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Hobson’s Choice

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By Sanjeewa Jayaweera

The television images and media reports from India are both heart-wrenching and frightening. Visuals of people dying whilst gasping for oxygen, desperately ill patients unable to gain admission to hospitals, and dead bodies floating in rivers were previously associated with movies created by directors with great imagination. But, unfortunately, those visuals and reports are authentic and affirm what can happen due to poor decision making by the Government and the people.

There is no doubt that the Indian Government has to bear the bulk of the responsibility for this humanitarian crisis, resulting in a daily death toll of over 4,000 people. However, the consensus is that this figure is significantly understated.

The relaxation of rules around the holding of election gatherings, religious festivals and attending cricket matches where there were no social distancing nor mask-wearing is now rightly held to be the reasons for the second wave in India. Despite warnings about the risk of these types of superspreader events, the Government allowed them to occur. I recall in February 2021 watching with concern the TV broadcast of the India and England test matches from India, where spectators gathered in thousands without masks. In contrast, in Sri Lanka, we played behind closed doors against the same opposition.

The Madras High Court recently castigated the Indian Election Commission (EC) for having allowed election rallies and even said that there might be probable cause for charging the Election Commission members for murder. The Supreme Court refused an application by the EC to expunge the comments of the Madras High Court. The EC petitioned, saying their standing in the country had been severely eroded due to the tongue lashing they received! It seems the death of thousands due to their irresponsible actions should be subservient to their ego.

I believe the Madras High Court should have extended its comments to the Central Government as well. Just before the second wave started, the Indian Minister of Health Harsh Vardhan had declared that India was in the “endgame” of the epidemic. There were also misguided reports that India had even reached “herd immunity” despite a raging second/third wave in the USA, UK and Europe.

Many in India will blame the Indian Government for having donated and exported millions of AstraZeneca vaccines to foreign governments resulting in a shortage for the local population. There will be a debate whether donations of vaccines by India and China are for political reasons. The people of the recipient countries are no doubt grateful to the donors. However, the many thousands succumbing to the dreaded disease and their loved ones in India will resent that priority was not to Indian citizens. History will record that neither the United States of America nor the United Kingdom donated any dosages and deemed their priority to their citizens.

The situation in Sri Lanka, too, is dire, with a record number of covid-19 positive cases detected daily and the increasing death toll. During the second wave, both government politicians and a few health authorities were adamant that there was no community spread. Thankfully, no such comments this time around. The need of the hour is to acknowledge the gravity of the situation and take urgent action to minimize the death toll.

In Sri Lanka, the third wave is undoubtedly due to poor discipline amongst the public in adhering to recommended guidelines approaching and during the Sinhala and Hindu New Year. No one can argue against that.

In my view, the Government before the New Year should have prohibited the movement of people between provinces. Of course, it might have been difficult to enforce this rule strictly, but those caught breaking it should have been arrested, fined, and even sent to jail. The decision may not have been popular amongst the public, but governments are elected to make tough decisions in the people’s interest. The argument put forward that people were wary of Covid restrictions and needed some space to celebrate the new year is utter nonsense.

When a rule might impinge on an individual’s freedom but benefit the majority, commonsense dictates that such decisions should prevail, overriding the unhappiness of a few. In the USA and Europe, there has been too much emphasis on individual freedom. The propensity of our people to have a good time despite hard times is aptly described in the pithy “Nava Gilunath Ban Chun.” Had the Government decided to prevent people from travelling between provinces during the Sinhala and Tamil New Year, in all probability, the resulting loss of life and economic hardship that we are now facing could have been minimized.

There is no doubt that several key elements are essential in arriving at decisions taken as a team that results in a good outcome. This is applicable whether it is in running a country, a company or even a cricket team. A few prerequisites would be that the team should have intelligent members, have the necessary expertise, be selfless, honest, and walk the talk.

It has been proven all over the world that in managing this pandemic, the predominant decision making voice with regards to public health should be with the medical professionals. They are the experts in this area, and as such, they should prevail. Those who manage the economy should indeed have a say, especially in a country like ours. However, short term restrictions and lockdowns that curtail and minimize the spread of the disease is a far better tool than resorting to action after the horse has bolted. The economic repercussions are far more significant. The strategy of China, New Zealand and Australia has been “go hard and go early.” The success of that strategy is all too evident.

The reported episode of Minister Lokuge getting the lockdown of the district of Pliyandala lifted within hours speaks volumes as to what is wrong with the decision making process in our country. That he remains a member of the cabinet is a damning indictment of the lack of accountability for wrongful actions by those who wield authority. Others should also be held accountable for rescinding the order made by the Director-General of Health. The Director-General of Health would have tendered his resignation in some countries because of his authority being usurped by those not empowered to do so; it is futile to hold a position where one’s authority is usurped.

The other decision that made no sense whatsoever was to allow weddings of up to 150 guests. Given that these gatherings are primarily held in airconditioned function halls with poor ventilation, and attendees do not practice social distancing or mask-wearing, the commonsense approach was to ban all weddings immediately. As par for the course in our country, social media was agog with why the restriction was not announced. In the absence of verifiable information such as written confirmation from the hotel that hosted the particular wedding, we should confine such speculations to the dust bin. There is far too much fake news on social media.

The decision not to ban the immediate arrivals from India is also perplexing. It always seems that the Government is a few weeks behind making decisions that seem obvious to the public. These delays result in immense damage to the public and the economy.

Several Government decisions in the last few months, the reduction of duty on sugar when there were several months of stocks available, the overnight ban on the import of palm oil, the prohibition of chemical fertilizers, appear to have been made hastily without thinking through the consequences. One can only assume that the advice of the experts has not been sought or ignored. On the contrary, it all seems arbitrary.

The aggressive vaccination programs in the USA and UK are now being acknowledged as the most critical tool in managing the pandemic. In that regard, too, the various statements made by some Government Ministers seem to be inaccurate. In early March, a newspaper report stated that they had seen a letter from Serum Institute informing the Government of its inability to supply the AstraZeneca doses as per the original schedule. However, the following day the State Minister denied this report and said that we would receive the doses previously agreed. I believe the newspaper report was correct, although the onset of a ferocious second wave in India resulting in a ban on all vaccines exporting will forever cloud the issue. Whether the agreed-upon doses of Sputnik V will arrive in the country in quantities stated and on time is questionable. Every day we hear various figures announced by different Ministers. Given the demand for vaccines worldwide, and the single biggest manufacturer is not exporting vaccines for several months, it will be challenging.

The Sinopharm vaccine has finally been approved for emergency use in Sri Lanka. The vaccine was approved by the WHO the previous day. It seems the WHO has got its approval process to be in line with the urgent demand for vaccines. Within a week, it approved the Moderna and Sinopharm vaccines. The FDA approved the Moderna vaccine on the 18th of December 2020, and why it took the WHO four months to approve a vaccine after the FDA is puzzling.

As to how many deaths could have been prevented had these vaccines been approved earlier, it might need the appointment of another independent panel. It now seems almost criminal that 600,000 doses of Sinopharm remained in storage for over a month. I am not suggesting any shortcuts. However, time is of the essence in these desperate times.

For the people of Sri Lanka and its Government, it’s the “Hobson’s” choice. It seems that we need a nationwide lockdown to minimize the spread of the virus and reduce the number of fatalities. A panel in India has said that lockdowns need be in the range of six to eight weeks to be truly effective. The question is, can our struggling economy and the people with multiple challenges afford a lengthy lockdown, or will we encounter a daily death toll as predicted by a research agency in Washington?

In its editorial, Lancet, a prestigious medical journal, has stated, “India must now restructure its response while the crisis rages. The success of that effort will depend on the Government owning up to its mistakes, providing responsible leadership and transparency, and implementing a public health response that has science at its heart.”



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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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