{"id":73999,"date":"2021-08-15T01:05:25","date_gmt":"2021-08-15T06:05:25","guid":{"rendered":"http:\/\/dbsjeyaraj.com\/dbsj\/?p=73999"},"modified":"2021-08-15T01:35:49","modified_gmt":"2021-08-15T06:35:49","slug":"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","status":"publish","type":"post","link":"https:\/\/dbsjeyaraj.com\/dbsj\/?p=73999","title":{"rendered":"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."},"content":{"rendered":"

By<\/p>\n

Kishali Pinto Jayawardene<\/strong><\/p>\n

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 \u2018law\u2019 is reduced to a farce.<\/p>\n

Letters cannot restrict constitutional rights<\/strong><\/p>\n

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\u2019s 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.<\/p>\n

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 \u2018be prescribed by law\u2019 in the interests of \u2018public health,\u2019 (Article 15 (7). Thus, \u2018a letter by the DGHS\u2019 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?<\/p>\n

<\/p>\n

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.<\/p>\n

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\u2019s 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.<\/p>\n


\nMilitary press releases and the right of movement<\/strong><\/p>\n

On Friday, the Army Commander warned, (in a media release to boot), that a vaccination card will be made compulsory for citizens to enter \u2018public places\u2019 from September 15th 2021. Hard on the heels of the Army Commander\u2019s media release, several exasperated queries came to me asking if citizens can be stopped in \u2018public places\u2019 by the Sri Lanka Army to check if they have the covid-19 vaccination card and if not, what consequences will follow? <\/p>\n

Let it be said categorically that if a letter by the DGHS is not \u2018law\u2019 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).<\/p>\n

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.<\/p>\n

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 \u2018public health\u2019 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 \u2018public places\u2019 can only be effected legally, not by vague references to \u2018public places\u2019 coupled with thinly veiled threats to cover up the Government\u2019s spectacular failure in managing pandemic controls.<\/p>\n

Consequences of arbitrary definitions<\/strong><\/p>\n

So would a person enjoying a casual jog on a bylane be said to be in a \u2018public place\u2019 and therefore need to have the vaccination card tucked away, in his shorts perchance? What next is in store? Under \u2018press releases\u2019 or even \u2018regulations\u2019as 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

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? <\/p>\n

At what point does the Bar feel that its intervention is called for in terms of moving the apex court?<\/p>\n

Collateral damage then and now<\/strong><\/p>\n

And there are other parallels in play. The brutal realities of the end of the Wanni\u2019s 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.<\/p>\n

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.<\/p>\n

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, \u2018at the bequest of the opposition.\u2019 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.<\/p>\n

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.<\/p>\n

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\u2019s 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 \u2018protect\u2019 the elderly and those who are otherwise vulnerable?<\/p>\n

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.<\/p>\n

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.<\/p>\n

Courtesy:Sundy Times<\/em><\/p>\n

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By 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 \u2018law\u2019 is reduced to a farce. Letters cannot restrict constitutional rights Ad hoc statements of officials, from the Army Commander to …<\/p>\n

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