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Dual citizens and foreign funded locals

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by C.A.Chandraprema

The 20th Amendment has given rise to a debate over whether dual citizens should be allowed to contest elections in this country. The dual citizenship law has been operational for decades and nobody had any issue with it until the yahapalana camp seized on it as a means of keeping the Rajapaksa brothers Gotabhaya and Basil out of politics. The yahapalana camp includes the majority of the foreign funded NGOs that have no purpose other than to interfere in, and influence the politics of Sri Lanka in order to push the agendas of their foreign paymasters. It would appear that individuals belonging to at least some of these foreign funded NGOs have made representations to the Supreme Court against allowing dual citizens to contest elections in this country. That raises a very cogent question.

 If dual citizens are to be banned from contesting elections and indeed as some have suggested even holding other government positions because of their ties to foreign nations, then it follows that similar restrictions should be extended to all individuals and organizations that receive funding from foreign governments and organizations to carry out political work in Sri Lanka. If the oath that a person takes in obtaining citizenship in a foreign country is seen as a danger to Sri Lanka, how much more dangerous is the phenomenon of having persons who are paid to do the bidding of various foreign parties within Sri Lanka? For decades, Sri Lanka has had no protection at all from outside parties that seek to influence events here by hiring people to manipulate public opinion and engage in similar activities. As a result of these NGOs, Sri Lanka has few genuine voluntary organizations. The very phrase ‘civil society’ has been hijacked by foreign funded NGOs.

In contrast to Sri Lanka, India has always had adequate protection from the phenomenon of foreign funded political activism in the form of the Foreign Contributions Regulatory Act which was first promulgated in 1976 during the Indira Gandhi era and then revised and updated during the last Congress government in 2010. Indian political elites have always been more conscious of the need to protect their country from this kind of insidious foreign influence than their Sri Lankan counterparts. The re-drafting of India’s Foreign Contributions Regulatory Act took place during the last Congress government by a Parliamentary committee headed by opposition law-maker Sushma Swaraj. Now that a debate on the advisability of having anyone with a foreign linkage however tenuous from engaging in politics has been initiated, it should be extended to people paid by foreign parties to engage in political activities in Sri Lanka.

 

 India’s emulation-worthy legislation

 

For well over a decade, this writer has been advocating the adoption of an Indian Foreign Contributions Regulatory Act-style law in Sri Lanka. The preamble to the Indian Foreign Contribution (Regulation) Act, 2010, (FCRA) describes it as a law to regulate the acceptance and utilization of foreign contributions or foreign hospitality by certain individuals or associations or companies and to prohibit such acceptance and utilization for any activities detrimental to the national interest. This is exactly what Sri Lanka is in dire need of. It’s not just foreign money that comes under the purview of the Indian FCRA but even foreign junkets, training programmes and scholarships offered by interested parties to selected individuals with a view to influencing them. 

The Indian FCRA extends not only to all inhabitants of India, but also to citizens of India outside India and to branches or subsidiaries, outside India, of companies or bodies corporate, registered or incorporated in India. Money earned by Indian citizens from foreign sources by way of salary, wages or other remuneration in the ordinary course of business transacted in or outside India or by way of proceeds of international trade or commerce does not come under the FCRA. India has a large workforce employed outside her borders and a vibrant external trade and the provisions of the FCRA do not interfere in any way with such matters. Stipends received from legitimate foreign scholarships also do not come under the FCRA. However, everything else including even gifts received by members of Indian delegations on overseas visits do come under the FCRA.

Trying to circumvent the FCRA by transferring funds from one entity to another will also not work under the Indian law, because a donation or transfer of any funds by any person who has received it from a foreign source is also deemed to be a foreign contribution. Even interest accrued on a foreign contribution deposited in any bank is deemed to be a foreign contribution.  Foreign hospitality which means any facility provided in cash or kind by a foreign source to provide a person with the cost of travel to any foreign country with free board, lodging, transport or medical treatment, also comes under the FCRA. The source of foreign funding or foreign hospitality can be the government of any foreign country or an agency of such government, a foreign company, citizens of a foreign country, companies, corporations, trusts, societies or associations registered in a foreign country, foreign trade unions, or any international agency. However the United Nations and its specialized agencies, and certain other institutions approved by the Central government of India such as the World Bank and the International Monetary Fund are exempt from the application of the FCRA.

 

Persons who should not receive foreign funding

 In India, the persons prohibited from receiving foreign contributions are candidates for election, correspondents, columnists, cartoonists, editors, owners, printers or publishers of a registered newspaper, and holders of equivalent positions in any electronic or internet based media engaged in the production or broadcast of audio news or audio visual news or current affairs. Judges, government servants or employees of any corporation or any other body controlled or owned by the government, the members of all legislatures (which means the members of every elected body from the Parliament right down to the Panchayats) any political party or office-bearers thereof and any organization of a political nature as may be specified by the Central Government are also prohibited from receiving foreign funding and hospitality.

 When you look at this list of persons barred from receiving foreign funding in the Indian law and think of what has been happening in Sri Lanka for decades, you realize that it’s nothing short of a miracle that this country is still in existence. Even as these words were being written, The Island reported that several Sri Lankan NGOs including the People’s Action for Free & Fair Elections (PAFFREL), the Centre for Monitoring Election Violence (CMEV), the (hitherto unheard of) Center for Investigative Reporting Sri Lanka (CIR) and the Sri Lanka Press Institute (SLPI) had received funding from Canada. In India, that would not have been possible. In 2010 and in the run up to the 2015 presidential election, close relatives of the yahapalana presidential candidates of those years were caught red handed while in possession of large amounts of foreign currency and we still have done nothing about banning candidates at elections and political parties from receiving funds from foreign interested parties.

 In contrast, under the Indian FCRA, No person, resident in India, and no citizen of India resident outside India, shall accept any foreign contribution, or acquire or agree to acquire any currency from a foreign source, on behalf of any political party. No person, resident in India, shall deliver any currency, whether Indian or foreign, which has been accepted from any foreign source, to any person if he knows or has reasonable cause to believe that such other person intends, or is likely, to deliver such currency to any political party or any person referred to in the list mentioned above.

 The Indian Central Government may, having regard to the activities of the organization or the ideology propagated by it or its program or association with the activities of any political party, name such organization as one of a political nature. Such naming will be done by the Central Government on the basis of guidelines formulated by the Central Government itself.

 Restrictions on the acceptance of foreign hospitality in the form of junkets by certain categories of people is also a main part of the Indian FCRA. No member of a legislature (which means any elected body from the Parliament down to the Panchayats) or office-bearer of a political party or Judge or Government servant or employee of any corporation or any other body owned or controlled by the Government shall, while visiting any country or territory outside India, accept, except with the prior permission of the Central Government, any foreign hospitality. Even if such a person falls ill during a visit overseas, and receives emergency medical treatment, that’s categorized as foreign hospitality and it has to be reported to the authorities within one month from the date of receipt of such hospitality giving the source from which, and the manner in which, such hospitality was received.

 

Those who are registered and granted a certificate to receive any foreign contributions, are prohibited from transferring such foreign contribution to any other person unless that other person is also registered and had been granted the certificate or obtained prior permission to receive foreign contributions. Such transfers can take place only on the basis of the prior approval of the Central Government.  

 

Conditions attached

 

Under the Indian FCRA, every person who has been granted a certificate or given prior permission to receive foreign funds can receive such funds only through a single bank account.  There are a number of rules which have to adhered to in spending this money as well. Firstly, it can be used only for the purposes for which the contribution has been received. Not more than 50% of the money received can be spent on administrative expenses. In deciding whether any person or entity should be granted permission to receive foreign funds or foreign hospitality, the Indian central government will have to satisfy itself to the effect that allowing such foreign funding or foreign hospitality would not be prejudicial to the sovereignty and integrity of India; the public interest; the freedom or fairness of election to any legislature, or harmony between religious, racial, social, linguistic or regional groups, castes or communities.

 The FRCA states very specifically that no person having a definite cultural, economic, educational, religious or social program shall accept foreign funding unless such person obtains a certificate of registration from the Central Government. Another point to note in the Indian FRCA is that the implementing authority is always the Indian central government with the states having no role in it. If the government has reasonable cause to believe that any provision of the FRCA is being, contravened, the Central Government may appoint an officer to audit any books kept by the persons or entities concerned. Such officer shall have the right to enter any premises for the purpose of carrying out his duties.

 Every candidate for election, who had received any foreign contribution, at any time within one hundred and eighty days immediately preceding the date on which he is duly nominated, shall give, within such time and in such manner as may be prescribed, an intimation to the Central Government as to the amount of foreign contribution received by him, the source from which, and the manner in which, such foreign contribution was received and the purposes for which and the manner in which such foreign contribution was utilized by him. Whoever accepts, or assists any person, political party or organization in accepting, any contribution from a foreign source, in contravention of any provision of this Act shall be punished with imprisonment for a term which may extend to five years, or a fine, or both.

 The Foreign Contributions Regulatory Act has obviously served India well over the past four decades and more which is why the 1976 Act was revised and renewed in 2010. The politics of Sri Lanka would have been very different if such a law had been in operation in Sri Lanka as well. The year 2015 was the year that the foreign funded NGO sector virtually took over Sri Lanka with many such individuals obtaining appointments as members of the numerous commissions that were set up. The lesson that our past experiences teach us is that if India needed an FRCA, we need it even more.

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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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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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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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