Concerns Raised as Controversy Surrounds a U.S. Diplomat
The five-Judge Bench of the Supreme Court on Tuesday (2) declined to grant leave to proceed with the seven Fundamental Rights petitions challenging 20 June as the date set by the Election Commission, for the 2020 General Election and the Gazette Notification issued by the President dissolving Parliament.
The Bench deemed that there was no legal standing for the perusal of the Fundamental Rights petitions and therefore the Court decided to dismiss the petitions altogether.
The decision of the Court was taken by a Bench comprising Chief Justice Jayantha Jayasuriya and Justices Buwaneka Aluwihare, Sisira de Abrew, Priyantha Jayawardena and Vijith K. Malalgoda.
Announcing the decision, Chief Justice Jayasuriya said that initial objections raised by the respondent parties regarding the petitions had been rejected by the majority consent of the five-Judge Bench. He then said the Court had also unanimously decided to dismiss each of the FR petitions without even taking them up for perusal.
The consideration of the Petitions which lasted over a period of 10 days, came to a conclusion in the evening of 1 June, and the Court's decision was announced yesterday.
Seven parties including Attorney-at-Law Charitha Gunaratna, Executive Director of the Centre for Policy Alternatives, Dr. P. Saravanamuttu, former Ravaya Editor Victor Ivan, General Secretary of the Samagi Jana Balawegaya, Ranjith Madduma Bandara, Leader of the Jathika Hela Urumaya, Patali Champika Ranawaka and Leader of the New Sri Lanka Freedom Party, Kumara Welgama had filed FR petitions challenging the validity of the date set by the EC for this year's Parliamentary Poll.
The Chief Justice formed the five-Judge Bench on 14 May, to consider the FR Petitions following a request made to him by the petitioners to form a full Bench due to the importance of the points that are to be raised in the Petitions.
The Supreme Court Bench heard submissions made by the petitioners and the respondents from 18 May up to 1 June.
Attorney General Dappula de Livera filed three initial objections to the Petitions challenging the date set by the Election Commission to hold the said Election and the Gazette Notification proclaiming the dissolution of Parliament by the President on 2 March. Through his initial objections, the Attorney General cited laches with regard to the delay in the time taken by the petitioners to file the FR Petitions and also the failure to name the AG on behalf of the President concerning some of the important Petitions and therefore the inability to sustain the FR Petitions to provide the relief sought by the petitioners as reasons enough for the Court to throw out the Petitions.
The AG was represented in Court by Additional Solicitor General Indika Demuni de Silva.
Furthermore, Romesh de Silva(PC), appearing on behalf of President's Secretary Dr. P.B. Jayasundera raised two initial objections as well and informed the Court that the FR Petitions had been filed concealing facts from the Bench and that they had been filed in contravention of the law.
AG Dappula de Livera PC, on behalf of the President, Chairman of the Election Commission Mahinda Deshapriya and Members of the Commission N.J. Abeysekara PC and Professor Ratnajeevan Hoole and Dr. Jayasundara, Director General of Health Services Dr. Anil Jasinghe had been named as respondents of the FR Petitions.
The petitioners had prayed the Court to deem that the date 20 June, set for the Parliamentary Election by the EC was in violation of the Articles of the Constitution and hence to issue an order to invalidate the Gazette Notification bearing the number 2072/3 that had been issued by the Commission proclaiming the date for the General Election. The petitioners had stated that they had come to know that the EC had decided to conduct the said Election on the aforesaid date despite the spread of COVID-19 throughout the country and they further informed that the aforesaid Gazette Notification had also been published by the EC.
The petitioners had informed that after the dissolution of the previous Parliament on 2 March by the President, the original date set for the conduct of the said Election to elect Parliamentarians to the new Parliament was in April this year. However, they stated that due to the impact of COVID-19 here, the EC had not been able to conduct the Parliamentary Poll during April and the EC had afterwards decided to conduct the Poll on 20 June.
The petitioners then told Court that according to the Articles of the Constitution, a General Election has to be held within a time frame of 90 days after the dissolution of the Legislature and they insisted that any failure to stage the Poll within that time frame would be in contravention of the Articles of the Constitution and they also insisted that such actions had violated their FR as well.
Accordingly, they had moved the Supreme Court to deem that the Gazette Notification that had been issued by the EC to stage the Election on 20 June was in violation of the law and to therefore issue an order to invalidate the same.
Meanwhile, besides the seven FR petitions that had been filed, 11 intermediary petitions had also been filed by Chief Incumbent of the Abhayarama Temple in Narahenpita, Ven. Muruththettuwe Ananda Thera, Dr. Gunadasa Amarasekara, Attorney-At-Law Premanath C. Dolewatta and businessman Sampath Merinnage.
The petitioners were represented in Court by a group of lawyers including President's Counsels M.A. Sumanthiran and Manohara de Silva and Attorney-at-Law Viran Corea.
Attorney-at-Law V.K. Choksy appeared for the three members of the EC. Deputy Solicitor General Nerin Pulle and Demuni de Silva represented Dr. Jasinghe and AG Dappula de Livera PC respectively.
Ranil belittle Sajith
UNP Leader Ranil Wickremesinghe said that he knew the Supreme Court would dismiss Fundamental Rights violation Petitions challenging the date of the Election and that was the reason why the UNP had not resorted to legal action. Wickremesinghe said that both the TNA and the JVP had been aware of the situation and, therefore, refrained from taking the matter to the Supreme Court.
Addressing a group of former Ministers and MPs who called on the UNP Leader at his Kollupitiya residence, the former Prime Minister said the decision by the five-Judge bench confirmed the UNP's position on the matter. Commenting on the latest political situation following the Supreme Court decision dismissing seven Fundamental Rights petitions, the UNP Leader said that there was no legal basis in the submissions by the petitioners challenging the election date.
He said that he had studied the legal background and precedents relevant to the matter and decided against taking legal action. Among those present were UNP General Secretary Akila Viraj Kariyawasam, UNP national organiser Naveen Dissanayake, UNP Assistant Leader Ravi Karunanayake, former Minister Vajira Abeywardena and a number of former MPs.
UNP Assistant leader Karunanayake said that all civil organisations who had petitioned against the election date were Samagi Jana Balawegaya supporters. Karunanayake said that the government was in trouble following the impact of the coronavirus crisis, but by the SJB organizing a legal battle against the elections and losing it had given a new lease of life to the government. "They gave additional oxygen to the government by fighting a losing battle."
He said that there was a separate case filed by UNP General Secretary Akila Viraj Kariyawasam at the Supreme Court, seeking a declaration that the dissolution of Parliament through a Proclamation by the President infringes on the Constitution as the new Parliament cannot meet by June 2. The defeat in the court battle at issue would have a bad impact on Kariyawasam's case, said Karunanayake, adding that the SJB had not only lost but also spoiled the chances of another winning the case on the dissolving of Parliament," Karunanayake said.
Prison officials taken to task
President Gotabaya Rajapaksa has emphasised that crimes operated by underworld kingpins and drug mafia from prisons must be put to an end without delay.
Specific information relating to criminal activities and drug peddling operated from prisons has been received. The general public is appalled by this situation, President said.
"This has to be rectified. Use of mobile phones within prison premises should be completely eradicated" President added.
President Rajapaksa made these comments during a discussion with the Prison officials to review the current status of prisons held at the Presidential Secretariat on Monday (1).
If Prisons or Police reach a state of collapse, it will adversely affect maintaining law and order in the country. President said he always welcomes the right conduct on the part of officials despite their political loyalties.
President Rajapaksa emphasized that the existing shortcomings of the Department of Prisons will be removed and the system will be entirely overhauled. This restructuring process will be implemented through a committee comprising Secretary Defence, the Army Commander and the Inspector General of Police. The President also advised the relevant officials to conduct all actions including the training of officers and providing incentives under a supervisory team.
The President further said that corrupt and inefficient officers should be identified and should take appropriate decisions regarding them.
Minister Nimal Siripala de Silva, Secretary to the President, P.B. Jayasundera, Secretary Defence, Major General (Retd) Kamal Gunaratne Secretary to Ministry of Justice, Mrs. S. M. Mohamed, Commanders of Tri-Forces, Acting Inspector General of Police, Commissioner General of Prisons and the high ranking officials of the Police and Department of Prisons attended the meeting.
According to sources present at the meeting once, the President concluded expressing his views, Prisons Intelligence and Security Division Commissioner Thushara Upuldeniya while affirming sentiments expressed by the President has shed light on some misconducts and corruption on the part of prison officials.
After listening to him President Rajapaksa has asked Upuldeniya "Can you take up this challenge?" to which the latter agreed.
Following this meeting, Commissioner General of Prisons T.M.J.W. Jayasiri Tennakoon was removed from his post and Upuldeniya was appointed.
Minister of Justice Nimal Siripala de Silva in a Cabinet paper has approved the appointment of Upuldeniya as the new Commissioner General of Prisons.
Jayasiri Tennakoon has been transferred to the Ministry of Public Administration and Home Affairs with immediate effect.
U.S. back in controversy
Controversy reigned in the country when reports of a U.S. diplomat refusing to comply with health authorities at the Bandaranaike International Airport (BIA) doing the rounds.
The 'diplomat' in question, arrived at the BIA in the wee hours of Thursday (4) at about 1.30 a.m. onboard a Qatar Airways flight QR 668 and had been asked to undergo the Polymerase Chain Reaction (PCR) test for COVID-19, had however refused, stating that he was entitled to diplomatic immunity.
Responding to criticism that he had not undergone the PCR test, the U.S. Embassy clarified that he had adhered carefully to the Sri Lankan COVID-19 guidelines, including quarantine restrictions, in close coordination with the Sri Lankan Ministry of Foreign Relations.
U.S. Embassy Spokesperson, Nancy Van Horn said that diplomatic staff arriving in Sri Lanka are also subjected to complying with the norms and procedures outlined in the Vienna Convention on Diplomatic Relations, just as it applies to the arrival of Sri Lankans and other diplomatic staff to the U.S.
Chairman of the Airport and Aviation Services (Private) Limited, Major General G.A. Chandrasiri said that there is a protocol in this regard and that the Ministry of Foreign Relations had taken care of the situation.
"Based on the guidelines of the Ministry of Foreign Relations, if there is only a need for a PCR test, he can do it, and that otherwise he is not required to do so. Without clarifying the matter with me, the Media highlighted this news upon hearing it from a worker attached to the BIA who does not know what went on there. When there is a protocol obligation, we need to adhere to it and the Foreign Relations office will take care of it. No Embassy will want a COVID-19 patient to walk into their premises," he added.
Apparently, the foreign diplomat in question has showed the Ministry of Foreign Relations guidelines and refused to undergo the PCR test and afterwards, an Embassy vehicle had driven him out of the BIA.
However, Director General of Health Services, Dr. Anil Jasinghe said that he was not informed of the situation and that all individuals, including foreign nationals and diplomats should undergo the PCR test and that they cannot refuse to do so.
Similarly, Foreign Secretary Ravinatha Aryasinghe was also quoted in the Media as saying that he cannot take responsibility for persons being released from the BIA.
However, a discussion was held with the Presidential Task Force to combat the spread of COVID-19 and a group of specialist doctors at the Presidential Secretariat under the patronage of the President.
President Rajapaksa has given instructions to officials to subject all arrivals at the Bandaranaike International Airport (BIA) to PCR tests and obtain the results at the BIA premises ahead of sending them to quarantine centres.
The President's Media Division, issuing a Media release, noted that the President had informed the health sector and BIA officials to send the arrivals to a special location till the PCR test results are received and to provide them with all facilities at a special location.
During this discussion, it had been deliberated at length on the issues that have to be faced when subjecting Lankan expats arriving from the Middle East to PCR tests and when placing them in quarantine centres.
Afterwards, it had been decided to set up a lab to carry out PCR tests within the BIA premises and the President had emphasized on the importance of maintaining such a lab at the BIA premises as the COVID-19 pandemic was likely to remain for months to come.
It had also been decided to explore the possibility of subjecting Sri Lankan nationals to PCR tests within the countries before they head off on the plane journey as that would enable the Lankan authorities to speed up the possibility of sending those infected with the illness to hospitals and to send others to quarantine centres.
By yesterday, Ministry of Foreign Affairs, based on President's directives, issued a new set of guidelines to all missions in Colombo.
The revised instructions are as follows:
The respective Diplomatic Missions may inform the Ministry of Foreign Relations (MFR) by a Note Verbal, the details of the diplomats and their family members who are scheduled for entry/ re-entry into Sri Lanka for the diplomatic assignments well in advance in order to obtain the prior approval from the concerned authorities.
The members of the Diplomatic staff and their family members need to submit PCR test reports obtained within 72 hours prior to their departure from respective countries.
If the members of the Diplomatic staff and their family members are unable to provide PCR test reports, they would be subjected to a mandatory PCR test at the Bandaranaike International Airport, Katunayake.
Heads of Mission and family members will self-quarantine at the Official Residences. All other arriving Diplomatic staff and their family members will have to follow quarantine procedures at a hotel, recommended by the Government of Sri Lanka (if independent/separate residences are not available), for a period of 14 days, subject to concurrence and supervision of the Heads of Mission.
The Diplomatic Missions/Representations need to inform the Ministry of Foreign Relations once the 14-day home quarantine is completed and submit the second PCR test report done by the Mission before the Officer resumes duties in the Mission as per the measures taken by the Mission to control and prevent the spread of Coronavirus.
The Diplomatic Missions/Representations have to forward the travel details of the Diplomatic staff and their family members at least 48 hours prior to their departure to the Chief of Protocol of the Ministry.
The Foreign Ministry further notes that travel by Diplomatic Officers to Sri Lanka will be approved, subject to their concurrence to follow the above procedures issued by the Government of Sri Lanka.
Should not be taken lightly
Though the U.S. Embassy and all parties involved tried to play it down, various parties were seen raising concerns about the manner in which things were handled.
A common concern raised was whether the authorities should take such a huge risk of let a person who had apparently come from the biggest epicentre of COVID-19 via another epicentre of COVID-19 to enter Sri Lanka, which has thus far successfully managed to keep the virus from reaching community level.
Expressing disappointment over the incident, former MP Namal Rajapaksa said what was needed now was cooperation and respect more than ever.
"Reports regarding a US diplomat refusing PCR tests at BIA are so disappointing. Vienna Convention or not, the world's in the midst of a global pandemic and what we need more than ever is cooperation and respect of one another's national frameworks which are put in place to save lives," he tweeted.
Not the first time
Meanwhile, several experts in International Relations also pointed out that this is not the first time U.S. nationals, especially those who have arrived under 'diplomatic immunity' have refused to comply.
"If one could recall, a US officials staying at Jaic Hilton Residencies, in the soon aftermath of Easter Sunday attack refused to comply with security checks and a top political hierarchy intervened to stop local defence officials from interrogating the personnel in question. It seems U.S. is using its familiar tactic of advocacy in crisis times," they opined recalling how they tried to rush MCC and SOFA agreements during the crisis period after Easter Sunday attacks.
When Ceylon Today sought further clarification on which division the diplomat in question is attached to, the Embassy spokesperson responded with the standard response that was sent out to all Media outlets on the matter, perhaps an indication that they do not wish to reveal any further details.
An internal memo was also circulated through email to almost all the employees at the Embassy stating three key points i.e. that the fact that the person in question refusing PCR test was a lie, he was put under quarantine and that proper procedure was followed as per Foreign Ministry guidelines.
That internal correspondence also does not have any indication as to who the individual is or under what programme he is attached to. According to those who are familiar with internal matters of the US affairs, an Embassy would react in such a discreet manner, only if it is a matter pertaining to the Planning and Assistance Advisory Team (PATT) members. They closely work with the Ambassador and often only report to the head of the Mission. Details are generally not shared with the host country as they come on a specific project and such persons would only stay as long as six months at a single entry.
"If the person who came was a regular diplomat, there is no reason for such individual being summoned at a time the country is in virtual lockdown. Probably the person in question should be a naval intelligence officer or someone of similar status," experts opined while adding such persons were engaged in programmes that undertaken by the Indo-Pacific Command especially during the 2018-2019 period where the U.S. was engaged in developing schools in the East, especially in the Trincomalee area.
Such programmes were carried out in the Sainthamarathu area even three days prior to the Easter attack, they pointed out, while noting the interest the U.S. has shown in having control in the Trincomalee Harbour has not been diluted.