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Covid-19 Pandemic’s Impact On Sri Lanka And Potential Implications: An Informative Conversation With TNA Spokesperson MA Sumanthiran

By
D.B.S.Jeyaraj

* People MUST Go Out as well as Stay at Home!Not just Stay at home only.

* No election can be held while exercising ‘Social Distancing’. Electioneering is the very anti-thesis of social distancing.

* An election held before the virus is completely eradicated, will only heighten the risk of a fresh outbreak.

* The curfews that are being declared presently are not legally valid.

* The situation in the North and the East is precarious at the moment. Some people are near starvation.

* The Treasury Secretary has opened himself to action against him for violating the Constitution!

* The best way forward in this situation is for the President to withdraw the Gazette dated 2nd March 2020 dissolving Parliament.

Former Jaffna District Parliamentarian and Tamil National Alliance (TNA) Spokesperson M. A. Sumanthiran PC engaged in an informative conversation on April 1st and 2nd with D.B. S.Jeyaraj for the “Daily Mirror” newspaper on topics of current importance such as the impact of the Covid-19 Pandemic, postponement of elections, imperative need to re-convene Parliament ,legal validity of curfews being enforced, urgent necessity for drafting new laws and the refusal by Governors to let Local authorities in the North and East utilise funds to help affected people.

Excerpts:

Question:

The entire world is undergoing a severe health threat and facing a severe crisis due to the COVID-19 Pandemic. Sri Lanka too is experiencing this “Corona Effect”. So far the Govt and authorities seem to be tackling the issue reasonably well. However difficult problems are emerging. On the one hand strict measures like Lockdowns, prolonged curfews and restriction of movement are needed to combat and contain the spread of the virus. At the same time this causes hardship particularly to the underprivileged and elderly people. Daily wage earners and self-employed persons are deprived of income. Moreover the economy is drastically affected. There is a cash crunch. Production in agriculture,plantations, industries and fisheries sectors is virtually at a standstill. What is your assessment of the current situation?


Answer:

I think the slogan, “Flatten the Curve” explains this the best. The success in containing this virus is said to be keeping the number of those infected at any particular time to a minimum so that the health system can cope. If you look at the demonstration graph, it looks as if, either way the number of infected persons will be the same, except that if we flatten the curve we can reduce fatalities. It also means that the time taken to eradicate the virus will be longer. If we are going to stretch the time to deal with this issue in order to “successfully contain it”, then we must necessarily keep the economy going at a rate which can feed the people and keep them healthy. That would mean that all economic activity in relation to food production, distribution, medicines, medical services for all other ailments, banking, insurance and a host of other sectors must continue to function.

Q;

What needs to be done to achieve that ?

A;

To achieve that, people MUST Go Out as well as Stay at Home! So, in effect what needs to be done is to find an optimum point between staying at home and going out – not just staying at home only. For this to happen over a long period of time, we need laws and regulations enacted with certainty and not leave it to executive fiats that are issued in a haphazard manner.

Today, daily wage earners and the self-employed don’t earn a cent; the poor and the elderly cannot have access to food and medicines; and those living alone or away from homes for employment are struggling to survive. The measures taken by the Executive were fine and effective for the first two weeks – but this is not something that can be dealt with in weeks. It will take months, if not a year, to be rid of it completely.

While we commend the Executive for these measures, I must also mention that it was a tad too late in coming. Perhaps the President in his anxiety to somehow hold the Parliamentary elections, delayed these responses, which has affected the country quite badly.

Q;

What do you mean by saying the President was a “tad too late”in responding?

A;

Initial steps ought to have been taken well before 20th March. If that had been done we will not be in this position. In his anxiety to somehow hold the Parliamentary Elections (he reflected this in the video conference held between SAARC leaders in mid-March), the President faltered in not taking action to combat the C-19 threat from the time it became clear that such action was necessary. If he had revoked the Gazette dissolving Parliament (better still, if he had not dissolved Parliament at all) Parliament could’ve met then and put many laws into effect.

Having said that, I must concede that subsequent actions by the government have been fairly satisfactory. However, food and other essential items being distributed, daily wage earners welfare looked at and many other aspects including striking the balance between staying at home and going out to keep the economy going, are matters that have not been adequately and satisfactorily addressed.

Q:

On the question of postponing elections, the TNA was one of the first parties to call for postponement of elections. What were the reasons for that call?

A:

At the time we called for the postponement of the Polls, it was clear that elections could not be held for quite sometime under the prevailing conditions. The nature of the Pandemic is such that ‘Social Distancing’ is the key for the containment of the spread of the virus. No election can be held while exercising ‘Social Distancing’. Electioneering is the very anti-thesis of social distancing. One has to ‘socialize’ with the electorate and that is a fundamental feature of free and fair elections. A period of free campaign is absolutely essential

Q;

Can fresh election dates be announced if we managed to contain the Covid-19 spread ?

A:

If we are ‘successful’ in containing the spread, it would necessarily mean that we have extended the period of recovery from the Pandemic. That is what will result in ‘flattening the curve’. Therefore in my view, no date can be thought of yet. We must abandon the idea of elections anytime soon. An election held before the virus is completely eradicated, will only heighten the risk of a fresh outbreak.

MA Sumanthiran

Q:


So now we are in a situation where Parliament has been dissolved while elections have been put off. What is to be done then? You and your Party the TNA have been asking for a re-convening of Parliament. Why is this move important right now amidst this challenge posed by the Covid -19 threat?

A;

It is precisely this kind of challenge that All of us must meet together, and not leave it to one person or his coterie to deal with. Democratic governance is most needed at times like this than at any other time.

Q;

What is the procedure for Parliament to be be re-convened?

A;

Our Constitution makes specific provision for the re-convening of Parliament during dissolution, in Article 70(7) when any emergency arises. After the 19th Amendment to the Constitution, the powers of the Executive President have been drastically curtailed and Parliament has been strengthened.

Therefore it is important that both institutions function together even to exercise the executive power, which is now shared between the two. C-19 threat will last for several months, if not a year or two. In such a context, it is absolutely essential that all arms of government function effectively to meet this threat.

Q:

Some have expressed misgivings about 225 MP’s converging at a single venue to hold Parliament sessions in a situation where large gatherings are frowned upon and social distancing is emphasized. Are you thinking of alternative ways in which Parliament could meet in the current situation?

A:

The Party Leaders can nominate 3 or 4 MP’s to attend the sessions. We have 6 political parties represented in Parliament, including EPDP and SLMC, which have just 1 MP each. The quorum is 20, but that issue will arise only if someone raises it! This number will certainly be lower than the number that meet as Party Leaders at present at Temple Trees.

The Parliament chamber is a much bigger place and we can maintain a distance of even 10 metres between two individuals. This can be the way in which the first few meetings can take place and with consensus we can amend the Standing Orders of Parliament to enable virtual meetings through video conferencing as done in the Maldives already. Thereafter, the whole Parliament can meet and pass legislation necessary for the times and even amend the Constitution with a 2/3 majority if that becomes necessary.

President Gotabaya Rajapaksa

Q:

While discussing the immediate need for Parliament to function, I want to move to another related issue of a legalistic nature. We are facing a de-facto national emergency nowand the authorities are responding accordingly. However no state of emergency has been proclaimed, presumably because Parliament has to meet to approve and extend it , if and when necessary. We also have a situation where the 19th Constitutional amendment has blocked the President from holding the defence minister portfolio. President Gotabaya Rajapaksa in his wisdom has chosen not to appoint a full-fledged Defence Minister. Instead he has a fully empowered Defence ministry secretary and a virtually de-valued State minister of Defence. Several stringent measures are being adopted like prolonged curfews and mass arrest of curfew violators. Of course these are seen as necessary right now. But under normal circumstances should not these measures be approved by Parliament?

A:

Yes, Parliament must immediately deal with the question of laws needed to meet the new threat. Even if a State of Emergency is declared by the President under the Public Security Ordinance, that must be approved by Parliament. Previously during war years, Parliament has met under Article 70(7) to extend Emergency. If Emergency Regulations are promulgated, they must be laid before Parliament without delay.

Q;

In that context are the curfews being enforced and arrests of violators legally valid?

A;

The curfews that are being declared presently are not legally valid. Curfew-like orders can be made under Section 16 of the Public Security Ordinance without Emergency being declared. But that requires a Gazette notification with areas, times and persons from whom permissions can be obtained being clearly spelt out in the Gazette. This has not been done.

Nor has the Minister of Health made a declaration under the Contagious Diseases Ordinance. The Government seems to be labouring under a misconception that this can be enforced under S 262, 263 and 264 of the Penal Code, which is erroneous. Those provisions will clearly not apply to the current scenario and they are taking a huge gamble and arresting people for ‘violating the curfew’, when in the eyes of the law there is no such ‘curfew’.

Q;

Why is no one protesting then?

A:

The reason why the protest regarding illegal curfews are muted, is that everyone recognizes that people must stay at home and not get out. Making a legalistic protest might sound like encouraging the people to go against the advice to stay at home. It may also seem like acting against the public interest at a time like this. But this state of affairs cannot continue for long. It is dangerous to try and govern a country without legally enforceable laws being utilized for that purpose.

Q;

Apart from existing laws and procedures there is also a need for fresh new laws to meet this particular Covid -19 threat. You , yourself have articulated the urgent need for such laws.You have cited some international examples also and suggested that Lanka too should follow suit. Could you mention a few examples in this regard?

A:

Many countries in the world have already enacted such legislation. India, South Africa, Estwani (Swaziland), Italy, UK and Singapore are some examples. The UK (and Scotland and Ireland), Italy, South Africa, India etc have passed emergency laws. Singapore has brought in amendments to their Infectious Diseases Act.

Q;

What kind of special new laws are specifically required now for Lanka to meet this crisis ?

A;

Laws to deal with Public Health Emergencies such this one are necessary. We also require new laws to deal with this novel threat. Our laws in this regard are ancient – most, if not all, were made during British times. At least the British thought of such eventualities! Our new law must provide for the declaration of ‘Public Health Emergency’ and empower various functionaries, including public health officials, to make certain decisions and take actions. Prohibiting public gatherings etc, must be done legally. Article 15(7) of the Constitution makes provision for such laws in the interest of ‘public health’ and to restrict the exercise of the fundamental right to association.

Q:

Are such laws being thought of now? Are they being formulated?

A:

At the suggestion of some people, I have already done a draft with the help of my junior colleagues. I have presently given it to some medical professionals who are versed in Public Health issues. If the government is interested, we can discuss this or any other model publicly and arrive at a consensus.

Q:

It is good to know that you have taken the initiative to draft required laws anticipating its urgent necessity. I do hope the powers that be recognize the imperative need for such legislation and act accordingly. For all this Parliament must be functional.There is another urgent and important reason also for Parliament to meet . Many people have emphasised the need for Parliament to be convened soon because of the Vote on Account April 30 deadline. However some have opined that the President could draw from the consolidated fund. What do you say?

A:

The Vote on Account is only till 30th April 2020. There is a circular issued by the Secretary to the Treasury to the effect that the President can withdraw from the Consolidated Fund under Article 150(3) of the Constitution. That is not correct. The ST has opened himself to action against him for violating the Constitution! The Vote on Account until 30th April is also not sufficient for the needs that have now arisen. Therefore even that must be withdrawn and a new Vote on Account passed by Parliament for moneys to be legitimately withdrawn from the Consolidated Fund. The best way forward in this situation is for the President to withdraw the Gazette dated 2nd March 2020 dissolving Parliament.

Q:

If the President does revoke the elections proclamation gazette what is the position then? Can the dissolved Parliament re-convene & be functional till the original term up to end of August? If that is so then what happens next? Will fresh polls be announced ? Do the earlier nominations remain valid for that?

A;

If the President revokes the Gazette dissolving Parliament, the Parliament will spring back to life much in the same way it did when the Supreme Court nullified the “dissolution” effected by President Sirisena on the 9th of November 2018. If that happens Parliament will continue until 1st of September 2020 and elections will be called thereafter. Fresh nominations will have to be called for as the earlier nominations etc would have become invalid. A Constitutinal amendment may become necessary if elections are to be postponed further.

Q:

If Parliament is convened what kind of collaborative/cooperative actions do you envisage between the legislature and the executive president and his administration?

A;

The Prime Minister and the Cabinet of Ministers are the links between the President and Parliament. The Minister of Defence must be a Member of Parliament and not the President. The President himself is accountable to Parliament for all his actions, according to the Constitution. Thus, a functioning Parliament is a sine qua non for governance. We are used to this type of governance and will take to it like duck to water!

Q:


While the importance of Parliament is understood by most people, there is a viewpoint being propagated that a centralised unified command is very necessary to combat C -19 & that neither parliament nor de-centralised local authorities are necessary at this time. What is your opinion on this?

A;

A centralised command may be necessary, which can work with the institutions on the ground. Local authorities are the institutions that hitherto dealt with public health issues and therefore will be in possession of very important information relating such matters in their localities. Envisaged new laws must address this situation and provide for a central structure to come into being and work together with local structures.

Q;

The TNA primarily represents the Sri Lankan Tamils of the Northern and Eastern Provinces. How are the people in the North&East faring in this crisis ?

R Sampanthan

A:

The situation in the North and the East is precarious at the moment. Some people are near starvation. Local authorities that are best equipped to deal with this situation are not being allowed to uplift the funds they have saved and kept precisely for situations like this! I have spoken to the Governor of the North and Mr Sampanthan has spoken to the Governor of the East, but so far they have not granted their consent. This is a very serious issue. Either the government must grant reliefs to the most vulnerable sections or at least allow the local government institutions to do that.

Q:

Could you explain further about the problems concerning utilization of funds available to Local authorities in the North and East?

A;

Local authorities in the North and East have emergency funds in fixed deposits for situations such as this. However, they need the concurrence of the Commissioner for Local Government(CLG) to uplift or withdraw those. So far the Governors of both provinces have refused to permit the CLGs to uplift those moneys. I hear that the local authorities in the rest of the country are spending monies on relief measures, prompting the Election Commission to issue directives as to how this should be utilized.

The issue about not letting local authorities to serve the people with their own emergency funds in the North and East, while permitting it in the other parts of the country is just an example of the disparity shown even during a pandemic like this! Relief measures of Rs.5,000.00 per family announced by the government has reached some people in there other parts of the country but none in the North or East! The President seems to be very conscious of the votes he received or did not receive from those parts of the country. This is very unfortunate.

MA Sumanthiran

Q;


To conclude on an optimistic note- When do you think can we ultimately come out of this crisis?The world in general and Sri Lanka in particular?

A;

I think we need at a year to be sure of the eradication of this virus – which means at least till the end of this year. Sri Lanka may come out of it in another 6 months. But that will not remove the threat of fresh breakout. We cannot totally be rid of that threat since we depend on supplies from the world over for our survival. We are not self-sufficient in food, certainly zero sufficiency with regard to vital medicines. So long as the connecting with the rest of the world continues, the threat of a fresh outbreak also will continue.

DBS Jeyaraj can be reached at dbsjeyaraj@yahoo.com

This Article was written for the DBS Jeyaraj Column in the “Daily Mirror” of April 6, 2020, 2020. It can be accessed here:

http://www.dailymirror.lk/opinion/We-must-abandon-the-idea-of-elections-anytime-soon/172-186230