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The ‘Cheena Abhagya’ on the rise

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There is a big China Hurry in the government that seems much higher than any hurry about controlling the Covid pandemic.

The debate of the Colombo Port City Commission was scheduled for May 5, without even receiving the Supreme Court decision on the many petitions filed before it. This is a complete and shameless shift from the very process of parliamentary debate, the stuff of democracy.

A debate in parliament is based on the material — the facts, plans, decisions, proposals etc – placed before the members. This government with its Vistas of Prosperity and Splendour has no interest in the democratic process. They decide on a date for a debate on what is the most important piece of legislation today, with the MPs not given even an hour to know and study the decision of the Supreme Court on the subject. In fact, it is also a huge insult to the Supreme Court and the judicial process, too.

This decision and its refusal to agree to the Opposition calls for more days for this debate, showed how the government is ready, and determined, to use its two-thirds majority, post 20A, to have no respect for the democratic process.

Although this shameful move by the government failed, due to the Supreme Court decision not reaching the Speaker by that time, the mockery of democracy continues, with the next date for the debate on the Port City subject being fixed for May 18, again with no opportunity for all MPs to read and study the court decision/s on so many matters raised by the petitioners, some of whom were members of parliament too.

This is the China Hurry – Cheena Hadissiya – being displayed, just the initial moves to use the Sinopharm Covid Vaccine on the people of this country, while it has not been approved by the WHO and the responsible Health and Medical officials in this country.

This is the ‘Cheenabhagya’ doing much more than the Saubhagya Dekma of Gotabhaya Power. A rising ‘Abhagya’ or misery to the people.

This Cheenabhagya is certainly impacting others in the government, such as Minister Gamini Lokuge, who decided to arbitrarily lift the lockdown and travel restrictions in Piliyandala. There will be much more Cheena benefits and power in the coming weeks, as the country keeps reeling with the spread of the latest variant of Covid-19. 

The Cabinet move to import gyms to strengthen the muscles of the people is certainly a move to reduce the thinking power of the people. Muscle Power is the stuff of rulers who have no faith in the Brain Power of people, who would dare to question the decisions taken by rulers. The use of this Brain Power is the very substance of the Buddhist thinking that has been the core value of Sri Lanka through the centuries. This is the substance of the Buddha Dharmaya as against the Buddha-agama that has distorted Buddhist teachings. Are the plans to build a Sri Lankan temple, in the premises of the ancient and first Buddhist White Horse Temple in China, a show of the Cheena Dekma – or Chinese Vision – that holds sway among those attached to what will soon be the Cheena Rajavasala in Hambantota. Maybe, we will soon change the name of Hambantota to a Maha Cheenatota, and wipe off the arrival of Hamban people to this country.

Rishad Bathiuddin remains in the spotlight today. His moves with different governments, from the Mahinda Rajapaksa to the Yahapalana have been the cause of much criticism and court orders such as replanting torn down jungles. He is now detained as a terror suspect, and the Cheena Balaya does not want him to attend parliament. Sarath Weerasekera, Minister of Public Security, does not want him in the House, as he will violate the legal process that holds him in custody, as he would most likely reveal the secrets of terrorism inquiries supposedly now underway, and may even help other un-arrested terror suspects to flee the country. This is against the official thinking of the Attorney General, who certainly knows more about law, than a retired armed services officer.

The innocence of an unconvicted person until conviction by a court, is part of our democratic and judicial processes. Weerasekera is wholly pleased to have within the government ranks, in parliament, a person convicted by the courts for the crime of murder in the Ratnapura district, Premalal Jayasekera. Is this power prospect for future murderers, convicted by a court of law? This Cheena Havula also had in its ranks Sivanesathurai Chandrakanthan – Pillayan, while he was held in custody for the murder of a former MP in a Batticaloa church, many years ago. Well, well – he has since been acquitted and released by the Batticaloa High Court

It is not our delight that Rishard Bathiuddin is the focus of a call for democracy within parliament. We are aware of how his party, and the Muslim Congress too, gave support to pass the 20A, and its huge blow to democracy. But the rights of a citizen and an elected MP, have to be protected, whatever the politics and the other stuff of a person may be. To give him the right to attend and speak in parliament is a core value of the democratic process. This cannot be torn away under the Cheena thinking, which is fast taking us to the manipulations of the Chinese Communist Party, in its governance of China.

We are in the throes of a pandemic that is certainly sweeping the country. The need is to guide and handle the fight against it, and save the people of the horror we see just across the Palk Strait. Narendra Modi, who was honoured by his BJP for the so-called success in defeating Covid-19, is now facing humiliating defeats, electorally, socially and globally too. Our fight against this pandemic must be through the values of the democratic process. The values we have seen till 1977, after independence, which have been distorted and destroyed by JRJ and down to the Cheenabhagya of Gotabhaya.

The fight against Covid-19 must be a fight to restore Democracy too, in every form of the people’s rights and freedoms.

Let’s move to Janatha Bhagya, away from the rising Cheena Abhagya of today!



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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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