Kishali Pinto Jayawardene
Confounding its claim to an ancient and painfully established legal heritage of some note in South Asia, Sri Lanka is degenerating to a primordial nation-state, where the very meaning of ‘law’ is reduced to a farce.
Letters cannot restrict constitutional rights
Ad hoc statements of officials, from the Army Commander to the Director General of Health Services (DGHS) are fast replacing legal standards and even constitutional protections. Take the recent holding, quite correctly, by a magistrate’s court that a letter sent by the DGHS to the Inspector General of Police (IGP) cannot restrict the constitutional right to peaceful assembly of citizens. This was in response to the police using the letter by the DGHS to ask for a prohibition against activists protesting against salary injustices of teachers and principals.
Refusing, the court pointed to the constitutional right to assembly and association (Article 14 (1)(b) and (c)) which are limited only through legal restrictions. These have to ‘be prescribed by law’ in the interests of ‘public health,’ (Article 15 (7). Thus, ‘a letter by the DGHS’ does not amount to a legal restriction, the court reminded. In the wake of this ruling, the question that arises is simple. Did it really need the court to say this? Is this not a self obvious fact, evident to the police and indeed, to the DGHS who should have intervened far earlier?
In fact, the authenticity of the letter itself was disputed with no clear statement coming from the DGHS, apart from periodic stumblings and stutterings. This has unfortunately become typical from that once highly regarded office.
It was the Minister of Public Security Sarath Weerasekera who brandished this letter in front of television cameras to justify the police arrests of activists. We hope (perhaps in vain) that the court’s answer to this ministerial worthy would restrain him from similar embarassments in the future. But these comedies continue regardless even as covid-19 deaths exponentially rise.
Military press releases and the right of movement
On Friday, the Army Commander warned, (in a media release to boot), that a vaccination card will be made compulsory for citizens to enter ‘public places’ from September 15th 2021. Hard on the heels of the Army Commander’s media release, several exasperated queries came to me asking if citizens can be stopped in ‘public places’ by the Sri Lanka Army to check if they have the covid-19 vaccination card and if not, what consequences will follow?
Let it be said categorically that if a letter by the DGHS is not ‘law’ as per Article 15 (7) to restrict rights, the Army Commander cannot, by any stretch of the Pohuttuwa imagination, restrict the constitutional freedom of movement of Sri Lankan citizens, (Article 14(1)(h).
The very idea is laughable. In fact, the Army Commander should abstain from making such declarations ex facie contrary to law, claiming to himself a power that does not exist in the first instance. At any other time and place, constitutional rights being limited through press releases by the military would be unthinkable, meriting irrepressible laughter. But these are extraordinary times and the perturbation of many on this point is understandable. This is precisely what happens when legal authority is replaced by political command.
In sum, the law and the Constitution demands adherence to minimum legal norms from those in seats of authority, including military authority without exception. Restrictions on constitutional rights on the basis of ‘public health’ factors must be made by the responsible authority and that too, subject to the caveat that it is only enforceable by law. Proof of vaccinations being made compulsory in ‘public places’ can only be effected legally, not by vague references to ‘public places’ coupled with thinly veiled threats to cover up the Government’s spectacular failure in managing pandemic controls.
Consequences of arbitrary definitions
So would a person enjoying a casual jog on a bylane be said to be in a ‘public place’ and therefore need to have the vaccination card tucked away, in his shorts perchance? What next is in store? Under ‘press releases’ or even ‘regulations’as the case may be, will the Army now come into our houses and check if we are taking vitamin adequently to build up immunity against invasion of the virus? This is not an idle apprehension. These are theconsequences of arbitrary definitions and hasty declarations in the hands of the ignorant who know little law and less common sense.
Elsewhere, an increasing number of countries have enacted or are considering laws whereby special virus passes will be required for entry into restaurants, domestic travel and mandating vaccinations for all health workers. Law enforcement officers have to observe strict protocols to ensure that no abuse takes place.
In contrast, here, we have letters, press releases issued by state or military officers that are blithely used to harass the man or woman on the street while ignoring the politically powerful who violate all the laws with impunity.
This is a dangerous trend that must be stopped forthwith. In fact, the question as to whether even regulations under the Quarantine Ordinance can displace constitutional rights is a weighty matter that deserves the attention of the Supreme Court, given past precedents that indicate the contrary (Thavaneethan v Commissioner of Elections, 2003, 1 SriLR, 74). Is the Bar Association of Sri Lanka blind, deaf and dumb in the face of these matters?
At what point does the Bar feel that its intervention is called for in terms of moving the apex court?
Collateral damage then and now
And there are other parallels in play. The brutal realities of the end of the Wanni’s decades long conflict in 2009 were hidden from the South, partly because of Government propaganda and partly also because acceptance of the truth was too unpalatable for otherwise decent Sinhalese people. The fate of those collapsing under shellfire in the so-called No-Fire Zones, including mothers whose bodies were piled on top of their children, was shrugged away as collateral damage.
Now, that collateral damage is closer at home as covid-19 bodies pile up while numbers of the dead are manipulated with that same clinical barbarity.
To add a dash of grim humor to the whole, we have a known tom-tom beater allied to the Government alleging this week that statistics of the covid-dead are being changed by officials of the Ministry of Health, ‘at the bequest of the opposition.’ This claim was repeated some time ago by pro-Government officials of the Government Medical Officers Association (GMOA) as well. But the reality is far more inconvenient.
First, public health sector professionals were replaced with inefficient officials at the helm of the Ministry of Health. Obedient men bowing once, twice and thrice to the political, if not, the military command, were desired.
Second, vaccinations doses reserved for the elderly were distributed willy nilly to the politically connected. The majority of deaths now, which are of the elderly, should be directly laid at the Government’s door. Of what use is it that President Gotabhaya Rajapaksa directs, one and a half years into the pandemic, that special mechanisms be implemented to ‘protect’ the elderly and those who are otherwise vulnerable?
Meanwhile pleas of health professionals to impose tight restrictions across provincial boundaries and immediately cease public events were disregarded. To cap it all, the final lunacy was to order all Government servants to return to work in the wake of what was hailed as a successful vaccination process, only to almost immediately backtrack. No, this Government cannot blame the Opposition for its mistakes, even if the Opposition itself remains an unmitigated disaster.
It is this President and this Government alone that is responsible for avoidable deaths of Sri Lankans and for worse calamities that will inexorably follow. That is clear.