By
C.A.Chandraprema
Even though the Joint Opposition’s rally at Hyde Park on 17 March was held mainly to oppose the proposed ETCA with India and to highlight other issues such as the changes in the fertiliser subsidy and the low price of paddy, these objectives were completely lost among the large crowds and it became another ‘bring Mahinda back’ rally. Last week professional groups were busy clawing back public attention to what is undoubtedly the most important immediate issue facing Sri Lanka – the proposed ETCA which the prime minister has said would be signed no matter how intense the opposition to it. The professional associations opposing ETCA organised a seminar at the Sri Lanka Association for the Advancement of Science (SLAAS) auditorium on Wednesday last week where a number of presentations were made by Dr Anuruddha Padeniya, Dr Lalithsiri Gunaruwan, Prof. Sumanasiri Liyanage, Nalaka Jayaweera and others.
The presentation made by Nalaka Jayaweera – a Chartered Architect – raised certain serious issues about the proposed ETCA which have not been highlighted sufficiently up to now. In the absence of a detailed draft of ETCA, Jayaweera harked back to the abandoned CEPA to extrapolate what ETCA would envisage in terms of trade in services between India and Sri Lanka. Such an approach is certainly valid because it is in place of CEPA that the ETCA proposal has been brought forward.
Furthermore, the ETCA framework agreement that is in the public domain now clearly indicates that trade in services will be one of its objectives and in fact the government has already announced that in the first instance the IT and naval engineering fields will be opened up to India. The 2003 joint Statement of the India- Sri Lanka Joint Study Group on CEPA envisaged the following in terms of the trade in services:
1. The trade in services will cover ALL service sectors and modes of supply under the General Agreement on the Trade in Services (GATS) framework. (The term ‘mode of supply’ refers to the way the service is delivered. The GATS agreement recognizes four modes of supply – where the service flows as matter of course from one country to another as in the case of banking, where the consumer moves from one country to another to obtain the service as in the case of tourism, where a service provider from one country establishes a physical presence in another country as by hotel chains, and finally natural persons from one country entering another to provide services as expatriate workers and practitioners.)
2. The two countries would explore ways to lower barriers to the movement of business people and professionals and facilitate Mutual Recognition Agreements on professional qualifications.
3. In order to facilitate the movement of people between the two countries, special priority was to be given to the provision of transport and logistics services. A liberalization of the bilateral air services agreement between India and Sri Lanka was envisaged to increase the number of flights and destinations available to each country’s airlines.
4. The liberalization of visa regimes to include more categories of visitors for long term, multi entry visas and simplification of procedures for other visas to facilitate the movement of people related to all areas of trade and investment.
5. The economic cooperation between India and Sri Lanka would extend to transportation, infrastructure, education, tourism, and information technology. The establishment of a tertiary level educational institution in Sri Lanka on the lines of the Indian Institutes of Technology was also envisaged.
That all this was to take place on an agreement negotiated along the guidelines of the General Agreement on Trade in Services (GATS) – the international convention that governs the trade in services is a matter that needs to be taken note of. The draft of the ETCA ‘framework agreement’ dated 12 January 2016 which was given to the GMOA by Minister Malik Samarawickrema specifically mentions that ETCA will be based on the WTO agreement as well as ‘other such’ multilateral agreements. GATS has not been specifically mentioned in the draft ETCA framework agreement. However all members of the WTO are simultaneously members of GATS. The reason why GATS has not been specifically mentioned in the ETCA framework agreement is obviously because opening the trade in services to India has become a contentious issue and the government would like to downplay it. At present, the government has announced only the opening up of the IT and naval engineering services to Indians. Though they have not mentioned any other field, it is clear that ETCA envisages the opening up of the entire services sector to India.
Sri Lanka’s backward regulatory framework
Nalaka Jayaweera highlighted the following practical issues in relation to the opening up of the services sector to India.
1. Even though a trade in services between India and Sri Lanka envisages the mutual recognition of professional qualifications, there are no legally empowered bodies in Sri Lanka which require various professionals to register under their respective categories. The only exceptions would be the Medical Council and the Institute of Chartered Accountants according to Jayaweera. However India has bodies that give legal accreditation to various professions. Because Sri Lanka lacks such professional bodies, there is no way for Mutual Recognition Agreements to be signed between the bodies representing various professions.
2. Because no mutual recognition agreements can be signed between the two countries, Indian professionals or those claiming to be qualified professionals will be able to flood Sri Lanka without any restriction as there are no accreditation requirements at the Sri Lankan end. However due to the strict accreditation requirements in India, Sri Lankan professionals who try to penetrate the Indian market will come up against the Indian regulatory framework. Due to the fact that there will be no valid Mutual Recognition Agreements between the two countries, Sri Lankan professionals who want to work in India will have to seek registration under Indian laws which will give the Indian bureaucracy ample opportunity to do to Sri Lankan service providers what they have already done to Sri Lankan exporters.
3. A major cause for alarm is the fact that the GATS guidelines specify that after a country has undertaken specific commitments to open up certain service sectors, that country is prohibited from applying any new licensing and qualification requirements and technical standards in that particular professional category. This is a safety clause meant to prevent countries from opening up certain service sectors and then imposing new conditions for entry which would vitiate the earlier decision to open up that sector. Jayaweera’s argument was that Sri Lanka is completely backward in terms of the regulatory accreditation of professions whereas India has a very sophisticated system of accreditation. Once Sri Lanka places its signature on the ETCA framework agreement, there is the danger that Sri Lanka would be debarred from enacting new laws for the due accreditation and regulation of professionals. Thus there is a danger that this blind haste to sign ETCA would result in permanently queering the pitch for Sri Lankan professionals vis-a-vis their Indian counterparts.
Jayaweera placed the blame for this situation on those who had been negotiating this agreement with India firstly in the form of CEPA and now as ETCA for the past one and a half decades. The Sri Lankan negotiators on the original India – Sri Lanka Joint Study Group on CEPA back in 2003 were as follows:
1. Ken Balendra, Co-Chairman – Joint Study Group Sri Lanka
2. Tilak Collure, Additional Secretary, Ministry of Commerce and Consumer Affairs,
3.Ranjith Fernando Secretary, Ministry of Enterprise Development, Industrial Policy and Ministry of Finance Investment Promotion
4. Dr. A.G. Karunasena Director, Economic Research Department, Central Bank of Sri Lanka
5. Dr. Saman Kelegama, Executive Director, Institute of Policy Studies of Sri Lanka
6. Arjuna Mahendran Chairman, Board of Investment of Sri Lanka
7. Paskaralingam, Advisor to the Hon. Prime Minister,
8. N. Pathmanathan, Deputy Secretary to the Treasury, Ministry of Finance
9. R. Rahubedde, Additional Secretary, Ministry of Policy Development and Implementation,
10.J. Charitha Ratwatte Secretary to the Treasury, Ministry of Finance, 1
1. Jim Robertson, Advisor to the Hon. Prime Minister
12. Nihal Rodrigo, Secretary, Ministry of Foreign Affairs
13. Prof. Rohan Samarajiva Team Leader, Public Interest Programme Unit,
14. Mano Selvanathan Chairman, Korea Lanka Garments,
15. Mr. K. Shanmugalingam, Chairman, Tariff Advisory Council
16. R. Sivaratnam, Chairman, Export Development Bank,
17. Eran Wickramaratne, CEO, National Development Bank
18. Harsha Wickramasinghe, Secretary, Ministry of Commerce and Consumer Affairs .
Jayaweera said that certain key individuals in this group are still involved in the ETCA process under the present government – Saman Kelegama, Arjuna Mahendran, R. Paskaralingam, Charitha Ratwatte, Rohan Samarajiva and Eran Wickramaratne. Even though CEPA and its replacement ETCA has been under discussion for nearly 15 years, Jayaweera charges that none of them took any steps to at least get the registration of professional bodies under way so that it would be possible to sign Mutual Recognition Agreements between the two countries. He also said that they have reliably learnt that the Indian side has requested that the laws of Sri Lanka relating to professions should not be changed after the signing of the ETCA framework agreement – which in fact they are entitled to do in terms of GATS.
In addition to the question of not having professional accreditation bodies on the Sri Lankan side, which could authoritatively sign mutual recognition agreements, various professional bodies working together had identified 30 other pieces of legislation that would need to be amended to give effect to a trade in services between India and Sri Lanka. These laws needing amendment ranged from the Immigration and Emigration Act, labour laws, banking laws, Inland Revenue Act, business registration laws, insurance laws, the Medical Council Act etc.
When it comes to bilateral trade agreements, the Indian legal system is much more advanced than ours because India has signed very detailed economic partnership agreements with countries like Singapore and South Korea and in doing so, the Indian legal system and regulatory framework has been calibrated to that level. However Sri Lanka has a long way to go in that respect because the regulatory framework in this country is lacking. Jayaweera charged that none of those negotiating CEPA or ETCA on behalf of Sri Lanka had studied the Indian legal system and further that when professional groups requested the Sri Lankan government to get the regulatory framework into order before negotiating for ETCA, they were accused of engaging in ‘delaying tactics’. However these same individuals had nearly 15 years to get things into order – but they have not, said Jayaweera.
Loopholes in Medical Council law exploited
Many Sri Lankans think that the medical profession in this country is one of the most highly regulated professions with the Government Medical Officers Association jealously guarding the exclusivity of the profession, even opposing all attempts to set up private medical colleges and keeping the profession strictly within the confines of the free education and government universities network. However in relation to the Indians, we Sri Lankans appear flatfooted in regulating this most highly regulated of professions. Dr Anuruddha Padeniya explained that poorly qualified or unqualified Indian medical practitioners had been passing off as specialists and surgeons in Sri Lanka, and the GMOA together with the Ministry of Health had tried to work out a regulatory mechanism for a Medical Specialists’ Registry and a procedure for evaluating foreign medical specialists to prevent this from happening.
The GMOA published a booklet on regulating foreign medical specialists. The preface to this booklet was written by the then Secretary to the Ministry of Health, Dr. T. R. C. Ruberu where he observed that “There has been a recent influx of foreign medical specialists to Sri Lanka due to the development of the private health care sector in the post war era. The issues regarding the employment of foreign medical professionals in Sri Lanka, are mainly attributed to the absence of a specialist registry and the lack of provision in the medical ordinance to strictly regulate such foreign specialists.” That would come as a frightening revelation for most Sri Lankans. One would think that as far as the medical profession was concerned, the regulatory framework should be strictest in relation of medical specialists rather than ordinary medical practitioners, but it so turns out that this is one of the weakest links in the regulatory framework for medical professionals!
Dr Ruberu further observed that “…the current medical ordinance doesn’t allow adequate provision for the regulation of foreign specialists and for proper scrutiny of their work experience or their qualifications. The existing registration process has come under heavy criticism owing to its poor standards, arbitrary and ad-hoc decision making, and its lack of transparency. Temporary registrations are issued haphazardly for indefinite periods…”
The registration of foreign specialists is governed by section 67A of the Medical Ordinance which has been amended several times over the years and decades, but we have still not been able to get things right when it comes to the registration of foreign medical specialists. At present, this section stipulates that the applicant should submit his CV along with supporting documents, and a letter of sponsorship by the prospective local employer to the Director General of Health Services. The DGHS will submit the credentials of the applicant to the relevant college for evaluation and obtain their recommendations to register the applicant as a specialist in Sri Lanka. Alternatively, the DGHS has the sole authority to appoint a committee to evaluate the application and give its recommendations without the concurrence of the relevant professional body. Other than DGHS, the Secretary to the Ministry of Health or a Dean of a medical faculty can recommend to the SL Medical Council the suitability of the applicant to function as a specialist. The Medical Council also may allow such application taking into account the needs of the country. Permission given can be renewed but should not exceed three years.
The cracks in this system of registering medical specialists became evident only when the demand for specialists increased with the development of private sector hospitals.
Dr Padeniya addressing the SLAAS seminar explained that the issue of foreign doctors, without due qualifications practicing as specialists in the private sector was first brought to the attention of the authorities by the Association of Cardiothoracic Surgeons and Anaesthesiologists’ of Sri Lanka who wrote to the Registrar of the SL Medical Council on 28 February 2011, complaining about a particular doctor without the required qualifications working at a reputed private hospital as a Consultant Anaesthetist.
Dr Padeniya explained that several patients who had received medical care under such unqualified foreign specialists had been subsequently transferred to government hospitals with post-surgical complications. On 25 July 2012, 36 Medical professional bodies and colleges of specialists including the College of Dental surgeons and the College of Oncologists among others, wrote to the then Minister of Health Maithripala Sirisena about the employment of foreign doctors in Sri Lanka. The guidelines that the GMOA has now recommended for the registration of foreign specialists stipulates the following.
1. As far as possible private sector hospitals should employ Sri Lankan specialists. If foreign specialists are employed, such specialists should have had specialist training and qualifications equivalent to standards set by the Post Graduate Institute of Medicine (PGIM) Sri Lanka and they should have Specialist Registration with the Medical Councils of their relevant countries and should have served as specialists in their own or another country for at least two years.
2. No registration will be granted to non-specialist doctors.
3. Private hospitals should advertise for the specialists’ posts locally. Prominent advertisements should be placed in three national English newspapers on three separate days, spaced at least two weeks apart. If there are no Sri Lankan applicants, the same advertisement should be advertised in the Internet, International Journals etc. to enable foreign specialists to apply.
4. If there are no Sri Lankan applicants, an application to employ a foreign specialist should be submitted to the Director General of Health Services (DGHS) at least three months prior to the proposed employment.
5. A statement from the private hospital that there were no suitable Sri Lankan applicants should be provided with the application.
6. The Secretary Health / DGHS will summon a committee including the Director General of Health Services, and the Director Post Graduate Institute of Medicine among others, to examine the suitability of the candidate for temporary registration at the SLMC. The committee will give its recommendation within two weeks.
7. Temporary registration once granted is restricted to practice within the said institution and in that specialty alone.
8. Renewal of registration will not be automatic. Applications for renewal of registration should be submitted at least three months before the expiry of the period of temporary registration. Once again, the post should be advertised and once again proof that it was advertised but that no suitable Sri Lankan specialists were found for the post should be produced.
9. Only two renewals will be permitted, after which the applicant has to obtain local postgraduate qualifications as a private candidate.
10. An applicant who has obtained registration for three years consecutively is not eligible to apply for another within a period of five years.
The point to note here is that all these precautions have had to be taken not to protect the patient from Australian or Canadian medical specialists, but from Indian medical practitioners. Dr Padeniya explained that Sri Lankan doctors are not sent for specialist training to India due to the shortcomings in the applicable standards. The mere fact that the Indians had penetrated the most highly regulated profession in Sri Lanka with such consummate ease should be an eye opener to all members of the public. It is because of such Indian penetration that the public is even becoming aware of the loopholes in the laws regulating the professions!
Courtesy:Sunday Island