’’We must abandon the idea of elections anytime soon’’- Sumanthiran

By D.B.S.Jeyaraj

Former Jaffna District Parliamentarian and Tamil National Alliance (TNA) Spokesman M. A. Sumanthiran PC engaged in an informative conversation with the “Daily Mirror” 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. The Excerpts:

Q:  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. What is your assessment on the current situation?

I think the slogan, “Flatten the Curve” explains this 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 activities in relation to food production, distribution, medicines, healthcare 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?

In order 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 to 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?

Initial steps ought to have been taken well before March 20. Had it been done; we wouldn’t have been in this position now. 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 COVID-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 have been 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 is 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 haven’t been adequately and satisfactorily addressed.

"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"

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?

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

Q: Could fresh election dates be announced if we manage to contain the Covid-19 spread?

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

Q: So now we are in a situation where Parliament has been dissolved and elections have been put off. What needs 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 COVID-19 threat?

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 the much-needed at times like this than at any other.

Q: What is the procedure for re-convening Parliament?

Our Constitution makes specific provision for the re-convening of Parliament during dissolution, in Article 70(7), when any emergency situation 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. The COVID-19 threat could 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.

"No election can be held while exercising ‘Social Distancing’. Electioneering is the very anti-thesis of social distancing. One has to ‘socialise’ with the electorate and that is a fundamental feature of free and fair elections. A period of free campaign is absolutely essential"

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. Any alternative ways which you could suggest in which Parliament could meet in the current situation?

The Party Leaders could nominate three or four MPs to attend the sessions. We have six political parties represented in Parliament, including EPDP and SLMC, which have just one MP each. The quorum is 20, but that issue would arise only if someone raises it! This number would certainly be lower than the number that meet as Party Leaders at present at Temple Trees. The Parliament chamber is a much bigger place with sufficient space, and we can maintain a distance of even 10 metres between two individuals. This could be the way in which the first few meetings could take place, and with consensus, we could amend the Standing Orders of Parliament to enable virtual meetings through video conferencing, as done in the Maldives already. Thereafter, the whole Parliament could meet and pass legislation necessary for the times and even amend the Constitution with a 2/3 majority, if that becomes necessary.

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 de-facto national emergency now, and the authorities are responding accordingly. However, no state of emergency has been declared, presumably because Parliament has to meet to approve and extend it, if and when necessary. 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, shouldn’t have these measures been approved by Parliament?

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 period of war, Parliament 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 curfews being enforced and arrests of violators legally valid?

The curfew that is being declared presently is not legally valid. Curfew-like orders could 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 could be obtained and so forth, should be 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 curfew’, when in the eyes of the law there is no such ‘curfew’…

Q: Why no one is protesting then?

The reason why the protest regarding illegal curfews are muted, is that everyone recognises that people must stay at home and not to 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 have cited some international examples also and suggested that Sri Lanka too should follow suit. Could you mention a few examples in this regard?

Many countries in the world have already enacted such legislation. India, South Africa, Estwani (Swaziland), Italy, UK and Singapore are some of the examples. The UK (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 that are specifically required now for Sri Lanka to meet this crisis?

Laws to deal with Public Health Emergencies such this one is 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 the British colonial era. At least, the British were mindful 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? And are they being formulated?

At the suggestion of some people, I have already done a draft with the help of my junior colleagues. Presently I have given it to some medical professionals who are well 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 the required laws anticipating its urgent necessity. 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 April 30 deadline on Vote on Account. However, some have opined that the President could draw from the consolidated fund. What are your comments on this?

The Vote on Account is only till April 30, 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 treasury secretary has opened himself to action against him for violating the Constitution! The Vote on Account until April 30 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 money to be legitimately withdrawn from the Consolidated Fund. The best way forward in this situation is for the President to withdraw the Gazette dated March 2, 2020 dissolving Parliament.

"The curfew that is being declared presently is not legally valid. Curfew-like orders could be made under Section 16 of the Public Security Ordinance without Emergency being declared"

Q: If the President does revoke the elections proclamation gazette what is the position then? Could the dissolved Parliament re-convene and be functional till the original term up to end of August? If that is so, then what would happen next? Would fresh polls be announced and the earlier nominations remain valid for that?

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

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

The situation in the North and the East is precarious at the moment. Some people are nearing starvation. Local authorities are the best equipped bodies 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 while R. Sampanthan had spoken to the Governor of the Eastern province, 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 funds available to Local authorities in the North and East?

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 them. So far, the Governors of both provinces have refused to permit the CLGs to uplift those funds. I hear that the local authorities in the rest of the country are spending funds 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 per family announced by the government has reached some people in other parts of the country but none in the North or East! The President seems to be very conscious of the votes he had received or did not receive from those parts of the country. This is very unfortunate.

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?

I think we need about a year to be sure of the eradication of this virus - which means at least till end of this year. Sri Lanka may come out of it in another six months. But that would 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 fresh outbreak also would continue.

D. B. S. Jeyaraj can be reached at
[email protected]