27 September, 2020

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Responding To Covid-19: Act Fast, Do Whatever You Can, Do It Legally 

By Rajan Philips

Rajan Philips

“Act fast and do whatever it takes” is the subtitle of a new book (Mitigating the COVID Economic Crisis: Act Fast and Do Whatever It Takes) edited by Richard Baldwin and Beatrice Weder di Mauroe, and published by the Centre for Economic Policy Research, London. The book is a collection of real time commentaries primarily on the actions that are being taken and ought to be taken by developed countries to mitigate their Covid economic crises, and to a lesser extent about actions needed on a global scale. 

Where countries simply lack the capacity and the resources to ‘do whatever it takes’, the prescription has to be reduced to ‘do whatever you can.’ In either case, governments must act fast, act within the framework of the law, and avoid deliberate disrespect for law and the constitution. 

In the case of Sri Lanka, to recap what has already been said, the government has three urgent tasks on its hands: to mitigate the Covid health crisis, to mitigate its offshoot economic crisis, and to manage the political situation. All three are interconnected, needless to say. On the health front, the question now is whether, when and how to lift the current curfew that is in place to ensure social isolation. There is no serious political opposition to the curfew, except for the very legitimate questioning of the legality of the curfew. 

But those who are pointing out that the curfew is not being legally implemented are also calling upon the people to observe the curfew as a matter of practical common sense, if not moral suasion. It is the government that is sending mixed signals about relaxing the curfew to conduct elections, on the one hand, and insisting that the curfew remain in all other situations and in specific areas, on the other. In addition, the government is wrapping this dilemma in a wholly avoidable constitutional crisis that will sap everyone’s time and energy when they can be channeled for more productive purposes.

It is a simple enough constitutional requirement that after a sitting parliament is dissolved for the periodical general election, the new parliament shall meet within three months of the dissolution of the old. And the constitution also provides for the dissolved parliament to be recalled during the election interval in the event of a national emergency and for it to continue sitting until the emergency or the general election is over, whichever is sooner. 

So much so, GG Ponnambalam perorated during the Amirthalingam trial-at-bar case in 1976, that ‘the declaration of emergency is powerful enough to resurrect a dead parliament’. There is nothing impossible about recalling a dissolved parliament, contrary to what President Gotabaya Rajapaksa appears to have been advised to suggest in a recent television interview.   

Viral mischiefs

The current situation is entirely due to the novel coronavirus adding its own mischiefs to Sri Lanka’s never-ending obsession with matters constitutional. First, it has dragged into question the executive wisdom of dissolving parliament on 2 March, five months earlier than necessary, when the signs of the virus spread were already clear. It has since forced the Election Commission to cancel the first election date on 25 April, to fix a new date for 20 June that goes past the three month deadline on 2 June, and to be open to postponing the election even further if necessitated by the virus itself. 

In fact, it would have been more prudent for the Commission to have selected a date in late July or late August to give its officials much more time to plan and conduct a general election in the midst of a pandemic. The Commission has been in no position to do this in April, and it will have to work really hard to have an election on 20 June. 

At the other end of the constitutional seesaw, President Gotabaya Rajapaksa is apparently not prepared to address the obvious constitutional lacuna by simply issuing a new gazette notification and by recalling parliament even for one short session and within the limits of social distancing requirements. Recalling parliament will also be useful in endorsing the declaration of emergency and, more importantly, authorizing much needed funds for government expenditure during the current crisis until a newly elected parliament is convened. 

The arguments based on the lack of a government majority and fears of opposition disruptions are simply nonsense. The President and the government know that to be obstructionist the opposition will have to risk being punished severely by the people in the election. In any event, the President can dissolve parliament again and the SLPP can use the whole episode as a new campaign cudgel.   

In refusing to recall parliament the President is being advised to be deliberately disrespectful of the country’s constitution, however flawed it might be. What  great purpose is being served by not recalling parliament? How is it helping in the fight against the coronavirus or in the efforts to support a battered economy? 

A recalled Parliament will ultimately serve to enhance the authority of the President to do ‘whatever he can’ to mitigate the current crises. On the other hand, governing for an extended period of time without a legislature will only weaken the President’s authority and bring into question the legitimacy of his decisions and actions. 

And worse, it will erode people’s confidence in and respect for the institutions of government. Everyone will get used to doing anything they want so long as they can get away with it. And that is the ultimate danger in not recalling parliament now because you can get away with it. Equally, if the matter were to be canvassed in courts that would be an unnecessary setback to the new Rajapaksa presidency and a costly distraction from dealing with the current pandemic crisis. 

It is not only parliament that is being ignored as an institution, the tradition of cabinet government is also falling apart. A caretaker cabinet government is supposed to be in charge between the dissolution of the old parliament and the election of the new. But there is no cabinet government now, only government by task force. 

The outline of an ‘administrative state’ is emerging as can be seen in the direct forum that the President is establishing with District Secretaries to mobilize resources for food production and marketing. There are no ministers or Governors to be seen in any of this. The MPs and Provincial Councilors are in a state of dissolution anyway. It is not easy to say whether the nascent structures are innocent tryouts, part of a calculated strategy to supplant established institutions, or the result of competing power silos within the SLPP. 

Whatever they might be, the new tryouts are not proving to be as effective in fighting the coronavirus as the government’s initial efforts commendably were. There are disturbing news reports about disagreements between different organizations of medical professionals over the testing programs that are now underway. 

The GMOA has taken its powerplay a notch higher by publicly offering to the President its second opinions on the judgements and actions of established medical specialists. This is utterly untoward to the purpose of developing a coherent and robust national strategy not only for fighting the virus, but also for saving the economy from totally collapsing. 

The testing for the novel coronavirus is tricky business. Its newness has put even the experts on a learning curve everywhere, not just in Sri Lanka. And the testing process counterposes the need for conformance with applicable standards on the one hand, and the great public and political urgency to launch mass testing programs to stay ahead of the community spread of virus, on the other. 

Political leaders are justified in reasonably pushing professionals for quick action and rapid results, but they will upend everything if they start taking sides and fomenting  rivalries between the trade union and the professional schools of medicine. If what seems to be simmering now in the medical field is not put out immediately, it will spill over into all other areas of government actions that are needed to make sure that the government is doing everything it can.            

As well, if President Gotabaya Rajapaksa and his advisers can avoid a constitutional crisis by recalling parliament for limited sessions and leave the business of conducting elections to the Election Commission, they can productively turn their attention to dealing with the crisis of the coronavirus and the crisis of the economy. They can discern the linkages between the two and develop targeted programs to fight the virus and save the economy at the same time. 

One such link could be through employing people in large numbers for extensive testing for Covid-19 and contact tracing, without which the curfew cannot be substantially lifted. A different opportunity is in catering to the growing global market for Personal Protective Equipment (PPEs) for frontline healthcare workers. Worldwide food scarcity is one of the pandemic concerns due to the breakdown of supply chains as well as breakdowns in agricultural production due to social distancing and shutdowns. Sri Lanka will have to protect its domestic food production while ensuring supplementary food imports are maintained to avoid national scarcities. Sri Lanka has about eight million working people. Protecting all of them in their employment, or at least as many of them as possible, should be the government’s primary economic challenge in the context of the Covid crisis. That is also the most effective way to support families impacted by the lockdown economy. 

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Latest comments

  • 3
    0

    The ‘administrative state’ Rajan Philips discusses is described as “the power to make binding rules without law, outside the law, or against the law, exercised by someone other than an elected legislature.” Frightening stuff. As for the battle against Covid-19, what is required poste-haste is transparency at all levels. Feeding the public a daily slow-scoring cricket total does not do anything. What is the rate of testing and contact tracing being undertaken? That is the real question. While one does not wish for anything different other than the published low deaths, the question though is, what is the actual death toll than the 07 being put out over the past many weeks? Real figures will instil greater public discipline in maintaining care and distancing from each other.

  • 5
    0

    Dear Rajan Philips,
    .
    A string of valid observations, and some solutions.
    No need to paraphrase what you have stated so clearly and the conclusions drawn cannot be improved upon. Our people have demonstrated that they will uncritically accept almost anything that is imposed on them so long as they can imagine that it has all been decreed by “karma”. Maddening for anyone wanting to usher real change.
    .
    The rulers have always exploited this tractable population, and they may be able to continue with this strategy, but people become intuitively aware of what is going on above them:
    .
    “Everyone will get used to doing anything they want so long as they can get away with it.”
    .
    This is how it has been at National Level ever since Independence, and that is replicated all the way down to the young couple who will unobtrusively squat on a bit of unutilised land to start their lives together. The small people must know not to over-reach, the bigger fish will exploit outrageously. Nothing to inspire us to achieve anything nobler.
    .
    We must be grateful to those who challenge us to do better, whilst we can still comprehend.

  • 3
    0

    Mr Philips,
    thanks very your article.

    Unfornately, they are still backward with going for more tests even if kits for 40 000 of tests were received to srilanka from China almost 3-4 weeks ago. I checked it myself the total number of test until yestreday it was like 13500 for a nation with 22 millions.
    :
    Those UNIVERSITY dons made a plea not once several dozens of times sofar, govt to respect the WHO and their guidelines… and I dont know what is standing on their way, today not being able to do tests as much as they can sofar… lanken capacities in labs are said to be over 1500 tests/day. Going by the calculations, they should have achieved over 30 000 test sofar. meaning not even half is done sofar.. This is very negative. They should not go for self-glorifications as they are used to do sofar.
    That woman whose knowledge is the lowest is to be the minister of Heath is a big damage to the nation’s image. She should resign sooner than later.

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