Right to life, not right to strike

By Kishali Pinto Jayawardena

One must con fess to a sneaking sympathy for the beleaguered Minister of Health these days. As the GMOA strike recommences and Minister Nimal Siripala de Silva's cherubic countenance reassumes its hunted look, his cry a few days back that "if we had the right to life constitutionally protected in this country, the doctors will be stopped from resorting to such action," surely came from the heart.

For the GMOA, the issues are clear. The dispute concerns provincial ministries being given control over the appointments, transfers and disciplinary action of medical officers. By transferring such powers to the Provincial Councils, the GMOA fears that petty provincial nepotism in vital matters concerning health administration would increase and calls for the implementation of an earlier Cabinet decision favourable to them. It is on these grounds that strike action has been resorted to "while maintaining emergency services"

While concern on all of these matters may be well and good, the question remains whether the action of the GMOA in resorting to an islandwide strike for these reasons is responsible or wise. Arguments that the GMOA is on a slippery slope when it attempts justification of its strike action are many.

For starters, as the petition filed before the Supreme Court by Wayamba Chief Minister S.B. Nawinna invoking the authority of the 13th amendment to take on provincial health administration continues, the action of the GMOA in resorting to pressure strike tactics on the same issues before court amounts to contempt of court, if not directly then indirectly. Then again, the continuation of the strike in spite of health being brought in under essential services by a Presidential directive speaks volumes for the arrogance with which the powerful medical trade union regards itself. And compounding arrogance with bull headedness, a GMOA spokesman has reportedly said that even if the committee members are taken into custody, " the doctors attached to government hospitals would strike in their individual capacity". Thus it is that we witness Minister de Silva's plaintive appeal for constitutional protection to be given to the ordinary citizen who is now increasingly being made subject to the whims and fancies of a juggernaut medical lobby.

As the present constitutional provisions stand, opposing the action of the doctors in state hospitals in refusing all but the most dire medical emergency care for patients does not appear to be directly catered for by the Constitution except, of course, under the general prohibition against arbitrary action. An argument could very well be pursued by a patient able to afford only the services provided by the state hospitals that the action by the striking doctors amounts to unequal treatment in that the end result of the strike action would be to afford medical care only to the well heeled. However, more precise constitutional or statutory provision that specifically prohibits arbitrary strike action adversely affecting national health care, seems necessary right now. Thus is it that the right to life is referred to by Minister de Silva, under which he proposes to take on the doctors rather in the traditions of a diminutive modern St. George fighting the dragons.

The right to life is, of course, prominent in the proposed constitutional reform package. In actual fact, if the proposed reforms are approved by the legislature (hope, after all, does spring eternal in the human breast), arbitrary strike action of the nature presently indulged in by the GMOA could be challenged not only under this right. A specific draft constitutional provision states that every citizen shall have the right to health care services, including emergency medical treatment. Medical personnel at state hospitals who refuse treatment of patients could therefore be directly challenged and would not be able to seek refuge under the umbrella of legitimate trade union action giving them the right to strike. And in an undoubted improvement on the present law, not only patients but also a body of persons acting bone fide on behalf of patients could come before the court. One more reason (among many) to push at least the fundamental rights reforms through and forget the devolution package for the time being, for God's sake, if not for the people of this country.

In specific focus right now is the strike action of the doctors. The bigger picture however concerns the basic vulnerability of the Sri Lankan patient in all situations with regard to demanding the basic health care that he or she is entitled to. The fate of the Sri Lankan patient in this respect could be well contrasted with the Indian.

In bringing the right to adequate health under the right to life (expressly stipulated in the Indian Constitution), the Supreme Court of India has made its thinking very clear. The right to life does not mean an animal existence. On the contrary, it means access to basic nutrition, health care, clothing and shelter. Essentially, it means the right to live with human dignity and all that goes with it. On this reasoning, an agricultural labourer whose condition, after a fall from a running train worsened considerably when as many as seven government hospitals in Calcutta refused to admit him saying that they did not have beds vacant, was given compensation by a sympathetic Court. The action by the government run hospitals were declared unconstitutional and a stern warning given to them to be more responsible about patient care. Similarly, other cases have established the rights of patients to go before court as consumers in protest on inadequate health care issues. Let us assume a similar situation in this country. Could the injured labourer be classified as needing emergency treatment? What if he showed no obvious signs of external injuries? In the latter instance, his chances of getting any treatment by state hospitals in the present circumstances would be pretty slim. It is in these kind of cases that this easy talk of "maintaining emergency services" breaks down.

It must also be remembered that both in Sri Lanka and India, the right to strike is not constitutionally protected. While it is true that the right could be resorted to, in old fashioned trade union terminology, "as a last resort", strike action that is contemptuous of the law carries with it, its own condemnation. When basic health care needs of the people are adversely affected, it is worse. No talk of 'maintaining emergency services' changes that basic truth. In the ultimate reckoning therefore, the GMOA stands flamboyantly indicted on its own reasoning.

Only a miracle can save the UNP now!

I read the writings of my unseen friend, Viruddha Paakshikaya in these pages last week with both amusement and sympathy. Viruddha Paakshikaya says we are "gloating" over a victory at the Southern provincial council polls that we didn't achieve, but then, the UNP cannot do even that, can they?

At the outset, I must correct an assertion made by my friend regarding my predictions for the polls. Viruddha Paakshikaya takes glee in saying his predictions are "spot on" which means he knew the UNP would lose! and tries to say I got my forecasts all wrong.

That is not so, my friend. I did not say the PA will "win" all three provinces, Viruddha Paakshikaya. What I did say was this: "My prediction of course is that the PA will retain control of the council comfortably and will win all three districts- Galle, Matara and Hambantota, though the latter will see a closer contest. The UNP will poll less than 45% of the vote and the JVP less than 10%, I daresay."

So, what I said was that the PA would retain control of the Southern provincial council and they have done so. Viruddha Paakshikaya will do well to note that my assessment of the UNP's performance at the polls is more accurate than his own.

With regard to the JVP, of course, I will be the first to concede that I did underestimate its performance. However, I must state categorically that I vehemently disagree with Viruddha Paakshikaya's analysis of the JVP's vote gains.

Viruddha Paakshikaya seems to think the performance of the JVP guarantees them a role as a third party and a power broker at a future General or Presidential election and that is a totally inaccurate reading of the political climate, my friend.

And that is why we in the PA are not afraid to condemn the JVP and expose them for who they are.

Remember, Viruddha Paakshikaya, this was a provincial council election to elect representatives who did little more than build a culvert or carry the garbage. Provincial Councillors are not key players in the national agenda. They are merely regional leaders carrying out policies dictated by the central government in Colombo. And, our voters realise this difference, even though you don't!

I will agree with you that voters may not be enchanted with the performance of the PA government over the past four years, especially at the regional level. And that is why they have lodged a strong protest vote- and most of that protest vote accrued to the JVP!

The mistake you commit is to assume that JVP votes at this election will automatically translate into JVP votes at a presidential election, Viruddha Paakshikaya, and it's a serious mistake indeed.

Voters in this country are politically mature, my friend. They will think long and hard before casting their vote at a General or Presidential election- much more than they would at a provincial poll.

Traditionally we say that Sri Lankan voters have short memories, but even they will remember the terror unleashed by the JVP in 1971 and then again in 1989. The scars of those dark days have not healed yet, Viruddha Paakshikaya and what's more the public utterings of JVP leaders even now do little to dispel those misgivings.

The JVP is silent on what it would do to the free economy and how it would handle the ethnic question- the two most crucial issues facing the voter today. And, to add insult to injury, all it does say is it will not support the PA or the UNP- hardly the type of stance to endear themselves to the voters!

Viruddha Paakshikaya then attempts to recall recent history to say the Sri Lanka Freedom Party never formed a government of its own and that next year it would be dancing to Tilvin Silva's tune.

Take another look at recent political history, Viruddha Paakshikaya and you will then see there is no room for a viable third force in the mindset of the Sri Lankan electorate.

The local voter when confronted with a third political party, behaves like a happily married middle aged man who encounters an attractive female: he flirts with it briefly, raising some hopes but when it comes to making a commitment he goes back home to where his heart really lies!

This has been true of the various 'third forces' that have emerged recently. Two decades ago, the "Old Left" was considered the third force until its influence waned and they were eventually banished from the United Front by then Prime Minister Sirima Bandaranaike.

Then with the advent of Vijaya Kumaratunga, the Sri Lanka Mahajana Party emerged as a third force but later re-aligned with the SLFP. Then, we had Lalith Athulathmudali and Gamini Dissanayake forming the Democratic United National Front.

All these parties initially captured the imagination of the masses but once this infatuation with a political novelty faded, they died a natural death and that will be the story of the JVP too.

We who are veterans in the political game have seen it happen before and we are confident it would happen to the JVP in the future and that is why we are not unduly alarmed at the 12 per cent slice of the vote the JVP captured in the South, Viruddha Paakshikaya.

So, I for one will not join the bandwagon of political pundits, analysts and commentators who have got their knickers in a twist and are hailing the JVP as the key to power at the next major polls.

The JVPers themselves are in throes of a political orgasm thinking they will earn 25 to 30 seats in the next Parliament and I will not grudge them such small mercies, but I can only hope they don't turn to their guns again when they realise their dreams will not be realised. Then, Viruddha Paakshikaya talks of 61,000 spoilt votes at the southern provincial poll and says the difference between the PA and the UNP is only 59,000. I agree my friend but that again means the majority of these votes are also a 'protest' vote.

But on whom does that reflect adversely, Viruddha Paakshikaya? Isn't it expected for a ruling party to be somewhat unpopular after nearly five years in power? But when those dissatisfied with the ruling party are not voting for the major opposition party, what does that mean my friend?

Doesn't that imply that they are even more dissatisfied with the UNP and they have no faith in the UNP or its leadership? Now don't tell me you don't believe that, Viruddha Paakshikaya because your own writings give the game away.

Last week in these pages you said the results of the southern provincial poll "gave a chance for the UNP to get its act together"! So, my friend you are tacitly confessing that after five years in the opposition, the UNP has still not got its act together. Need I say more, Viruddha Paakshikaya?

So, my friend let us stop splitting hairs on the election results in the south. I will concede the PA did not secure a "landslide" victory as some of our own supporters and propagandists would have us believe.But we are certainly secure in the knowledge that the UNP's performance was even worse and that nothing less than a miracle- or a change in leadership- could change the fortunes of the UNP at the next general and presidential elections. And, by the way, those polls will be held sooner than all of you in the UNP expect and who knows, we may record another 62% victory then!

Sanctions the new weapon of mass destruction

NEW YORK— When long-surviving Arab leaders are dethroned or pronounced politically dead, the conventional wisdom in the Middle East is to ask oneself: "Is he dead— or is he dead and buried?".

The distinction between the two is significant because the fluctuating political fortunes of most Middle Eastern leaders— and their will to survive against heavy odds— have always defied Western logic.

When Israel invaded Lebanon in June 1982, Palestinian leader Yasser Arafat was militarily forced out of his headquarters in Beirut, depriving the Palestine Liberation Organization (PLO) its only safe haven in one of the world's hotpots.

But Arafat, whose political future was written off by the Western media, survived the ordeal and eventually got himself invited to the United States: a long way from an underground bunker in downtown Beirut to the Great Lawn in the White House.

During the 1991 Gulf War, Iraqi President Saddam Hussein suffered a humiliating defeat at the hands of a US-led military force which all but ousted him from power.

The worst was yet to come. Iraq was not only weighed down by rigid economic and military sanctions and cut off from the rest of the world but also barred from selling the only commodity that could ensure Saddam Hussein's economic survival: oil.

But like the proverbial phoenix, the Iraqi president rose from his ashes and confounded most of his Western critics who wrote his obituary— rather prematurely— just after UN sanctions were imposed on Iraq.

The nine year sanctions have undoubtedly crippled Iraq — economically and militarily. But Saddam Hussein eventually outlived them.

In Iraq, as in many other countries subject to UN sanctions, the ultimate victims were the people— not the political leaders against whom they were aimed at.

Last week, after years of resistance, the US and Britain agreed to discuss a proposal to temporarily suspend sanctions if Iraq would answer all outstanding questions relating to weapons of mass destruction, including nuclear, biological and chemical.

The suspension would be reviewed every four months and sanctions re-imposed if Iraq reneges on its commitments.

Although the proposed suspension was conditioned on several factors, it was still a significant shift in the unrelenting stand taken earlier by two of the veto-wielding permanent members of the Security Council.

However, there were rumours that Saddam Hussein, the survivalist that he is, would only opt for a total lifting of sanctions— and nothing less.

Since 1977, the United Nations has imposed sanctions against several countries, including the former apartheid regime in South Africa, Rhodesia (now Zimbabwe), and more recently, Haiti, Rwanda, Angola, Liberia, Libya, Somalia, Iraq and Yugoslavia.

The frequent use of sanctions has also caused social and economic hardships on countries that are "unintended victims."

After UN sanctions on Iraq in 1990, more than 21 Third World countries complained they collectively lost about $30 billion on import-export contracts and on migrant earnings.

Sri Lanka's vibrant tea market in Iraq— once the second largest— was brought to a standstill.

The unintended victims also included Bangladesh, Pakistan, Jordan, Yemen, India, the Philippines, Uruguay and Syria.

After the UN imposed sanctions on Yugoslavia, eight states— Albania, Buglaria, Hungary, Romania, Slovakia the former Yugoslav Republic of Macedonia, Uganda and Ukraine— complained they were facing severe economic problems.

Bulgaria claimed it had lost more than $3.7 billion because of sanctions while Romania lost about $7.0 billion and Hungary about $1.5 billion.

The negative consequences have forced the UN to re-think the very concept of sanctions.

Secretary-General Kofi Annan says there has to be a distinction between "smart" sanctions and "dumb sanctions."

A UN Working Group, which describes sanctions as "the most powerful non-military tool against violators of international law," has also called for "humanitarian limits" on UN sanctions.

"While there is a need to maintain the effectiveness of sanctions imposed in accordance with the UN Charter, serious efforts should be made to minimise unintended adverse side-effects of sanctions on the most vulnerable segments of targeted countries," the Working Group said.

Last month more than 1,300 individuals and organisations signed an appeal to end sanctions against Iraq. In their letter, they said more than a million Iraqis have died as a direct result of UN sanctions.

The signatories, including Professor Noam Chomsky, political activist Angela Davis, Professor Edward Said of Columbia University and author/writer Kurt Vonnegut, say that sanctions are the new weapons of mass destruction.

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