Never has Cassandra been so downcast and heart-sick. It certainly is not what she terms lockdown fatigue like metal fatigue that was identified after parts of planes just snapped off. This was long ago. Now in the third week of lockdown, we could break under the stress of being shut in but we Ordinaries are made of sterner stuff. We have our support system – friends and relatives whom we keep close in touch with via telephone and electronic media. We have our safety net – our several religions. Speaking as a Buddhist, Cass can vouch for the strength of this safety net and how beneficial it is. Just being mindful most of her waking hours she keeps away depression and a sinking of her heart each time she reads news on-line or sees TV news broadcasts. If meditation is attempted it is even more efficacious. Mercifully Cass and her ilk order veggies, fruit and groceries on-line. Most certainly bare essentials in consideration of those many near starvation. We are totally sorrowful about the plight of daily wage earners, but cannot right wrongs such as poverty and impecuniousness of the less well to do. That is what governments are elected to achieve.
Reasons for deflation of spirits
We are battered and bruised by the pandemic; inundated by incessant rain and floods, some suffering landslides too. And we had an acid leaking ship sneaking to our waters, catching fire, and being made welcome as a money earner through claimed damages. Now we are told marine pollution will last a hundred years. Can you imagine that – our beautiful blue seas with shining sand now a death dealing home to marine life? Turtles have been washed ashore, dead. Dr Anoja Perera in her heartfelt speech in which she let the present leaders have it, said that the nitric acid that leaked into the sea will destroy even the cartilaginous bones of fish. Their gills have been suffocated by plastic pellets let loose from the burning ship. In all the debris there is a stinking rat or rats too – rousing suspicion. The Sri Lankan Agent of the parent company that owns the ship has proved himself elusive; secrecy reeks. MPS and Ministers who claimed SL would be rich with compensating dollars are sure to lose their parliamentary seats next time around, of course that is if the Sri Lankan indigenous malaise of short memories does not afflict us four years hence and we vote the same rotters in to govern us.
Those who are card holders testifying they received the first A-Z shot in February/March are in the blues wondering when the second jab of A-Z will be given to them. The US, thanks to Biden’s mercy, promised to include Sri Lanka in its list of beneficiaries to receive the A-Z vaccine from what it stockpiled. Prime Minister Wickremanayake’s daughter in England appealed to Boris Johnson to donate vaccines to us. Not only the government but even individuals have started begging for vaccines. We heard Mangala Samaraweera was another. Cass is surprised that fair play on the part of these rich countries supersedes the fact that we are obviously open-armed supplicants to the Chinese. Surprises Cass their mercy prompts then to help us. They hear the cry of the Ordinaries.
The final straw that breaks our spirit
Unbelievable, implausible, impossible such crude greed and feathering their own nests, this time not with money but with luxury cars. Cass did not believe it when she heard that Prime Minister Mahinda Rajapaksa had ordered a whole fleet of cars for MPs, not just ese mese vehicles but most luxurious and thus very, very expensive. Cass not realising such greed and injustice could prevail, especially at this very bad time for Sri Lanka, surmised the news of the Cabinet passing the proposal to import 399 luxury cars to be fake news. But it turned out to be true and nearly kicked the life out of Cass, she finding it difficult to breathe – not asthma or C19 but through sheer disbelief of such selfish, unthinking, gross act of importing cars for MPs and other favoured persons while the majority of Sri Lankans suffer and many near starve. I quote Shamindra Ferdinando in his article titled LCs opened before Cabinet rescinded its own decision in The Island of Wednesday June 9.
“In spite of the Finance Ministry decision to withdraw an earlier Cabinet paper for the import of 399 vehicles at a cost of Rs 3.7 bn, the cash-strapped government was not in a position to unilaterally cancel what Media Minister and co-Cabinet spokesperson Keheliya Rambukwella called a tripartite transaction. (Why did the govt place the order in the first place, Cass asks).
“The Island yesterday (8) sought an explanation from Minister Rambukwella regarding the status of the high profile leasing arrangement pertaining to 399 vehicles. Minister Rambukwella said that he was not aware of how the state bank that had opened the Letters of Credit handled the issue at hand. However, as the opening of Letters of Credit meant guaranteed payment, Sri Lanka faced the prospect of being blacklisted if a unilateral decision was taken on the matter. The minister explained the difficulty in reversing the original decision.”(Fine howdy)
Later in Ferdinando’s article is this even more damning statement which really hits us a second whammy. “None of the Opposition political parties have criticised the government move on vehicles made at a time the country was struggling to cope with Covid-19 fallout.
“SLPP’s 2019 presidential election manifesto, too, assured that vehicles wouldn’t be imported for members of parliament for a period of three years.”
“After the change of government in 2019, the SLPP put in place a much-touted project to expedite repairs to state-owned vehicles as part of the overall measures to meet what co-cabinet spokesmen Ministers Rambukwella, Udaya Gammanpila and Dr. Ramesh Pathirana called immediate shortfall.” (It all sucks!)
The roads are choc-a-block with posh cars which give the impression we are far from being Third World, but one that is rich, prosperous and with no short falls or poverty anywhere within it. When one sees those in the legislator convene for meetings at the old parliament building down Galle Face road, one is shocked at the luxuriousness of the vehicles that shed the VIPs – all local – from within. Are we a poor country, one asks. The sight of most of the alighting VIPs confirms that question – so well set are they: obese in simple language. Sri Lanka had no money to buy vaccines for its people and went begging hither and thither. But on the quiet the PM himself, approved by his Cabinet, orders 399 luxury cars. Are royal kids and pets to be given cars too? While the hard-working farmer cries, some with tears, for fertiliser; the village mother moans her husband dead from Covid 19 and all beg for inoculation. No wonder Kuveni’s spirit is active at present, and her curse is heard and experienced. We are cursed with totally unnecessary luxuries for some; inoculations given entire extended families and friends of those with clout; floods devastating the country; a sure forecast of a poor rice harvest and starvation staring us in the face; tea prices falling due to lack of needed fertiliser, caused by a sudden, stubborn, trigger decision to ban imported chemical fertiliers. Disease and death pile up because vaccination was not carried out en masse. This could have been done.
That is Free Sri Lanka of now, that once resplendent isle, touted to be like no other. Yes, it is unique in its mismanagement and obvious contrasts between those with political clout and us Ordinaries.
TNGlive relieving boredom
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.
Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution
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.
‘Down On My Knees’ inspires Suzi
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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