CONTINUING CULTURE OF IMPUNITY: THE KARANNAGODA CASE – M.A. SUMANTHIRAN

16/03/2019

Since we are also currently discussing the head of expenditure for the Supreme Court, I wish to raise a few points. Last month when we had a debate in Parliament, there were members from both sides who said ‘the Supreme Court is independent now – see how they ruled in November and December’. Therefore, they said ‘we don’t need international judges for accountability.’ They said ‘our judges are independent’, and that has been established. ‘We can go on with any inquiry with regard to war time atrocities by a local judicial system.’

In that debate itself I intervened and said, that may be so when the two contesting parties are two political parties in this country, but when it comes to the State of Sri Lanka and an armed rebel group, the local judiciary will not be independent, and this has been proved yet again, by certain court proceedings that took place last week and have now been terminated. Since the court proceedings have been terminated and the matter is not sub judice, I may speak about it in this House.
I refer to the case of ex-Navy Commander Wasantha Karannagoda, who filed a petition in the Supreme Court to prevent his arrest.

It has become a joke now that people run to the Supreme Court – they do not go to the Magistrate’s Court where under the Bail Act you can ask for anticipatory bail. This is a new trend now. You go to the apex court of the country and prevent arrest. In this instance, he was named as a suspect in the Magistrate’s Court for having had knowledge of the abduction, disappearance and subsequent killing of 11 Tamil speaking youths in and around Colombo. They had nothing to do with the LTTE.

The point I am trying to make is that even in a case where the abducted persons were not members of the LTTE, had nothing to do with the war, even so, because the suspects were members of an armed force – the Sri Lanka Navy who were running an extortion racket they could not arrest the Nvy Commander. This was abduction and extortion of money for ransom and it was revealed that the Navy Commander at that time knew about it and himself made a complaint to the police – the first complaint was by him. And because he was a war-time Commander, the petition was taken up in the SC that he is a war hero and that he should not be arrested. I wish to ask, if a person had been a Commander of the Armed Forces during the war, does that give him immunity from arrest? I did not see that happening in the case of Field Marshal Sarath Fonseka.

But here, these were Tamil speaking youth. And they were done to their death in a secret detention camp in Gun Site in the Trincomalee Naval Headquarters. This is known. Several more have been done to their deaths in the naval camp in Trincomalee, for which there is ample evidence. Those may have been members of the LTTE – we haven’t got anywhere on those cases. But here is a case of very young men and their parents who have been looking for them, crying out for justice and then eventually after 10 long years, the machinery moved. But when the investigation came close to a war time Commander, immediately, the whole state apparatus, including the Supreme Court – I repeat including the Supreme Court – has acted in a partisan manner, entirely without justification to prevent his arrest.

In that public forum, in open court, Karannagoda’s lawyer has publicly stated that the Attorney General and the Solicitor General go to the President every day, asking for promotion, and therefore, their view must not be taken into account. And the Additional Solicitor General who appeared for the Attorney General did not even counter that. In fact, the ASG did a somersault when on the previous day he insisted on the arrest. But after this was stated, he agreed that Karannagoda need not be arrested.

Now this shows the partisan manner in which the judiciary, the Attorney General’s Department, function when it comes to such matters. If this is the case with regard to Tamil-speaking youth who were not involved with the LTTE, how much more partisanship would be seen, when it involves the LTTE itself. That is why we insist that the undertakings given to the UN Human Rights Council in Geneva must be fulfilled and must be implemented. The Government has given undertakings that with the participation of international judges these accountability issues will be addressed. That must be done. And the Government must cooperate with it. This must be done – it is an obligation undertaken by the Government.

Karannagoda’s Supreme Court case has shown the whole world – and I want the UN Human Rights Council to take note of this – that there will be no justice when it comes to issues such as this. In broad daylight, in open court it was stated by Karannagoda’s lawyer: ‘it was war time, he could have committed any murder, why did he have to complain to the police?’

It was a case of stating the obvious, that any murder went without punishing, would not have been punished, even now has immunity, and that this could have been done with impunity.

[The above is an excerpt of a speech by Tamil National Alliance Lawmaker M.A. Sumanthiran in Parliament on March 13, 2019 during the debate on the expenditure heads for the President, Prime Minister, Independent Commissions and the apex courts] Courtesy of Sunday Observer

Sri Lanka: Why Should We Vote JVP In This Coming Election – Part 2

I find JVP wants to break the political culture of plutocracy in Sri Lanka. Yet, political vision and mission of JVP has not yet, reached into minds and hearts of 22 million Sri Lankans. 

by A Special Correspondent-March 16, 2019

 

Responsibility, accountability and transparency

 

Unlike traditional Sri Lankan politicians from main political parties namely UNP, SLFP and SLPP, JVP has been demonstrating politics of responsibility, accountability and transparency. There is no doubt the quality of politics has badly deteriorated in recent time in Sri Lanka. Until CKB’s time, political leaders had some sort of responsibility, accountability and transparency. Yet, the quality of politics sadly declined since MR took power in his second term. Any discerning student of politics will agree with this fact. You do not need to be a rocket scientist to know this basic trend in Sri Lankan politics. Of course, MR saved the country from the clutches of terrorism and yet, his cohort badly damaged Sri Lankan politics and its democratic traditions.

 

A Chinese delegate visited Sri Lanka in 1970s during the SLFP rule under premiership of late Srima Bandaranayke. After all official engagements, this Chinese delegate was keen to go on a picnic tour to some parts of Sri Lanka. Late Premier Srima Bandaranayke knowing financial difficult of treasury in her government, wrote a personal cheque from her own pocket for the expense of this Chinese delegate for their tour. This may look a trivial issue in this modern time and yet, those days, it was a big issue. The point I would like to make here is to draw your attention to the sense of responsibility, accountability and transparency the late premier had in politics. We may disagree with her political ideas and yet, political leaders of those days, had duty consciousness, responsibility and accountability. Yet, today all this has gone. I still remember when SLFP was badly defeated in 1977 general election, our local SLFP MP from our constituency used to take CTB bus to go to Colombo. Because, those days, politicians did not steal public money. They did not do business out of politics. They consider politics as a public service and yet, today politics is a big business in Sri Lanka.

 

They did not use their ministerial posts to make money out of politics. Those days, MPs behaved with some sort of responsibility and accountability. They were so scared to break any laws those days. They respected the rule of law and judiciary those days. Moreover, as soon as candidates lose their election, they mingled with public in those day. Or they become ordinary citizens. This is exactly what we see in many European countries today. Yet, Sri Lankan politics has become a profit-making business enterprise. MPs use their power, influence and public office to make money, wealth and properties. Unfortunately, MR let his MPs to accumulate wealth. He created a plutocracy in Sri Lankan politics. The plutocracy is the rule of rich and wealthy. That is what exactly now we see in Sri Lanka. Noam Chomsky has condemned plutocrats for their failure to fulfil their social responsibilities. He argues that they misuse their political power to accumulate wealth for their greed and hedonism. That is why we notice a rapid increase of corruption in Sri Lankan politics. More importantly, we notice the increasing level of poverty among Sri Lankans.

 

Why many MPs in both main political parties do not want leave politics. Some of them are over 70 years old and yet, they do not want leave politics. Why? It is to expand this notion of plutocracy in Sri Lankan politics. Some wealthy wants to dominate Sri Lankan politics and hand over power to their family members. This is exactly what takes place in Sri Lankan politics. There is no one in main political parties to break this bad political precedent in Sri Lanka except JVP political party. So, we should support JVP to bring back some responsible politicians into politics. Recently, only 5 MPs came forward to declare their asset and properties. Why other MPs in UNP and SLFP have not come forward? Because, many of them are scared to come forward, they know they will end up in court.

 

What is politics? The social scientists and political theorists have been providing us with many definitions and theories around the notion of politics. In a nutshell, we can say political power is a social contract between public and the rulers. It is a trust between people and the rulers. Politics is something to do with the arts of governance, activities of government and different political parties. It is related to the question of how should people be ruled, and what kind of government people should have? People give their mandates to the rulers to rule the country with some expectations. The rulers should take over the power with sense of responsibility and commitments to fulfil. They must fulfil their duties with the sense of responsibility, accountability and transparency. Unfortunately, our politicians lack the sense of responsibility, accountability, transparency and sense of commitment. That is why we are suffering like this in Sri Lanka today. Unlike in the past, to engage in politics today, politicians need some skills, knowledge, and talent. Yet, in Sri Lankan politics, many people without any basic educational qualifications enter politics out of love and passion for posts and positions.

 

Plato and Aristotle maintained that political philosophy and ethics are inseparable. It means politicians must maintain some moral and ethical principles in their attitudes and duties. Yet, Machiavelli maintained that “there are no objective moral truth in politics, and political success therefore requires skills, not knowledge. We all know that it is impossible for everyone to win a game. Just as we cannot decide who should win a football match through scientific or moral debate, so, in the political contest for power we can find out winner only by playing the game” (Johanna Oksala, 2013, University of Helsinki. P.33). This is what exactly takes place in Sri Lankan politics too. All those plutocrats in UNP, SLPP and SLFP are playing these political games. They do not nominate educated youths into politics rather they would nominate all those craftly influential people into politics mostly from their inner circles to control power among these plutocrats.

 

Plato metaphorically compares the notion of democracy to that of a ship of fools. He argued that in the name of democracy a team of fools can control the politics and government. That is what exactly happens in many countries today.

 

“Imagine the following situation on board of a fleet of ships, or on a single ship. The captain has the edge over everyone else on board by virtue of his size and strength, but he’s rather deaf and short-sighted, and his knowledge of naval matters is just as limited. The sailors are all wrangling with one another because each of them thinks that he ought to be the captain, despite the fact that he’s never learned how, and can not name his teacher or specify the period of his apprenticeship. In any case, they all maintain that it isn’t something that can be taught and are ready to butcher anyone who says it is” (Plato, Republic p.208. translation by Johanna Oksala). This platonic description is well fitting Sri Lankan politics today. Many politicians today dream to become president of Sri Lanka and they do not think about their knowledge, training, apprenticeship in politics. All what they want is to compete for the presidential election like that of the captain of platonic metaphoric ship.

 

I find JVP wants to break this political culture of plutocracy in Sri Lanka. Yet, political vision and mission of JVP has not yet, reached into minds and hearts of 22 million Sri Lankans. They want to create a responsible and accountable political leadership in Sri Lanka. However, the political opponents of JVP have been trying to depict them with the old fashion socialism of failed states in the world. But, JVP in Sri Lanka has become one of progressive political party with some sublime political ideologies and principles. All what they want to do is to create a clean politics and service the public. Moreover, they want to create a politics of responsibility and accountability in Sri Lanka. They want to create a corruption free political leadership in Sri Lanka. Compared all what other parities so far have done in politics, the ethos, mission and vision of JVP politics are more comprehensive and more cohesive. Nevertheless, JVP lacks manpower to take its mission into each household of Sri Lankan communities. It has got a good vision for Sri Lanka and yet, it does not have enough resources to materialise its political agenda in Sri Lanka.

NZ Premier describes it as a terrorist attack

49 murdered in brutal attack on  two New Zealand mosques

16 March 2019

A “right-wing extremist” armed with semi-automatic weapons rampaged through two mosques in the quiet New Zealand city of Christchurch during afternoon prayers on Friday, killing 49 worshipers and wounding dozens more.  

The attack, thought to be the deadliest against Muslims in the West in modern times, was immediately dubbed terrorism by Prime Minister Jacinda Ardern, as she guided a shocked nation on one of its “darkest days.” The attacker live-streamed footage of him going room-to-room, victim to victim, shooting the wounded from close range as they struggled to crawl away.  

A 28-year-old Australian-born man has been arrested and charged with murder.  

He is set to appear at the Christchurch District Court early Saturday. Two other men remain in custody, although their link to the attack is unknown.  
The chief suspect allegedly published a racist “manifesto” on social media before the attack, featuring conspiracy theories about Europeans being displaced, and details of two years of preparation and radicalisation leading up to the shootings.  

 “It is clear that this can now only be described as a terrorist attack,” said Ardern. “From what we know, it does appear to have been well planned.” The Police said two IEDs (improvised explosive devices) were found in a car and neutralised by the military.  

Speaking in Sydney, Australian Prime Minister Scott Morrison described the gunman as “an extremist, right-wing, violent terrorist”.  
His two targets were the Masjid al Noor mosque, where 41 people died, and a second, smaller mosque in the suburb of Linwood, where seven more died. The remaining victim succumbed in hospital.  

The dead were said to include women and children. Around 48 people were treated for gunshot wounds at Christchurch Hospital, including young children, with injuries ranging from critical to minor.  

The survivors included 17 members of Bangladesh’s cricket team, whose game against New Zealand on Saturday has been postponed and a Palestinian man who fled for his life after seeing someone being shot in the head.  

 “I heard three quick shots, then after about 10 seconds it started again. It must have been an automatic -- no one could pull a trigger that quick,” the man who did not wish to be named, told AFP.  

 “Then people started running out. Some were covered in blood,” he said.  

New Zealand police described the footage shot by the gunman as “extremely distressing” and warned web users that they could be liable for up to 10 years in jail for sharing such “objectionable content”.  

In addition to the footage -- which AFP has verified, but is not distributing -- a number of pictures were posted to a social media account showing a semi-automatic weapon covered in the names of historical figures, many of whom were involved in the killing of Muslims.  

The attack has shocked New Zealanders, who are used to seeing around 50 murders a year in the entire country of 4.8 million and pride themselves on living in a secure and welcoming place.  

Police, who initially imposed a city-wide lockdown, sent armed officers to a number of scenes and the threat level in the nation was raised from “low” to “high”.  
In Auckland, 1,000 kilometres (600 miles) away, two unattended bags left near a railway station were detonated by military explosives experts.   Police also attended a property in Dunedin which they believe is linked to the attack and evacuated nearby residents.  

The southeastern city was named in the suspect’s manifesto as the original target for his attack.  

Police warned Muslims all over the country not to visit mosques “anywhere in New Zealand” in the wake of the Christchurch attacks. Friday is Islam’s holy day.  
Christchurch city council offered a helpline for parents looking for kids attending a mass climate change rally near the shooting.  

The attack has shocked the local Muslim population, many of whom had come to New Zealand as refugees. The Ardern government has been vocal in its support for opening the doors to those suffering from wars in Syria, Afghanistan and beyond.  

One witness told stuff.co.nz he was praying when he heard shooting -- and then saw his wife lying dead on the footpath outside when he fled.  
Another man said he saw children being shot.  

 “There were bodies all over,” he said.  

The Bangladesh cricket team -- which had been in Christchurch for a test match and was about to go into the mosque when the attack happened -- all escaped without injury.  

 “They are safe. But they are mentally shocked. We have asked the team to stay confined in the hotel,” he told AFP. Mass shootings are very rare in New Zealand, which tightened its gun laws to restrict access to semi-automatic rifles in 1992, two years after a mentally ill man shot dead 13 people in the South Island town of Aramoana.  

However, anyone over 16 can apply for a standard firearms licence after doing a safety course, which allows them to purchase and use a shotgun unsupervised. 
 AFP

A budget whose policy side does not matter

What counts in the next six months will be concessions and handouts

Kumar David-March 16, 2019, 7:15 pm 

"Our determination to pursue a liberal outward oriented economy is more steadfast than ever. . . We are creating a new breed of private enterprise, where success is through merit and the market operates on a rules-based level playing field. Sri Lanka needs a private sector free from the protectionist mind-set that continues to hold back our country’s development and modernization". MangalaSamaraweera, Budget Speech, March 2019.

Fat hopes! Finance Minister Samaraweera bathed his budget in a plethora of oxymora; on the one hand panegyrics brandishing liberalism and capitalism as in the quoted words, and on the other,promises of handouts and goodies for the masses. Poor sod! A sombre missive of frugality to charm business, to pacify the IMF and to soothe the nerves of fuddy-duddy economists; but oh dear there is a presidential election later this year, so populism to the fore!

A Rajapaksa nominee, and perhaps a flapping buffoon of a disoriented scarecrow, will take on the UNP contender; so Samaraweera has a problem. It has obviously been made clear to him that his task is to help the UNP win the presidency, not fertilise capitalism for future decades. Securing the presidency and keeping the Rajapaksa nominee and the delusional coot at bay will also be key to the parliamentary and provincial elections. In a word the pledge of a free and open market economy counts for much less than election winning populism. In any case, policies announced in March 2019 will not show results for two or three years, and that too only if the UNP wins and sustains its policy commitments. To put it in a nutshell, verbal liberalism counts for nought, it can bear zilch fruit in six months. What may (or may not) work are populist offerings.

Vote catching allocations

Allocation under the Gamperaliya Scheme to address critical infrastructure needs in villages and cities is to be increased from Rs.200 million to Rs.300 million per electorate. This will delight MPs and consolidate votes in parliament; Rs.48 billion has been earmarked for this and a further Rs.10 billion allocated for rural roads through the "Ran Mawath" programme. (Rs.1 million = US$5,600 and Rs.1 billion = US$5.6 million).

The Minister has copied Indian PM Modi’s lead in promising sanitary facilities and allocated Rs.4 billion to ensure that all homes have lavatories. And there was a sting in the tail: "Mr. Speaker, in spite of the country reaching middle income status and millions of rupees invested in sophisticated expressways and city development, 260,000 houses in the country are without sanitary facilities. The Hambantota District, which saw a splurge of mega projects in the form of California style highways, Chinese style conference halls and sports stadiums (he forgot to add airports without airplanes) has left 15,000 people without the most basic sanitary facilities".

The monthly salary of lower grade state employees will increase from Rs. 11,730 (in 2015) to Rs. 21,400 in 2020 incurring a recurrent annual expenditure of Rs 20 billion. There are 560,000 pensioners who retired before 2016 and 71,000 retired in 2016-2018. There is a disparity in the pensions of these persons and those who benefited from later salary increases. "I propose to allocate Rs.12 billion (recurrent) to rectify these anomalies. . . In 2017 and 2018, allowances to the police were increased, but commando, uniform, rent and good conduct allowance of the armed forces have not been increased, in some instances for over 20 years, and will be increased from 1 July 2019".

The housing needs of "the most vulnerable sectors of society, including low income groups in urban, rural and estate sectors and the North and the East" will be allocated Rs 24.5 billion. "At the same time work on 15,000 brick and mortar houses in the North and East will commence with an allocation of Rs 4.5 billion" in addition to the Rs 5.5 billion previously allocated. This is expected "to address issues of re-settlement of Muslims who were forcibly evicted from the North".

I am not sure whether Tamils will think the Rs 5 billion ($30 million) spread over two years as a "Palmyrah Fund" for restitution of war ravaged areas, adequate. However it will cement TNA support, vital for passage of the budget through parliament. Gajan Ponnambalam and Wigneswaran who prefer hemlock to the TNA may find this reason enough to throw their weight behind Gotabaya rather than a UNP presidential candidate. Human psychology works in inexplicable ways!

Disabled persons now get an allowance ofRs.3,000 per month which will increase to Rs.5,000 and the fund will be expand to accommodate 72,000 more individuals. The allocation is Rs.4.3 billion. Private entities that recruit at least five persons with disabilities, will get a salarys ubsidy of 50% of the salary per person up to an limit of Rs.15,000 per person per month for two years. At present 21,000 CKDu patients are paid an allowance of Rs.5,000 per month. The Minister promised to expand this by a further 5000 patients, thereby eliminating the waiting list, for which Rs.1.8 billion was allocated.

The crucial point that will matter is how many of these promises the government gets moving within the next six months. A playful Churchill mused "The best argument against democracy is a five-minute chat with the average voter". The Rajapaksa bandwagon is on the back foot; it besmirched its copybook in the 51 day fete that our national pantaloon enacted. But the UNP is on a sticky wicket too; rising inequality and slow growth are factors behind public discontent. Its liberal economic game of three years has been starved of success. This populist extravaganza is the UNP’s last fling; whether Churchill’s prescience will pay off remains to be seen.

The small and medium

(SME) sector

Samaraweera promised better opportunities for the SME sector and instructed all ministries and departments earmark "at least 10%" of the value of procurement to SMEs. This is a healthy and progressive measure. It is also a vote-puller if effectively and quickly implemented within six months. SMEs, more than big capital, have been an engine of social advancement. He added "(the) private enterprise I mean is the genuine entrepreneur who uses ingenuity to compete in a fair market, small and mid-size businesses that embody the spirit of trade and companies that compete on the global stage". One cannot fault these sentiments.

Interestingly he also cussed:"There is the other segment of the private sector which is averse to competition and fair markets. The beneficiaries of crony capitalism that thrived in a kleptocracy which enriched those connected to the previous regime. These companies grew rich on rents from walls of tariff protection driving up costs for 20 million citizens. They benefited from inflated government contracts the costs of which are still being paid-off. These oligarchs, a small but influential part of the private sector, yearn for the return of dictatorship". Endorsed!

The macro-economy

The 2019 budget expects total revenue and grants of Rs.2.5 trillion and estimates expenditure at Rs.3.2 trillion (one trillion = 1000 billion). The budget deficit of Rs.685 billion (4.4% of GDP which is on the high side) is to be financed by foreign sources, Rs.55 billion, and domestic sources, Rs.630 billion.

FDI inflows have increased in recent years encouraged by the end of the war. Lanka received a high influx of FDI in 2017 of US $ 1.4 billion (excluding foreign loans of BOI companies); 53% more than in 2016. But FDI as a percentage of GDP remains low, below 2%, compared to 6% for Vietnam. The IMF and the EU are putting their best foot forward to support the government, but post-war Rajapaksa governments kept up GDP growth rates of 6% to 7% compared to, disappointing for an Asian country, 3.5% growth expected in 2019.

I will not discuss the capital budget, GDP and manufacturing outlook, or the long-term impact of macroeconomic and fiscal policy since these are stuff of the imagination for a government stuck in an election cycle with a presidential challenge breathing down its neck. I would also have liked to discuss the proposed Colombo Light Rail Transit system; Rs.5 billion has previously been allocated to the Fort-Malabe section and the first tranche will be released in 2019. A Colombo-and-environs suburban railway is of paramount importance and decades overdue. Again and again, promises and promises, will anything ever happen?

Mangala means Delight

Samaraweera has long cherished this: "Mr. Speaker, I am delighted to launch the Scholarship for Educational Excellence Fund to enable top students in the Physical and Biological Sciences, Technology, Commerce and Arts at the ‘A’ Levels to pursue undergrad studies at top universities such as Harvard, MIT, Oxford and Cambridge. The first group will be chosen from the results of the 2019 ‘A’ Levels in August. Those selected will be required to return and serve at least 15 years in Sri Lanka". But first Mr Minister, teach them English, or they will waste their first year abroad.

Advanced facilities were promised for local universities. Rs.25 billion has previously been allocated to meet infrastructure gaps by provision of theatre complexes, professorial units and libraries. Professorial units are promised for Kuliyapitiya and Ratnapura Hospitals (supporting Medical Faculties at Wayamba and Sabaragamuwa Universities) and a Faculty of Allied Health is earmarked for Ruhuna University.A state of the art laboratoryfor research in cancer, diabetes and infectious diseases was promised for Jayawardenapura. These are good intentions and one wishes them well.

What is more important is to flood the market with doctors to break the unscrupulous influence of the GMOA. Contingency measures must be prepared to bring retired local doctors into service and to hire Sinhala or Tamil speaking overseas medics. Preparations to break that oft-threatened GMOA strike, that intends to hold the public and the poor to ransom, is an important reserve power in the arsenal of every government.

Recognition of and support for international schools is essential for equity in education

 For decades a vociferous minority who gained access to free higher education and university teachers who benefited from a State monopoly situation determined that private education is evil, and the solution was to keep increasing free public opportunities. Succeeding governments have indeed increased opportunities and today the percentage of youth receiving free education at public universities is 7% of the 18-24 youth cohort. What about the freedom of other 93% to pursue their aspirations with or without State assistance? – Pic by Shehan Gunasekara

 Friday, 15 March 2019

If we are to realistically address the increasing demand for quality education in a debt-strapped developing country such as ours, it is essential to allow a parallel system of private education opportunities within a policy environment that makes entry affordable and accurate information better available.

In its Budget for 2019 the Government has reiterated its commitment to provide no-interest loans to students pursuing higher education in non-State universities. This is a long overdue recognition of the role played by the private sector in expanding opportunities in higher education. Recognition for private contributions should be extended to school education too but with some modifications. For example, loans for students pursuing higher education should be translated to grants for parents of school children. These grants should materialise from savings made by the Ministry of Education through the streamlining of national and provincial bureaucracies, not by dipping into the Treasury debt pool.

In designing policies for higher education or school education it is important to understand what is signified by a cut-off mark for admission to State universities or to ‘popular’ secondary schools. The cut-off mark is an arbitrary number determined according to the number of slots available in public universities or popular secondary schools. If the cut-off Z-score for 2.1808 for the Faculty of Medicine for a student applying from the District of Colombo, it means that those getting 2.1808 or above get a 100% free of charge of education while somebody getting 2.1800 does not get any State support. Thankfully, these inequities are being addressed, slowly but surely.


Lessons from higher education
For decades a vociferous minority who gained access to free higher education and university teachers who benefited from a State monopoly situation determined that private education is evil, and the solution was to keep increasing free public opportunities. Succeeding governments have indeed increased opportunities and today the percentage of youth receiving free education at public universities is 7% of the 18-24 youth cohort. What about the freedom of other 93% to pursue their aspirations with or without State assistance?

Individual freedom is enshrined in our Constitution. To be free is to be not subjected to the arbitrary will of another. Governments past have hidden behind the pipedream of free public higher education for all and allowed a silent majority to be subjected to the will of a minority opposing private education. There is no plaque to mark the first degree awarded by a private institution in this country, but the ideological opposition has been overcome, and now our youth have many private alternatives for pursuing higher education.

Freedom of choice is not just about having alternatives. The alternatives have to be affordable and the information available. The loan scheme of the present Government goes a long way in making private education more affordable. However, we need to be cognisant of the student debt trap phenomenon experienced by youth in developed countries. Addressing such concerns require more thought but the loan scheme is a necessary first step.

Missing also is an effort to make comparative information available. A simple online registration system, the data on which is accessible to the general public, is the next step. At LIRNEasia we developed such a tool where anybody can search for private higher education opportunities by entering the desired field of study (See http://www.educationforum.lk/higher-education). The purpose of the tool was to demonstrate the concept. It is up to the Government to continue such a dash board. Cost of education and other details can be compared by prospective students, if the educational institutions are mandated by Government to make those available.


School education
Meeting the demand for a quality school education is another burning issue. For example, there are close to 200 international schools in the country serving the needs of parents who have not been served by public sector. Yet, these private providers are met with hostility. If the Ceylon Teachers’ Union (CTU) has its way, private schools will have no place in school education and they should be taken over by a Government which cannot manage its own. CTU is against regulating private schools citing that would give undue recognition to these schools. On the other hand, the Child Protection Authority says they receive complains about mistreatment of children in private schools and they insist on regulation. The tone of the Authority is hostile. The CTU is repeating self-serving slogans and the Authority is singling out private institutions.

The attitude to private education is similar across the spectrum from school education to higher education. Either private education is seen as inherently evil or inherently of low quality. There are good reasons for regulating private education but not based on false assumptions such as these.


‘Popular’ public schools provide only ~16,000 opportunities for 355,000 aspirants 
Not all 355,000 or so students sitting for the Grade V Scholarship exam possess superior cognitive abilities, but to parents, their child is special and they aspire for the best for them. The present Government and governments past have made efforts to make the neighbourhood schools attractive, but there will always be some schools that are more popular than others. To the Government’s credit the number of these sought-after schools have increased from 107 in 2007 to 186 in 2018, but there are serious inequities in awarding spots in a popular school.

For example, a majority of the places in these ‘popular’ schools are already filled by students admitted to Grade 1 using miscellaneous criteria including past pupil status of parents and proximity evidence which may or may not be true. It is not the intention of this article to critique these admission practices because these schools are probably popular because of the presence of more privileged persons of society who have used their privilege to secure places beginning in Grade One. The purpose here is to note that quality public options for parents are severely limited.

The 186 or so ‘popular schools’ create one to three new classes worth of new slots in the Sixth Grades every year to make room for admissions based on Grade Five scholarship results. For example, Royal College of Colombo may have 10 or more parallel classes in Grade 6, but according to Ministry of Education sources, only three class equivalents are open to scholarship students; Maliyadeva College in Kurunegala, for example, offers two classes and Dharmaraja College in Kandy offers only one new class for scholarship students.

In 2019, 86 schools made available three new classes, 69 schools availed two new classes and 36 schools availed only one new class, in the Sinhala medium. If we assume that a class in a popular school is typically packed with about 50 students, the maximum number of slots available for Sinhala medium scholarship recipients is about 16,000.

Similar to the case of higher education, the cut-off mark for admission to these schools is determined by the number of slots available. In 2019, a student needed to score 93.5% or more to secure a place in Royal College and 94.5% for Visakha Vidyalaya. Other schools require lesser scores. If you lived in a Hatton, for example, you needed 81% or more to secure a place in Handunuwewa Central College, a Sinhala medium school. What if your child received 80% and you believe that other schools in Hatton do not provide the education you wish for your child? If the Ceylon Teachers Union or anti-private education activists have their way, the parents of the rest of the children should just make do.


International schools provide ~12,000 or more opportunities
Mercifully, parents have private options. There are 34 historical private schools, including Musaeus College, S. Thomas’ College and Trinity College, which were allowed to remain independent and unaffected by the takeover of schools in 1961. There is a further set of 46 assisted private schools including St. Joseph’s College, Wesley College and Carey College, which continue to receive State assistance but are managed by independent boards. Additionally, there are now 200 or more international school s that have emerged, having bypassed the archaic law of 1961 that prohibits setting up private schools. The total of private options now exceeds 280. Parents have voted with their feet to validate these institutions and the clock cannot be turned back. Twenty-five of the international schools have organised themselves as The International Schools of Sri Lanka (TISSL) and they claim to enrol 40,000 or more students or roughly 3,100 entrants per year to those schools. If we make the modest estimate that each of the other ~175 international schools enrol 50 students per year on average, international schools together provide an additional 12,000 slots for new entrants per year. (We did not count historical private schools because admissions to those may not be as open as admissions to international schools).


Light-touch regulation and scholarships to support
Parents need some guidance in selecting from among these private options, but command and control regulation can do more harm than good. Unfortunately, our politicians and bureaucrats only know how to issue circulars. There is no follow-up and they don’t care about cost of compliance and adverse impacts.

Open data is the modern approach to regulation. As in the case of higher education, the Government should require all private institutions to upload comparable data on facilities, qualifications of teachers and past success of students at examinations on to a public website which contains tools for anybody to compare and contrast available opportunities in terms the attributes they value. The Ministry of Education does not need an army of inspectors to monitor. Thousands of eyeballs can impose self-regulation on contributing institutions. Self-regulation through open data is better than the discretionary judgment of inspectors who may or may not be swayed by graft.

In cases where the international schools fill gaps in public education opportunities, scholarships should be provided to students to attend these institutions. Students who do well at the scholarship exam but fail to secure a public school of their choice should be the first to benefit. In some public schools, no matter how much money the Government pours into the system, structural and cultural barriers prevent them from performing. In such a scenario, if there is a higher performing private school in the vicinity, it would serve the public interest better if the students are awarded scholarships to attend the private alternative.

Plush facilities or qualified teachers do not necessarily provide a good education environment. I have seen private institutions operating with shoe-string budgets providing a student-centred education which none of our popular schools can say they provide. Do not be misled by appearances. Some of our best schools started as mud-huts.

Royal Institute: Viyathmaga Kamal Gunaratne Puts NCPA, Education Ministry And Police In A Major General Soup

MARCH 18, 2019

The unlawful sacking of a 12 year old grade 7 student of the Royal Institute Nugegoda Branch by its Director of Administration Retired Major General Kamal Gunaratne, has now triggered the Human Rights Commission of Sri Lanka to summon officials of the Ministry of Education, National Child Protection Bureau and the Mirihana Police Women/Child Abuse Protection Unit for ignoring a complaint made by the student’s parent to each of their respective offices on the 25th of January 2019.

The Grade 7 student has been deprived of an education since the Royal Institute Nugegoda Branch unlawfully terminated the student on the 25th of January 2019.

Based on a complaint filed by the parent bearing number HRC/2989/18 to the Human Rights Commission of Sri Lanka, it summoned its meeting with the three respective bodies for a meeting which is to be held on the 22nd of March 2019 at their 6th floor office at 14, R.A.De Mel Mawatha Colombo 4.

The parent seeking relief has also officially filed complaints at the Police Commission, President’s Office and also the Child Court at Battaramulla.

The Child Court at Battaramulla in its bid to hear the complaint bearing number 5376/P has summoned officials of the Royal Institute, the parent and the child to a meeting with the presiding Judge on the 19th of March 2019.

The unethical practice employed by the Royal Institute also deprived the student who was eagerly waiting to go on his school class trip on the 27th of February 2019. The student had also paid the class trip fee which was Rs 3,700. However the Royal Institute, who had sent a letter by registered post to the parent on the 25th of February 2019 stating that the child’s education has been terminated, ejected the student from his class at the commencement of school on the 26th of February 2019 and had him sit in the school office the entire day.

Despite being deprived of an education on that day, the child was also exposed to much ridicule by other staff members who happened to pass him by whilst been made to sit in the school office.

The school refunded the Rs 3,700 to the child and stated that he won’t be going on the school trip with his class mates the following day.

This entire saga began in September 2018 when Royal Institute much against a letter issued to the parents in 2014 went on to increase the school fees by exorbitant proportions.

Many parents found it difficult to meet the hiked up fees when school commenced for the new academic year in September 2010, despite the school stating that fees would be increased bi-annually only by 12%. The school in fact increased the school fees annually.

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Teaching students from Grades 1-5 in English should stop: Ven. Ratana Thera

16 March 2019

National List MP Venerable Athuraliye Ratana Thera yesterday urged the government to stop teaching school children from grades one to five in the English medium.

Speaking during the committee stage debate on the budget in parliament, the Venerable Thera said Sri Lanka is currently following a concept which is not followed in any other country of providing primary education in another language other than the child’s mother tongue.

“If a child is given a primary education in a language other than their mother tongue, that child would not be a citizen of that country,” the Venerable Thera said. The Thera said it is important to regulate international schools, as well as such schools, can be run by anyone without any standards being adhered to. Therefore, the Thera said it is important to regulate them.

Making another suggestion, he said education should be a component which builds national unity. Accordingly, he said children in the North and the East should be provided education in Tamil, while children in other areas should be allowed to have their education in Sinhala.

Additionally, the majority of Tamils and Muslims who reside in areas other than the North and the East can be provided an education in Sinhala as a majority of them are fluent in the Sinhala language.
(Yohan Perera and Ajith Siriwardana)

President Sirisena has once again violated the constitution; Four lawyers file another case before the Supreme Court

(Lanka e News - 16.March.2019, 8.25PM) Four senior lawyers in the island yesterday filed a Fundamental Rights petition against the President Pallawatte Gamaralalage Maithripala Yapa Sirisena, who had violated the constitution and had violated fundamental rights of petitioners. The petition was filed by Lal Wijenayake, Sunil Jayaratne, Lakshman Jotikkumar and Namal Rajapaksa (not a Medamulana fake lawyer). As following as the petition submitted to the Supreme Court.

in the SUPREME court of the democratic socialist republic of sri lanka.

“137 The Court of Appeal shall consist of the President of the Court of Appeal and not less than six and not more than eleven other Judges who shall be appointed as provided in Article 107”

Annexed herewith marked P2(a) is a printout of the official webpage of the Court of Appeal available online at http://courtofappeal.lk which discloses an Acting Appointment as the President Court of Appeal accessed on 01-03-2019. Further annexed herewith marked P2(b) is a copy of an extract of the daily court list for 05-03-2019 as available on the said official website of the court of appeal accessed on 01-03-2019

9. The Petitioners are reliably made to understand that the Constitutional Council’s approval was not given for the initial acting appointment, nor for subsequent re-appointing the same Honourable Judge as the acting President of the Court of Appeal. The Petitioners state that such is contrary to Article 41C of the Constitution and in particular the proviso to Article 41C(2). The Petitioners further state that there is no provision in Article 109(1) for The Hon. The President to make acting appointments, in the manner done to date. Further, such is in contravention of Article 137 of the Constitution.  
10. The Petitioners are made to understand that The Hon. The President has conveyed the name of the 12th Respondent to the Constitutional Council for consideration and approval for appointment, as the President of the Court of Appeal. The Petitioners are made to understand from information available in the public domain, that such name as not been approved on several occasions by the said Constitutional Council.

Annexed herewith marked P3 is a copy of a news item contained on Daily FT Web accessed on 03-01-2019 titled Constitutional Council again rejects President’s nominee for Appellate Court Chairman available online at http://www.ft.lk/news/Constitutional-Council-again-rejects-President-s-nominee-for-Appellate-Court-Chairman/56-671643

CONTINUED ACTING APPOINTMENT TO PRESIDENT COURT OF APPEAL

11. The Petitioners state that the Hon. 12th Respondent has thus been continuously and successively appointed as the acting President of the Court of Appeal from on or around 9th January 2019 up to date. The Petitioners state that “acting appointments” to the office and position of President of the Court of Appeal are permitted only in the limited circumstances set out in Article 109(1) of the Constitution where such existing President is “(...) is temporarily unable to exercise, perform and discharge the powers, duties and functions of his office, by reason of illness, absence from Sri Lanka or any other cause (...)”. The Petitioners state that in any event such appointment can be made only subject to the approval of the Constitutional Council, and after such Hon. Judge takes/makes and subscribed to the required oath as required under Article 107(4) of the Constitution.

To the best of the Petitioners’ knowledge and belief, the Constitutional Council has not approved the Acting Appointment of the 12th Respondent and respectfully seeks an appropriate Order from Your Lordships’ Court directing any one or more of the Respondents to submit to Your Lordships’ Court all such approvals (if any).

12. The Petitioners state that making several consecutive “acting appointments” to the Court of Appeal in the said premises and manner, is inter alia, arbitrary, capricious, irrational and ultra vires the Constitution and in particular Article 137 as read with Article 109 and 41C. The Petitioners state that therefore The Hon. The President [represented in these proceedings by the 1st Respondent AG] is not acting in accordance with the relevant mandatory provisions of the Constitution. The Petitioners state that such actions have an adverse impact on the dispensation of / administration of justice and as such, The Hon. the President is under a constitutional duty to make a permanent appointment to the position of President of Court of Appeal with the approval of the Constitutional Council had and obtained as required by the Constitution.
13. The Petitioners state that in view of the public importance of the matter, on or around 09-02-2019, Lawyers for Democracy issued a public statement, clarifying the constitutional provision on this regard and calling upon the President to respect the Constitution in appointing Judges.

Annexed herewith marked P4 is a copy of the full text appears on DailyNews Online accessed online on 12-02-2019 titled ‘Lawyers for Democracy urges President to uphold Constitution’ available online at http://www.dailynews.lk/2019/02/12/law-order/177182/lawyers-democracy-urges-president-uphold-constitution

APPOINTMENT TO THE HIGHER JUDICIARY

14. The Petitioners state that the career judiciary in Sri Lanka is the Minor Judiciary and commences with a selection and appointment process by the Judicial Service Commission (hereinafter abbreviated as ‘JSC’) with appointments and promotions being made by the said JSC up to the stage of the High Court, in respect of the appointments to which the JSC recommends appointments to the High Court to the Hon. The President, who thereafter makes appointments under and in terms of Article 111 of the Constitution.
15. The Petitioners state that where appointments to the Court of Appeal and the Supreme Court are concerned, appointments to such office are made by The Hon. the President [represented in these proceedings by the 1st Respondent AG] upon the approval of the Constitutional Council as such appointed to the Court of Appeal and the Supreme Court are not promotions per se, but stand alone appointments to a constitutional position.
16. The Petitioners state that as set out by Sir Gerard Brennan “(…) Judicial appointment is not a stepping stone in a career: it is prima facie a dead-end job of the highest importance”. Accordingly, appointments to the Higher Judiciary must be made in accordance with the Constitution which requires the approval of the Constitutional Council.

Annexed herewith marked P5 is a copy of the cover page and page 585-586 of Dr. A.R.B. Amerasinghe’s book Judicial Conduct Ethics and Responsibilities.

FAILURE TO DULY RECOMMEND NAMES TO THE CONSTITUTIONAL COUNCIL & CONCLUDE APPOINTMENT PROCESS

17. The Petitioners state that since 9th January 2019, no appointment has yet been made to the office and position of President of the Court of Appeal. The Petitioners are aware that such has resulted in the constitution of the benches of the Court of Appeal being unconstitutional and disrupted, and on occasion resulting in concerns of the public vis-à-vis the effective hearing of cases. Such adversely affects the due dispensation of justice by the Court of Appeal.
18. The Petitioners state that there is a constitutional duty incumbent on The Hon. the President to duly recommend names to the Constitutional Council, for approval for appointment by him to the office and position of President of the Court of Appeal, in light of the circumstances hereinbefore morefully enumerated.

VIOLATION OF FUNDAMENTAL RIGHTS

19. In the totality of the aforesaid circumstances hereinbefore morefully set out, the Petitioners are advised to state that the actions of The Hon. the President, and the aforesaid failure to duly recommend names to the Constitutional Council, for the office and position of President of the Court of Appeal, is arbitrary, capricious, irrational and/or ultra vires the Constitution and violative of their rights under Articles 12(1) for the following reasons amongst others that may be formulated by way of Counsel at the appropriate time;

1. 1. By virtue of Article 33(1)(a) it shall be the duty of The Hon. the President to ensure that the Constitution is respected and upheld and therefore, it is his constitutional responsibility to make chapter VII A of the Constitution workable to achieve the objectives of the Nineteenth (19th) Amendment to the Constitution. As such, The Hon. the President is under a constitutional duty to recommend (an)other name(s) to the Constitutional Council, enabling thereby the Constitutional Council, to accept suitable nominees under Article 41C of the Constitution;
   2. Continuously forwarding the same name which had been previously rejected several times is arbitrary, capricious, irrational and/or for a collateral purpose;
   3. No acting appointment can be made without approval of the Constitutional Council and any such acting appointment sans approval is contrary to Article 41 of the Constitution [as read with Article 109];
   4. Consecutive actions making acting appointments as Acting President Court of Appeal in the given circumstances are contrary to Article 4(d) of the Constitution;
   5. The continued delay and failure to make nominations to the Constitutional Council violates the Rule of Law and adversely impacts on the Independence of the Judiciary
   6. The said decisions are clearly contrary to the President’s powers and duties as set out in Article 33 of the Constitution, and in particular Article 33(1)(a) as read with Article 33(1)(c) as read with Article 33A of the Constitution;
2. In the circumstances hereinbefore morefully enumerated, the Petitioners state that;
   1. The actions complained above, are unconstitutional, and violative of their rights under Article 12(1) of the Constitution;
   2. The said actions of the Hon. The President are unconstitutional, arbitrary, capricious, steeped in mala fides and appear to be for some undisclosed collateral purposes.
3. The Petitioners are advised to state that Article 35 of the Constitution, only confers immunity on the President in respect of civil or criminal proceedings, and the exercise of Your Lordships Court’s jurisdiction under Article 126 is unfettered in this regard, except in so far as, it is only open to the Petitioners to move Your Lordships’ Court against the 1st Respondent AG.
4. The Petitioners state that the effect of the actions impugned through this application is the negation of the efficacy of the 19th Amendment to the Constitution, which was enacted inter alia, to act as a check and a balance on the ability of the Executive President from unilaterally appointing persons to function in important judicial and public offices, including that of President, Court of Appeal, so as to confer assurance of greater independence and integrity to the higher judiciary.
5. The Petitioners state that grave and irreparable loss would be caused, and the instant application would be rendered nugatory, unless Your Lordships’ Court grant and issue an Interim Order that The Hon. the President [represented in these proceedings by the 1st Respondent AG] should desist from making any further acting appointments to the office and position of President, Court of Appeal, until the hearing and final determination of this application.
6. The Petitioners respectfully seek the indulgence of Your Lordships' Court, considering the limited material readily available in the public domain and the severe time restraints, to reserve their right to:
   1. Amend pleadings, add any person/persons as parties to this application in the event of further material revealing their complicity of the actions complained in the preceding paragraphs;
   2. Tender any further evidence or affidavits and documents as necessary substantiating the averments contained above.
7. The Petitioners are advised to state and therefore state that the aforesaid actions of the Respondents amount to executive and/or administrative action within the meaning of Articles 17 and 126 of the Constitution. The Petitioners specifically state that none of the asseverations contained hereinbefore come under Article 33(2)(g) of the Constitution.
8. The Petitioners state that they have not invoked the jurisdiction of Your Lordships’ Court previously in respect of matters pleaded herein.

WHEREFORE the Petitioners most respectfully pray that Your Lordships’ Court be pleased to grant and issue:

1. 1. 1. 1. the Petitioners leave to proceed with this application in the first instance;
         2. an Interim Order that The Hon. the President [represented in these proceedings by the 1st Respondent AG] should desist from making any further acting appointments to the office and position of President, Court of Appeal, until the hearing and final determination of this application.
         3. A Declaration that the Petitioners’ fundamental rights under Article 12(1) have been and continue to be violated by the actions of The Hon. The President, represented by the Respondent AG;
         4. Appropriate Interim Directions that The Hon. The President represented by the Hon. the Attorney General, and/or the 13th Respondent of the Presidential Secretariat to submit to Your Lordships’ Court;

1. 1. 1. 1. The decisions and actual letters of appointments, pertaining to the Acting Appointments made to the Office of President Court of Appeal from on or around 9th January 2019 and thereafter from time to time;
         2. The Approvals and/or correspondence (if any) of the Constitutional Council, received by The Hon. the President pertaining to the Acting Appointments made to the office and/or position of President, Court of Appeal after 9th January 2019.

1. 1. 1. 5. An Interim Direction on the 2nd to 11th Respondent CC, to submit to Your Lordships’ Court, all decision(s), correspondence and deliberation(s) pertaining to any acting appointments as President, Court of Appeal purporting to have been made in respect of the Hon. 12th Respondent;
         6.  A direction that The Hon. the President, represented by the Hon. the Attorney General, is required to forward fresh suitable nominations acceptable to the Constitutional Council for the office and position of President of the Court of Appeal;
         7. A Declaration that the decision to consecutively make acting appointments to the office and position of President of the Court of Appeal without the approval of the Constitutional Council is violative of the Constitution and in particular Article 41C of the Constitution read with Article 12(1);
         8. Declare that the actions of The Hon. the President represented by the Hon. the Attorney General, have violated and/or continue to violate the Constitution and in particular, Articles 33, 41C & 109 thereof;
         9. Declare that The Hon. The President represented by the Hon. the Attorney General, has acted contrary to the Constitution, and in particular Articles 33(1)(a) 33(1)(c) & 33A as read with Article 4(d) of the Constitution;
         10. Grant exemplary costs,
         11. Make such further and other just and equitable orders as to Your Lordships’ Court shall seem fit, in the circumstances of this application, under and in terms of Article 126(4) of the Constitution of the Republic; and
         12. Such further and other reliefs as to Your Lordships’ Court shall seem meet.

Attorney-at-Law for the Petitioners