In the last paragraph of his usually trenchant and insightful presentation on this page today, our regular columnist Rajan Philips socks home a message about what the people of this country want from their leaders at this point in history. He forcefully makes the point that non-delivery of 20A, or even a new constitution, with which the government is now overly obsessed, will not be held against either the president or his government saying: “What the people will not forget, or electorally forgive, would be a failure to protect their health from the corona virus and protect their households from economic destitution. Anything less will not pass muster with the public.” That obviously is a given that needs no further emphasis.
There is not the slightest doubt that President Rajapaksa and, perhaps to a lesser extent, his government deserves full marks for what has been done up to now to contain the global Corona virus pandemic within this country as far as possible; and this despite our limited resources. Sri Lanka’s successes in this area in the early days has been internationally applauded. But, largely due to the negligence of the us all, the previous achievements are now being dissipated resulting in the breaking out of what we called a “second wave” in this space last week. It is not our intention to engage in an exercise of finger-pointing blaming anybody for what has happened, but there is no escaping the reality that far too many of our people had begun to behave as though normalcy had been restored. The whole country has now been jolted into the reality that this is not the case.
The easy way out, of course, is to revert to a total or near lock down to contain the spread of the disease. But this is not possible in the context of our battered economy and, more so, the hundreds of thousands of our people who keep body and soul together by earning a daily wage. A lock down would drive them to near starvation. The authorities are doing their best to strike a fine balance imposing necessary restrictions with minimum hardship to as many as possible. The grade five scholarship examination has been held and the ‘A’ level exam is ongoing. Covid twice compelled their postponement earlier and any interference now must be a very last resort under absolutely unavoidable conditions. Everything necessary to prevent such an eventuality is being done and it is to be hoped that the Gods will smile down on us and help avert such a calamity.
Given the situation the country is at present, the last thing we need is the ongoing political war over 20A. Given the notorious shortness of memory of this nation, most have forgotten that the much derided 19A which admittedly had many desirable provisions, as well as weaknesses targeting individuals not excluding the incumbent president, was passed near unanimously in the legislature with only a single dissenting vote. The landslide winners of both the presidential and parliamentary elections say they have the mandate to do what they are seeking to do with the constitution. There is no denying that both President Rajapaksa as well as the Sri Lanka Podu Jana Peramuna won overwhelming majorities. Yet they sought to incorporate provisions into 20A that that they themselves now admit were unconstitutional, compelling the Attorney General to assure the Supreme Court that these would be duly amended at the Committee Stage of the legislative process. Let us no forget that those who eloquently accused their opponents of “smuggling” unwanted provisions (as in the case of the Provincial Councils Election (Amendment) Act) into legislation during Committee Stage proceedings are also making such amendments. Admittedly, these were furnished during the court proceedings so no smuggling allegation can stand.
It has been widely reported that the Supreme Court has held that some of the provisions of the draft 20A needs to be passed by a two thirds majority and also obtain the consent of the people at a Referendum. It is clear that the government does not wish to test its mandate at a Referendum and it is a certainty that those sections that would require such reference to the people for their consent (if there are such sections) will be duly amended so that they could be adopted by the two thirds majority the government is confident of obtaining in parliament. The Supreme Court ruling is not in the public domain, with the judges having communicated it only to the president and the speaker. There was one report that the speaker had not even opened the envelope in which the determination had been conveyed to him. However that be, a purportedly leaked judgment has been widely disseminated. Many sections of the polity have correctly refrained from commenting on the judgment until it is formally communicated to parliament next week.
There is no doubt that the government will go ahead with its announced intention of enacting 20A. But the time for doing so is not propitious. The most important item in the public agenda is protecting the health of the people and ensuring that the most vulnerable segment of our population is not driven to destitution. Getting the battered economy into the best possible shape is also most important. The people will applaud the president and the government if “first things first” is made the national priority.
Learn from the past
Saturday 31st October, 2020
The 20th Amendment (20A) has become law. Yesterday, we carried a picture of Speaker Mahinda Yapa Abeywardena signing it into law. The government is now like a juggernaut with a weak brake system, careening downhill. The Opposition, which had nine of its MPs voting with the government for 20A has decided to take disciplinary action against them. In fact, it wants to see the back of them, but expelling them from Parliament may not be an easy task, given a Supreme Court order which has stood crossovers in good stead.
What we are currently witnessing is a replay of the situation following the formation of the Mahinda Rajapaksa government in early 2010, as we argued in a previous comment; that regime mustered a two-thirds majority and bought off more than a dozen Opposition MPs. The UNP, which had 60 MPs in that Parliament was left with only 44 in the end owing to crossovers. But that government sank like the Titanic, in January 2015, despite its steamroller majority and the popularity of its President. Massive majorities do not necessarily translate into the stability of governments.
The SJB has called upon Speaker Abeywardene to make arrangements for its dissidents to sit separately in Parliament. Interestingly, some members of the government are sitting with their Opposition counterparts in the House. So, it will not make any difference whether the SJB dissidents sit separately or not.
Political party leaders, academics et al had better peruse the 20A Act and compare it with what was passed by Parliament on 22 October to see if there are any discrepancies. One may wonder why on earth such an effort should be made because what has been published is a legal document, but we have to learn from our past mistakes. One may recall that it took decades for a provision surreptitiously incorporated into a constitutional amendment to come to light.
In 1988, the J. R. Jayewardene government steamrollered the 14th Amendment (14A) to the Constitution through Parliament, creating the National List (NL), and what became law was different from the Bill ratified by Parliament, according to observations made by some Opposition heavyweights later on. According to veteran leftist, D. E. W. Gunasekara, 14A contains a provision which was not there in the Bill passed by Parliament; it enables outsiders to be become NL MPs and is violative of people’s franchise and sovereignty. When an NL seat falls vacant, the party or the Independent group which is entitled to fill it can appoint any of its members to Parliament. This provision has been used by several governments to catapult outsiders to Parliament. A similar situation is likely to arise under the incumbent dispensation as well.
There was also a controversy over a provision in the 19th Amendment, pertaining to the formation of National Governments. Former Justice Minister Dr. Wijeyadasa Rajapakshe, PC, once pointed out a discrepancy between what was presented to Parliament for its approval and the Act in that regard. Unfortunately, his objections went unheeded. The problem with undemocratic practices is that they are as contagious as COVID-19.
The only antidote to the practice of making bad laws is to have a constitutional provision for the post enactment judicial review of legislation. People, whose legislative power Parliament exercises, must be able to subject laws to judicial scrutiny anytime and have them amended or abolished.
We hope that the Opposition will care to go through 20A afresh carefully and ensure that it is the same as what Parliament passed with a two-thirds majority recently. Anything is possible in this country.
Traps and duplicity
Friday 30th October, 2020
Smaller states located in strategic locations in the world are in the same predicament as poor damsels in rough neighbourhoods; they suffer abuse at the hands of big powers that masquerade as liberators. The US has come forward to liberate Sri Lanka from what it calls a Chinese debt trap!
US Secretary of State Mike Pompeo has come and gone. He uttered some diplomatic sweet little nothings, as it were, in public, but the State Department had delivered its message to Colombo even before he landed here. Couched in diplomatese, it gave Sri Lanka a choice between China and the Western bloc; it can be paraphrased as ‘either you are with us or you are with our enemy’.
Opinion is divided on the much-propagated claim that Sri Lanka finds itself in a Chinese debt trap. The pro-western groups think it is trapped well and truly, and others are convinced otherwise; they maintain that the US and its allies are vilifying China, which poses formidable challenges to the US on all fronts, and has come to Sri Lanka’s assistance.
A trap by any other name is as constricting, one may say with apologies to the Bard. The Millennium Challenge Corporation (MCC) compact, which the US is keen to sign with Sri Lanka, can also be considered a trap, given its subtext and what is explicit in the Acquisition and Cross Service Agreement (ACSA) and the Status of Forces Agreement (SOFA). Anyone who believes that the US is driven by altruism to help Sri Lanka is being naïve.
Following talks with Pompeo, the government grandees are behaving like the proverbial mute who gulped down a bitter herbal concoction or kasaya. Discussions with Pompeo have apparently dumbed their tongues. Before the last general election, they had the public believe that they would not sign the MCC compact, which an expert committee appointed by them has said, should not be inked unless it is presented to Parliament and approved with amendments.
Sri Lanka was made to walk into a trap in the early noughties, when the Tokyo Co-Chairs tied an aid pledge (USD 4.5 billion) to progress to be made in peace talks between the then UNP-led government and the LTTE. Lured by the prospect of receiving a huge aid package, that administration compromised national security to keep the LTTE at the negotiating table, but in vain. Even after the LTTE had walked away from talks, the US and other Co-Chairs, to wit, the EU, Japan and Norway, made Sri Lanka stick to a fragile truce, which the LTTE violated with impunity. That peace process, which the LTTE made the most of it to prepare for Eelam War IV, ended in disaster.
Sri Lanka has been caught in a human-rights trap, which the US laid in the form of a country-specific resolution, in Geneva, and cannot extricate itself try as it might. This resolution has been used to besmirch the reputation of high-ranking military officers who were instrumental in defeating terrorism, making this country safe for all communities to live in, and helping rekindle democracy in the North and the East. The US has imposed a travel ban on incumbent Army Commander and Chief of Defence Staff Lt. Gen. Shavendra Silva and his family, citing unsubstantiated allegations of human rights violations during the final stages of war.
Pompeo gave an evasive answer, on Wednesday, when he was asked to comment on the current status of US action against Lt. Gen. Silva. He said: “It is a legal process in the US. We always continue to review it. We want to make sure we get it technically, factually and legally right.” He has left us baffled. It is before imposing a travel ban that the State Department has to ‘get it technically, factually and legally right’. The act of slapping a travel ban in a hurry and then reviewing it is nothing but unfair.
Washington has earned notoriety for its duplicity anent travel bans related to human rights violations. In 2005, the US denied the then Chief Minister of Gujarat Narendra Modi a visa owing to his alleged involvement in the 2002 Hindu-Muslim riots in his state. The US government insisted that the travel ban on Modi was based on the Immigration and Nationality Act, which ‘makes any government official who was responsible for or directly carried out at any time particularly severe violations of religious freedom ineligible for a visa’. But the White House rolled out the red carpet for Modi after he became the Indian Prime Minister! The US did so because it needed a formidable ally in Asia to support its campaign against China.
As for ‘getting it technically, factually and legally right’, didn’t the US care to consult its own defence expert, Lt. Colonel Lawrence Smith, who was working at the US Embassy in Colombo as its defence attache during Eelam War IV, which ended in 2009? Having studied what had taken place during the war, Smith, attending an international defence seminar, in Colombo, in 2011, dismissed allegations of war crimes levelled against the Sri Lankan military. Forty countries were represented at that event. Is it that the State Department chose to ignore his evidence-based observations and embarked on a diplomatic witch-hunt? It is a shame that the Sri Lankan Foreign Ministry functionaries did not allow journalists to question Pompeo freely on this issue; they allowed only one journalist to raise questions.
Thursday 29th October, 2020
Attorney General (AG) Dappula de Livera, PC, deserves public plaudits for having directed the police to find out how an explosive transmission of COVID-19 came about, in Minuwangoda, and whose lapses led to the second wave of infections. This country needs more such intrepid public officials.
One can only hope that there will be no political interference with investigations to be conducted. The police already have a lead; some garment factory workers brought here from India are believed to have triggered the Minuwangoda cluster. They ought to find out whether those workers underwent quarantine for 28 days in keeping with the health guidelines. It is alleged that some of them did not complete the mandatory quarantine period due to service exigencies. Records of their quarantine period should be available with the health authorities. One, however, should not be so naïve as to expect that the police will be given a free hand to get to the bottom of it. One also need not be surprised if all documents pertaining to the workers concerned have already disappeared.
Leaders of the yahapalana government are being raked over the coals for having disregarded a warning of possible terrorist attacks and endangered the lives of people last year, when the Easter Sunday bombings snuffed out more than 250 lives and left over 500 others injured. Their lapses are currently under probe by a Presidential Commission of Inquiry. The leaders of the incumbent dispensation did not heed medical experts’ warnings of a second wave of COVID-19, and the lives of people are now in danger, as a result. During the first wave of infections, the Government Medical Officers’ Association (GMOA) issued a dire warning to the government that the worst was yet to come, and called for stringent measures to prevent a resurgence of the disease. It also prepared a comprehensive exit strategy, which The Island has seen, but the government did not give a tinker’s cuss about the good doctors’ warnings, advice and proposals.
The Peliyagoda fish market is the Sri Lankan version of the Wuhan wet market, and the public health officials and all others tasked with battling COVID-19 should have monitored the place closely. They should have swung into action at least after the detection of the garment factory cluster in Minuwangoda. Infections have fanned out from Peliyagoda to all parts of the country. It is hoped that precautions have been taken to prevent a COVID-19 cluster from forming at the Dambulla economic centre, where traders from all over the country converge daily.
It is also possible that the virus spread during the election time, when people gathered at political rallies, throwing caution to the wind, and caused an explosive transmission, later on. The blame for this situation should be apportioned to politicians, the health authorities and the public because all of them lowered their guard and invited trouble. Only the Election Commission (EC) was wise enough to take precautions to prevent the spread of the disease on the polling day.
Head of the World Health Organisation (WHO), Dr. Tedros Adhanom Ghebreyesus, who talks sense in a measured tone, has urged the countries battling the pandemic not to make COVID-19 a political football. Unfortunately, in this country, the government and the Opposition are busy doing exactly the opposite of what the WHO advocates; a game of football, as it were, passed for a parliamentary debate on COVID-19, the other day, with the Opposition trying to score political points by faulting the government and the latter ridiculing the former. Nothing worthwhile came of the ‘debate’ and a lot of public funds went down the gurgler.
When the government decided to have a general election in August 2019, cynics said that in New Zealand elections had been postponed in view of a possible second wave of COVID-19, and in Sri Lanka the second wave of COVID-19 had been postponed on account of an election. The government now has a two-thirds majority in Parliament and the 20th Amendment to boot; the people have COVID-19!
The healthcare system is being overwhelmed to all intents and purposes, and the number of deaths due to COVID-19 is increasing. What we are witnessing looks like the beginning of the worst-case scenario. The economy is on a ventilator, but we find ourselves in a situation where we cannot do without quarantine curfews, which are bound to make an already bad economic situation worse. Everyone’s life is in danger. The government has had to perform a high-wire act, and, therefore, deserves unstinted public support. The need for a truly national effort to beat the virus, and keep the Grim Reaper at bay cannot be overemphasised.
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