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How can Sri Lanka benefit? Insights & Solutions…

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Vaccines against Covid-19:

By Dr LakKumar Fernando.

MD, DCH, MRCP(UK), MRCPCH (UK), FRCP (Lond), FSLCP

Background

It is almost one year since the world started battling the Covid-19 pandemic; there are over 80 million confirmed cases and 1.8 million deaths. WHO estimates that 10% of the world’s 7.8 billion population is already infected with Covid-19, and if that is the case the true case number is ten times higher. However, we are still without a proper treatment that can cure all the patients. Sri Lanka has recorded more than 200 Covid deaths and 40,000 cases by now. Fortunately, there is a light at the end of the tunnel with the positive news that several vaccines are getting lined up, shaping to end the pandemic before the end of 2021.

Vaccines have become the best solution against nearly all the important infections that threatened the human existence and Covid-19 is the most recent threat that demanded the biggest ever ‘vaccine solution’ in the history of mankind.

Normally, a vaccine takes 5-15 years of serious medical research before it is delivered for licensing and marketing. However, with all the tools ready with several vaccine makers to bring in a vaccine for similar infections, the race for Covid-19 vaccine became fast and efficient and researchers worked round the clock to fast track the solutions. The result is vaccinations against Covid-19 have started in several parts of the world already, even before the end of 2020.

With WHO declaring Covid-19 a global pandemic, close to 200 vaccine developers started research with huge investments and after completing pre-clinical animal studies, 44 vaccine candidates are currently in phase 1, 21 in phase 2, 18 are in phase 3. Five vaccines have approvals for limited use and three have emergency approval for full use., The fourth was approved on the 30th which can be a turning point with regard to cost and storage temperature of vaccines. About 85 vaccines are still in animal testing and just one vaccine was abandoned after the trials. Most Covid vaccines need two doses for complete immunity. However, trials have also shown significant immunity protection (70%) after a few weeks of the first dose itself. As a result, now the UK government is going to delay the second dose to 12 weeks instead of threeweeks so that more people could be vaccinated with the first dose protecting many while giving manufacturer more time to produce more doses.

Pfizer BioNTech’s BNT162b2 is the first vaccine against Covid-19 that got approval in most countries, that included the USA, Canada, the UK, and EU with more being added to the list almost daily. Moderna was the next that got approved in the USA and Canada. The Russian manufacturer Gamaley’s Sputnik V vaccine is in early use in Russia and it’s also approved in Belarus and Argentina. The Chinese vaccine Sinopharm Beijing is approved in the UAE and Bahrain and there is limited use in China too. CanSino and Sinovac are two other Chinese vaccines that are in limited use in China already.

The British-Swiss Oxford University combined Astra-Zeneca (AZ) vaccine AZD1222 which also has its biggest manufacturing site in the Serum Institute of our neighbouring India just got approval from the UK regulatory authority MHRA (Medicine and Health Regulatory Authority) and its possibly going to be the cheapest with cost being as low as two USD per dose with the storage capability of being within on 2-8 centigrade under normal refrigeration. Serum Institute also has over 50 million doses ready for dispatch after approval. AZ with about 30 manufacturing sites has the capacity to produce bigger quantities of the vaccine than most others.

Another Indian vaccine by Bharat Biotech is also in Phase 3 and will complete trials early next year.

With all these vaccines getting lined up and with more than a couple of million people in the world getting their doses already, Sri Lanka too should move fast to get the best use of the opportunity.

 

HOW CAN SRI LANKA GET THE VACCINE?

There is a group called COVAX set up with WHO’s help with funding from rich countries organized to give access for Covid-19 vaccines to populations in over 90 poorer countries. Covax has already ordered 2 billion of Covid vaccines from different manufacturers and they have already secured 1 billion doses from this order. It has agreed to give Sri Lanka too vaccines for 4.1 million or 20% of our population free.

No Covid vaccine is still intended for the under 16 age group as the trials were in populations older than this age limit. Fortunately, in this younger age group Covid has so far remained largely an asymptomatic disease with minimal deaths or need for hospitalisation.

 

WHEN CAN SRI LANKA GET THE VACCINE?

If we get ready with all logistical requirements, and communicate with COVAX and WHO efficiently and professionally, we can start having it from as early as next February itself but how many doses we can have and over what period of time will depend on many factors which also include the degree of our local effort and commitment.

 

WHOM SHOULD WE

VACCINATE FIRST?

We will have to have a priority order which should include our elderly population and those with co-existing illnesses like diabetes, heart and kidney disease and other chronic illnesses as well as the healthcare workers (HCW) and security forces involved in Covid control activities who are high risk groups to contact the disease.

Vaccinating healthcare workers are important for several reasons and they include…

1. We cannot afford to lose HCW having to isolate them or quarantine them with infection or exposure as they are needed in numbers to look after the Covid cases and other patients

2. Due to the fear of contacting Covid there is breakdown in the necessary routine medical and surgical care for patients in most healthcare institutions at present and this is responsible for most parallel deaths and morbidity even in non-Covid patients. Some of the Covid deaths specially home deaths are also a result of the malfunctioning of routine standard follow up and care for those with co-morbidities.

3. If the case numbers increase HCW will need more PPE for everyday use and we will not be able to face it if the situation escalate further.

 

WHAT ABOUT VACCINATING THE OTHERS? CAN WE AFFORD IT?

When it comes to immunisation coverage for routine vaccines, Sri Lanka is outstanding in the world where our strong public health set up and the infrastructure has beaten even many developed countries.

Our vaccination acceptance rates are remarkably high with the literacy rates and public health network, mass vaccination is nothing new to our setup. Being an island with secure borders and the limited population of only 21 million compared to eg. India’s 1.3 billion, we are a country where vaccinating the entire population is a realistic feasible option if you can find the money and the doses to cover the entire population. With about 25% (6 million) below 16 years of age, where there is no vaccine for this age group, we need vaccines only for less than 15 million people. Our over 65 population in the country is just about 10% (2 million). We will get at least 4 million doses free from COVAX. We must spend money only for 11 million doses.

 

If we buy at 2 USD per dose, (Indonesia is possibly getting the AZ vaccine from serum institute for USD 1.64 per dose) we will need less than Rs. 5-8 billion to buy the vaccine and there will be a little more logistical cost. This will also be over many months. Sri Lanka has already spent close to 10 billion rupees on PCR testing alone since March and compared to that the vaccine expenditure is a remarkably worthwhile investment. It is also not essential that we give the vaccine free to everybody.

With good motivation and awareness campaign there will be many who will not mind paying for their vaccine which can be as little as 500-800 rupees for both doses. We can start a public campaign to raise funding for the vaccine without overburdening the Treasury and if handled properly this can have an excellent response. We have 1.8 million Samurdhi recipients and it is believed that only about 1 million of them are in the extremely poor category. In this country we can also easily find over 1 million people who will not mind sponsoring a vaccine for someone else who is poor and cannot afford it. This is a time we have to get-together to face this pandemic.

No one should try to take political advantage of the situation. Together we can end up a proud nation that has vaccinated all its people ahead of many other countries. It is also essential that we strengthen the vaccination system by allowing the private sector too, to be very much a part of the vaccination program. This not only ease the burden to the government, it will also help to reduce unwanted unrest among people.

It is also worth noting that many rich countries have already placed orders far in excess of their true requirement. For example, UK has placed orders for 350 million doses though they need only 120 million doses for its less than 60 million eligible population. There are many examples like Canada pre-ordering almost 9 doses per person very much more than they need and countries needing more doses can take advantage of these situations, by being proactive. Its unlikely that the cost of the vaccines will go up or the availability of doses will become a huge issue. With time most will be solved. Already 18 vaccines are in phase 3, and they too will be competing in the market soon. The early successors have no room for monopoly and when vaccines like by Johnson & Johnson which is single dose also come into the market the competition will be even more. Serum Institute in India can produce 2 billion doses of AZ vaccine in 2021 and the Russian Gamaleya can produce 500 million more doses to be used outside Russia. WHO and NMRA will do the regulatory evaluations for each vaccine fast. However, if we do not actively look for avenues, we will be end up at the back end of waiting list.

With above explained feasibility and reality, Sri Lankan can be one of the first countries in this part of the world to vaccinate its entire population. It is never an impossible task. This will place us in a unique situation, with our ability to fully open the country where factories and tourism and our economy can jump ahead of many others, making Sri Lanka one of the safest countries in the world to travel and to deal with. We being a smaller country with a smaller population, it’s best that we take advantage of our unique circumstances. For the best out come extreme efficiency is a must and we will need top officials with a proven track record handing our vaccine effort.

WHAT ARE THE VACCINES WE CAN BUY OR GET?

With the huge global demand, it is unlikely that any country(possible exception of Singapore and Canada) can vaccinate the entire population with only one type of vaccine. We will have to keep shopping for different vaccines, while the COVAX also will be giving the countries their free quota from different makes. They have already offered as 200,000 doses of Pfizer vaccine to Sri Lanka last week through a proposal, as they believe, Sri Lanka is an ideal example in this part of the world to successfully execute distribution of an ultra-cold vaccine to a limited population like the healthcare workers. Though -70C appeared not practical at the beginning Pfizer has already found good transport solution where vaccine doses can be taken in a separate storage unit filled with dry ice (liquid carbon dioxide), and there are reputed local logistics companies (eg. Akbar Brothers) that can handle it up to the delivery to the hospital. The Pfizer’s storage units can maintain ultra-cold temperature for 10 days if unopened and can be kept for 30 days if re-filled with dry ice every 5 days. Once taken out of these storage unit the vaccine can be kept in normal refrigerator temperature of 2-8C up to a further 5 days. If we commit to take this free offer, (has to be a firm commitment done fast enough in time) we can vaccinate our HCW front liners incredibly early, and the same Pfizer vaccine can be made available also for the private sector later in the future. Our preparedness to complete our vaccinations using different vaccines for Covid will be the best way to achieve the ‘not-impossible target’ of vaccinating our entire population early.

 

WHAT ABOUT SIDE EFFECTS OF THE VACCINE AND DURATION OF IMMUNITY? WHAT ABOUT NEW STRAINS THAT WILL APPEAR?

Any vaccine or drug can have side effects, like allergy in people known for severe allergy. With over millions of vaccinations now completed after recent approval the safety of the approved vaccines appear very good and comparable to the vaccines we have already taken from childhood. This has been systematically tested in phase 2 and 3 of the trials.

About efficacy and long-lasting immunity, we can be only be hopeful as compared to influenza virus that fast mutate, SARS Covid-2 is a relatively stable virus where mutations are slower, and indications are that even the new variant of Covid-19 that emerged in UK and South Africa will still be prevented by the vaccine. There are interesting reports about the survivors of 2002- 2004 SARS epidemic infected by SARS Covid-01 still showing protection against the current Covid-2. If the immunity does not last long a booster will be needed. Initially like children we will have few exclusions for vaccinations like for any new vaccine for eg. pregnancy. Vaccinating a large number will bring in a major change into our lifestyle and take us towards herd immunity. With so many restrictions affecting our day-to-day life the vaccine option is THE best available solution we have now.

In summary we need to use a multi-pronged effort to vaccinate everybody which will be a noticeably big useful investment towards economic development, even more than a health solution. We will have to secure and use

1. The free vaccine we will get from COVAX for 20% of our population

2. Negotiate with various sources, and countries to obtain or buy more doses to cover the balance population.

3. Permit the private sector also to import, distribute and vaccinate, with state monitoring to facilitate effective coverage of the population who could afford the vaccine privately.

 



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Devolution under 13A

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by Neville Ladduwahetty

(This is an updated version of an article which first appeared in The Island on 16 March 2009. It is republished because of its relevance to the intention of the current government to implement the13th Amendment fully.

The defeat of the LTTE is not expected to bring a closure to Sri Lanka’s national question. It would, however, create the space for the evolution of a political solution, free of threat and intimidation. It would also create the space for the government to totally focus on issues, relating to resettlement, rehabilitation and development. Public opinion is that both issues need to be addressed, concurrently, if the military gains are to be consolidated.

The emphasis of the International Community has been on a political solution that addresses the concerns of all communities. While endorsing this view, India has been particular that such a solution should be based on the concept of devolution, as contained in the 13th Amendment, and, if necessary, beyond. These readings have influenced the deliberations of the All Party Repesentative Committee (APRC). Consequently, the approach of the APRC has been to evolve a new and, in their view, an improved version of the Provincial Council system, under the 13th Amendment.

After experiencing the functioning of the Provincial Council system, for two decades, consensus is that its costs outweigh the benefits. Irrespective of the explanations for its below expected performance, it would be worth the cost if it served its intended purpose of addressing the concerns of all the communities. Since Law and Order affects all members of all communities, it would be appropriate to assess whether the current provisions in the 13th Amendment would assure fairness and impartiality in its dealings with the Provincial Police Commissions.

Provincial Police Commission (PPC)

Appendix I of the Provincial Council List (List I of the Ninth Schedule of the 13th Amendment) describes the devolved powers, relating to Law and Order.

According to Clause 4, the PPC is to consist of three members: the D.I.G of the Province, a person nominated by the Public Service Commission, in consultation with the President, and a nominee of the Chief Minister of the Province.

Clause 6 states: “The I.G.P shall appoint the D.I.G. for each Province, with the concurrence of the Chief Minister of the Province. However, where there is no agreement between the Inspector General of Police and the Chief Minister, the matter will be referred to the President, who, after due consultation with the Chief Minister, shall make the appointment.”

Clause 11.1 states: “The D.I.G. shall be responsible to and under the control of the Chief Minister thereof in respect of the maintenance of public order in the Province…”.

Thus, in addition to the D.I.G. being under the control of the Chief Minister, two out of two members of the PPC would in all likelihood have political affiliations which would make them lean towards the “interests” of the Chief Minister. To expect fairness and impartiality under such provisions is to be naïve. In the real world, the tendency for the PPC, as presently constituted, would be to encourage a high degree of partiality in favour of the Chief Minister’s interests, not to mention the interests of his/her loyalists, as well. While attempts are being made to depoliticize Presidential powers, through the 17th Amendment, and Independent Police Commission, provisions in the 13th Amendment would not deter the politicization of issues relating to Law and Order. This is a serious anomaly that needs to be corrected. However, the task is a daunting one because of the inbuilt procedural labyrinth.

Amendments to the 13th Amendment

Any amendment to provisions in the 13th Amendment requires conformance to the procedures set out in Article 154G:

“Every Provincial Council may, subject to the provisions of the Constitution, make statutes applicable to the Province for which it is established, with respect to any matter set out in List 1…”

No Bill for the amendment or repeal of the provisions of this Chapter or the Ninth Schedule shall become law unless such Bill has been 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, within such period as may be specified in the reference, and –

where every such Council agrees to the amendment or repeal, such Bill is passed by a majority of the Members of Parliament present and voting; or

(b)where one or more Councils do not agree to the amendment

or repel such Bill is passed by the special majority required by Article 82.

According to the mentioned procedure, it is unlikely that a President would initiate action unless there is a public demand. This would mean that the public would have to organize themselves to give expression to such a demand. Assuming a President is convinced that an amendment is needed, the process involves drafting appropriate legislation, Gazetting it, and then circulating it to the Provincial Councils for comment. If even one out of the nine Councils objects, a 2/3 majority of the Parliament would be needed before it could become law.

Since no Provincial Council would agree to relinquish the advantages it possesses, under current provisions, as regards the composition of the PPC, one can be certain that any amendment in respect of Law and Order would require a “special majority”, meaning 2/3 of those present in Parliament voting for the amendment. The fact that it is near impossible to secure a 2/3 majority, under the proportionate representation scheme, is a fact that has to recognized and accepted. Furthermore, in the course of his determination, Justice Wanasundara stated: “Factually speaking, even the President has said recently that under the proportionate scheme, no political party would be able to secure anything more than a bare majority in the future” (Supreme Court case on The 13th Amendment to the Constitution, 1987, p. 347).

Thus, the reality is that the public may not succeed in securing the needed 2/3 majority to redress a provision that has the potential to seriously undermine its right to equality before the law when it comes to provincial matters. In such an eventuality, would not the sovereignty of the People be compromised? As stated by Justices L.H. de Alwis and H.A.G. de Silva, in their determinations: “Article 154G (2) therefore imposes a fetter on the Parliament in amending or repealing Chapter XVIIA or the Ninth Schedule and thereby abridges the Sovereignty of the People in the exercise of its legislative power by Parliament, in contravention of Article 3 and 4(a) of the Constitution” (Ibid.).

The determination of the Chief Justice and three other Justices, however, were: “…the legislative competence is not exclusive in character and is subordinate to that of Central Parliament which in terms of Article 154G (2) and 154G (3) can, by following the procedure set out therein, override the Provincial Councils. Article 154G conserves the sovereignty of Parliament in the legislative field…In our view 154G (2) and (3) do not limit the sovereign powers of Parliament. They only impose procedural restraints” (Ibid., p. 320).

There is no doubt whatsoever that “procedural constraints” imposed by 13A is a fetter to the unrestrained Legislative powers of Parliament that existed under Article 4 (a) and since Article 4 must be read with Article 3 these procedural constraints violate the sovereignty of the People whenever Parliament is unable to muster the 2/3 majority needed to amend any provision in 13A.

RECENTLY, SCOTLAND’S GENDER RECOGNITION REFORM BILL WAS VETOED BY THE U.K. GOVERNMENT BY USING SECTION 35 OF THE SCOTLAND ACT, THUS ENDORSING THE SUPREMACY OF THE U.K. PARLIAMENT OVER THAT OF SCOTLAND. THIS WAS POSSIBLE BECAUSE “PROCEDURAL RESTRAINTS”, SUCH AS THOSE THAT EXIST UNDER 13A, DO NOT EXIST UNDER DEVOLUTION IN the U.K.

Issues addressed thus far relate to amendments and repeals. 154G (3) relate to Bills in respect of any matter. Here, too, the President has to Gazette the Bill and circulate it to all Provincial Councils. If all Councils agree, the Bill is passed with a simple majority. If some disagree, a 2/3 majority is required for the Bill to become Law. On the other hand, if only some agree and only a simple Parliamentary majority is possible, the Bill would apply only to those Provincial Councils that agreed with the Bill. Would this not foster asymmetrical devolution? If one or more Provincial Councils call upon Parliament to make law on any matter, the passage of such a law, by a simple majority, would apply only to those Councils making the request. This too would foster asymmetrical devolution.

CONCLUSION

The Government is under pressure to implement the full provisions of the 13th Amendment. If Police powers, as required by the 13th Amendment, are devolved, the Law and Order situation in the country would be politicized far beyond what exists today.

Provisions, relating to Law and Order, as stated in Appendix 1 of List 1 of the 13th Amendment, was introduced in 1987. On the other hand, the need for an Independent Police Commission was introduced decades later in order to depoliticize Law and Order. Since Law and Order is central to Justice and overall security, the contradictions that exist between them need to be amended, along with the repeal of 154 G, because it is the only way the sovereignty of the People and the legislative powers of Parliament would be restored, prior to the full implementation of the 13th Amendment.

Such measures are justified because they are a byproduct of a political intervention by India, following the Indo-Lanka Accord. Real independence and the right of true self-determination require that all Sri Lankans are governed by Laws of their own making and not by what is imposed. Therefore, the Government has a moral obligation to its People to create the necessary conditions to protect the sovereignty of the People and the unfettered legislative powers of Parliament, encouraged by Section 35 of the U.K. Scotland Act.

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Govt. actions must be for people’s benefit

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President at the Independence Day ceremony on Saturday

By Jehan Perera

The government celebrated the 75th Anniversary of its independence from colonial rule under tight security.  President Ranil Wickremesinghe did not even deliver a speech on the occasion.  He had an excellent written speech, but chose not to deliver it for reasons not known.  The speech was circulated later. The exclusion of the general public from the parade grounds was another notable feature of the Independence Day event.  Under normal circumstances, Galle Face green where the celebration took place, is packed with people who come to enjoy the sea, the fresh air and the vast expanse of greenery.  The spectacle of a military parade and an air show provided an occasion that people would not have wished to miss if they had been given the chance to attend it.  But the government was clearly insecure and wanted to make sure it controlled the situation, which accounted for large security deployments.

The general public were kept away from the celebrations as the government feared that if they were permitted into the area some of them might protest.  Indeed, the previous night a sit down public protest (satyagraha) organised by a mostly youthful group of protestors was water cannoned and forcibly broken up.  The youth were protesting against the misallocation of resources for celebration at a time when the country’s people have little cause to celebrate.  Although there was a large presence of security forces, they stood by when a group of political thugs attacked the peaceful protestors.  When the satyagrahis resisted the attack they were chased, beaten and arrested by the security forces. The government was less concerned to win the hearts and minds of its people than to conduct its Independence Day event without disturbance.

 Ironically, the manner of the celebration, with the general public not present at the site of celebration, and security forces out in strength on the roads, was reminiscent of the days of war that the country experienced decades past.  In those days too, the Independence Day celebrations took place under tight security, with the people preferring to stay in their homes than to brave possible LTTE bombs. This throwback to the past is relevant as those years of war have contributed in no small measure to the economic collapse that has befallen the country and blighted the life of its people.  More than 70 percent of the population have reduced their food intake and 40 percent of the population have descended below the poverty line.  In recognition of the connection between ethnic conflict and economic underdevelopment, President Wickremesinghe has prioritized a political solution to the ethnic conflict without delay.

PUBLIC ANGER

The public protests against the celebration of Independence Day was not only in Colombo but also in other parts of the country, most notably in the north of the country.  The main Tamil political party as well as smaller ones also called for a boycott of the Independence Day events and did not participate in them.  University students in Jaffna declared a hartal and flew black flags.  Most of the people, however, showed no interest either way. There was no display of national flags in a spontaneous manner nor did the government make such an appeal.  It seemed as if the government was celebrating Independence Day for itself.  Gleaming new vehicles with police escorts drove in assorted governors, ministers and other dignitaries into the stalls where they would seat themselves with all the national television stations focusing on them. However, to the general public watching the celebrations on their television sets, the sight of the luxury vehicles bearing the dignitaries would have been infuriating.

 Not even a year ago, these same political leaders were hiding in the face of the protest movement that took to the streets in the aftermath of the collapse of the national economy and declaration of national bankruptcy.  The general public, many of whom had never taken part in public protests, came to the streets to protest.  They came from near and far, children with their parents, the elderly and the differently abled, to demand the exit of the government leaders who had stolen the wealth of the country and brought the masses of people, including them all, to near penury.  These same people who watched the Independence Day events on television would have been greatly angered to see those same political leaders now disembarking from luxury vehicles while they scraped the bottom of the barrel in their homes.  What they demand from the government, both in street protests and in their homes, is an end to impunity for corruption, abuse of power and extravagance in  public life, which the government appears to be shying away from.

 The question arises for whose benefit was Independence Day celebrated in this manner?  Independence Day in a situation of economic collapse was celebrated in a most unimaginative manner.  The government tried to heed the public opprobrium regarding the cost of the event, and reduced the size of the military parade.  It also axed the cultural parades that represent the aesthetic side of life.  Independence Day should have been celebrated differently, not for the political leaders and not for the international community, but for the people.  This event did not receive much international publicity.  It would not have changed the way the world sees us.  It did not touch the hearts of the Sri Lankan people either.  They were watching on their television sets and conscious of the expenditures that were being incurred for no good reason, and certainly not for their benefit.

BOLD PLEDGES

The celebration of Independence Day could have been done differently.  The government could have recognised the poverty that has ravaged the lives of the people.  It could have organised an Independence Day event that demonstrated an ethos of care for the people.  It could have brought a thousand schoolchildren from the poorest families around the country, and from all ethnicities, religions and castes, and made them a symbolic presentation of schoolbooks and school clothes that would have reflected the government’s commitment to invest in the country’s children.  This was an opportunity lost and would work to the detriment of the government which will be reflected in its electoral performance at the forthcoming local government elections. President Wickremesinghe’s pitch that the country needed a plan to become a developed country in 2048 is to miss people’s concerns to get by the day.  In his televised speech to the nation he said “Let us devote ourselves, unite as children of one mother. Let us make our country one of the most developed in the world by 2048, when we will celebrate 100 years of independence.”

 Despite all the criticism of the priorities of President WIckremesinghe and the government there are still many who continue to place their hope that the president will succeed in problem solving that is in the national interest.  One of President Wickremesinghe’s bold pledges has been to resolve the ethnic conflict that gave rise to three decades of war and to reach a situation of national reconciliation in this 75th year of Independence and “unite as children of one mother”.  When he first committed himself to this task three-months ago, there was some anticipation that this ambitious task may even occur prior to Independence Day itself, or “mission accomplished” would be announced on the auspicious day.  This has not been the case and it appears that even the first steps are yet to be made.  Now the focus of attention will be the president’s policy statement on February 8 when he reconvenes parliament following its prorogation by him a fortnight ago.

 National reconciliation in an ethnically divided society is never an easy proposition.  It requires the support of multiple actors in multiple sectors.  An indication of the president’s determination in this regard was the singing of the national anthem in both Sinhala and Tamil languages at the Independence Day event. This was after a lapse of four years and reflects the president’s resolve to overcome the divisions of the past.  It must be noted that it was under his leadership as prime minister in the period 2015-19 that the national anthem was sung again in Tamil on Independence Day after the passage of many decades.  There are elements in the president and his government that require support from civil society.  We need to overcome the legacy of past mistakes and forge ahead to a future in which lessons have been learnt and mistakes not repeated.

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Issues in fully implementing the 13th Amendment – Police Powers

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President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi at the signing of the Indo-Lanka Accord, which paved the way for the 13th Amendment..

By C. A. Chandraprema

While most provisions of the 13th Amendment to the Constitution have been implemented, sticking points have persisted with regard to two matters – the devolution of police and land powers. Appendix I of the Provincial Councils List in the Ninth Schedule of the Constitution provides for the devolution of police powers. The implementation of these provisions will entail the division of the Sri Lanka Police Force into a National Police Division which includes special units such as the CID; and a Provincial Police Division for each Province, headed by a DIG.

According to Section 6 of Appendix 1, the IGP shall appoint a DIG for each Province with the concurrence of the Chief Minister of the Province. If there is no agreement between the IGP and the Chief Minister, the matter will be referred to the National Police Commission, which after due consultations with the Chief Minister shall make the appointment. Thus, the effective appointing authority of the provincial DIG is the Chief Minister. Section 11 stipulates that all Police Officers, serving in units of the National Division and Provincial Divisions, in any Province, shall function under the direction and control of the provincial DIG who, in turn, will ‘be responsible to’ and ‘under the control of’ the Chief Minister in respect of the maintenance of public order and the exercise of police powers in the Province.

According to section 12.1, it is the Provincial police forces that will maintain law and order and be responsible for the prevention, detection and investigation of all offences in the Province except for the 11 specified offences allocated to the National Police Division which are as follows: international crimes, offences against the State, offences relating to the armed services, offences relating to elections, currency and government stamps, offences against the President, Ministers, MPs public officials, judges, etc., offences relating to state property, offences prejudicial to national security, offences under any law relating to any matter in the national government list and offences in respect of which courts in more than one province have jurisdiction. Most of these offences are not really a part of day to day police functions and occur infrequently. Thus, under the 13A, it is the Provincial Divisions which will handle the bulk of actual day to day police work.

Provincial Police to the forefront

Signifying the extent to which the National Police Division will be expected take a back seat, Section 10.1 of Appendix 1 requires members of the National Police Division to ordinarily be in plain clothes, except when performing duties in respect of the maintenance of public order. For all practical purposes, the only uniformed police force, visible to the public, will be the Provincial Police. Recruitment to the National Police Division is to be done by the National Police Commission and to the Provincial Police Divisions by the respective Provincial Police Commissions. According to Section 4, the Provincial Police Commissions will be made up of a) the Provincial DIG, b) a person nominated by the Public Service Commission, in consultation with the President; and c) a nominee of the Chief Minister of the Province. Thus the Chief Minister has complete control over both the Provincial Police Chief as well as the Provincial Police Commission.

In addition to the above, according to Sections 7 and 8 of Appendix 1, the Provincial Police Commissions, which are completely under the sway of the Chief Minister, will have a say in deciding on the cadre and salaries and even the type and quantity of firearms and ammunition used by the Provincial Police forces. However, the potentially horrendous implications of Sections 7 and 8 are mitigated to some extent by the proviso that ‘uniform standards and principles’ shall be applied across the board with regard to these matters for all Provincial Police Divisions.

When recruitment for the Provincial Police Forces are to be carried out by Provincial Police Commissions which are completely under the sway of the Chief Ministers of the Province, the politics of the Province will become the politics of the Provincial Police force, as well. The most obvious foreseeable result of recruiting, within the Province for the Provincial Police force, is that the Northern Province Police force will be predominantly Tamil, the Eastern Province police force largely Tamil and Muslim, and the police forces of all other Provinces, predominantly Sinhala. The implications of politicians, elected on communalistic political platforms, having armed police forces under their control, to further their political objectives, should be clear to anybody. For a country like Sri Lanka which has experienced protracted conflict between ethnic and religious groups, the police powers provisions in the 13A are a guaranteed recipe for disaster.

An equally important consideration is the fact that crime prevention, detection and investigation is very much an inter-provincial, countrywide activity in this country. The creation of nine separate Provincial Police Divisions, answering to nine different lines of command, will seriously hamper the crime fighting capacity of the police which we now take for granted. Today, the IGP and the police force, under him, acts on the imprimatur of the national government, and its outreach extends to every nook and corner of the country. If the 13th Amendment is fully implemented, and the principle day to day police functions, such as maintaining law and order, and crime fighting, becomes the exclusive preserve of the various Provincial Police forces, whose authority does not extend beyond the borders of their Provinces, even pursuing a criminal across Provincial borders will become a tedious, process heavy with bureaucratic procedures and the entire country is going to suffer as a result. (The Colombo and Kotte city limits will not belong to the Western provincial police division but to a Metropolitan police under the National Division according to Item 1 on the Provincial Councils List.)

Readers may recall the 2005 incident during the ceasefire where some policemen, attached to the National Child Protection Authority went into an LTTE held area in search of a fugitive European pedophile and were arrested by the LTTE police. If the police powers in the 13A are fully implemented, in a context where some Provincial administrations are going to be openly hostile to the national government, as well as to other Provincial administrations, similar incidents will become day to day occurrences. The sheer practical impossibility of effectively carrying out police work in a small, densely populated country divided into nine separate police jurisdictions, manned by police forces under nine different lines of command was one of the main reasons why the police powers in the 13A have remained unimplemented for the past 37 years.

Political control over Provincial Police forces

While the IGP will nominally remain the head of the Sri Lanka Police force, even under the 13A, actual day to day police work will become the preserve of the provincial DIGs, acting under the direction and control of the respective Chief Ministers. Under Section 12.4(b) of Appendix 1, the IGP’s discretion in matters related to crime fighting will largely be centered on assigning investigations to units of the national division, like the CID, if he believes that is required in the public interest. But even to do that, he will need to ‘consult’ the Chief Minister of the Province and to have the approval of the Attorney General. Appendix 1 does not have provisions for any mechanism to enable the Provincial Police forces to work in unison in crime fighting or indeed any mechanism that can respond expeditiously to crime fighting requirements throughout the country.

The 13A was passed into law nearly four decades ago, in a different era. In the new millennium, the dominant trend has been to prevent politicians from influencing the police force but the provisions in the 13A seeks to do exactly the opposite.

Even though the new millennium has seen three Constitutional Amendments, (the 17th, 19th and 21st) promulgated for (among other things) the depoliticisation of the police force, Appendix 1 of the Provincial Councils List in the Ninth Schedule of the Constitution, was left largely untouched. I use the word ‘largely’, because the 17th Amendment did make a few changes in Appendix 1, but that was only to reduce the powers of the President. The Chief Minister’s powers over the Provincial Police remained untouched.

The total and complete politicisation of the police force, envisaged in the 13A, renders it out of step with the times. It was just a few months ago that the 21st Amendment to the Constitution was passed and under its provisions, the President cannot appoint the IGP unless the Constitutional Council approves his recommended candidate and the President cannot appoint the Chairman and Members of the National Police Commission except on the recommendations of the Constitutional Council.

How will the people of this country react if the police powers, envisaged in the 13A, are implemented, and they wake up one morning to find that the Chief Ministers have been given effective control over the appointment of the provincial DIGs and complete control of the Provincial Police Commissions?

How will the people react when they find that the country has been rendered ungovernable overnight because the police force has been fragmented into nine separate police forces, under nine different chains of command? The gestation period for the fallout resulting from a wrong decision with regard to the police powers laid out in the 13A will not be years or months but weeks and days. Hence this is an area where the government will have to proceed with great caution.

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