Appearance in the case against the CJ will bring an END with fatal results -a chilling warning to a lawyer-

Saturday, 26 January 2013

‘I am making this complaint seeking appropriate measures be taken to protect my life during my stay in Sri Lanka, and if harmful action, if any, hatched against me, like a framed ‘accidental death’ or something similar, I have only one person to be suspected and held responsible for any such act, that is Mohan Peiris. ‘

Stated Mr. Nagananda Kodituwakku a senior attorney-at- Law in his complaint to the Mirihana Police on 23rd of January 2013 under reference’ CIB (2)/ 52/332

Full text of the complaint as follows.

I, Nagananda Kodituwakku, 58 years of age, Attorney-at-Law and Solicitor (England & Wales), domiciled in England and currently residing at 99, Subadrarama Road Nugegoda, Sri Lanka do hereby state as follows.

I have undertaken to support a very important Fundamental Rights Application (No 536/2010), which has been filed before the Supreme Court on 24th of September 2010. For a period of over 2 years and 4 months, this case has not been allowed to be supported before the Supreme Court due to numerous improper and inappropriate actions adopted by the Attorney General, expected to uphold the rule of law and not to protect and uphold the interests of fraudsters and cheats.

The fundamental reason for the inordinate delay and evasion of the supporting of the case is that, in this case, the gross professional misconduct and dishonesty of Mohan Peiris, (then the Attorney General), who is accused for deceiving Director General of Customs and the Supreme Court, is plainly exposed with irrefutable evidence, presented by way of ‘Observations’ made by the Director General of Customs. In this case, Mohan Peiris’s professional misconduct is further proved with the documentary evidence, including an affidavit by the Director General of Customs, which speaks for themselves of Mohan Peiris’s gross misconduct and dishonesty as a person who held a high profile public office. And in this case his improper actions and his connivance in defrauding a sum of Rs 519 million of public funds, with the knowledge and tacit approval of P B Jayasundara, the Finance Secretary, who is also cited in his personal Capacity, is plainly brought to light by the evidence presented by the Petitioner and the Director General of Customs.

I have visited Sri Lanka for more than 6 times to present this public interest litigation, yet, for the reasons set out above, and despite strong objections taken against the endless postponements, this case was never allowed to be presented, causing enormous pain and hardship to the Petitioner and his counsel.

In Sri Lanka, the Fundamental Rights Applications are of unique nature, and the Supreme Court is empowered to protect these rights of the citizens at all times. And this has been the very standpoint of the Supreme Court, which has held that the Fundamental Rights Applications are qualitatively different from other types of applications and hence warrants greater latitude with respect to their review and redress, in order to encompass the equitable jurisdiction exercised in these applications.

When this case was expected to be supported on 05th October 2012, due to an apparent threat posed to my life, I was forced to move for a date and return to England on 26th September 2012, after having made a complaint to the Police on 25th Sep 2012.

Now this case is re-fixed for support on 31st of January 2013, in a backdrop where the accused, Mohan Peiris himself has accepted the appointment to the office of the Chief Justice, with a scant respect or regard whatsoever to the Rule of law and moral integrity. Since supporting of this Fundamental Right Action would pose an imminent threat to the very survival of Mohan Peiris at the office of the Chief Justice, once again there is a serious threat posed to my life, with a clear warning, not to appear in the case. I have already reported this matter to the Foreign and Commonwealth Office in the UK and the British High Commission in Colombo, before returned to Colombo on 21st of January 2013. And just after my arrival, I received another email yesterday by somebody identified themselves as ‘Deshapremi’ with the following warning.

‘Chilling Warning’ - You have refused our warning and returned to Sri Lanka at your own risk. Appearance in the case against the CJ, against our advice will bring an END with fatal results.

In this background, I am contemplating to make an application to lay by the matter against Mohan Peiris, however, with the Petitioner’s legal rights reserved to support the case, once the Rule of Law in the country is duly restored.

I am making this complaint seeking appropriate measures be taken to protect my life during my stay in Sri Lanka, and if harmful action, if any, hatched against me, like a framed ‘accidental death’ or something similar, I have only one person to be suspected and held responsible for any such act, that is Mohan Peiris.

Fundamental Rights Application - 536/2010

Should The Adverse Trade Balance With India Be A Matter Of Concern

By R.M.B Senanayake -January 25, 2013 

RMB Senanayake

Minister G.L Pieris is reported to be discussing with the Indian government the adverse balance of trade Sri Lanka has with India and presumably to ask India to buy more from us. India is a large country several times our size and it is natural that the trade balance is adverse to us. But if every country seeks to balance its trade with each other, then international trade would be seriously reduced. Economists have proved the benefits of free trade. Trade is beneficial to both parties, a fact that our politicians don’t seem to realize. This debate is going on strongly in USA where various lobbies want the U.S government to ban or impose protectionist taxes on Chinese goods like tyres and solar panels. Seeking exports’ as a rationale for protectionism  is centuries old; it has been addressed countless times by economists.

Free Trade benefits both countries and tariffs to curb imports from a country which runs a favorable trade balance with us is condemned by economists since Adam Smith. This isn’t as intuitively obvious as economists think it is. Pointing it out won’t be sufficient. It needs to be explained in a way that makes it clear to people who are more used to believing the evidence of their eyes than thinking in terms of “the seen and the unseen”.

The trade account is only part of the external transactions of one country with another. There are the services provided by residents to non-resident Indians such as the spending of Indian tourists in Sri Lanka. India is today a large supplier of tourists to Sri Lanka. We need to know the current account in our Balance of Payments with India.

Since India runs a surplus with Sri Lanka it means that Indians are investing in assets in Sri Lanka –either real assets or financial assets. If there is a trade account imbalance it will be offset by either other transactions in the Current Account or in the Capital account. I tried to compile such an account for our Balance of Payments with India but couldn’t find any published data. It only means  Sri Lanka is a net borrower from India.  Since India is running a large trade surplus with Sri Lanka the Indian government should allow Indian banks and companies to lend to Sri Lankan companies in Indian Rupees.

Suppose my neighbor sets up a factory here does it make me poorer?  If not, why would my global neighbor, an Indian opening a factory here make me poorer?

I like to close with a quotation from Adam Smith in his Wealth of Nations. Adam Smith’s Wealth of Nations - a quotation that proves that concerns such as our policymakers  have proven again and again to be without merit, and have been addressed by serious economists since the launch of the discipline:

“There is no commercial country in Europe of which the approaching ruin has not frequently been foretold by the pretended doctors of this system from an unfavorable balance of trade.  After all the anxiety, however, which they have excited about this, after all the vain attempts of almost all trading nations to turn that balance in their own favor and against their neighbors, it does not appear that any one nation in Europe has been in any respect impoverished by this cause.  Every town and country, on the contrary, in proportion as they have opened their ports to all nations, instead of being ruined by this free trade, as the principles of the commercial system [i.e., mercantilism] would lead us to expect, have been enriched by it.”

Nepal has special payments agreement with India . We should explore possibility of using the Indian Rupee for carrying out our trade with India. The Asian Clearing Union has not been successful . Our Central Bank does not list the Indian currency notes as acceptable by our banks. If we do so we might be able to promote more services to Indians which will earn us extra foreign exchange. Of course the Indian government too should allow Indian Rupees repatriated to India through banks to be convertible to US dollars when our banks surrender them to Indian banks against dollars. Since Sri Lanka currency is too weak India will have to extend such a concession to us without reciprocity by Sri Lanka.

Leading silk (president’s counsel) and BASL were not there to grace the ceremonial welcome of Mohan Pieris as Thief Justice
(Lanka-e-News -23.Jan.11.00PM) The ceremonial sitting that was held in breach of traditions that has been followed for well over 200 years was boycotted by Bar Association of Sri Lanka and all leading Presidents’ Counsel in the Country.

For the first time in the history the Ceremonial sitting to welcome new Thief Justice was held under heavy police protection as has never seen before.

Those who did not grace the occasion and notably absent President’s Counsel were Wijedasa Rajapakse, K. Kanag-Isvaran, Romesh de Silva, Ikram Mohamed, Srinath Perera, Dr. Jayampathy Wickremaratne, Geoffry Alagaratnam, Jayantha Gunasekera, Anil Silva, Ananda Wijesekera, Maureen Seneviratne, Rohan Sahabandu, Uditha Egalahewa, Prasanna Jayewardene, ,Maithree Wickremasinghe, Harsha Amarasekera, Nalin Ladduwahetty and Senior Lawyers S.L. Gunasekera ,I.S. de Silva.

A ceremonial sitting of the Supreme Court is traditionally organized after the Bar Association of Sri Lanka makes an official request for a ceremonial welcome of Judge who is appointed to the Supreme Court.

Without such a request there cannot be an official ceremonial sitting. In the case of appointment of Mohan Peiris as the Thief Justice the Bar Association did not make such a request and in fact passed a resolution unanimously at an extraordinary meeting where well over 3000 of the Lawyers participated that the BASL will not participate in any such ceremonial sitting.

A Ceremonial Sitting involves two traditional addresses – one by the President of the BASL (the head of the unofficial bar) and another by the Attorney General (head of the official bar) welcoming the new appointee to office. The President of the BASL and its members cannot participate in any ceremony to welcome Pieris in keeping with the resolution of the BASL general body. All Attorneys at Law are members of the BASL, including the officers of the Attorney General’s Department.
In keeping with that resolution the Bar Association and its members and leading Presidents 
Counsel who form the inner Bar did not grace the occasion.

There were pro Government Lawyers who are holding key posts in the Government Corporations and Departments who participated. There was not a single President’s Counsel with a standing who was willing to break the tradition and go against the resolution passed by Bar Association of Sri Lanka

However, breaking all traditions Razeek Zarook, President’s Counsel the recently appointed Chairman of the Bank of Ceylon, has made a welcome speech.

Please Look After Sri Lanka

By Janith Thilakaratne -January 26, 2013

Chief Justice Dr Shirani Bandaranayake

It is already passed a week after the removal of the Chief Justice Dr Shirani Bandaranayake who still alleges to be the legitimate Chief Justice of Sri Lanka. But I wonder why other than a few websites and newspapers; we no longer can hear any news regarding that crucial issue Sri Lanka has gone through. It seems to me that this is like a ‘Stage Drama’ which at the end we all greet with applause and go home till a new drama comes to the stage.

There are few after effects that we must highly consider that happened after this removal. Even though Dr Shirani Bandaranayake alleged her legitimacy, it was a wise decision she has taken to leave the official residence and the chamber. As it is reasonable to presume that if she had not left, then the government would have taken steps to withdraw her which could have been harsh like the manner they arrested Mr Sarath Fonseka right after the 2010 Presidential election. It is the position of all those in Sri Lanka who believe in democracy and the rule of law that Dr. Shirani Bandaranayake is, and continues to be, the lawful Chief Justice of the Democratic Socialist Republic of Sri Lanka. But still how the Sri Lanka Police made sure that she would not make a public statement within the residence and outside is hilarious. We all observed through media how a senior police officer explained to the media that they could not even take a media statement outside the official resident, giving the lame excuse that it is a high security zone. But a few days prior to that, day and night protests were conducted outside the official resident of the Chief Justice with vibrant music, and on the day the parliament passed the impeachment Police turned a blind eye allowing them to celebrate by eating Kiribath (Milk rice) and lighting of fireworks. It is a popular secret that Sri Lanka Police is just complying with the orders, albeit how is it possible for a man who wears the uniform after taking of an oath that he would commit to protect the law and order of the country, to degrade his conscience by licking the boots of these in power, just to be loyal to get a promotion or just to keep what he has already got.

Eating of ceremonial kiri buth (milk rice) on the public road outside her official residence, with Ministers of the Government reportedly participating | Photo Vikalpa/CPA

After all we should not forget about the allegations leveled against our former Chief Justice Dr. Shirani Bandaranayake. The Judiciary is a separate body from the other branches of a State since there should be an independent and impartial umpire to decide the actions taken by the elected legislature and executive. Judges do not engage in politics and she should not do so either. But if we have a look at the judicial history after 1978, it is not that difficult to understand that the government or mostly the executive president has always appointed judges to the superior courts who they think to be vulnerable to their commands. So as to make sure the legitimate reviewer, would not declare anything against them. But we can be proud that we had justices in the superior courts like Chief JusticeNeville Samarakoon, Justice Mark Fernando, etc., and today also we have justices like that and they were revealed during the process of impeachment. It is hard to include Dr. Shirani Bandaranayake into that respective category, because she is one reason for the ultimate power holds by the president, since she supported the 18th amendment and all the government decisions. So finally she had become a victim of her own accord. But I would like to remind that this is not about an individual, but as a whole the independence of the judiciary that is in jeopardy and that’s the issue we all have to give importance to.

Arguing about the impeachment procedure is no longer useful as I think. Because the unfairness and injustice of it being continuously reiterated by the International Organization, International Bar Association, and world recognized judges like Justice C.G Weeramantri and almost all the other distinguished legal professionals except a few government puppets like Professor of Law G.L Peiris.

So I have no intention of arguing about it. But how the things are moving after the removal is not sound at all. Firstly the appointment of the new Chief Justice is rather tragic. Reasonable people allege Mr. Mohan Peiris is a person with an unpleasant history in the legal profession. During the tenure which he worked as the Attorney General he withdrew many controversial cases relating to the government ministers and politicians. And in the same time he fulfilled the requests of his family and friends without any hesitation. Also he is the one who created controversy by informing the United Nations in a deposition defending the government’s human rights record that a missing Ekneligoda was alive and well, living in another country. A person with such history being appointed as the Chief Justice of Sri Lanka would not do any good to the country but it will further lead us to the miracle of Asia.

On the day(15th of January), when the new Chief Justice was appointed, the entrance to the Supreme Court was closed and when the lawyers asked under what law it was closed, they had no answer to give. Further media personnel were not allowed to enter the premises. Even though the lawyers protested and demonstrated that there was no law to prevent the journalists from entering the premises, Sri Lanka Police simply ignored the question and continued surrendering to the higher command given to them.

This decision of President Mahinda Rajapakse is nothing but another landmark on his path towards being the sole dictator of Sri Lanka. Someone who has no respects for law and do not have any shame and fear cannot be stopped. The particular point that such person gets power is the tragic moment which terminates of the democracy of the country. Appointing Mr.Mohan Peiris as the Chief Justice shows that President Mahinda Rajapakse need to assure to the citizens that no one can stop him or go against him.

It is no longer a secret that President Mahinda Rajapakse had several discussions with Superior court judges, high court judges and members of the BASL before and after the appointment to make sure they all support him. Now the BASL is silent and judiciary is functioning as if nothing happened. But the few prominent lawyers who actively engaged in the struggle to secure the independence of the judiciary are being threatened by a group that identified themselves as a patriotic taskforce. Simple outcome of all this is that, we the citizens of Sri Lanka have two options. One is to be loyal to the Rajapakse family and to get treated as patriots or go with the own conscience and be another victim of a clandestine death or be stigmatized as traitors.

The behavior of puppets of President Rajapakse who serve in the parliament as the representatives of people should be highly criticized in the process. Their misbehavior demonstrates their ignorance of the law in the country. And I am wondering about the fact that currently we have politicians in parliament who are more educated and know the law better than superior court judges. The person who made that statement is not anyone else but the most patriotic minister in the Parliament Mr. Wimal Weerawansa who would say anything to please the president.

But after all no one can think or recognize what we should do. As per the recent interview given by former editor of the Sunday Leader, Frederica Jansz, we all do not want to be heroes or heroines “, “My children need a Mum and not a heroine””, so for the sake of the job, security of family, we all decide to keep the mouth shut and just be happy with what we have for the sake of being so. So what we need is a change in the political culture of Sri Lanka, till that we would never be able to stop the journey of Rajapakse family towards the sole ownership of our motherland. As Dr. Shirani Bandaranayake herself left her official premises she managed to say few words, “Please look after the three of us” which are symbolic of the fear that prevails now. Now we all need to plead “Please look after Sri Lanka”.

*Janith Thilakaratne, Student, Faculty of Law, University of Colombo

PHRE calls upon SL government to act immediately to ensure the safety of the lawyers

Saturday, 26 January 2013

People for Human Rights and Equality calls upon the Sri Lankan government to act immediately to ensure the safety of the lawyers concerned and to carry out investigations into the threats issued. We also call upon all friends of Sri Lanka to exert their utmost influence on the Sri Lankan government to persuade it to carry out its responsibilities towards its citizens.

People for Human Rights and Equality made a press release today (26). Full statements see below.

Despite much serious and reasoned criticism locally as well as internationally, the Sri Lankan government has gone ahead and impeached the Chief Justice Dr. Shirani Bandaranayake. During the lead up to the impeachment there was a virulent campaign against those who opposed the impeachment that labelled them traitors and described their opposition to the impeachment as part of an international conspiracy. The aftermath of the impeachment has witnessed the latest twist to this campaign. Several prominent lawyers, who questioned the legality of the impeachment process and protested against it, have been issued with death threats by an organization calling itself the Patriotic Force that Liberated the Country.

This is not the first time individuals who opposed the assault on democratic institutions in Sri Lanka were threatened. As several individuals who have been at the forefront of the campaign against eroding Human Rights in Sri Lanka have been murdered or abducted already, we cannot but take such threats and intimidation seriously. No one has yet been brought to account regarding these offences which makes us also question the Sri Lankan government’s commitment to freedom of expression in Sri Lanka.

People for Human Rights and Equality calls upon the Sri Lankan government to act immediately to ensure the safety of the lawyers concerned and to carry out investigations into the threats issued. We also call upon all friends of Sri Lanka to exert their utmost influence on the Sri Lankan government to persuade it to carry out its responsibilities towards its citizens.

Editor’s Note: Reflections On Constitutional History, Theory And Practice

By Asanga Welikala -January 26, 2013 

Asanga Welikala

The Centre for Policy Alternatives (CPA) has announced the launch of a website complementing the print edition of The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice,first published in December 2012. The website contains the complete contents of the two volume publication as freely downloadable PDFs, and other related content. The hard copies of the book will be available free at CPA from 1st February 2013 onwards.

Reflections on Constitutional History, Theory and Practice |A collection of scholarly essays marking the 40th anniversary of the establishment of the Sri Lankan Republic in 1972. Edited by Asanga Welikala.

Editor’s note by Asanga Welikala; 

Thank you for visiting this site.

It represents an experiment with publishing scholarly thinking on issues of constitutional significance in the public interest, which I hope will be successful in informing the way we approach, and think critically about, the great political issues of the day in our country. These debates are too often conducted in an environment of apathy or a lack of comparative and theoretical insights; or, in what is a disconcerting new development, straightforward untruths and deliberate disinformation, as the recent constitutional crisis with regard to the impeachment of the Chief Justice has shown. Your patronage of the site therefore is greatly appreciated and I hope it will lead to similar initiatives in the future.

In 2012, Sri Lanka marked the fortieth anniversary of the founding of its republic. With the promulgation of the first republican constitution on 22^nd May 1972, Ceylon severed its remaining constitutional links with Britain that had survived the grant of independence as a dominion in 1948.

Both the process adopted in the making of that constitution as well as its substance were historic – a decisive ‘constitutional moment’ – reflecting dramatic political currents that had dominated the late-colonial and post-independence period. It established a constitutional order that has, despite being replaced by a second republican constitution in 1978, retained its essential substantive character as a highly centralised unitary state to the present.

In terms of both the consolidation of constitutional democracy and in addressing the challenges of ethnic, religious and cultural pluralism that post-war Sri Lanka must settle in order that causes of past conflict are not reproduced in the future, the historical, political and constitutional issues that prevailed in 1972 are as relevant as ever.

This two-volume edited collection brings together a series of reflections on those issues – now available in electronic form through this site – by a distinguished group of Sri Lankan and international scholars from multiple disciplines as well as political practitioners, with a view to informing the contemporary debate on strengthening democracy, constitutionalism, and reconciling the constitutional form of the Sri Lankan state with its rich societal pluralism.

I hope you enjoy the site and its contents, and I look forward to receiving your comments. I hope even more that the many excellent chapters in it will receive the scholarly and critical attention they deserve.

Thank you.

Asanga Welikala

Editor, (2012) The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice (Colombo: Centre for Policy Alternatives).

From 1972 to the Rajapaksa mode of governance: Constitution making in Sri Lanka-

From 1972 to the Rajapaksa mode of governance: Constitution making in Sri Lanka-

 Groundviews-  26 Jan, 2013

Nihal Jayawickrama, LLB (Ceylon), PhD (London), was the Permanent Secretary to the Ministry of Justice from 1970-1977, having been admitted to the Bar as an Advocate of the Supreme Court in 1962. As Dr. Jayawickrama notes in this chapter to The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, edited by Asanga Welikala,

My involvement with the drafting of the 1972 Constitution commenced with my unexpected appointment as Permanent Secretary to the Ministry of Justice shortly after the May 1970 general election. When I was invited by the new Prime Minister, Mrs Sirimavo Bandaranaike, to leave the Bar and become a public servant for the next five years, she assured me it would not be to appoint justices of the peace, but to formulate and implement a comprehensive programme of legal and judicial reform about the lack of which I had been complaining to her for some time. At the age of 32, that was a challenge. I was not a member of her political party, or indeed of any other. However, my association with her while she was in Opposition, as a lawyer whom she consulted on legal matters, and sometimes on political matters with legal implications, provided me with sufficient confidence to venture into the wholly unknown world of public administration and political intrigue.

In this brief interview recorded for public television in Sri Lanka with Dr. Jayawickrama, we delve into several aspects of his chapter and the points he notes therein. We begin on a personal note – what, as a young lawyer of 32 at the time of his involvement in the drafting of Sri Lanka’s first Republican Constitution, Dr. Jayawickrama felt and experienced. Given the robust consideration of the role of women and gender in the process of constitution making in The Republic at 40, Dr. Jayawickrama reflects on how through personal initiative and for the first time, he brought in women to hold offices previously held by men.

We then go on to talk about how, if at all, the process of constitution making in Sri Lanka had changed from the 70′s to more recent efforts. In his chapter, Dr. Jayawickrama avers that when he attended the first meeting of the drafting committee, he and others present were provided with an attractively printed version of the Constitution of the Federal Republic of Yugoslavia. In light of this irony, and how Sri Lanka’s clearly and with increasing violence, moved away from federalism, Dr. Jayawickrama looks at whether the drafting of the ’72 constitution, and all constitutional processes since, were, despite the best efforts to resist, hostage to the juggernaut of Sri Lanka’s dominant ethnic group. Linked to this, the next question deals with why fundamental rights and civil liberties were so weak in the ’72 constitution, a trend that has only accelerated in subsequent decades.

Based on Dr. Jayawickrama point that the 17 member steering committee to draft the ’72 constitution were largely Sinhala Buddhist’s from the Goigama and Salagama castes, he goes into what role, if any, caste politics played in constitution making at the time.

Harking back to the point about civil liberties earlier in the programme, we again focus on the deracination of fundamental rights in Sri Lanka, and in particular, the particularly revealing opposition to strengthening fundamental rights in the constitution by Dr. Colvin R. de Silva,

“Those who asked for and received a section on fundamental rights and freedoms in the coming constitution have wanted it because they feel that some special protection is needed in certain matters. Now, I may view that to endeavour to give such special protection can be an obstruction in the way of the progress of…an under-developed country.”

Akin to and by decades, prefiguring Kishore Mahbubani’s position on human rights in Can Asians Think?, Dr. Jayawickrama places this overt disregard for fundamental rights in the socio-political context the ’72 constitution was drafted in.

In Dr. Jayawickrama’s chapter, S.W.R.D. Bandaranaike is painted in a rather charitable light. Though Dr. Jayawickrama very clearly flags that majoritarian and expedient language politics by the Sinhalese played a central role in the radicalisation of Tamil polity and society, he does not explicitly refer to the abrogation of the Bandaranaike–Chelvanayakam Pact and its serious, lasting ramifications. Dr. Jayawickrama explains why he thinks that had he lived for another year, Bandaranaike may have gone on to remedy the corrosive political forces he had unleashed.

Towards the end of the interview, Dr. Jayawickrama speaks more broadly about what he meant by his assertion in his chapter that ‘political ideology has no place in a constitution’, in light of the submission that any constitution is animated by, though not necessarily hostage to, certain political ideologies and the context in which it was given life to.

In his speech at the launch of Republic at 40 in Colombo, Dr. Jayawickrama gave a scathing critique of the Rajapaksa regime, asserting that Sri Lanka today has moved beyond an Executive Presidency based model to a corporate governance mode for the entire country – the Rajapaksa ‘sangamaya‘ (or company) – as noted by the President’s brother, Basil Rajapaksa (see The Rajapaksa ‘Sangamaya’: Creating employees and customers of citizens for video). Dr. Jayawickrama ends the interview by locating the current regime’s illiberalism and violence in the culture, traditions and powers expressed in and given life to by the ’72 Republican constitution.

UGC Chairmanship And The Law

By S. Ratnajeevan H. Hoole -January 26, 2013 |

Prof S. Ratnajeevan H. Hoole

We have just had the rule of law severely weakened in the purported appointment of a CJ. The Bishop of Colombo, The Rt. Revd. Dhiloraj Canagasabey, called it “a complete collapse of democracy.”

There is an old saying that “He that Steals an Egg will Steal and Ox.” We have had a big theft by the President in purporting to sack the CJ and replacing her with Mohan Peiris, a man against whom there are many charges of impropriety auguring ill for prospects of the law being upheld from Hulftsdorp. 

There have been many examples of eggs being stolen by this administration long before the Ox was stolen in Hulftsdorp. For instance appointments and non-appointments affecting the quality of freedoms in national life in violation of the Constitutional Council established under the Seventeenth Amendment. The administration was testing the waters and when it became obvious that we would take no personal risks by protesting, stole the entire legal apparatus which guarantees all our fundamental freedoms.

The UGC Chairmanship

Now to one of the stolen eggs. The UGC runs our universities and is one of the most important mechanisms for ensuring quality education. Thus the Chairman of the UGC at least has always been a person of strong academic accomplishments even though political trust also has been a consideration.

However, the appointment of Gamini Samaranayake as Chairman in March 2006 came as a jolt because he was still an Associate Professor and had great shortcomings which we need not dwell on. His main qualification for the apex office in the university system was that he had vigorously campaigned for the President in Nov. 2005 and, it is said, authored the President’s “Chintanaya” – his “Thoughts” or Manifesto. We academics kept quiet because if we commented we could not go to him for favours and he as UGC Chairman had the power to stunt our careers. How he, once Chairman, put himself through two promotions, first to Professor and then to Senior Professor, and how new UGC Circulars helped in those promotions is history (The Sunday Leader, 8 May 20011).

UGC Chairmanship Renewal in 2011

Samaranayake’s five year term of office (03/2006-03/2011) was lack-lustre. It is widely known that many like the Minister for Higher Education, S.B. Dissanayake, were very unhappy and had asked for his removal but the President was loyal to Samaranayake and wanted him to serve out his term. During this period many of the UGC’s functions were usurped by the Ministry as Samaranayake kept a low profile but obeyed the President beyond the call of duty and even in violation of the law.

A classic example is in facilitating Nalin de Silva’s unlawful appointment at Kelaniya. de Silva being a leader of the Tamil-bashing coalition supporting Rajapaksa, Rajapaksa and de Silva needed each other. So de Silva of Sri Jayawardenepura moved to Kelaniya and became Dean there on Samaranayake’s watch well after he had passed his mandatory retirement age of 65 under the Universities Act.

de Silva, previously fired from University of Colombo on disciplinary grounds, has been described by Kelaniya academics as “an arch-Sinhala-Buddhist nationalist who rejects modern science although he is the Dean of Science Faculty of the university.” My own exchange with de Silva was when I was the UGC’s point man on revising the Circular for professorial promotions and de Silva came to the UGC representing FUTA and made self-serving nationalist arguments. For example his position was that the UGC was wallowing in colonial servility by giving higher value in promotion exercises to indexed foreign journal articles and books published by prestigious publishers like Oxford University Press and John Wiley, than to locally and self-published material on which he had built his career.

Reappointment of Samaranayake and FUTA Strike

The Samaranayake UGC’s term expired in March 2011. Samaranayake was seeking a second term while Minister S.B. Dissanayake had been promised a change and others including H. Abeyagunawardena (presently Member, UGC) were lobbying hard for the job. It seemed at the time that Abeyagunawardena had been promised the post. But the President who runs on favoured boot-lickers who would do anything for him did not have the heart to tell Samaranayake. Characteristically of him, the President took no action, enjoying all the lobbying and sucking up from various aspirants, at the expense of the university system running rudderless without anyone at the helm; no Chairman and none of the other 6 members either.

Then in April the university system ground to a halt with, one, a FUTA Strike which crippled the universities when Department Heads resigned their posts and no one was available for administrative work, and, two, legal issues involving the SL Medical Council over the conduct of exams for ranking medical graduates from various universities for placement in internships.  Samaranayake who was still coming to the UGC pretending to be the Chairman, was asked now officially to take administrative actions on these two problems, actions having no standing in law. So without a UGC meeting he issued a UGC decision as contained in Circular 956 requiring three months’ notice for a Head to resign. Other UGC directives also were issued and agreements made with the SLMC.

At this point if a person other than Samaranayake was appointed UGC Chairman, all these shenanigans with his signature would come undone. So to rectify and legalise these purported actions a UGC with Samaranayake as Chairman was appointed with backdated letters.

Pacifying Aspirants

Others who were hoping to be Chairman were assuaged saying it was a temporary stop-gap measure until Samaranayake turned 65. Even at that time, for this lawless regime the law meant nothing. For, the law holds in the Universities Act   5 (1): “Every member of the Commission, including the Chairman and the Vice-Chairman, shall, unless he vacates office earlier, hold office for a term of five years reckoned from the date of his appointment, and shall, unless removed from office, be eligible for reappointment.”

Thus Samaranayake can leave his post only under four conditions: he finishes his 5 year term, he quits, he is removed by the President or he dies or is otherwise indisposed.

As a result we simply assumed that Samaranayake being on a short term appointment was mere spin simply to put off and not offend hangers-on vying for his job.

Samaranayake Retires; The Law in a Coffin

However, now Samaranayake is really retiring from the UGC under a misapplication of Section 73 of the Act: “The holder of a post of teacher […] shall continue in that post until he has completed his sixty-fifth year.” This applies only to his substantive post of teacher from which he was released to be UGC Chairman and not to his 5-year term as UGC Chairman.

According to reports he has already returned to Peradeniya preparatory to retirement. Having misapplied this provision to Samaranayake as UGC Chairman, even Abeyagunawardene cannot now be appointed. Or do these niceties matter?

Being a loyal stooge, Samaranayake will not grumble. Yet we mourn his premature end of term against the provisions of the Universities Act because with him the rule of law, already in a coffin, gets yet another nail.

Post Script: The appointment of Prof. Kshanika Hirimburegama as the new UGC Chairman has just been announced with effect from the end of the month. She is presently the VC of University of Colombo which post she would need to relinquish as a result of the appointment.