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WHY THE HURRY ABOUT 20A?

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by Professor G. L. Peiris

Minister Of Education

May I begin by expressing my appreciation to the Kandy Professionals Association for embarking on this very timely initiative of meeting every month, on a Sunday, to discuss in depth the issues involving constitutional reform, and the way forward in our country. I consider this an exercise of immediate relevance and value.

The decision by the Government to present to the Cabinet of Ministers the text of the 20th Amendment to modify significantly the contents of the 19th Amendment and, after obtaining the approval of the Cabinet, to move the Amendment in Parliament, has attracted considerable public interest and discussion. As a preliminary to this, I think it is important to explain to the country the need for this. The public should have a clear understanding of the rationale underpinning this reform. This is all the more necessary because of the elaborate myths which have been assiduously cultivated, skilfully spread, by vested interests throughout the spectrum of our society.

The core of their argument is that the retention of the 19th Amendment is essential to preserve seminal values which we all believe in – the Rule of Law, independence of the judiciary and the separation of powers. They contend that removal or reform of the 19th Amendment is an act of treachery and that all must stand firm against it. If this is allowed to happen, so they contend, the result will be a mortal blow struck against human rights, democracy and seminal institutions including Parliament. The argument, set forth in the most emotional terms, needs to be assessed in the light of cold reason. What is the truth of this? Nothing is more crucial at this point than to inform the public mind about the reality of the current situation.

It is strenuously contended by interested parties that the 19th Amendment brought immense benefits in its wake, and that it has to be protected at any cost. Nothing could be further from the truth. It is for the entrenchment of narrow vested interests that this intricately orchestrated campaign, fortified by abundant resources and closely knit organization, has been launched. Why is 20A necessary? For a variety of reasons, no doubt. But chief among them, indisputably, is the maintenance of law and order – essential as it is for the protection of life and limb. This takes precedence over all other obligations – development in the economic, social and cultural fields.

This, then, is the principal and indispensable obligation of the State. If this duty is not fulfilled, all else become illusory.

What impact did the 19th Amendment have in this regard? The 19th Amendment categorically states that the President is debarred from holding any portfolios. Who is the President? He is the leader elected by the entire population of the country by the free exercise of the franchise. The inalienable duty of the President is the security of the State and the People. But the 19th Amendment prevents him from functioning as the Minister of Defence. We emphatically reject this position.

The 19th Amendment did contain a transitional provision. That, however, was limited in its operation to former President Maithripala Sirisena, who was permitted to hold the portfolio of Environment and Mahaveli Development during his tenure of the Presidency. This was an individual-centric provision which did not apply to Presidents who succeeded him.

For all other Presidents, the 19th Amendment imposes an inflexible bar against the holding of any portfolio, including Defence. Arguably, Articles 3 and 4 of the Constitution, read together, allow and indeed require, the President to hold the Defence portfolio, but this is a matter that would require judicial interpretation, in the event of a challenge in the Courts. Is this uncertainty and ambiguity desirable? Does it buttress or destroy the human rights and democracy which are sanctimoniously appealed to?

The 19th Amendment involves a basic conundrum. Articles 3 and 4 have the effect that the President is the repository of the Executive power of the State. Article 4(b) makes it clear that the defence of the nation is an integral and inseparable element of Executive power.

The defence of the country, then, is the sacred duty of the President. This is, without question, his responsibility. What he lacks, however, is the authority required to fulfil this responsibility. Here lies a fundamental contradiction, entailing as it does dire consequences for the nation’s security.

Prior to the enactment of the 19th Amendment, the Constitution of Sri Lanka contained explicit provision in respect of Urgent Bills. In the event of an unexpected contingency, an Urgent Bill could be presented to Parliament within seven days. The legislative process in ordinary circumstances, Is cumbersome and protracted: it may not enable a swift response to an unanticipated situation. To cater for this, the pre-19A law made provision for rapid intervention through the mechanism of Urgent Bills. It is this statutory provision that is abolished by 19A which compulsorily requires an interval of 14 days before legislation is introduced in Parliament. It is scarcely difficult to conceive of contexts in which this could imperil the safety and security of our country.

We have recently seen before our very eyes the horrendous consequences that were brought about by 19A. It created, in its foundation, two potentially warring centres of power. If the President and the Prime Minister belong to different political parties, we saw for ourselves the intensity of the conflicts, in terms of values, policy and even personalities, which arose in the day to day practice of Governance. It is the people of this country that paid an exorbitant price for this state of affairs. As many as 265 valuable lives were lost in the Easter Sunday carnage. To whom do we attribute responsibilities for this calamity? The Prime Minster says: “What can I do? I am not even invited to the National Security Council”. Indeed, meetings of the Council were not held for months on end. Was information conveyed to the President available to the Prime Minister, and vice versa? There was an internal tug of war – working not together but at odds with each other.

It is in the heat of this battle that the security of the nation collapsed altogether. The evidence being given on a daily basis before the Presidential Commission investigating this tragedy, is truly alarming. On the day this occurred, I was in Munich, Germany. On the following day the New York Times – a world renowned newspaper – carried on its first page the names, telephone numbers and addresses of those who were said to be involved in planning and executing this catastrophe.

Indian intelligence had brought these particulars to the attention of the Sri Lankan Government not once, but repeatedly. However, because of the internal dissensions which went from bad to worse, nothing whatever was done to avert the tragedy.

If there had been no 19A, responsibility would have been clear and undivided. What 19A did was to split it up and create chaos. The results are a permanent blemish on our national conscience. These are the matters of which the public should be informed.

What is the constant refrain of those who insist on the retention of the 19A? They proclaim the sanctity of the separation of powers, and regard authority in an individual or institution as the death knell of democracy and the basic elements of democratic culture. They assert their resolve to resist with the utmost vigour any attempt to dismantle the dual structure embedded in 19A. Is this an acceptable position?

At its very root, 19A elevated several institutions above the President. It took away the authority, hitherto vested in the President, to make appointments to high offices in the public service and the security establishment, including the Police. It characterised the retention of this authority in the hands of the President as a danger against which the public need to be protected.

On this footing the President was shorn of these powers. But to whom were they then transferred? To a Constitutional Council dominated by representatives of non-governmental organisations. This Constitutional Council is at the apex of the structure established by 19A, and wields the authority to constitute each and all of the Commissions which are said to be independent. Without the recommendations, or the approval, of this all-powerful body, the President is no longer empowered to make crucial appointments to the public service and the Police. In this regard the President is subordinated to this body – the Constitutional Council – which is sought to be sanctified as the embodiment of integrity, impartiality and probity.

Let us take a closer look at this body, close to being deified. Its membership includes persons who can in no way be regarded as legitimate representatives of the people. The whole object of the exercise, so the protagonists of the 19A whereby, stridently tell us, is to ensure depoliticisation of the State. Their contention is that everything in our country has become progressively politicised, and that the time has come to evolve a constitutional process where persons of undoubted rectitude, far removed from partisan politics, and professing fidelity to the highest moral and ethical standards, are vested with this awesome responsibility.

This is an absolute myth. Can it be maintained, by any stretch of the imagination, that the personnel constituting these Commissions are not tainted by partisan politics? A few examples will suffice. Professor Hoole is a member of the supposedly independent Elections Commission. He is expected to be apolitical. And yet, in an interview with a TV channel, he exhorted the public not to vote for the SLPP; he said that, if they were to do so, they would certainly regret their decision in the future. Can there be a more partisan intervention, coming as it has from a member of a Commission exalted as the zenith of objectivity and political neutrality? The yawning chasm between aspiration and reality is all too evident. Practice on the ground belies the grandiose pretence.

The Elections Commission is itself the creature of the Constitutional Council, identified by 19A as the source from which all the Commissions derive their authority. Mr. Javid Yusuf is a member of this overarching body. His impartiality is, therefore, by definition, axiomatic. Nevertheless, he makes so bold as to declare to the country at large in uncompromising terms, at a public forum: “Whatever you do refrain from giving the Lotus Bud a two-thirds majority. If you do this, you cannot evade responsibility for pushing the country to the brink of disaster”. Words to this effect are unabashedly uttered by a representative of the supreme body which functions as the fons et origo of all the “independent” Commissions.

Faced with this uninspiring reality, I state without hesitation that these “independent” Commissions brought into being by 19A are far more politicised than any other practicing politician in this country. It is to Commissions of this ilk that powers denied to the President of the country are supinely entrusted.

Here is a state of affairs which defies rational understanding, by any criterion. The position of apologists for 19A is, at bottom, the following: conferment of these powers on the President is preposterous and unthinkable; they represent an intolerable affront to the basic elements of democratic culture, and to the essence of human rights. However, these same powers, in the hands of institutions created in the manner defined by 19A, are innocuous and entirely acceptable.

Does this bear scrutiny for a moment? The President of the Republic is elected by all the people of our country, for the finite period of five years, at an Islandwide election. If they are dissatisfied with his performance at the end of his tenure, they have every right and power to reject him at the conclusion of this period. But can the people, in whom sovereignty resides according to the Constitution, make a similar decision is respect of the members of the Constitutional Council and the “independent” Commissions? They are a law unto themselves, accountable to no one.

During the last few months, the President, the Cabinet of Ministers and Parliament have all changed in keeping with the democratically expressed will of the People. But members of the Constitutional Council and the “independent” Commissions remain entrenched in their positions, impervious to the winds of change. Is this defensible as the epitome of a structure of democratic governance, to be acclaimed widely?

Nowhere are the effects of the dichotomy established by 19A more apparent than in the domain of the economy. Ever increasing volumes of debt cannot provide a sustainable avenue for economic advancement. President Gotabhaya Rajapaksa, in his Manifesto, has explicitly underlined the importance of resiling from the debt trap. The answer is investment, which is certainly feasible, but subject to obvious conditions. The essential requisite is confidence.

In the current intensely competitive international environment for investment, confidence has to be engendered by appropriate policy initiatives. Would any investor look seriously at Sri Lanka as a destination for investment, given the conditions generated by 19A?

The contemporary Yahapalana experience under the aegis of 19A was that the Prime Minister, in the exercise of authority conferred on him, established a Cabinet Committee on Economic Management (CCEM) which, in effect, arrogated to itself, under his Chairmanship, the authority to make major decisions straddling the whole spectrum of the economy, these decision being submitted to Cabinet for its mere formal imprimatur. President Sirisena, increasingly incensed by what he saw as the relegation of the Cabinet with regard to economic matters, in due course found his patience exhausted, and eventually intervened by doing away with the Prime Minister’s brainchild and substituting for it a novel institution, the National Economic Council, under his own superintendence and direction. A few months later, however, he dismissed his own handpicked Chairman of this body, declaring that the officer concerned, although drawing a handsome salary, was seldom in the country. This state of things is hardly likely to offer any incentive for investment in Sri Lanka.

These developments provide the backdrop for a series of reflections. Empirical experience has convincingly demonstrated the weakness of the foundations of 19A. In truth, political power is not to be viewed with innate fear or obsessive suspicion. The contrary is a facile assumption, intuitively made with a total lack of dispassionate thought. Singapore, Malaysia, South Korea and Indonesia are telling examples of Asian countries which could not have achieved the remarkable economic development they did accomplish without the advantage of strong Executive authority.

Admittedly, any system of democratic governance must contain viable checks and balances. However, as with everything else in life, there needs to be a sense of proportion. If the Executive is to be so constrained and hamstrung in every way as to make coherent decision making and movement forward impossible, the inevitable outcome is stagnation, or worse, anarchy.

This is the sad legacy of 19A which is now sought to be swept away as a matter of urgent priority.


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Islamophobia and the threat to democratic development

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There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.

The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.

To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.

Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.

It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.

All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.

Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.

If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.

In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.

However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.

It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.

The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.

It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.

A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.

Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.

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Pakistan’s love of Sri Lanka

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By Sanjeewa Jayaweera

It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.

The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.

We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.

This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.

Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!

At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.

One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.

It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!

ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!

The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.

When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!

I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.

I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.

I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.

Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!

I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.

Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.

We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.

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Covid-19 health rules disregarded at entertainment venues?

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Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!

To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.

Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.

The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..

How can one think of social distancing while gyrating, on a dance floor, that is over crowded!

If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.

And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!

Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.

Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.

With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.

I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.

Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.

He has also stated that plainclothes officers would move around to apprehend such offenders.

Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.

He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!

I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:

“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.

“There is no science to beat common sense.”

But…do some of our folks have this thing called COMMON SENSE!

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