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Vaccine need and experts vs political power

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Manna from the skies and the drop of water to a man dying of thirst is for most now a jab in the upper arm which will hopefully keep at bay the dreaded omnipotent, omnipresent Covid 19 virus. It seems to be getting more virulent especially in poorer countries. But countries with massive daily numbers of those ill with C19 and large numbers dead, are fast returning to near normal e.g. USA. A young man who hibernated for the last fourteen months is away on holiday in the Big Apple – a separate State from his. And take it from Cassandra whose age, experience and potent gut feeling qualify her to judge situations, the improvement is due to President Biden’s leadership against that of Trump. Kudos go to Biden mostly for his selection of experts in relevant fields heading various government departments; selected solely on merit and matching the need; not considering relatives, sycophants, ethnic origin of the selected Americans. And he is totally receptive to expert advice. Judge his Secretary of State – Antony Blinken – a polar difference from big brash Mike Pompeo, in the mould of Trump. See how Dr Antony Fauci speaks now to the American media as shown us by CNN. He is confident; knows he is respected and trusted as Chief Medical Advisor to the President and also Director of the National Institute of Infectious Diseases while with Trump he nearly had his head cut off for making statements about the pandemic contrary to what Trump wanted to hear. In this context why Dr Anil Jasinha was transferred as Secretary, Environmental Ministry, is still a mystery, since we Ordinaries do not believe it was a promotion. He did magnificently well, with the Army Commander and others in minimising the damage of the first C19 wave.

Many in Colombo are due for the second dose of AstraZeneca vaccine. When will it be given? We were lulled to complacency being told some time ago that the second dose was safely stored in time for vaccination three months after the first. Now we find the medical department’s cupboards are as bare as Mother Hubbard’s as regards the A-Z vaccine and there’s begging going on for the WHO to shower enough of this vaccine on poor Siri Lanka. Threatened is a cocktail of merrily mixed AstraZeneca with Sputnik or the Chinese vaccine. We all shout: No thank you!

We do sympathize with the government battered on all sides and reduced to begging. We appreciate what is being done, but go mad when we hear statements like “Development must go on” when development is a speedway to Ratnapura and purchase of helicopters.

Many approve of the move to lockdown regions and Grama Sevaka divisions and now even provinces since locking down the entire country is really too drastic a measure even though it will reduce mass infection.

Wise experts give of their expertise all the time.

The major issue that confronts the government at present is imminently losing the battle of the Covid 19 pandemic. Next, of course, is the mess of the second vaccine for which blame lies on the government. Then the fast-declining economy and solutions thereof, one solution being import of tourists and asylum given to those fleeing India. For this obvious blunder, blame is squarely on offshoots of the government like hoteliers, travel agents and leading the lot, Udayanga W with his Covid barrier-breaking influx of ‘ballooned’ tourists from Ukraine, one of the worst affected countries. The ‘balloons’ burst no sooner they landed in Paradise and were taken traipsing around Resplendent Sri Lanka.

Another disturbing situ inaugurated by the Prez himself is the fertiliser issue – his overnight banning of chemical fertilisers, to save farming community from kidney disease and win laurels as first country to ban such. Misfiring. Tests have shown the use of these fertilisers is not the cause of KDC. More damning: the sudden ban with no substitute organic fertiliser in large quantity will badly affect our primary cash crop and from the next Yala harvest itself our stomachs will rumble with hunger pangs and the poorer will surely starve. Nothing must be done with the sweep of the pen or the gush of words of command.

And here is Cassandra’s bone which she picks with the government. Experts abound in this country of intelligent people. They are not, apparently, consulted before decisions are made. As Prof, Rohan Rajapakse writes in his article Ban on agrochemical: where are we heading? in The Island of 11 May: “Three eminent scientists, namely Dr Parakrama Waidyanatha, Prof O A Ileyperuma and Prof C S Weeraratne have effectively dealt with the repercussions of the ban on chemical fertilizers.” (He gives their credentials in full). Prof Rajapakse goes on in his article to the sphere of pesticides and warns about that too.

No politician or army high-up nor even the Prez knows it all. So experts must be hearkened to, to serve the country and save its people.

Ubiquitous

Have you noticed as Cass has that the Minister of Sports and Youth is seen at very many meetings and exhibits involvement in fisheries, the environment, even the economy; far extended from his sphere of sports and youth. Latest sighting (Tuesday May 11) was him on TV news inspecting the marvelous hospital constructed in a couple of days by hard working, skilled young men. It will be manned mostly by young girls, nursing Covid 19 patients, at risk to themselves. So, Cass praises this young minister for being so interested in the welfare and well-being of the Ordinaries – we the people of Free Sri Lanka. A sports writer in the gossipy column on the last page of The Island of 12 May, gave him a paragraph, not complimentary like Cass’ paragraph (this). Also, we do not approve at all of exercise equipment being set up in villages. The villager has enough exercise in his farming and his spouse in house and garden work. Such centres, said to be open air, will only attract gawkers in their numbers, and laughter. Of course, someone will make money.

Dire danger of military in power

The youth of Myanmar are demonstrating to the entire world what the consequences are of military men ruling countries. Pro-democracy leader Daw Suu Kyi was given one term of half governing the country as Counsellor; the second time she and her National League for Democracy won a landslide victory. She worked with the army leaders and going along with them – a la the Rohingya – was derided as a Nobel Peace Laureate.

The November 8, 2020 elections gave her Party a bigger majority. Then power was snatched off her and she was held hostage god knows where. (She suffered long years of strict house confinement after her first victory.)

The youth of the country rose up for democracy and for Suu Kyi being released. Listening to excerpts of conversations with two fighters for democracy – male and female – on BBC, Cass was overwhelmed with a fifty-fifty, long lasting spurt of emotion: sorrow and admiration for these young uns. Bless them and may they win the battle for a right of every human being – freedom from oppression and dictatorship. But these kids are being shot at with live bullets and more than fifty (if remembered correctly) are dead. Why-oh-why are base men so greedy for power?

The young of Hong Kong also fought unrelentingly but they were imprisoned and not killed deliberately. Their battle is against the growing power of China where a dictator resembling a military man rules supreme.

A bright spot

In media, whether print or visual, we long for news with optimistic effect to drive away, even temporarily, the doom and gloom that envelops us. Cass had her descending-to-depression spirits uplifted by watching a video clip of the Queen declaring the new Parliamentary sessions ‘open’.

Here was the mid-90s Sovereign walking steadily with her eldest son beside her and reading her speech about what ‘her government’ and ‘her ministers’ would do for the country in a steady voice with steady hands holding the script.

Top on this list was fast recovery from the pandemic followed by environmental, health and educational betterment. She hid signs of emotion that would have battered her because for almost seven decades she came in with her beloved Philip by her side at this ceremony.

Cass took courage from this marvelous woman.



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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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