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Has Gota fatigue set in?

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by Kumar David

The enthusiasm that yesteryear enveloped the president is much subdued, the mood at best is ‘give him more time, it has been a bad year, let’s wait and see’. On the other side detractors who feared repression, racism and family banditry seem mollified that events have hurled such heavy blows that he is unable to raise his head and cow down the masses, who in any case are so passive and need no cowing down. The sullen Sinhala-Buddhist mass broods but is resigned to its self-inflicted fate. Is this calm before a storm? I don’t know. And who knows what’s going on in the President’s head? He must see that right now its point, set and game against him, and maybe it will be match-point in a year as there is no visible road to recovery. Does he want to run for a second term or will he cut and run – I don’t think even Gota knows the answer yet.

Here’s the reasoning for this pessimistic prognosis. Three factors which will decide the regime’s fate in the public mind: the unfolding pandemic, whether the government can turn the economy round and third how long is the arm China will extend to help if/when the Double-Paksa (two Rajapaksas) regime sinks. The gloomiest covid scenarios painted by some medical-professional and lay commentators are I reckon exaggerated. Nearly one million cases and many tens of thousands dead by years end! No there isn’t reason to fear such a catastrophe now that vaccination is in progress and lockdowns are tightening. The point however is the damage that has been done so far; culpability, fairly or otherwise laid on the presidency. That things will get somewhat worse in the next few months do not augur well for the boss. Taking everything past and probable future into account the pandemic experience will count badly against Gota. It will be an eagerly exploited propaganda tool in the hands of opponents and will leave the voter sullen and angry.

The economy is what I would be most concerned about if I were the government. Does anyone see a turn around, does anyone see light at the end of the tunnel? I have kept an eye on the utterances of ministers and regime mouthpieces and can no longer find mention of vistas of prosperity and splendour. The government is with its back to the wall. The economy will shrink in 2021 (and maybe 2022), increase in prices of consumer essentials is inexorable. What improvement in productivity and output in agricultural and manufacture can one see that will reverse this trend? Where are trade deficit and balance of payments heading? I do not conceal my political inclinations but these rebukes are intended to be objective. If wrong I ask to be corrected.

This pessimistic reading of the economy is compounded by stupidities that are hard to forgive. I mention just two; the regime’s hara-kiri on fertilisers and the delusion of 70% renewable electric energy by 2030! Everyone with a modicum of knowledge about agriculture has shrieked that the president’s order to go 100% organic in fertiliser at once will entail huge falls in output. Therefore his instructions will thankfully be ignored. Though some scoundrel pseudo-experts serenaded from the rooftops pledging 70% renewable electrical energy by 2030 (a few donkeys even said 80%) the charade has been quietly dropped. Once again I confidently predict that electrical energy from renewable sources will, with luck, rise to 30% by 2030. The laws of physics are more immutable than the edicts of Gota. The general point is this: Yes we are facing hard times because of covid and the global economic downturn, but my god isn’t that bad enough! Must we compound it by making idiots of ourselves, must we grind food production into the ground? The economic adversity facing the country is more than half manmade; actually the manmade part is regime made.

Corruption is endemic, so no one will be surprised that two appointees to the Port City Commission have shady reputations. Colombo Telegraph says Priyath Bandu Wickrema was implicated by a Presidential Commission in large scale corruption and accused of a multi-million dollar tax scam in connection with Yoshitha Rajapaksa’s Carlton Sports Club. He is also facing charges for loaning Port Authority workers to Mahinda’s re-election campaign. Saliya Wickremasuriya was arrested and investigated in connection with the Tiran Alles led Rs.169 million RADA tsunami fraud, but the case was dismissed in 2020. What such people do in the coming year will fester Gota fatigue into wrath. Hasn’t he got enough crap on his plate as it is? Why, oh why, amass more dung? Such crappy names obviously were not forced on Gota by Beijing so the reason for their inclusion to be arranging for more larceny or recompense to cronies who helped with previous mischief.

In the period ahead, every decision of the PC Commission must be scrutinised with suspicion by public and Opposition in Parliament. Ambiguities are built into the Act such as, what land comes under the Commission’s mandate, provisions allowing PC investors to extend their reach into other parts of the country while still enjoying PC privileges, ambiguous concessions that are difficult to challenge in courts, and other infringements. These are not drafting blunders but deliberately inserted to give leeway for mischief. The threat of scrutiny has to be publicised so that bona fide investors are forewarned that corrupt, illegitimate or undemocratic actions will be challenged or reversed. A consultative process needs to set up to fashion amendments to the PC Act or in the alternative how best it can be repealed altogether. This requires a fine and filigreed effort to work round potential contradictions with contracts that may have been awarded in good faith.

The Biden stimulus package is creating a boom in consumer spending. The Economist magazine says US disposable income per person has risen by 27% since February 2020, admittedly a low bar. It is visible everywhere; malls are crowded and queues at checkouts are long, beauticians and on-line orders are at a swell. This doesn’t auger well because inflation is surging (annualised at 4.2% in April from 2.6% in March) far above the Fed’s target of 2% to 2.5%. If the trend continues as seems likely the Federal Reserve (US central bank) will have to raise interest rates which will cut the ground under a surging stock market and property prices will escalate. Stocks slid in the US and around the world amid concerns that higher inflation would lead to higher interest rates. But that’s looking some months down the road, right now there’s a surge in demand, in capital investment, supply-chain bottle-necks and merrymaking among materials suppliers. But Sri Lanka seems to be missing out and its balance of trade hasn’t brightened. The deficit in April 2021 was $ 830 billion and the forecast for the next twelve months is downward (https://tradingeconomics.com/sri-lanka/balance-of-trade). Unless these forecasts are revised upwards they foreshadow more gloom for the government.

The storyline therefore moves to debt and rising debt, the desperation for a lifeline for a drowning man, and China to the rescue. Don’t get me wrong, I don’t blame the Chinese any more than I would blame any other customer of wares that a whore persists in offering. If Lanka is getting deeper into debt to China, it only shows that gentlemen from Beijing are more frequent flyers into the whore’s arms. Bluntly said, Lanka’s self-inflicted economic woes make it a global debt-harlot and her venal leaders cash in like pimps. It is unlikely that Beijing dictated the text of the Port City Act but China is promoting the project because it is in its own interest. Sri Lanka is becoming a client state of the Middle Kingdom and it is good for the master if the vassal prospers. Hence for its own good name Beijing would like to see Lanka do well, but does that mean China will back an authoritarian regime even if/when it is drawn into conflict with the people themselves? It is possible that Beijing has learnt from its mistakes in Burma, Pol Pot Cambodia and some African dictatorships where it was the ally and stabiliser of ghastly dictators.

I hope the answer to this question is yes it has learnt; that Beijing will not repeat the mistake. We can help ourselves by invigorating ourselves as nonaligned and not as a threat to Beijing even as we rid ourselves of authoritarianism. By “we” I am referring to a hopefully unified, opposition that must be fused to prevent Gota and his clique from rescinding or subverting the next presidential election. If Washington, Delhi or Beijing can help us keep afloat, let alone become prosperous, that’s welcome so long as democracy is not subverted. True, beggars can’t be choosers but a little extra breathing space is not a lot to ask for. If the people of Sri Lanka and an authoritarian regime come to blows, Beijing must stand aside if not morally help the people. (Beijing’s declared principle of physical non-intervention need not preclude a moral stance).

One final point that we in Sri Lanka need to grasp is that our fate from time immemorial has been linked to the outside world because we are small. From our genes, to the arrival of the Buddha’s message, to 450 years of colonialism, to independence therefrom in 1948, we have been a footnote in subcontinental history. Likewise a dictatorship in Sri Lanka is impossible in modern times, though that won’t stop the (Raja) Paksas from trying. People and to a degree governments in the liberal democratic West will sanction a Lankan dictator, India will strangle him since a democratic Lanka is safer for India. Why not China too while giving us lots of money (sic!), decide that there’s a red line it won’t cross? Paksas come and Paksas go but stable democracy should last.

 

 



Features

TNGlive relieving boredom

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Yes, indeed, the going is tough for everyone, due to the pandemic, and performers seem to be very badly hit, due to the lockdowns.

Our local artistes are feeling the heat and so are their counterparts in most Indian cities.

However, to relieve themselves of the boredom, while staying at home, quite a few entertaining Indian artistes, especially from the Anglo-Indian scene, have showcased their talents on the very popular social media platform TNGlive.

And, there’s plenty of variety – not just confined to the oldies, or the current pop stuff; there’s something for everyone. And, some of the performers are exceptionally good.

Lynette John is one such artiste. She hails from Lucknow, Uttar Pradesh, and she was quite impressive, with her tribute to American singer Patsy Cline.

She was featured last Thursday, as well (June 10), on TNGlive, in a programme, titled ‘Love Songs Special,’ and didn’t she keep viewers spellbound – with her power-packed vocals, and injecting the real ‘feel’ into the songs she sang.

What an awesome performance.

Well, if you want to be a part of the TNGlive scene, showcasing your talents, contact Melantha Perera, on 0773958888.

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Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution

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The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.

Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).

 

Applicable constitutional provisions

Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.

Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.

Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.

 

Violation of fundamental rights and need for a referendum

Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.

The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.

The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”

A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”

In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.

Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.

However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.

 

The need to refer the Bill to Provincial Councils

The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.

In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.

It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.

The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.

A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.

 

 

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‘Down On My Knees’ inspires Suzi

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There are certain songs that inspire us a great deal – perhaps the music, the lyrics, etc.

Singer Suzi Fluckiger (better known as Suzi Croner, to Sri Lankans) went ga-ga when she heard the song ‘Down On My Knees’ – first the version by Eric Guest, from India, then the original version by Freddie Spires, and then another version by an Indian band, called Circle of Love.

Suzi was so inspired by the lyrics of this particular song that she immediately went into action, and within a few days, she came up with her version of ‘Down On My knees.’

In an exclusive chit-chat, with The Island Star Track, she said she is now working on a video, for this particular song.

“The moment I heard ‘Down On My Knees,’ I fell in love with the inspiring lyrics, and the music, and I thought to myself I, too, need to express my feelings, through this beautiful song.

“I’ve already completed the audio and I’m now working on the video, and no sooner it’s ready, I will do the needful, on social media.”

Suzi also mentioned to us that this month (June), four years ago, she lost her husband Roli Fluckiger.

“It’s sad when you lose the person you love but, then, we all have to depart, one day. And, with that in mind, I believe it’s imperative that we fill our hearts with love and do good…always.”

A few decades ago, Suzi and the group Friends were not only immensely popular, in Sri Lanka, but abroad, as well – especially in Europe.

In Colombo, the Friends fan club had a membership of over 1500 members. For a local band, that’s a big scene, indeed!

In Switzerland, where she now resides, Suzi is doing the solo scene and was happy that the lockdown, in her part of the world, has finally been lifted.

Her first gig, since the lockdown (which came into force on December 18th, 2020), was at a restaurant, called Flavours of India, with her singing partner from the Philippines, Sean, who now resides in Switzerland. (Sean was seen performing with Suzi on the TNGlive platform, on social media, a few weeks ago).

“It was an enjoyable event, with those present having a great time. I, too, loved doing my thing, after almost six months.’

Of course, there are still certain restrictions, said Suzi – only four to a table and a maximum crowd of 50.

“Weekends are going to be busy for me, as I already have work coming my way, and I’m now eagerly looking forward to going out…on stage, performing.”

In the meanwhile, Suzi will continue to entertain her fans, and music lovers, on TNGlive – whenever time permits, she said,

She has already done three shows, on TNGlive – the last was with her Filipino friend, Sean.

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