FREEING A SOLDIER CONVICTED FOR MASSACRE DASHES HOPES FOR ACCOUNTABILITY IN SRI LANKA – EDITORIAL, THE HINDU.

30/03/2020

The grant of presidential pardon, on Thursday, to a Sri Lankan soldier on death row for murdering eight Tamil villagers has sparked justified outrage among those who have been demanding justice from the state for past crimes. Far from helping the cause of accountability for war-time atrocities, President Gotabaya Rajapaksa has gone the other way to nullify a rare instance of justice being ensured by Sri Lanka’s judicial system. Not many army men have been brought to book for attacks on civilians; but, in what came to be known as the ‘Mirusuvil massacre’, military police had immediately detained the soldiers involved, thus denying them impunity.

The victims included three boys aged five, 13 and 15. In December 2000, a group of internally displaced villagers had come to have a look at their war-ravaged homes at Mirusuvil in the Jaffna peninsula. They ran into some army men, who led them away blindfolded. Their bodies were later found in a sewer, with their throats slit. The only one who escaped later led the military police to the spot and turned a crucial witness. Five soldiers were indicted, and a special provision for having a trial before a bench of three high court judges was invoked. The plodding trial ended in 2015 with only one of them, Sunil Ratnayake, being found guilty. He was sentenced to death, but there is a moratorium on executions since 1976.

It hardly needs emphasis that the exercise of the power of pardon is an act of compassion, and not a tool for political or electoral messaging. However, President Gotabaya Rajapaksa has sent out a message to his vast body of supporters among the Sinhalese that he would not let ‘war heroes’ languish in prison, even if it means that the minority Tamils get a chilling message that substantive justice for war crimes will always elude them; and even when rendered, it could be undone with a stroke of the pen. There is also an electoral angle to the decision, as parliamentary polls were set for April 25, but have now been postponed in view of the global pandemic.

The process of granting pardon may have been going on in the run-up to the polls. Sri Lanka’s Constitution lays down a procedure that says the President must get a report from the trial judge, the Attorney General’s advice on that, and a recommendation from the Minister for Justice before he can pardon a convict. However, there appears to be no rule that such advice or recommendation is binding. Apart from some domestic voices from the Tamil leadership and individual politicians, the UN Human Rights High Commissioner and rights watchdog bodies have questioned the release of the soldier, rightly calling it an affront to the victims. The pardon, granted at a time when the country’s focus is on fighting COVID-19, is a serious setback to hopes that accountability could be brought about in Sri Lanka through domestic mechanisms.

Pardoning Sunil – A response

Image courtesy Newswire.lk

GROUNDVIEWS- 03/30/2020

Two significant incidents took place on 26 March 2020. Sri Lanka recorded 102 confirmed Covid-19 patients; and President Gotabaya Rajapaksa granted a presidential pardon to Sunil Rathnayake, former Army Staff Sergeant and convicted  murderer. The severity of the former perhaps strategically, provides cover to the significant implications of the latter.

While regional and global media have been vocal about the pardon, local media is largely silent.
Groundviews reached out to a few key individuals to record their responses to the Presidential pardon and the larger sociopolitical concerns it raises.

Asanga Welikala, Senior Researcher CPA and Director at Edinburgh Centre for Constitutional Law questions the legality of the decision:

The presidential pardon granted in this case raises two questions. The first is why it was any priority during a pandemic to grant this particular pardon, given the horrific facts of the case and that the prisoner’s conviction had been upheld by the Supreme Court after a full process of appeals. There is no appearance of the slightest miscarriage of justice in this case. Secondly, the Constitution lays down a specific procedure for the grant of pardons to those convicted of capital offences. This requires a report from the trial judge, the Attorney General’s advice, and a recommendation from the Minister of Justice, before the President is to exercise the power of pardon. This procedure, involving multiple decision-makers across the judiciary, the official bar, and the political executive, is there to ensure that the President’s exercise of this power is done with the greatest possible caution and careful consideration. It is there to ensure the integrity of the criminal justice system and to guard against abuse in the grant of pardons. As in previous cases (most recently, President Sirisena’s pardon for Ven. Gnanasara), there is little public evidence to show that this procedure has been followed in terms of the letter and the spirit of the Constitution. These are the two reasons why this pardon has proved controversial.

Bhavani Fonseka, Senior Researcher at the Center for Policy Alternatives links the legal concerns of the pardon with the recent lobbying by Civil Society Organizations in light of covid19:

Disappointed that the President pardoned Sunil Ratnayake who was convicted of a gruesome killing of several Tamil civilians in Jaffna. His conviction was affirmed by the Supreme Court in 2019, sending a clear sign that due process had taken its course and both the trial court and the highest court in Sri Lanka noted his guilty in the incident. This case was a rare moment when victims finally witnessed the delivering of justice within a system that faces many obstacles and delays. The President has in effect through his action confirmed that justice in Sri Lanka will remain elusive for many victims and entrenched the culture of impunity in Sri Lanka. 

Civil society has called for prison reforms, with the call receiving greater urgency in the context of COVID19. The President has at present appointed a committee to look into this matter. The timing of the present pardon raises questions as to whether despite a process in place and seeming interest to address practical issues in prisons, the President goes ahead with a pardon of a person who is a convicted criminal.

However, the timing of this pardon is not a coincidence, according to Thyagi Ruwanpathirana, Researcher with Amnesty International:

It’s ironic that while many concerned civil society actors were trying to engage with government and make suggestions on how to ease prison crowding to prevent the spread of COVID19 within prisons by releasing amongst others, those who can’t afford bail, those in for minor offences, the terminally ill and the old, a convicted murderer of 8 Tamil civilians, was pardoned and walked free. The rest are still behind bars.
That the government chose this time of crisis to release Sgt. Sunil Rathnayaka is no coincidence. The pardon was rumoured for months, ever since President Gotabaya took office since it was one of his campaign promises. To leverage some of the good-will directed at the Army around COVID19 towards releasing a convicted soldier – is deliberate. That the release wasn’t followed by the usual media alerts – is deliberate. That concerned citizens cant protest in the streets or challenge the pardon in courts right now amid a curfew – is deliberate. That the spin-doctors, including the State media, are already suggesting that the prosecution was part of a witch-hunt against ‘war heroes’ during the previous government, is also deliberate. We’ve seen some of these same tactics used around Prageeth Eknaligoda’s enforced disappearance.
Meanwhile, fact remains that 8 people including 3 children, one aged 5, were brutally murdered and no justice commensurates the crime. If there are no credible or reliable remedies for such heinous crimes locally, where Executive Presidents use their powers arbitrarily despite court decisions upheld by the highest court in the country, are we surprised that there is a lobby for international justice?

While Thyagi Ruwanpathirana raises a question that we must all answer, Ruki Fernando warns of a future where this distrust and disconnect between the public and the governing figures would grow:

Crimes by the military are many in Sri Lanka – almost as if the military uniform is a license to rape, kill, abduct citizens. Accountability for crimes by the military is rare – the killing and rape of Premawathi Manamperi in 1971 in Katharagama, the abduction of students in Embilipitiya in 1980-1990, and the massacre of 8 civilians including children in Mirusuvil (Jaffna district) in 2000 are some of the rare examples where soldiers were punished by courts after lengthy trials. The pardoning of the soldier convicted for the latter is a slap in the face of eyewitnesses, investigators, prosecutors, judges and the victims’ families.
Right now, there are trials and habeas corpus cases where accused and respondents are Army and Navy men. This pardoning sends a negative signal to other victims’ families and survivors pursuing cases where the accused are Army and Navy, as well as witnesses, investigators, prosecutors and judges involved.
It is even more terrible that this pardon comes as the whole country (and the world) is battling the deadly coronavirus. Now we in Sri Lanka also have to contend with a cold-blooded, dangerous murderer roaming free.

The vulnerability of prisoners, many of whom are imprisoned due to minor charges or because of their inability pay bail, has been repeatedly highlighted by Civil Society Organizations in the recent weeks (refer to this letter to the President and other authorities and this article on protecting prisoners from the coronavirus). In the midst of this, the release of a convicted murderer, one whose release is closely linked with the ascension to power of Gotabaya Rajapaksa (detailed references made in this article by Ambika Satkunanathan), only tarnishes the reputation the current government has built with the proactive tackling of a global pandemic. Considering that “Free Sunil” Facebook page has proven to a fertile ground for hate speech, especially racially-motivated hate speech, this move foreshadows darker times.

While the supporters of Sunil Ratnayake cheer his homecoming, and speak of the daughter finally being able to have a father, Maatram Editor Selvaraja Rajasegar words the situation perfectly: “Came home after killing a child of daughter’s age”.

Selvaraja Rajasegar@SRajasegar

 

 

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THE PARDONING SERGEANT SUNIL RATNAYAKE IS A STEP TOWARDS CONSOLIDATING AN ELECTED MILITARY DICTATORSHIP IN SRI LANKA. – ACPR

30/03/2020

Condemning the pardoning former army Sergeant Sunil Rathnayake by president Rajapaksa, the Adayaalam Centre for Policy Research says that   “the pardon of Ratnayake in the context of  highly militarised environment combined with the unconditional respect and admiration that the military enjoys from the majority Sinhala Buddhist community in Sri Lanka is simply President Rajapaksa consolidating an elected military dictatorship in Sri Lanka.”

The statement follows:

The Adayaalam Centre for Policy Research condemns the decision of Sri Lankan President Gotabaya Rajapaksa to grant a presidential pardon to Staff Sergeant Sunil Ratnayake. Ratnayake was convicted for killing eight unarmed Tamil civilians including three children on the 19th of December 2000 in Mirusuvil, Jaffna. As described by the Supreme Court when they confirmed his conviction in 2019, he and others killed these individuals by slitting their throats. The conviction of Ratnayake was a rare exception to the rule of impunity for crimes committed by State forces in Sri Lanka and his pardon is a reminder that even those rare exceptions are not permitted by the ethnocratic state. The route to justice must be an international process.

At the time of the massacre, Ratnayake was a member of the reconnaissance unit attached to the Gajaba regiment of the Sri Lankan Armed Forces. Both President Gotabaya Rajapaksa and the Defence Secretary Kamal Gunaratne were initial members of the Gajaba regiment. Reconnaissance units of the Sri Lankan Army were well known for their atrocities and the Mirusuvil massacre was a textbook example.

The prosecution of Sunil Ratnayake managed to miraculously wade through the many pitfalls of the system of administration of justice in Sri Lanka including: a) the political unwillingness of successive Governments of Sri Lanka to prosecute soldiers for crimes committed against the Tamil people; b) the lack of independence of the Attorney General’s Department; and c) the lack of willingness to investigate crimes against Tamil civilians by the police. Many other cases failed because of the combination of these factors including the Kumarapuram massacre, the Visvamadu gang rape case, the Trinco Five massacre and many others where there was no prosecution even. Mirusuvil was a rare exception to this series of acquittals and even then Ratnayake’s trial took 13 years to conclude. Ratnayake’s conviction was due in large part to the clear and credible testimony of an eyewitness to the massacre who spontaneously identified the guilty soldiers shortly after the crime. The conviction was unanimously upheld by the Supreme Court in April 2019 and was a long overdue moment of justice for the four families of those killed in the massacre. It is this rare exception that President Gotabaya Rajapaksa has chosen to erase through this pardon.

The power to pardon as used in Sri Lanka is just another way the State arbitrarily discriminates against Tamils. President Rajapaksa reportedly has relied on Article 34(1) of the Constitution to issue the pardon but has failed to produce the necessary reports and advice from relevant ministries required by the provision. Instead, Rajapaksa continues a long line of arbitrary and politicized presidential pardons that reinforce the selective application of the rule of law depending on one’s ethnic identity in Sri Lanka. Sri Lankan Presidents have time and again refused pleas for clemency from families of Tamil convicts under the Prevention of Terrorism Act including most recently President Sirisena’s refusal to consider Satchithanandan Anathasuthakaran’s plea for clemency after his wife passed away and his daughter pleaded for her father, who had been paroled to attend the funeral, to be released.

Ratnayake’s pardon comes at a time when the world is overwhelmed by the COVID-19 pandemic. This is no coincidence. The Sri Lankan Government has disproportionately militarised its response to the crisis and it is no wonder they would engage in other actions to be seen to be protecting the military in parallel. The COVID-19 Task Force, which should be lead by public health experts, is instead headed by the country’s Army Commander Shavendara Silva, a credibly accused war criminal who is named in UN reports and is banned from entry to the United States. Almost all other countries have entrusted leadership of their response to public health professionals, who as the situation escalates may deploy military as necessary, but not be lead by them. But in Sri Lanka, there are new reports every day as this pandemic continues of ex-military personnel being appointed to important positions in the response against the virus. The pardon of Ratnayake in the context of this highly militarised environment combined with the unconditional respect and admiration that the military enjoys from the majority Sinhala Buddhist community in Sri Lanka is simply President Rajapaksa consolidating an elected military dictatorship in Sri Lanka.

For over a decade, Tamil victims of the Sri Lankan state’s crimes during and after the armed conflict have had their calls for justice fall on deaf ears, and endured the pain of seeing the perpetrators of atrocities valorised and promoted by the Sri Lankan government. Throughout this time, the Tamil community has repeatedly pointed to the deep and structural unwillingness within the Sri Lankan state to fairly and credibly prosecute atrocity crimes committed by the military. Over the last year alone, an accused war criminal has been made commander of the Army, the government has withdrawn from the co-sponsorship of the UN Human Rights Council Resolution 30/1 process, and now the President has pardoned one of the only soldiers ever convicted for crimes against Tamils. We urge the international community to at least now set in motion the process for international criminal justice – victims have waited long enough.

Economic Stimulus: Chicago Plan – A Mechanism To Create Debt Free Money!

By Hema Senanayake –MARCH 31, 2020

Hema Senanayake

Irving Fisher was a great American Economist. His debt deflation theory in depressions published in early 1930s, is well known to economists. The Great Depression of 1929-33 unfolded before his eyes. He studied the depression carefully and subsequently, together with many leading economists of his time came up with a plan to reform the monetary system to prevent such crises. This proposal is known as “Chicago Plan.” It is a plan to retire government debt rather quickly and to enable the government to function without being indebted. It might need some adjustments, but it is a great plan that the world can use to face this continuing pandemic.     

The United States must lead the world (some may disagree) and the U.S. can do it. The U.S.  has led the world preventing from plunging into an economic chaos after the World War װ. Even before the end of the World War II, visionary leaders of the U.S. invited legislators and economists of allied nations to the city of Bretton Wood to discuss as to how the economies can be rebuilt in view of the devastating impact of the war. The plan they have agreed upon, made a very fundamental infrastructural adjustment to the existed international payment mechanism and that helped immensely for the quick recovery of economies worldwide after the end of the war. 

Covid-19 pandemic would have done much more disaster to the economies around the world than had done by the World War II. Economies, including developed countries’, were fragile even before the pandemic hit the world. Before the pandemic began, the total global debt (public and private) amounted to $188 trillion and global debt-to-GDP ratio was 226% at the end of the year 2018. It was for this enormously indebted world, pandemic hit hard in late 2019. The economic fallout would not be able to resolve through a debt-based money creation process suggested by G20 leaders. Instead, as has been done at the end of the World War II, the US must now step in to make an adjustment to the monetary infrastructure in all countries enabling them to increase their due responses to the pandemic and resultant economic fallout. This letter is to explain the principle of such an adjustment. 

Two trillion stimulus package must not be barely enough even for the United States and the $5 trillion global fund agreed upon by G20 leaders would not help enough as both stimulus packages linked to debt-based money creation, and the world is already in heavy debt as mentioned above.  Many countries in the world use US dollar as their reserve currency. The U.S. must be willing to save those countries and the economies. That is how the U.S. can become the greatest nation on earth. 

The IMF cannot simply do it even though its mandated task is to support countries which are facing balance of payment crises. The US is the only country that can help even to IMF in this current crisis. Such global support while taking care of the domestic issues could be enormous challenge for the United States. But the U.S. can meet this challenge carefully. How? This letter shall provide some answers to this question too. 

The US is a country that has produced many farsighted thinkers almost in every area of intellectual investigation. During this global public health crisis president Trump invoked two important pieces of legislative Acts, namely, Stanford Act and Defense Production Act. Those Acts are found to be useful in the fight with this unseen enemy, the virus, COVID-19. 

Previous generations of legislative thinkers enacted those Acts with great foresight. We are using them now. Similarly, some legislative thinkers of our generation together with a few economists thought about a plan to change the way we face to severe economic recessions or depressions. 

The basic principle of that plan is to free the government from being indebted in facing an economic crisis. The effect of such a legislative Act would have been that the government would have found two trillion dollars for the current stimulus package without being further indebted.

Now imagine, that the same Act, if had enacted, would have been used to find the money needed to save the rest of the countries, then the U.S. President, the Congress and Senate would not have hesitated to provide 10 trillion U.S. dollar stimulus package which amounts to 50% of GDP.

Even though the U.S. Congress did not enact a legislative Act to facilitate the US government to design unprecedented stimulus package if needed to face a deep crisis like the current one, the basic proposition was presented by congressman Dennis Kucinich at a Congress hearing on July 26 2011 (Canon 402).   

That submission was good, but he went a little more than what was required. That could have been the reason for not getting the necessary support for it, in the congress.  

If his proposition had been designed for an Act which could be used temporarily to get over a massive crisis, similar to the Defense Production Act, I have no doubt that Kucinich’s Positive Money Act would have had enacted a long time before. 

Had it been done the U.S. Congress and the Senate would not have delayed so much to approve the true trillion stimulus package. Further, the US government would have approved a few more trillion stimulus package to support other countries battered by this coronavirus possibly including the European Union. Now, what is this Positive Money Act?

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Democracy in crisis: avoiding dictatorship

Sri Lanka Parliament

The President on March 2, 2020 by Gazette Extraordinary No. 2165/8 legitimately dissolved Parliament from midnight and fixed April 25, 2020 as the date for the General Election.

While the proclamation was legal, it was poorly thought out because it was made well after the  COVID-19  outbreak had begun. Passengers at many international airports like Kuwait were being tested for fever before letting them enter, but our government seemed hell-bent on holding elections.

31 March 2020 

Our Senior Regional Management Staff met the Commission at our Secretariat on March 11 and told us that April 25 was just too soon. There was insufficient slack time to recover from problems. They said that while our staff would come, other government staff cannot be prevented from taking leave during the local New Year and Vesak.  They pleaded with us to advise the government to move the election date back. But Chairman Deshapriya, who has many conversations with the government in the absence of the other two members, was adamant.

On March 16 our Senior Staff returned. Many people whose services are usually commandeered by us for election work had not turned up on Monday (March 16)  after the government declared it a holiday because of COVID-19. They pleaded with us to tell the government to move the dates back. Commission Member Nalin Abeysekere and I agreed, but Member/Chairman Mahinda Deshapriya refused. He argued that if we postponed elections the people would panic just as they had panicked when that day, Monday, had been declared a holiday for COVID-19.

After much argument on March 16, it was agreed that April 25 for the poll was impossible, but that the Commission had no power to postpone nominations. Only the President could do that by cancelling his own gazette announcement, but Mr. Deshapriya was insisting that April 25 is possible. It seemed that he was afraid to disagree with the President.
Here is the strategy that was finally agreed upon. It was decided to accept nominations as announced, and then gazette the names of candidates and polling booths as required in Section 24(1) of the Parliamentary Elections Act of 1981.

At this point the EC gets it within its power to postpone polling under Section 24(3) of the said Act which provides for postponement of polls “due to any emergency or unforeseen circumstances” in any district, but can be used to postpone polling in all districts. The new poll date has to be “not earlier than the fourteenth day” after the postponement order. To do this postponement, nominations have to close for us to know who the candidates are to be able to publish the gazette under Section 24(1).

General consensus was reached on the above strategy and the chairman said this is not to be announced because it would panic the country on the COVID-19 matter.
We were urged not to talk about it because of such panic, but I said I would not be comfortable being untruthful to the public. 

Problems

If we had listened to the advice of senior staff like Namal Talangama we will not be in this position. What are the problems?

1) Article  70 (5) (a) states:

“A Proclamation dissolving Parliament shall fix a date or dates for the election of Members of Parliament, and shall summon the new Parliament to meet on a date not later than three months after the date of such Proclamation.”

That is, parliament must meet by 2 June. For this, elections must occur by late May for results to be declared and newly elected members to attend parliament. 

Speculation

In the meantime, there is speculation that is panicking candidates. One is that an All-party meeting convened by Basil Rajapaksa had decided that the election be put off till November. But that is the Commission’s decision.

Reporters alleged that the Commission had decided on this. As I had been in lockdown in Jaffna, I denied it after verifying with the Commission. A candidate who is a university lecturer who had taken no-pay leave so as not to violate laws on using government property, was panic-stricken by this November date saying it is not possible to go without pay for so long. I asked that person to write to the Commission if the leave might be put off until the actual poll date is known.

Books are right – but not reality

We have officials who will record election complaints, others who will look at them and say the complaint is investigated and dismissed (when it involves a high profile person like an MP or Prime Minister) or referred to the police. 

The police after some months will refer it to the Attorney General who, after some more months, will hope no one will ask. I have a case from Jan. 2018 where the judge without any basis in law sent me for Arbitration as if its involves something personal. When I refused arbitration, the police suppressed the evidence and wrote down inapplicable charges. At that point, the file was referred to the Attorney General who has sat on it for almost a year. The judge says the next date will be set only after he hears from the AG. The Commission will change in November and the matter will die as expected without witnesses. 

Yet, complaints are deemed to have been processed according to law!

Cheating: Books in Order

Like the Attorney General, we have all learnt that making books in order is enough of an excuse for anything. To experienced SLAS officers and other administrators, cheating is not a problem they cannot handle through seemly papers. After the March 2 Gazette, there was need to punish a high-up government official high-up. In this case, K. Theivendram was to be moved out of Jaffna on 6 March in punishment for several frauds according to Chief Secretary A. Pathinathan,  but really as political victimization according to Theivendram and his wife who also is a high-up in the Provincial government. 

When Theivendram was transferred out, Mrs. Theivendram came to the Commission on 10 March or so  alleging violation of election laws. With me and a Deputy Commissioner present, Mrs. Theivendram telephoned Ms. S. R. Wijeludchumi (Secretary, State Ministry of Community Relations), to find out the status of her husband’s transfer. We two in the room could overhear both sides of the conversation. Ms. Wijeludchumi quite shamelessly said that the Chief Secretary Pathinathan had asked her to predate the letter to before 2 March 2020 and she had just had the letter typed up and would sign and give it to him.

This kind of cheating is quite normal in government service – predating, adding things to minutes after a meeting, etc. As my Deputy Commissioner remarked, once done and filed with a pre-dated stamp, no one can challenge it. Our administrators ensure that everything is seemly and in order. The law has no place.

Cheating under UNP

Both the major political parties cheat at elections – treating and bribery it is called in our laws. I have referred to concrete instances with names in previous articles and do not need to repeat them. Although the law says government property cannot be used or appointments be made after the date of nominations, both the ruling parties in their time have begun appointment processes a few days before the announcement of elections. 

Cheating under SLPP

This time the background is the transfer of all Northern GAs including some Addl. GAs. The eminent Jaffna GA N. Vethanayagan with some 3 months for retirement was also transferred. He would have been the Returning Officer for Jaffna. Vethanayagan sent in his retirement papers in protest.

There had been a District Secretary in Kopay who had corruption allegations against him and was transferred as DS Puthukudiyiruppu. From there he was sent as Addl GA Mullaithivu. During the recent large-scale transfers just before the elections, an SLPP MP got him transferred as Additional GA Jaffna. He is now in charge of Jaffna’s Election Dispute Resolution Centre. (EDRC) 

My point about seemliness covering up corruption is proved by the story of Krishna. During the last LG Elections he was No. 2 in the Jaffna EDRC of 3 persons under the then Additional GA. He had unearthed electoral violations at a Petrol Shed in Chunnakam owned by Angajan Ramanathan, MP. Nothing happened to the MP. So he got warnings, I was told. Krishna also issued a report on the petrol shed incident which made him persona no grata in SLPP circles.

With the new dispensation for the General Elections and the Commission wanting to see no evil, Krishna was removed from the Jaffna EDRC. So even Commission appointments are tainted. Vethanayagan is not there to instill order.

The Corona excuse

This time around, 2 March the day of the Gazette, the SLPP tried to appoint some 45,000 graduates. They were to assist Grama Sevakas. The UNP objected, just as the SLPP had objected to the UNP doing the same in 2019. The SLPP argued that the process had begun before 2 March, but interviews are on-going with certificated being checked  The argument at the EC, that they had been recruited, does not therefore hold water.

We said no because most of them reported after 2 March.

Being in lockdown, I was not given all the details. But I now know, after speaking to Mr. Deshapriya, that the government announced it would pay them even if we did not allow the appointment. 

The government, again according to Mr. Deshapriya, then changed its story, and said these recruits will be attached to MOH offices to fight COVID-19. The Chairman thinks if we stop it, the public will turn against the Commission saying we do not want to stop COVID-19. 

In any case will these people come to work after joining government service? In Jaffna on March 29 only the GA or Additional GA was there, and our Deputy Commissioner had to take others from outside to type his letters and curfew permit that were requested. Indeed, we have thousands of public servants paid and at home. If the government cannot mobilize them, how does it propose to mobilize as many as 45,000 graduates?  

Enough Foolishness!

The country is functioning with Votes on Account without a Parliament. The army is out doing the work of a police. The hallmarks of military government are fast emerging.
We have made a mistake in dismissing Parliament on 2 March despite all the signs and warnings. There is no need to compound it by making our already corrupt government (in general not specifically the governing party) more corrupt. One solution offered is to summon Parliament under Article 70(7) of our Constitution for when there is an emergency as now. But that summoned Parliament shall stand dissolved “upon the termination of the emergency or the conclusion of the General Election.” What happens if COVID-19 abates but is still on in mild form like the flus we live with? Who is to judge? Would that be an excuse for a dictatorship?

Alternatively, Article 18 of the Interpretation Ordinance says that “any proclamation or order or notification issued or made at any time may be at any time amended, varied, rescinded or revoked by the same authority in the same manner”.

The Gazette of 2 March was issued by President Gotabaya Rajapaksa. Let him simply revoke it. Then we can have Parliamentary elections when Parliament finishes its term in Aug. 2020. Hopefully by then, COVID-19 will be history.  

This article is not for or against any political party, and is written as part of the author’s work as a Member of the Election Commission and in the best interests of Sri Lanka where our limited understanding of impartiality is being used to stifle any informed discussion.

Presidents cannot authorize Votes-on-Accounts; Only Parliament can approve a Vote-on-Account -Mangala on the pre-election budgetary position report 2020

(Lanka-e-News -30.March.2020, 845PM) Following statements by Members of Parliament and civil society activists, the Secretary to the Treasury published the Pre-Election Budgetary Position Report last Monday. Publication of this report prior to elections is a requirement under the Fiscal Management (Responsibility) Act of 2003.

While welcoming the Report’s publication, it is our duty to draw the Government and public’s attention to the worrying contents of this report, relating to the health of both our economy and democracy.

Unconstitutional ‘Vote-on-Account’

"Parliament shall have the full control over public finance." This is the opening line of our Constitution’s chapter on finance. Until April 30, a Vote-on-Account passed by Parliament - setting-out Government revenue, expenditure and the borrowing limit – is the legal framework within which public finance must operate.

However, the Pre-Election Budgetary Position Report refers to a so-called ‘Vote-on-Account’ authorized by the President for the period March, April and May. This raises the paradox of a Vote-on-Account without a vote. Presidents cannot authorize Votes-on-Accounts. Only Parliament can approve a Vote-on-Account. This Presidential action is prima facie inconsistent with the Constitution and usurps the Parliament sanctioned Vote-on-Account.

Even more worryingly, this does not appear to be an oversight. The Pre-Election Budgetary Position Report explicitly refers to Section 150(3) of the Constitution as authority for this irregular move. This is disingenuous. Section 150(3) reads as follows.

“Where the President dissolves Parliament before the Appropriation Bill for the financial year has passed into law, he may, unless Parliament shall have already made provision, authorize the issue from the Consolidated Fund and the expenditure of such sums as he may consider necessary for the public services until the expiry of a period of three months from the date on which the new Parliament is summoned to meet.”

As is evident above, the provision places two important limitations on the president’s ability to draw from the Consolidated Fund after an election is announced. First, it states that the President can draw from the Consolidated Fund, “unless Parliament shall have already made provision.” Through the Vote-on-Account ending 30 April, Parliament has made such provision. Therefore, the President cannot authorize any funds from the Consolidated Fund till then. Second, after April 30, any funds authorized from the Consolidated Fund can only be those “necessary for the public services.” In laymen’s terms, this means government salaries and continuance of essential government services.

 This becomes evident when 150(3) is read in conjunction with 150(4), which provides specific authorization for the President to draw funds for a purpose other than paying government salaries viz the conduct of an election.

In January and February this year, the Government only spent Rs. 36 billion in capital expenditure. However, for March to May, it now intends to spend Rs. 150 billion in capital expenditure. This could hardly be funds “necessary for the public services.”

This measures constitute a usurping of Parliament’s constitutional role by the executive. Such a weighty violation of the separation of powers is a grave threat to democracy, the rule-of-law and the check-and-balances essential for accountable use of public funds. This unfortunate situation could be easily have been avoided by passing a Budget prior to the announcement of polls or by summoning Parliament to pass another Vote-on-Account.

Cash Crunch 

As noted above, Parliament approved a Vote-on-Account until 30 April. The Vote-on-Account specifies a borrowing limit for the Government. As a result of the Government’s tax-cuts and the decline in economic activity, revenue will fall drastically. In this situation, Government borrowing must increase or a cash crunch will occur. In fact, the borrowing limit must be raised even to print money through the purchase of Treasury securities. Already, the Government has purchased Rs. 100 billion in Treasury securities over the last fortnight – a major cause for the depreciation of the rupee.  The borrowing limit cannot be raised without convening Parliament. It is impossible to manage the economic fall-out of the tax-cuts and pandemic by executive action alone.

Inaccurate Estimates & Irresponsible Stewardship 

The Report estimates a budget deficit equal to 7.5 percent of GDP. This is a very substantial increase compared to budget deficits of 5.5 percent, 5.3 percent and 6.5 percent for 2017, 2018 and 2019 respectively. Notably, the Report does not project a primary surplus (where government revenue exceeds government expenditure, allowing for interest payments). The primary balance registered a surplus in 2017 and 2018. Sri Lanka was also on track to achieve a primary surplus in 2019, until the November Presidential Elections led to a change in policy.

A core challenge facing Sri Lanka has been a very low tax-to-GDP ratio. This is a very serious problem as it results in lower disaster relief, public investment, ability to service debt, macroeconomic stability and redistribution. Even though there has been widespread awareness and very serious measures to rectify this problem in the past years the Pre-Election Budgetary Position report envisions a reversal of the progress that has been made. It states that “government revenue is expected to be around 10.6 per cent of GDP in 2020 in comparison to 12.2 per cent in 2019.”

Even these estimates reflect a considerable degree of over-confidence. They are explicitly based on the assumption of a 4 percent growth rate for 2020. The IMF projected a growth rate of 3.7 percent on 7 February, well before the Coronavirus pandemic. In January, the World Bank projected a 3.3 percent growth rate and while the Asian Development Bank’s estimate is 3.5 percent.

Over-confidence is also evident in the estimate of a 7.5 percent of GDP budget deficit. Although the report discusses the impact of the Coronavirus epidemic, the 7.5 percent budget deficit estimate does not appear to factor in its impact. As the pandemic will undoubtedly have sizable impacts on revenue and expenditure, the budget deficit will certainly be larger. In Sri Lanka’s current context – a very high debt level, a global recession and market uncertainty - this is irresponsible. It places Sri Lanka at a very precarious position at a highly uncertain time of crisis.

Moreover, the Report’s revenue estimates assume “the revival of both domestic and external demand and improvements in the investor confidence”. This stands at odds with earlier sections of the Pre-Election Budgetary Position Report. It also contradicts the Central Bank’s last Monetary Policy Review which forecasts a downturn as a result of the Coronavirus pandemic.

“The likely slowdown of the global economy and disruptions to the supply chain could affect Sri Lanka’s merchandise and service exports as well as related logistics. The slowdown in global tourist movements will affect Sri Lanka’s tourism sector, in addition to the direct impact of lower arrivals from China.”

The Fiscal Management (Responsibility) Act also specifies that the Statement of Risks include quantification. However, no quantification of risks has been offered. This leaves the Government and public without the tools necessary to plan in this highly uncertain time.

Debt

Sri Lanka had its highest ever debt payment in 2019. Despite the constitutional crisis and Easter Sunday bombings, Sri Lanka was able to settle this payment and maintain market confidence. In June 2019, just after the bombings, Sri Lanka was able to borrow at 7.5 percent from international markets. As a result of this Government’s irresponsible tax-cuts – leading to begging bowl requests for debt forgiveness which forever undermine Sri Lanka’s hitherto unblemished track record of meeting debt repayments - interest rates on government debt now exceeded 18 percent in March. Even though this year’s repayments are 20 percent lower than 2019.

Lack of Transparency

The Report also failed to incorporate critical information necessary for assessing the state of Government borrowing. For example, the Report says, “the Foreign Currency Term Financing Facility 2018 with China Development Bank (CDB) has been upsized at more favourable terms to USD 1,000 million.” However, it does not disclose the interest rate for these loans.  Another example is the failure to disclose the breakdown of revenue estimates for January and February 2020.

Way Forward

The Government has still not provided the Committee on Public Finance with detailed estimates of its tax-cuts revenue effects. It has presented a report on the economy that sets us on a path to crisis and is replete with inaccurate estimates. Parliament must have the opportunity to scrutinize and debate this Report. Parliament must also be able to convene to legislate in order to provide the country with the relief it needs at this precarious time.
30.03.2020

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by     (2020-03-30 15:24:24)

Our Role In Nature: Place, People & Performance

By Saumya Liyanage –MARCH 31, 2020

Prof. Saumya Liyanage

Note: This paper was first presented as a keynote speech at the 7th International Conference on Cities, Places and People organized by the Faculty of Architecture, University of Moratuwa in Nov 14-16, 2019. With the current coronavirus outbreak and the natural catastrophe that humans are facing, I thought that this paper should be edited and shared with my readership. This paper discusses our place, performance and our innate engagement with the natural environment and also questions the ways that we inhabit the world.

Introduction

In this talk, I will be addressing one of the most fundamental questions related to ourselves and our environment: What is the primal existence of our body and how do we relate to and perceive our environment? As people living in this world of technological and industrial development, the culture is considered superior than the nature. Further, we tend to think that we are alienated from our environment and are not an integral part of it. This can be seen as an anti-modernist perspective towards human progress. However, because of the rapid industrial development happening around us and technology invading our daily lives and living styles, we believe our freedom as human beings and our natural relationship with our environment has been threatened. Further because we believe that we are ‘thinking beings’ and subjectivities in this world, we have not been able to understand that there are other non-humans, especially other animals and species that are also sharing this world with us. Further we are in a conundrum as we still don’t know that these species are also subjectivities other than humans and how these animal minds are operating. With these existential complexities, we think that human beings are higher-order thinking creatures, and we are here to control our environment.

For many centuries, we have been dealing with our environments, building roads, constructing skyscrapers, intervening in diverse ways to change our environment in order for us to live a better life. Even today we gather here because we are alarmed that we have been vigorously working and changing our environments in order for us to have a livable and workable place. We gather here today to develop a dialogue and debate about how we sustainably build our structures around us while maintaining the natural balance of our environment. We tend to think towards this line because over the past few years, nature has taught us lessons, and we all have a feeling that nature has started working against human beings. Global warming has been a much-debated discourse and glaciers in the North Pole and elsewhere are beginning to melt more than ever before. Tsunamis, floods and natural catastrophes are becoming daily phenomena in our lives. Famine and drought have tormented millions of people in the world while bush fires in Australia and California are becoming a common phenomenon each year.

Involvement

Phenomenological environmentalists show us how humans interact with and exist in this world. According to them, there are two ways that human beings exist. One way of our engagement with the world could be termed as ‘involvement’. The term ‘involvement’ encapsulates our dealing with the outer environment. We involve ourselves in various activities in the world and it is one of the ways that we are being-in-the-world. Secondly, we ‘inhere’ in the world which means that we are built with worldly phenomena, or we are made out of the same stuff of our environment (James 2005, p. 21). Heidegger argues that humans are unreflectively and practically involved with the world. The world in return opens its opportunities for us to deal with. This coupling and encroachment between our bodies and the environment is taking place mostly without our conscious interference. The most exciting factor of this argument is that we are already and pre-reflectively engaged with the world and it is not our rational mind that is primal to our understanding of the world. Heidegger coins the term ‘ready-to-hand’ (zuhanden) to denote that the world discloses its opportunities through which humans engage with it. For instance, when I see a pen, the pen discloses its functionality and usability by inviting me to use it in a way that I can write on a paper. This opens up various meanings for me to use the pen and this usability further widens a nexus of meaningful relations with other objects around me. For instance, when I use my pen to write, it is involved with other things such as papers, my desk, chair and the ink bottle which connect with the act of writing.

Disjuncture

However, there are instances that we are confronted with fractures and discontinuations in our involvement with the world. If I take the same example of writing with a pen, I may experience a breakdown of my writing process due to lack of ink in my pen or blotting of the paper. Here I experience a disjuncture between my smooth flow of writing. As we always experience, our practical engagements with our environments are not fluid and smoothly flowing. There are disruptions and discontinuations that occur. Heidegger identifies this disjuncture between our bodies and their smooth function in our environment as ‘present-at-hand’ (vorhanden). This is what we experience in many disastrous environmental catastrophes that we encounter in our daily lives. From a small disrupt of an incompatibility of our bodies and environment to a larger scale of natural disasters we experience this ‘present-at-hand’ on a daily basis. From the mega floods of Chennai, the Tōhoku earthquake and tsunamis in Japan and to Amazon rainforest fires, human beings have experienced tragic devastation in the last few decades. With all these philosophical concepts and ideas, what I have tried to share with you is that our understanding about human existence, its being-in-the-world and our relationship with our environment is becoming more complex and challenging than ever before. As a theatre scholar, what I am going to argue here is how we could revisit and rethink our involvement with the world and lessons that we can share with others as to how our consumeristic thinking pattern could be changed and altered.

Bodily Consciousness

The classical problem pertaining to our understanding of the human body is that it is partly understood as an object (Körper) which is the fleshy part of the body consisted of skin, flesh and organs. The other part is the ‘conscious part’ which is the psyche of the human body. This dichotomous error has been in Western thought over many centuries. French philosopher Maurice Merleau-Ponty challenged the ideas of human existence as a split, and he suggested a new way of looking at how the human body works as a consciousness. His idea of the body-subject thus encapsulates and encompasses the centuries-old dichotomous understanding of the human as body and mind and Merleau-Ponty’s phenomenological writing shows the power and capacity of human body and how it works as a consciousness: ‘I am not having a body, but I am the body,’ he argued. Here another concept is vital for us to understand our relationship with the world. This concept is called the ‘intentional arc’. The intentional arc explains how we connect with the world not through our ‘conscious minds’ but through our own bodies or bodily intentionality. The body and the world as Merleau-Ponty argues are interwoven and encroached as the same flesh. When the body exists in a particular spatial and temporal terrain, it is already anchored in that particular space and time without rationally engaging with it. But our erroneous understating is that we believe that we engage and act in this world through our conscious minds. The human’s engagement with the outer world is clearly articulated and demonstrated in theatre and dance scholarship. The next section explains such engagement and shows the reader how the human performance engages with the environment and how the body attuned to the natural world in pre-reflective ways.

Bodily Engagement

The performer always engages with her environment and this engagement or encroachment is occurred through pre-rational ways of being-with-other. In this sense, the performer pre-reflectively engages with particular spatial and temporal terrains and this engagement is mutually intertwined and engrained. Dance scholar Victoria has developed a performance in an abandoned basement in a suburb with a group of dancers and argues that there are pre-reflective ways of human bodily engagement and interaction that enable the dancer to perceive, understand and create the dance enactment (Hunter 2005). When the performer enters into a particular space, she engages with the site in two ways: one is that she perceives the architectural qualities of the site and secondly she perceives the spatial qualities of the site. Any theatre space is filled with something called ‘atmospheric space’. This atmospheric space is created through the ways that performers use the space. German philosopher Gernot Böhme argues that ‘atmospheric spatiality’ is something that is intangible and cannot be seen but people can feel it when they get into a particular space (Fischer-Lichte 2014, p. 24).

In line with this, there are four different ways that a performer engages with her performance site: 1. Experiencing the site, 2. Expressing the site, 3. Embodying the site, and finally receiving the site (Hunter 2005, p. 372). Performance spaces are pre-existing architectural sites. We distinguish these architectural spaces from the performative spatial structure once a particular performance is integrated with those spatial terrains. If we take the first mode of actors’ existence in a particular performance, ‘experiencing the site’ is culminated through bodily engagement with the site. This can be articulated as ‘body-in-space’ (Hunter, 2005, 372). The actor or a dancer can ‘be’ in the space, exploring and experiencing the space through series of bodily movements. These movements can be ranged from just sitting to more elaborated and exaggerated body movements like jumping, and rolling. In response to human bodily movements, performance sites also disclose historical, architectural and also auditory and visual information for the performer. The performer therefore perceives myriad information through her body and creates a series of performative responses. The genius loci (spirit of space/lived space) is generated through these bodily engagements.

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