remotely. ICT offers the opportunity for the functioning of justice systems to continue functioning during the health crisis.
Online services and strengthening access to information through court websites and other means of communication such as phone, email, etc. can help maintain justice services and provide access to justice by alternative means. In applying ICT to expedite cases, courts must be careful to minimize the digital gap so that due process and fair trial rights are satisfied and access to justice on all matters is guaranteed including respect for fundamental rights, judicial independence, principles of a fair trial, cyber security and protect legitimacy of judicial proceedings.
The new innovations make judicial training even more important and judicial training should adapt to the emerging needs, including the use of IT. New curricula should be developed to support justice professionals during and after the health crisis. Specific training on teleworking, use of digital platforms for meetings and hearings, access to the internet, should be provided for justice professionals. Famous American Chief Justice, John Marshal observed that “the judicial system comes home in its effects to every man’s fireside; it passes on his life, liberty, property and everything”.
Laws delays is a perennial problem in our courts and to deal with delays and remedies in general, the judiciary can use the current situation to innovate ways in which on line solutions can be used to resolve backlogs. This should also include reviewing different levels of courts have been impacted differently and, if so, in what ways. Prosecutions of minor offenses, civil or commercial cases, could be postponed in this streamlining process. Matters oriented to protect rights, when serious crimes are committed including corruption connected to this crisis and cases of domestic violence should receive prior attention and space. Where and how to report abuses, using current online technologies must be addressed and urgently implemented.
A crisis requires immediate and urgent response. However, any kind of reaction to the crisis must be strictly based on the principles of the Rule of Law and must respect and protect human rights. Emergency measures must respect the principles of legality, legal certainty and proportionality and need to be constantly re-evaluated. Poor and vulnerable groups will be the most affected by the health and economic consequences of COVID 19. This is an opportunity for justice sector to adopt a people-centered approach to justice, to remove barriers to innovation and technologies that can further improve the way in which justice is delivered.
Transforming the judiciary for the future should maintain the necessary dialogue between all segment in the justice system and to take advantage of the new relations created between judges, court staff, lawyers, and other judicial experts to improve access to justice. As the health crisis is eroding economic and social stability, a functioning judiciary is more essential than ever. As William Penn, a well-known nobleman, writer and early advocate of Justice and Religious Freedom, stated “Justice is the insurance we have on our lives, and obedience is the premium we pay for it”.
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