கவனிக்க: இந்த மின்னூலைத் தனிப்பட்ட வாசிப்பு, உசாத்துணைத் தேவைகளுக்கு மட்டுமே பயன்படுத்தலாம். வேறு பயன்பாடுகளுக்கு ஆசிரியரின்/பதிப்புரிமையாளரின் அனுமதி பெறப்பட வேண்டும்.
இது கூகிள் எழுத்துணரியால் தானியக்கமாக உருவாக்கப்பட்ட கோப்பு. இந்த மின்னூல் மெய்ப்புப் பார்க்கப்படவில்லை.
இந்தப் படைப்பின் நூலகப் பக்கத்தினை பார்வையிட பின்வரும் இணைப்புக்குச் செல்லவும்: OPA 2007.05

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Page 4
OPA JOURNAL
The official Publication of the Organisation Associations of Sri Lanka
VOL22 - May 2007
Editor: Eng. D, D.S..Joyowardeno
275/75, Prof. Stanley Wijesundera Mw Off Bauddhaloka Mw, Colombo 07
Telephone - 2580268,2501721 Fax - 2559770
E-mail - opacasltnet.lk Web Site - www.opasrilanka.com
 

fProfessional

Page 5
10.
OONTE
Editorial - Bribery and Corruption
Building Bridges Across Cultural Barriers
The Telecom Sector in Sri Lanka
- Globalization, Expectations, and Realities
Strengthening Judicial Power of the People through Constitutional Reforms
Police, Politics and the 17 Amendment
Ethical Values and Society
Asymmetrical Devolution; An Answer to Sri Lanka's Ethnic Problem
Manipulating the People for Federalism
A False Claims Act and Public Interest Litigati
will make financial control more effective
Global Integration and National Interests; Managing Change in Sri Lanka
Any views, opinions in the articles of this
views of the OPA or any Member Associatic the views of the Authors of the article in qu
of the authors for any statistics and

NTS
Page No
5
- Judge C. G. Weeramantry 7
- Mr. Peter Jayasekara 16
- Dr. Joel Fernando 22
- Dr. Kingsley Wickremasuriya 29
- Eng. Hemal Pieris 43
- Prof. Kumar David 49
- Dr. Susantha Gunatilaka 56
O
- Mr. R. M. B. Senanayake 63
- Dr. Saman Kelegama 66
ournal do not necessarily reflect the »n of the OPA, buf should be faken os estion. It is entirely the responsibility other dafo given in the articles.

Page 6
Design & Print: Media Tec Advertising & Printing Services, Nugegoda.
Tel: 0777411 553 Fax -2820374


Page 7
BRIBERY AND CORRUPTIO
FROM THE EDITOR
Bribery and Corruptic Power and Nepotism, forty years back only Police and the Income today practically in e gradually coming to some of those in Afr majority of the people :
Corruption has being Ministers took over the the 1978 Constitution, contestants to spendl also no compulsion f funds. Thus the first ti after the sponsors who them in
Not only Bribery an involved often go into heard the Auditor Gen. amount involved ran proposion of Sri Lank not yet apprehended, a hotels in Dubai, politi maintaining a stiff up govt. even ridiculed th come out with the fac silent.
In the Global Cor International, Sri Lan above the more corrup the past 4years we hav
Now we have the R Parliament that corrup
 
 

on in the country, a direct result of Abuse of has risen to unprecedented levels. Thirty to a few govt. depts. like the RMV, Customs, tax were notorious for bribery and corruption; very dept. it is common practice, that we are evel off with countries like Bangladesh and ica. It has become so endemic that the vast seem to think that bribery is the normal thing.
helped by the 1972 Constitution, when the : functions of the Permanent Secretaries, and by which brought the Manape system, forcing the avishly and recover the funds later! There is or political parties to disclose their sources of ning they do, after assuming power, is to look ) funded them, and not the voters, who voted
d Corruption are widespread, the amounts billions, particularly in tenders. Recently we eral's comments about the VAT scam where the into 389 billions rupees, which is a sizable a's Budget. Although some of the kingpins are ind rumored to be building multi million dollar cians in the govt. as well as the opposition are per lip about the whole episode. Some in the he Auditor General, who was brave enough to ts! Strangely even the Civil Society has been
ruption Report prepared by Transparent ka has been categorized at number 84, just it countries like Bangladesh and Zaire. During 2 been steadily sliding down the Scale.
leport from the COPE, which disclosed to tion and malpractice had risen to dizzy heights

Page 8
in 26 state institutic Bank of Ceylon. W suffers, it is always natural calamities li disasters like these belonging to the ri bureaucrats always was out, there are ta the COPE
Singapore is a very eradicated corruptic leadership, although Lankan leaders set lot. The saying of th good and just, his m and just”
Professionals have a in the Agenda and and Political Parties necessity for Goo Parliamentarians. T should press on, ins

ns, including the CEB, CPC, NWS&DB and the o finally suffers? Although the whole population the poor man who suffers the most, whether it is ke Tsunamis, land slides and floods or man made lay light robberies at the Inland Revenue. Men h and well to do category like politicians and benefit and get away easily. No sooner this report Iks that the govt. is considering to do away with
ood example in the region, which appears to have in to a large degree. The obvious reason is good some may argue that govt. is dictatorial. If the Sri in example, these corrupt practices will reduce a e Buddha is very apt, “If the Ruler of a country is inisters, the officials and the people will be good
duty to take up Corruption as a high priority item make representations to the President, Ministers OPA in the past has repeatedly highlighted on the di governance and for a Code of Ethics for he 17" Amendment was a good achievement. We pite limited success so far.

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BUILDING BRIDGES ACROSS CULTURAL BA
Judge C. G. Weeramantry *
* Judge Ad-hoc Former Vice president of the
International Court of Justice.
Sir Hayden Stark Prof. of Law-Monash University and Emeritus Professor Founder Chairman, Board of Trustees Weeramantry Internationl for Peace, Education and Research Winner- UNESCO Peace Education Prize- 2006
The President of OPA, Ladies and Ge to address this audie to be hosted by the E been a long standing Professional Associa the past. The Sri Lai professional life. It regarding profession law in its practical tremendous and wh largely due to what I the Bar of Sri La Associations synthes of service, honour, problems of the coul synthesizes this in a service of the entil members represent 1 knowledge to the se professions continue of the various learnet
Their were many Lankan Bar not the lea of our legal system, thi and the many ways integrated together inti think stood the count formed. Also, this ha cultural traditions, re country and Sri Lanll combining such a vari it enables the membe
* From a Lecture delivered at the OPA
 

ARRIERS
the Bar Association, the President of the ntlemen, it gives me the greatest pleasure ce today and I feel particularly privileged lar Association of Sri Lanka of which I've member as well as by the Organization of tions with whom I've had much contact in kan Bar is the Bar at which I started my taught me much of what I've ever learnt |al obligation, professional standards and application. My debt to it has been at I've achieved later on has been very learnt in my initial years as a member of nka. The Organization of Professional sizes for the different professions, the ideas integrity and general concern with the ntry which all the professions share and it manner, which brings it to the practical e nation. The professions who are its he highest points of dedication of expert rvice of the people and long may these to serve the traditions and fulfil the ideals ed bodies whichthey represent.
advantages of having my training in the Sri st of which was the cross cultural composition : cross cultural composition of our community in which all these different cultures were abody of law and standard of service, which I ry very well ever since the profession was is led to greater sensitivity to the different ligious systems and legal traditions of the a in that respect is extremely fortunate, as ity of traditions and religious backgrounds that 's of its professions to be really multicultural

Page 10
and to perhaps provide some multicultural perspectives which would be of advantage to professions in other parts of the world.Now in view of the social and political scene, that we see around the World today and the tremendous tensions and conflicts that seem to be raging in so many parts of the world, we need as professionals, to reflect on the causes of this and there are certain features that emerge straight away. It will be self evident to all that this is an age of the unprecedented power of humanity through technological power, economic power, organizational power and communications power to lead all of humanity upwards towards that Sunlit plateau of peace and justice, which has been the dream of humanity ever since civilization began.
Unfortunately this is not happening and one is compel to reflect on the reasons for this. One is also compelled to reflect on the paradoxes that in an age when science has grown to the point that it can assure a world of comfort for all. Wealth has grown to the point where it can afford a world of prosperity to all. Political Organizations have grown to the point where it can give a world of peace to all. Centuries of civilization have given us a culture and can give us an enlightened lifestyle for all. The sacrifice of tens of millions of lives in various World wars, gives us the background to a world of compassion for all. An international law gives us the apparatus for a world of justice for all. Yet, despite all these we are floundering in the midst of all this wealth of opportunity all this abundance of riches we are floundering in the midst of all sorts of trials and tribulations which we should have been able, quite easily, to banish from the human community throughout the world.

After all the world spends on one estimate which I read the other day, Seven Hundred and Eighty Billion Dollars and another estimate over One Trillion Dollars on armaments. This money seems easy to find. But the Fifty or Seventy Billion Dollars that is required to provide education for all, protection against Aids, pure Water Supply for all and generally the basic needs for all people on the planet. About Seventy or Eighty Billion Dollars, one tenth of that money is difficult to find, it's not available. There's something wrong somewhere, ten times that amount of money for purposes of destruction, easy to find, one tenth of that money for all these useful purposes, impossible! So there's something wrong somewhere and when we think of what is wrong, I think we will find that is it the various parts of the world community have grown up in isolated compartments, seeing very little of each others traditions, cultures, problems and needs and therefore not rising to the level of a “World Community” that is able to do something to supply these needs. In the words of Rabindranath Tagore “The world today is wild with the delirium of hatred” that's a beautiful description of what the world situation is at the present moment, and he says, that “the parts to a solution are tangled with greed.” The path to a solution is tangled with greed. So greed and lack of perspective seems to be two of the factors that prevent our being able to solve our problems and all this results very, very largely from the compartmentalization of the world community to the point where you See a problem only from your own point of view.
Now shortly after World War II, writer Emery Reeves wrote a book called the "Anatomy of Peace,” in which he pointed

Page 11
out that the self same event, the Identical event and reported with the identical facts in the newspapers of Moscow, Rome, London, Tokyo, New Delhi etc. would be perceived by different populations in totally different ways. Reasonable people in each of those capitals, would asses those identical facts in such a manner that they led to totally different conclusions. Why? Because they do not see each others points of view. In the words of the Scottish poet; "Oh, would some power the gifts he give us, to see ourselves as others sees us' We cannot see ourselves as others see us, we see ourselves only from our own points of view. And we have breakdown these barriers to understanding that are completely obstructing any move towards global progress.
This becomes especially dangerous in a world of
O Dwindling earth resources O Shrinking distances O Instant communication O Greater independence All these are rapidly shrinking the entire planet to one common home, of one common family, the human community. But we refuse to see it that way and still see ourselves in isolated groups.
Now what divides us? The number of possible diving factors is legions. Linguistic factors, racial factors, tribal factors, religious factors, regional factors, national factors, economic factors, educational factors, all these divide people into compartments. The divide society is criss-crossed. And you get into a little compartment and in that compartment, you grow up in that compartment, you live with people who share similar views and from that compartment you do not see the outside world. Consequently we lose the benefit of

the treasures of other cultures, the achievements of other civilizations, the wisdom of other traditions, the confluence of great religions, the richness of other languages, the problems of other groups. All those perspectives are lost to us. We see only a clash of civilizations and that is dangerous talk that is in the air today. I've just returned from oversees and this talk of a clash of civilizations is growing to a dangerous level, when in fact we should be talking of a confluence of civilization. Because all the great cultures of the world teach basically the same central truths that set of core values, that is taught by all the religions and cultures of the world is the same.
Peace
Assistance to those in distress.
Compassion
Avoidance offorce.
The peaceful settlement of disputes.
Protection of the environment.
Justice
Unity of the human family.
Dignity of the individual human
being.
The obligations of those who are in
positions of privilege.
O The notion of duty to the community rather than the rights of the individual.
O The avoidance of waste.
All these great world traditions, lead to that reservoir of core principles that self same reservoir of core principles, which we tend to neglect and we harp on the supposed divisions and distinctions of doctrines betweenthese different religions.
So I think a tremendous effort has to be mounted, to show how all the great religions

Page 12
of the world tend to the same result. The same core values, which any child can understand and which all the human family share so strongly. Yet we cannot perceive this because were told there are these divisions between religions. They think differently, they have different history they have different needs and so forth. So we have got to think in terms of saving the whole vessel of humanity rather than short term division which sink the whole vessel on which we all are.
There is a beautiful parable taught by Prophet Mohammed on this, it's known as the parable of the “Two Decked Boat.” That shows how people for short term gain are prepared to sink the whole community. The parable is this; There is a boat with two decks, and there are people on the lower deck and people on the upper deck, after Some time as is the human custom there are bickering among the people there, in the lower deck and the upper deck but more than that there are strong differences break out between people of the lower deck and people of the upper deck. Now the people of the lower deck need water, but to get this water they've got to go to the upper deck. So after some time things become impossible because when they go to the upper deck there are all sorts of problems and then what happens, a bright young spark in the lower deck says, “Can't you foolish people see, there's water all around you' and he takes an axe and make a hole in the bottom of the boat, “Here's water for everybody.” Now that is what the world is doing. Because we cannot resolve our own differences, between different groups we are prepared to sink the whole vessel and that becomes a very grave danger in this particular day and age.
It is the 1" century to dawn with humanity having the power to destroy it's

10
self. The weapons of mass destruction are becoming more and more easily available. I have in a little booklet set out 15 reasons, why, the danger of a nuclear incident somewhere grows from month to month. It is not reducing, it is growing every month. Because there is more information available about how to make nuclear bombs, there are more people who have the knowledge to do it, the materials are more easily available and so on and in this age we cannot afford to make the mistakes we made in the last century. When the last century dawned, there was a hope that at last, we will have a century of peace and there was a great “Peace Conference” in 1899 at which they planned for a century of peace, this bright, new Twentieth Century, which was about to dawn. They held that conference at the Hague at the incentive of the Czar Nicholas II of Russia and they planned in beautiful terms for the brand new century of peace. But we bungled that century and it became a century of lost opportunity. Now this new century that is in its early years, is our century of last opportunity. We cannot afford to bungle this century, because we'll not have another century in which to put our house in order. We have to put our house in order this century, and the way we can put our house in order is to show that the human family is one. Common ideas, common aims, a rich set of traditions and no dividing lines between them and we've got to break down those barriers, break down those road blocks.
Now first of all, let us see how these traditions operate in common and lead to the same result. In the International Court, we had many cases between different countries where principles of International Law had to be applied and I took the opportunity when I was there, to try to explore all the different

Page 13
cultures of the world and show that International Law is not merely a Eurocentric body of knowledge but that it can reinforce its central concepts, from the traditions of all communities and from all religions. Whenever a case came up, I was at pains to show that the basic principals, which led to a solution, could be grounded in all the different cultures of the world.
Let me give you an example; there was a case between Hungary and Slovakia in relation to the waters of Danube. There was a complain by Slovakia, that Hungarian action in regard to this water had stopped the free flow of water into their country and had damaged the environment. Questions of Environmental Law were involved and people were trotting out the principles from the European rule book of International Law. I pointed out that, all of these principles of environmental protection can be traced to and strengthened by the traditions of (all) the world.
I drew first upon the principles that were set out by Mahinda to Devanam Piyatissa teaching him Buddhism in that greatevent in the history of Sri Lanka. When Mahinda accosted Devanam Piyatissa and said you maybe the king of this country but your not the owner of this land. You are the trustee and you hold it for the benefit of those who are entitled to use it both now and the years to come. So there's Buddhism with its tre m end o us insights, into how environmental problems should be tackled.
Islamic Law likewise treats as a fundamental axiom, that land does not belong to an individual. Land belongs to God. Individuals hold it in trust. African Law or the Tribal Law of Africa which of

course is only now being studied in depth shows us that African wisdom indicates that any decision in regard to the future of the community, any major decision, has to be taken, having regard to the three fold aspect of humanity. Humanity is not comprised only of us who are alive here and now. Those who went before us and those who are yet to come. We have to consider all those three facets if we are to take a proper decision regarding any matter of importance.
American Indians, they had the tradition that if any decision was to be taken regarding land, they had to think in terms of Seven generations to come. Not merely in terms of the generation now living. The Aboriginal culture of Australia; that all humanity is linked by an umbilical cord to Mother Nature. And if Mother Nature is deprived of sustenance then we must all starve and perish. All these traditions joined together, they flow towards the same result. Creating a huge reservoir of International principles, which tell us that it is our duty to protect the environment and not exploit it in a selfish way for our own advantage now and for the advantage only of a small group. And that becomes very relevant in a planet where the resources are scares and everybody is competing for a fast diminishing set of planetary resources.
So that was just one example, of how you can draw together the cultures of the world in regard to major matters. Then there was also the famous nuclear weapons case, which recently the Tenth Anniversary of which was celebrated (recently), where the International Court was asked to give its opinion on the legality or illegality of nuclear weapons. I went beyond the other Judges of the Court and said that nuclear

Page 14
weapons are illegal in any circumstances what so ever. And there again I showed how all the world's cultures, could be drawn upon to reinforce this result. I drew principally upon the tradition of Hindu Law. Where in the Ramayana, there is the very clear example stated, of a hyper destructive weapon being available to Rama if he chose to use it. But Rama and the same time was told, you cannot use it without contacting the Sages of the Law. So he had to consult the Sages of the Law and they said you cannot use this weapon lawfully in warfare. Why? Because it goes beyond the purposes of war. The purpose of war is to subjugate your enemy and live in peace with him there after. Not to ravage his country side and destroy vast wild segments of his civilian population. So Rama could not use it, so there was Hindu law in its ancient wisdom. Telling the world, that weapons like the nuclear weapon, weapons of a hyper destructive nature go far beyond the purposes of war and just cannot be used. And there's another great piece of wisdom in Hindu Law. The ultimate sovereign of the world says Hindu law, will not be a Chakrawarti. A Chakrawarti is a physical, universal sovereign. The ultimate sovereign of the world will be the kingless authority of the Law. In other words, Four thousand years ago, the Hindu sages were telling us that the ultimate sovereign of the world will not be a physical ruler, it will be International Law and I drew upon that as well.
Likewise Christian Law, the Lateran Council in the 13" Century said that the crossbow the siege engine which had been recently invented, were too cruel to be used in warfare among Christian Nations, that was in the 13" century. And even in the 19"

12
Century they said that the "Dumb Dumb bullet” when it explodes after entering the human body is too cruel to be used in human warfare. So all these civilized nations as they describe themselves, said to themselves in 1899, the “Dumb Dumb bullet' is too cruel to be used in warfare amongst us civilized nations, but these same civilized nations say the nuclear weapon is perfectly legal. It just stands to reason that there is something wrong somewhere and any kindergarten child could see this. And all this is because we lose sight of the wisdom of other cultures. Then again Jewish law; The wisdom of turning swords into ploughshares and not learning the art of war anymore, that is the ultimate objective set forth in those scriptures. And Buddhism of course completely outlaws war, but beyond that it goes into the physiology of conflict.
How does a Conflict arise? It starts with a minor disagreement, which leads to a dispute, which leads to ill feeling, which leads to anger, which leads to animosity, which leads to hatred, which leads to mortal enmity, which leads to war. So Buddhism says, stop it at the earliest possible stage, and the Buddha himself intervened on more than one occasion to stop conflicts. And I also drew upon Buddhist history to remind the Court of the immense traditions of Buddhism in regard to the peaceful settlement of disputes. Because the Buddha settled so many disputes peacefully including one in Sri Lanka, Where the two warring Chieftains with their armies drawn up in battle array broke their weapons at the Buddha's feet. And I got the idea of asking Tissa Ranasighe our famous sculptor to make a bronze sculpture of this, that was done, it was a big bronze sculpture of the Buddha settling this dispute in Sri Lanka and

Page 15
the two warring Chieftains breaking their weapons at his feet and that hangs now outside the Deliberation Chamber of the Judges of the International Court. So, all these different religious traditions point to the same result. And what we must aim at is more knowledge of the interrelationship of cultures. Not a total block in regard to visions of other cultures. And one way we can achieve this is by education about the fundamentals of other religions.
Now when I was at school, we had this practice that the school principal at daily assembly would read little extracts for two or three minutes from the scared books of the great religions. Today from the Bible, tomorrow from the Koran, then from the Bagawath Geetha and then from the Dhammapada each day and by the end of the term, we all had the smattering of the basic teachings of the major religions. Now that I believe is something that is essential in the world today. I've been saying that overseas and I say that here in Sri Lanka, that we must introduce into our educational system (a little, just, not much detail) but a basic understanding of the fundamental teachings of all the religions. And we have this extremely privilege position in Sri Lanka, of having these four major religions, living side by side, and having lived side by side, for hundreds of years, we are not making use of it. Everybody professes allegiance to these religions but people act in a manner which is quite contrary to their fundamental teachings of peace. We have to end that and the way that we can end that is by giving each other, giving all children, a Smattering of each others religions. Of course they must have depth of training in their own religion, but they must have some understanding of the others and I believe that International

Law too and International Relations, and everything that functions on the international scenes, can benefit similarly from a knowledge of the interrelationship of religions.
Which is another point I would like to mention; not only do the teaching of various religions teach the same core values. There's a great deal of interrelationship in history between the different religions. And I say that particularly in the context of today's fears of a clash of civilizations. They are talking of Christianity and Islam without a proper understanding of the tremendous interrelationship between these two religions. And the fact that European culture owes so much to Islamic learning, especially during the dark ages, when the torches of learning was kept alight in the Islamic world between the 8" and the 12" centuries, when the torches of learning had gone out in the western world, it was in the Islamic world that scholarship was kept alive. Whether it was Algebra or any sort of Mathematics, Physics, Chemistry, Physiology, Theology, Philosophy, any thing at all, it was in the Islamic world that it really was blossoming and from the Islamic world, from Universities for example, in Islamic Spain, knowledge seeped through to Europe and that was the beginning of Universities like Oxford and Cambridge and Paris and so forth. With the knowledge that radiated out from the Islamic world and even more there was this doctrine of the importance of truth as revealed by human reasons.
The Islamic world worked out this philosophy that there was a very important connection between the discovery of truth and human reason. Human reason had tended to be suppressed in those early years,

Page 16
in those early centuries, because what God wanted us to know was revealed in the holy book. That was the teaching at the time, but the Islamic scholars broke through that and worked out the doctrine of double truth. There is truth that comes to us by divine revelation but there is also truth that comes to us by human inquiry. And by human inquiry they were able to ascertain various facts which led to the development of knowledge and progress of civilization. And this went on in the Islamic Universities, there were philosophers like Averos who taught this doctrine of double truth but they were banned in the Christian Universities. The Averos were banned, till Thomas Aquinas the great philosopher of the Catholic Church came and gave legitimacy to Averos teaching and said, “There is substance in this teaching and there is room for the acquisition of knowledge by human inquiry.” And this let loose basically the horse of reason, which had been kept confined in the stable and the horse bolted and could never be put back again. And that is what might have led to the reformation and the renaissance in Europe. So there is all these interconnections which people are not conscious of, they need to be told all of this and I think it would be a tremendous educational exercise for all our schools to devote a little time to this sort of teaching. Show the interrelationship of religions show the basic common core of teachings of the religions, show the history of the struggle, which humanity has had to achieve even such international institutions as we have.
After all, even the United Nations the International Court of Justice they were achieved only in the 20" Century. After maybe 40 centuries of history. And we must not take them for granted and treat them

14
lightly; we must develop them further and cherish these institutions. But there is a trend abroad today especially sometimes on the part of the great powers, to treat International Law as not binding whenever it suits them. Now that is wrong. If International Law is to have efficacy, it needs to be treated with respect by all concerned, because you cannot have one law for one section and one law for the other. And the way to this b ett er u n d ersta n d in g, is a n understanding of each others cultures. So there should be an understanding of the peace philosophies, how there was the Greek Philosophers, the Chinese Philosophers. Then there were people in more modern times like Lock Cruso, Bentham Tolstoy and the philosophers of even our own age Gandhi, Martin Luther King, Nelson Mandela, all of them teach roughly the same thing. The same core values and I think our children if they can be exposed to the teachings of these great men, will realize how common is our common human inheritance of traditions, drawn from all sections of the global community.
Then the philosophy of the peace movements in the 19" century there were about four hundred peace societies all over the world. Because after the Napoleon (it was) it ended in 1815 people wanted an end to all war and they were philosophizing about peace, those philosophies gathered together the wisdom of all the world. The Theosophical Movement and so on did a great deal of collection of wisdom from all the world's traditions and that is there and it is available to us. We are just not

Page 17
looking at it when all that wealth of material is there. So we have to introduce that into our educational patterns, then the basic principles of International Law are all these same core values. And the Legal profession has a tremendous obligation in this regard I believe. Because the Legal profession can be the leaders of opinion in this sort of area of knowledge and their body of knowledge “Law” has got to be related to the practical needs of society. The social needs of society, the needs of justice and so forth in a manner which is sometimes lost sight of when Law becomes too technical and too legalistic.
Jesus, Himself in three places in the Gospel, scolded the lawyers for being too technical. And I think the legal profession has to move out to the community and do something to make people understand all these areas of interrelationship. (And I'm so glad that the President of the Bar Association is here.) There is going to be a Law week this year, which will take the legal profession out into the field so to speak, to meet members of the public, so that the legal professions and the public can interact and produce a world of better justice for all.
So where ever we look, we find that there is so much scope for interrelationship, just one other example I mentioned, comparative law studies; We in Sri Lanka can very fortunately please, because we have a legal system, which combines the Common Law tradition as well as the Civil Law tradition. So we see both traditions along with a number of other religious traditions, like the Islamic, the Buddhist, the Hindu and so forth. We are uniquely placed in this regard, and I've realized what a tremendous advantage that is when I've moved around in the International Community, because very

often if you meet a lawyer from a Common Law country ora Civil Law country, he does not know very much about the other system and feels very uneasy there to move into that System, where as Sri Lankan lawyers can.
So Comparative Law studies, all these are Very, very important. And also breaking down the barriers between disciplines, because law has an interfaced area with every discipline you may care to name. Medicine, Science, History, Physiology, whatever it is, there is an interfaced area, which the law must attend to it to give it more relevance and bring it more closer to the people. All these are Wonderful opportunities we have as lawyers and members of professional bodies in Sri Lanka. We can perhaps set an example to (all) the world, in how we can bring all these traditions and there common repository of wisdom to the notice of the world community. We probably have an obligation to do that, because we are so uniquely placed.
And I have been very privileged to remember the Sri Lankan Bar. I feel very honoured at the reception they are giving me today. We have the material, we have the talent, we have the traditions, we can offer leadership to the rest of the world and I think we can show the world how we can break down these dividing walls, which are causing so much tension in the world today. That is the message I leave with you today. Let's break down these walls of separation. Let's set an example. We are uniquely able to do that. And I wish you well, in this endeavour.

Page 18
THE TELECOMSECTC Globalisation, Expect And Realities
Eምefer Jayasekera *
* Attorney at Law Chairman Consumers Association of Sri Lanka
This paper otherw people having to which the people
SR LANKA TE
On 25 Septe was converted to Telecom Limited Telecom Corpor Japanese Compa purchasing 35% high expectations
In or about this tim brought a radica telecommunication the World Bank in CURRENT TEL COMPETIVENES January 1995" pred quote " The
telecommunicatio
A key feature of continuing fall in c the “near zero” regi
The basic premise charges (installatio as free by all use communications c poorest countries. fall enormously p perhaps to less tha behind pricing mu
* From a lecture delivered at the OPA
 
 
 
 
 

)R IN SRI LANKA - lationS
ise examines the tragic fate of the Sri Lankan lay exorbitant prices for the use of telephones, fother countries do not suffer.
LECOM.
mber 1996 Sri Lanka Telecom Corporation a Limited Liability Company called Sri Lanka This incorporation was aimed at privatizing ation. One year after the conversion the Iny NTT came in 1997 as an investor, of shares of Sri Lanka Telecom. There were articulated in respect of this investment.
he the Revolution in Information Technology has l technological development in the World industry, so much so a Study commissioned by 1995' entitled “THE CONSEQUENCES OF ECOMMUNICATION TRENDS FOR THE SOF DEVELOPING COUNTRIES-Simon forge icted as follows:
basic premise of near zero- tariff
S
today's telecommunications environment is the harges. This paper examines the consequences as on of tariffs is attained perhaps by 2005.
of near zero tariff telecommunication is that all n and use) will become so cheap as to be perceived rs. The fall in charges must be so drastic that me to be so considered a basic right even in the This means that telecommunication charges must 'rhaps to less than 5 per cent of today's figures1 per cent in Some countries. Thus the motivation t change radically to promote higher value added

Page 19
services rather than to optimize profits from the sale of Basic connections.”unguote.
It has been said that the rate ofdeclining costs per line has been in the region of 10 to 15 percent annually due to the technological development in the World. It is eventful that 2 years after the aforesaid World Bank study the OPPOSITE happened in Sri Lanka. In 1997 the Government of Sri Lanka offered 35 percent of the shares of the Sri Lanka Telecom (SLT) to investors. The NTT Company of Japan who among others had tendered for the offered 35 percent of Telecom Shares and succeeded purchasing them. The Japanese Investor in the meantime has also secured the management of the Sri Lanka Telecom (SLT) by a Management Agreement. It has also secured a Shareholders' Agreement with the then Government and obtained the right to raise domestic telecomtariffs as follows:
25 percent increase in 1998 25 percent increase in 1999 20 percent increase in 2000 15 percent increase in 2001 15 percent increase in 2002
(these 5 increases would cumulatively sums upto over 147 percent)
The privatized SLT managed by the Japanese Investor was also given the exclusive IDD monopoly for 5 years till August 5"2002.
LACKOFTRANSPARENCY
There was no transparency in this all important transaction with the Japanese Company
It may be mentioned that the public of this country were not aware of this transaction as

it was done secretly without any transparency, though the then Government had before coming to power talked and trumpeted that it would in all its transactions follow a policy of Transparency. Even today the citizens of this country, do not know how many tendered for these shares. What were the respective offers of each of the tenderer's and who was selected whether the highest or lowest bidder?
What we came to know is the ostensible argument offered by the Japanese Company to ask for these unreasonable increases administratively is the need for rate rebalancing to avoid the need for raising IDD rates in order to offset the alleged reduction in the SLT revenue that it incurs due to the fall in revenue in the international payments that foreign countries were paying Sri Lanka Telecom for terminating their calls in Sri Lanka.
This was a fictitious argument employed to hoodwink the people, as the Japanese Investor, did not give the alleged quantum of loss in foreign payments and the statistics of the operating cost per line and investment per line incurred by Sri Lanka Telecom Ltd. The Government of Sri Lanka in 1997 either innocently or probably by design collaborated with the investor by giving these 5 increases that resulted in jacking up telephone tariffs in Sri Lanka artificially to exorbitant levels while these tariffs were falling elsewhere in the world.
AGREEMENT TO GIVE5NCREASES
One cannot assume that the Government of Sri Lanka (GOSL), its experts on tele communic at i on s and Te le communication Regulatory Commission of Sri Lanka (TRC) the body supposed to advise the GOSL on these matters were unaware of the developments in

Page 20
the international telecommunication industry at the time which even informed citizens of this country were aware and which even the World Bank publication referred to above has articulated so reasonably.
During this period due to the upsurge in development in the World and globalisation that followed, many countries were deregulating and liberalizing their nationalized public utilities. The World Trade Organisation (WTO) and the World Bank were inducing Such countries to follow the principles of transparency, promote competitiveness and among others provide free access to information. The WTO also insisted on the need to setup REGULATORY BODIES for regulating the liberalized sector to make sector reforms effective. In respect the WTO insisted on Independent Regulators in the following terms:
“The Regulatory Body is separate from and
not accountable to, any supplier of basic telecommunication services. The decisions of and the procedures used by regulators shall be impartial with respect to all market participants.”
TRC OF SRI LANKA A COLLABORATOR OR AMERE
BY STANDER
When privatising an industry or an incumbent operator no Regulator in the World and no sensible Government would provide increased tariffs to a local or foreign investor or an Operator even for one year. The reason is that it would raise the prices by bureaucratic and command means and is anti competitive. It also would hinder new entrants to the market to offer competitive services to the consumers. On the contrary it would help to induce new comers to create duopolies and cartels to exploit the consumers, so as to keep up their super
1.

profits. In this instant case the increases were for 5 consecutive years providing 100 percent price increase with cumulative effects during the period.
THIS ASPECT OF THE SHAREHOLDERS AGREEMENT WAS CONTRARY TO LAW
Another and fundamental aspect of this matter was that the so called Share Holders Agreement was and is contrary to the provisions of the Sri Lanka Telecom Act No 25 of 1991 which has prescribed the criteria for determining the revision of tariffs by an operator. This CRITERIA set out in Section 17(7) (k) of the Act stipulated that any price revision applied for by any operator should be in accordance with economic criteria (not by command or administrative decisions). The TRC (Regulator) had long before the coming of the Japanese Company (NTT) has defined the economic criteria in the original LICENSE it has granted to the SLT as the change in the Colombo Cost of Living Index (CCLI) less 2 percent since the previous price increase. The Regulator with the Minister cannot sanction any increase prices for telephony services in excess of such criteria. Thus the 5 increases agreed to be given to the NTT was violative of the law and was illegal in terms of the provisions of the Telecom Act No. 25 of 1991.
THE TRICK EMPLOYED BY THE REGULATOR TRC TO OVER COME THE LAW
The TRC without getting the Government to amend the law setting out economic criteria in Section 17(7) (k) of the Act, decided to modify the original License condition 20.1 and 20.2 where it has specified that the SLT could not raise tariffs except in terms of the change in the Cost of Living Index, This modification was to suspend these clauses

Page 21
for 5 years from 5" August 1997 to 5" August 2002. The modified license said that the SLT could ask for increase of tariffs in its best interestand commercial judgment.
However this suspension of the original license was unlawful since the afore said Section 17(7) (k) was unamended and is still in the governing Act.
The SLT asked for the 5 increases in terms of the Agreement yearly from 1998'to 2002. With the result that the telecommunication tariffs in Sri Lanka were sky rocketing while the tariffs in other countries including those in the SAARC Region were falling due to the reasons even the World Bank publication predicted.
The Consumers Association of Lanka filed two actions one against the 2001 increase and against the increase sought in respect of the 2002 tariff increase granted by the TRC in 2003. The application against approval of tariffs in 2003 (C.A. No. 1776/03) was allowed by the Court of Appeal and quashed the increase given in 2003. The SLT and TRC appealed against the said judgment of the Court of Appeal to the Supreme Court and said appeals are pending.
Before filing actions against the 2002 revision the Petitioner Association informed the TRC that it would oppose any tariff increase as the tariffs were falling all over the world at a rate of approximately 10 to 15 percent per year and that diurnal usage was increasing giving more income to the operator all over the world due to the lowering tariffs. The Association said that it was only in Sri Lanka that the tariffs were increasing. The Association also asked for a public hearing under Section 12 of the Telecom Act.

TRC did not hold a public hearing and approved the tariffs asked by the SLT. One cannot say that the Japanese investor is not aware of the trend of falling tariffs in the world but it like Shylock asked for the pound offlesh and got it.
In the result in Sri Lanka the prices of telephone product have become unaffordable contrary to United Nations conventions which have called for affordable tariffs for telephony Services.
Since SLT is the incumbent operator enjoying 80 percent of the fixed telephones in the Country, its high tariffs collusively given by the powers that be in Sri Lanka, other fixed line, and cell phone operators are having a field day in this country making billions of profits. There are grounds to believe a cartel arrangement is operating among the operators enjoying benefit our rulers gave them.
It is estimated that approximately 40 percent of the fixed line revenue is from the Government and other Public sector institutions where saving usage is the least concern. The operators thus are exploiting the domestic and corporate sectors directly and robbing the citizens indirectly through the public sector use.
I have annexed hereto a table showing the fixed line comparative tariffs in India, Pakistan, Nepal and Sri Lanka.
Since preparing this table Wireless based CDMA telephones have been introduced in Sri Lanka first by Suntel and Lanka Bell operators. They have priced the CDMA telephone at Rs 10000/ a piece. Sri Lanka Telecom has also subsequently offered a piece at Rs 18000/ (per connection). The Tele communication Regulatory

Page 22
Commission of Sri Lanka (TRC) issued a statement that this equipment offered by all three Operators cost Rs 1000/ Indian rupees in India. But it could not enforce a price to accord with the Indian price, and the 3 operators are having a field day exploiting the Sri Lankan consumers.)
The foregoing facts would show that the telecommunications - sector reforms in Sri Lanka
have failed.
The privatization of the telecom sector is a failure resulting in avoidable, unacceptable, unaffordable and exorbitant prices for products of the Telecom sector in Sri Lanka.
A principal reason is the politicisation of the sector, and appointment of political followers mostly cronies, where high professionalism is necessary.
The Telecommunication Regulatory Commission of Sri Lanka the main Institution empowered for regulating the Sector, has been a failure through out and account for the dire state of affairs found in this sector.
Reasons are:
i. it is appointed by the governmentthrough
its minister in charge,
ii. The chairman of the Commission is the secretary to the Minster in charge. Chairmen havefunctioned as conduits for the minister and the Government, rather than as an independent authority;
iv. The Director General has also been a political appointee more concerned of his politics than the independence and Integrity required; Many of the appointees lacked professionalism

required for the job, and consequently nose led by some operators.
iv. The members of the Commission also appointed without regard for professional knowledge but again motivated by political allegiance'
v. The Commission has failed to follow principle of transparency and independence in its actions due to its political character and the need to satisfy the political affiliation and patronage;
vi. a main allegation against the TRC is that even its executive staff also lack professionalism.
A principal reason for the failure of Sector reforms in the telecommunication Sector is the subjective factors mentioned above and the failure of the Regulatory Commission to perform its duties and functions objectively.
Unless necessary reforms are brought in this sector, the operators and their political masters will have a safe haven, as they had this far making billions of super profits. One has no objection to their making reasonable profits with a reasonable return over their capital investments.
S L E E P N G P U B L C A N D CONSUMERS
The main reason for this parlour state is that the people and the consumers of Sri Lanka are unconceremed of their rights and duties. Even the professionals and the educated are lethargic and live in “do not mind' attitude. Even the uncorrupted political activists are also in the same “do not mind'mindframe.
CAPTIVE MEDA
The cunning operators have successfully built a captive media both electronic and

Page 23
print by dishing out high expenditure full page advertisement and prime time ads in the electronic media. Recently a concerned journalist in the electronic media has prepared a programme to high light the “doing in the telecom sector” but he was stopped telecasting that programme. Where there is a captive and trapped media and a captive political establishment, how could you educate the people of their rights against
Ta bo | e
Country Connection Rental Per Free Calls Charge in Month in in Peak H Equivalent Slk RS Minutes Slk Rs.
Perminut
A B C D
India 1850 265 2.
Nation wide, Based on includes a typical registration package charge
Pakistam 1250 288 O
All urban areas nation wide (reduced from SLK RS 2238.5 in August 2004
840 288 O All rural areas nation wide Sri Lanka 23500 565 2
Colombo District Minimal 23500 565 2 to 65,263 Outside Colombo District
Nepal 2520 280 3
Nation wide

predators such as in the telecom sector? I appeal to professionals to study this matter, protect the hunted consumers, and help remove the glaring anomalies in this sector.
In conclusion I thank the President of the OPA for giving this opportunity to me to present these few facts about this vital sector so necessary for building our nation.
e - O T
Local call Overall Cost of 600 peak hour our rate (fixed minutes of Fixed services
to fixed)- to the end user Peak е hour in Per Month Relative to
Slk RS Pakistan Rural
E F1 F2
25 0.56 515.74 1.23
0.67 717.53 1.71
0.67 420.50 1.00
00 3.45 2462.57 5.86
00 3.45 3382.35 8.04
50 0.68 505.50 120

Page 24
STRENGTHENING JU OF THE PEOPLE THR CONSTITUTIONAL R
Dr። Joel Fernando o
* Past President / OPA
Renewed
provides a views on
Profession constituti Committe This papel for strengt
JUDCIARY
The judiciary states governed constitution depe: depends on the ve judiciary to come judiciary in this in the supremacy o Supremacy of the constitutions whi required and cor declare void or re. violates any of th The present const intangible part wil and fundamentall
Provisions on XVI and XVII of however other pr Article 4 of the CC of the people sta exercised by pa judiciary an arm principle of separ agency through v it. This de-routin the judiciary is s derogatory of the
 

DICAL POWER OUGH EFORMS
interest on constitutional reforms today n opportunity for professionals to express their this important subject. The Organization of al Associations (OPA) submitted proposals for onal reforms to Parliamentary Select es in November 1993 and December 1994 : is based on the submissions made by the OPA heningjudicial power of the people.
has an important and meaningful role to play in by written constitutions. The supremacy of the nds on the role played by the judiciary. This role ry provisions of the constitution which enables the into play. If there are restrictions placed on the nportant function with regard to the maintenance of f the constitution the resulting position will be politicians or the political party in power. In most ch have stood the test of time the judiciary is npletely free to interpret the constitution and to ject any proposed new law or an existing law which e provisions of the constitution, when challenged. itution of Sri Lanka recognizes this principle as an nich assures to all people freedom „equality, justice ights.
the role of the judiciary is covered by Chapters XV, the Constitution in Articles 105 to 147. There are Dvisions which have a bearing on these provisions. institution with regard to the exercise of sovereignty ies that the judicial power of the people shall be rliament through courts ....... This makes the of the legislature and it is in conflict with the ation of powers. Under Article 4 judiciary is only an hich parliament exercises judicial power vested in serves only to lend credibility to the assertion that ubordinate to the legislature. This arrangement is ule of law and the independence of the judiciary.
22

Page 25
Therefore it is recommended that Article 4 section C be amended as follows : the judicial power of the people shall be exercised by the judiciary consisting of courts, tribunals and other institutions created and established or recognized by the Constitution or created or established by law.......
Rights of the judiciary to go into the constitutionality of bills
The provisions with regard to rights of the judiciary to go into the constitutionality of bills is contained in Articles 120 to I25 of the Constitution. Article 121 contains a salutary provision recognizing the important principle of the function of the judiciary to uphold the Supremacy of the Constitution by giving the right to -
(a) the President to invoke the jurisdiction of the Supreme Court with regard to proposed law (bill) by a written reference addressed to the Chief Justice; and
(b) any citizen by a petition in writing
addressed to the Supreme Court
Such reference shall be made, or such petition by a citizenshall be filed within one week of the bill being placed on the Order Paper of parliament, with a copy to the Speaker:
Where such jurisdiction of the Supreme Court is invoked no proceedings shall be had in parliament until the determination of the Supreme Court has been made, or the expiration of period of three weeks from the date of such petition or reference, whichever occurs first.
23

It is recommended that the time frame should be increased to two weeks and four weeks respectively.
However, this salutary provision of the Constitution has been restricted or made ineffective by the provision in Article 122 which states that in case of a bill which in the view of the Cabinet of Ministers urgent in the national interest and bears an endorsement to that effect under the hand of the Secretary to the Cabinet the above rights given to the citizen by Article 121 has no application. In addition Article 78 (1) which has made provision to the effect that every bill shall be published in the gazette at least seven days before it is placed on the Order Paper of parliament has no application. The object of Article 78 (1) is to prevent bills being surreptitiously rushed through parliament without bringing it to the notice of the public eye. Article 122 further states that the President shall make written reference addressed to the Chief Justice requiring special determination with regard to the constitutionality of a bill and such determination has to be made by the Supreme Court within 24 hours or within a period of not less than 3 days specified by the President.
The following available figures clearly illustrate how the two Articles 121 and 122 have been in operation during the period of the J R Jayawardene government.
In the year 1978 the Supreme Court examined 6 bills with regard to their constitutionality. Out of the 6 bills 5 had been under Article 122. Only one bill for the licensing of Pawn Brokers had been referred under Article 121 whereas important bills like the Universities bills, Special

Page 26
Presidential Commission of Inquiry bill and First Amendment to the Constitution were referred under Article 122 depriving the citizen the right to invoke the jurisdiction of the Supreme Court with regard to bills.
In 1979 ten bills had been referred to the Supreme Court for review out of which 9 bills were under Article 122 and only one under Article 121.
In 1980 five bills were reviewed and all 5 bills were under Article 122.
In 1981 four bills were referred and all 4 under Article 122.
In 1982 six bills were reviewed by the Supreme Court and only one was referred under Article 121 and 5 bills including important bills such as Prevention of Terrorism bill and the bill for the Fourth Amendment to the Constitution which extended the period of parliament elected in 1977 ( which was to expire in 1983) for a further period of 6 years up to 1989 were submitted to the Supreme Court by the President under Article 122 thereby depriving the rights of the citizen under Article 12 I.
Considering the above facts it is recommended that Article 122 be repealed so that the supremacy of Article 121 which gives the right to any citizen to invoke the jurisdiction of the Supreme Court be made inviolable and also repeal any other provision undermining Article 121 and make Article 121 an entrenched Article which should be untouched by amendments (subject to time frames).

Article 120 of the Constitution states that the Supreme Court shall have sole and exclusive jurisdiction to determine any question as to whether any bill or any provision thereof is inconsistent with the Constitution. This too is a very salutary provision which recognizes the principle of the supremacy of the Constitution as against the will of politicians or the political party in power and enshrines a valuable constitutional principle. However the subarticles (a), (b), (c) and (d) of Article 120 restricts and takes away the power of the Supreme Court with regard to bills for amendments to the Constitution
Article 120 (a) is with regard to bills for amendment of any provisions of the Constitution or the repeal or replacement of the Constitution which require the approval of the people at a referendum.
Article 120(b) states that any bill for the amendment, repeal or replacement of the Constitution is intended to be passed by a 2/3 majority and a referendum, the Supreme Courtshall have no jurisdiction.
This means that, politicians or party in power can repeal the entire Constitution by passing a bill for that purpose by a 2/3 majority and a referendum and replace it with any dictatorial constitution. Such a provision is extremely dangerous and can pave the way for the emergence of a dictatorship depending on the political leader. This in fact happened in Germany where Hitler who came to power by democratic means became a dictator. Sometimes people can be worked up on emotional issues such as in Germany and a referendum can be made use of as a stepping stone for a dictatorship. In the same manner it paves the way for a politician or a

Page 27
political party to draft an entire constitution and get the seal of approval by a referendum.
Restrictions placed on the Supreme Court by Article 120 (c) and 120 (d) are also similar in nature and pave the way for politicians and parties to undermine the supremacy of the Constitution.
It is recommended that Article 120 is retained to ensure the supremacy of the Constitution and the provisions contained in 120(a),(b), (c) and (d) be repealed
Article 124 undermines the supremacy of the Constitution by taking away the power of the Court to pron o un c e o n the constitutionality of any bill after it has been passed in the Legislature. The Constitution guarantees the dignity and well being of succeeding generations of the people of a country and therefore merely because at the time of the introduction of a bill a citizen had within the severely restricted time frame failed to invoke the jurisdiction of the Supreme Court, it should not bindsucceeding generations of people if it violates the supreme law of the country. There are many laws which violate basic and fundamental principles especially with regard to human and fundamental rights enshrined in the Constitution. For example the rights of the illegitimate child under the archaic Roman Dutch law violate the principle enshrined in the Constitution in Article 12 which states that all persons are equal before the law and entitled to equal protection of the law. An illegitimate child due to no fault whatsoever of his own is not entitled to inherit the property of his father or any inherited property of the mother; even if paternity is proved, on the ground that no valid marriage existed between the mother and father: Similarly the preferential right of the father as against the right of the mother with regard to the custody of minor children violate the principle of equality of sexes enshrined in Article 12 (2) of the Constitution. There are
2

many more such examples. Therefore it is recommended that Article 124 be repealed and appropriate provisions be made giving the Supreme Court power to declare void and unconstitutional any written law or other law which violates any provision of the Constitution at any time when the question arises. Further, make a provision in the Constitution for the legislature to repeal or amend all existing laws and introduce new laws to bring in the whole legal system in line with the Constitution.
FUNDAMENTAL AND HUMAN RIGHTS
The foundation of fundamental rights and human rights in modern constitutions is the Universal Declaration of Human Rights adopted and proclaimed by the General Assembly of the United Nations on 10" December 1948. All national constitutions since then have as a vital part a chapter on fundamental human rights. The Universal Declaration was enlarged and further clarified by two subsequent covenants, they
፴“ፀ--
International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights On 27" May 1980 the Government of the Democratic Socialist Republic of Sri Lanka acceded to the above two covenants thus ensuring to the people of Sri Lanka the fundamental human rights guaranteed there in. A major drawback in the fundamental rights provisions of the Sri Lanka Constitution is the absence of the right to life. It is recommended that the following Article on the right to life be included appropriately numbered
Everyone s right to life shall be protected by law No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction

Page 28
of a crime for which this penalty is provided by law.
Deprivation of life shall not be regarded as inflicted in contravention of this Article when It results from the use of force which is no more than absolutely necessary
(a) in defence of any person from unlawful
violence
(b) in order to effect a lawful arrest or prevent escape of a person lawfully detained
(c) in action lawfully taken for the purpose
ofquellingariot or insurrection
In view of the fact that the economy of the country has been rapidly changing from an undiversified agricultural export economy to an export Oriented industrial economy during the last decade, privatization of the means of production and services, and coming into operation of large transnational employers, the OPA is strongly of the view that fundamental rights to be meaningful should not be restricted to the state sector alone. There should be an Article introduced to protect just and favorable conditions of work. The OPA proposes the following new Article to be appropriately numbered
Every person shall have a right to the enjoyment of just and favorable conditions of work which ensures in particular
(a) Remuneration which provides all Workers, as a minimum with fair wages and equal remuneration for work of equal value without distinction of any kind with equal pay for equal work without discrimination and a decent living for themselves and their families
2é

(b) Safe and healthy working conditions
(c) Full opportunity for everyone to be promoted in his employment to an appropriate higher level subject to no consideration other than those of seniority and competence
(d) Rest, leisure and reasonable limitation of working hours and public holidays with pay as well as remuneration for public holidays
The above section is taken from Article 7 of the International Covenant on Economic Social and Cultural Rights to which Sri Lanka is a signatory State.
The fundamental rights enshrined in Articles 10, 11, 12, 13 and 14 are placed on a very high pedestal by
(a) The preamble of the Constitution which describes fundamental rights as an intangible heritage that guarantees the dignity and well being of Succeeding generations of the people of Sri Lanka and for the creation and preservation of a just and free Society.
(b) Article 3 states that fundamental rights is apart of the Sovereignty of the people.
(c) Article 4 states that the people exercise and enjoy sovereignty through fundamental rights and that such fundamental rights shall be respected, secured and advanced, and shall not be abridged and restricted and denied.
However these fundamental rights described in the preamble as an intangible part of the heritage of the people are so

Page 29
abridged and restricted by subsequent
provisions of the Constitution thereby greatly reducing their effectiveness as safeguards of the liberty of the people. Therefore it is recommended that all these restrictions be repealed except those restrictions in Article 15 which are standard restrictions.
Repeal Article 16 (1). According to this sub article all violation and restrictions in the existing law that are statutes and customary laws remain valid and cannot be challenged in any court. As mentioned earlier there are many laws such as those affecting the rights of the illegitimate child which are inconsistent with the fundamental rights in the Constitution but they shall continue to be operative although in conflict with fundamental rights provisions.
Amendments to Article 17. This Article gives the right to access courts only if the violation is by administrative and executive action and not otherwise. This is a serious limitation as the Constitution should protect the fundamental rights of the people irrespective of the source from which the infringement emanates. One cannot presume that infringements emanate from officials of the government alone especially when the government is supposed to be of the people by the people and for the people. In an era of heightened commercial activity by the private sector; this appears to be a serious limitation. Further when most of the serious violations in the past decade in the North and the South had been by forces other than the government, unless remedial measures are available against such violations too, the fundamental rights in the Constitution will not be meaningful. Therefore it is recommended that the words executive and administrative action be deleted from Article 17.
27

Further , under Article 17 only the person whose fundamental rights is actually infringed has a right to apply to court. It is recommended that this right be extended to others by inserting the following as Article 17 (2) Any person or a body of persons interested in such person shall be entitled to make such application for relief and redress for such person ora dependent of such person ifany
Amendments to Article 126. This Article deals with procedure of access to court and the functions of court. The main purpose of the amendment is to substitute inquisitorial procedure instead of adversarial procedure. Article 126 as amended will read as follows:
126 (1) The Supreme Court shall have sole and exclusive jurisdiction to inquire into and determine any question relating to the infringement or imminent infringement of any fundamental right or language right declared and recognized by Chapter III or Chapter IV.
(2) Where it is alleged that any such fundamental right or language right relating to any person has been infringed or is about to be infringed, such person may himself or by an attorney at law on his behalf, or any interested person or a body of persons may, within a reasonable time thereof, apply to the Supreme Court by way of writing addressed to such Court praying for relief or redress in respect of such infringement. Such application may be proceeded with only with leave to proceed first had and obtained from Supreme Court, which leave maybe

Page 30
granted or refused as the case may be, by not less than two judges.
(3) Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorai, prohibition, procedendo, , mandamus or quowarranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Courtshall forthwith refer such matter for determination by the Supreme Court.
(4) The Supreme Court shall have the power to grant such relief or make such directions as it may deem just and equitable in the circumstances in respect of any application or reference referred in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundamental right or language right.
(5) The Supreme Court shall inquire into and finally dispose of any application or reference under this Article within two months of the filing of such application or making of such reference.
Amendments to Chapter VI of the Constitution
Excellent principles are embodied in this Chapter; but as it appears they are merely cosmetic and ornamental in nature. These provisions need expansion and made effective. The OPA recommends

28
1 Expansion of Article 27 (2) by adding the words health care, education and employment after the words clothing and housing in line 5 of Sub Article 27(2)(c).
2 Re number Article 27(12) as Article 27 (12) (a) and add as paragraph 27 (12)(b) the following new paragraph the state shall ensure the protection of the rights of the woman and the child as stipulated in the United Nations Declarations, Covenants and Charters. This clause is necessary especially as the provisions of our Constitution do not adequately provide for the rights of the child although Sri Lanka is a signatory State to the United Nations Childrens Charter proclaimed in May 1951
To make the very satisfactory provisions in this Chapter meaningful and effective the OPA suggests the following changes:
1 Repeal the word directive in the heading of Chapter VI. The amended heading will read as Principles of State Policy and Fundamental Duties.
2. Repeal the entirety of Article 29 of
the Constitution which states that the principles and fundamental duties are not justiciable.
Acknowledgments:
Contributions by the Chairman and Past President late WP Gunatilleke and Members of the Committee appointed by the OPA to draft Constitutional Reforms are acknowledged with gratitude.

Page 31
POLICE, POLITICS AND THE 17 AMEND
Dr. Kingsley Wickremasuriya's
* Former Member of the Bribery Commission. Retired Senior Deputy Inspector-General of Police, Member of the Executive Committee of Association of Chiefs of Police. Life-member, OPA.
INTRODUCTIO)
17th resul Men by t
110.V. alleg durin Elec shou Suffe bein, devi 1978 the
SOug VeSt( Con:
The Amendmen has been put to the several issues like th filling of the vacanc has run into difficul Council and is unde divide, it is perhap politics to look at tl focus of this paper Amendment dealing achieved its purport This was one of the political agitation fo also review the origi government affairs, 17"Amendment wa ways of solving this
1.The Constitution of the Democratic Socialist Republic of Sri Lanka Constitution: The Need For Further Strengthening. OPA Journal Vol.
Republic of Sri Lanka (1978).
29
 
 

MENT
N
Amendment to the Constitution' was the t of a political initiative launched by hbers of Parliament in the Opposition led he United National Party in 2001. The e was prompted by the violence and ed election malpractices that was present ng the Waymaba Provincial Council tions. It was not surprising that the UNP ld take the lead because it was they who :red most during the election campaign g the victims of their own constitutional ce introduced during the UNP regime in 3 placing unlimited power in the hands of President. The Amendment naturally ht to neutralize or curb those powers ed in the President by Chapter IX of the stitution of 1978.
thas been in operation now for five years and test under intense political controversy on he appointment to the Elections Commission, y of the Bribery Commission etc. Now that it ties over the functioning of the Constitutional r review by those on both sides of the political s opportune for others removed from party he issues involved dispassionately. The main
however, will be those aspects of the 17th g with the Police to find out how far it has 2d objective of making the police independent. main reasons that prompted the move towards printroducing this amendment. The paper will ns and development of political interference in particularly in the police and how effective the s in changing that process and look for further problem.
(1978). 2. Tudor Munasinghe. 3. The 17 Amendment to the 21. Pp. 36-41. The Constitution of the Democratic Socialist

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ROOTS OF THE PROBLEM
Politicians' interest in government business in this country is not a new phenomenon. It has been in existence ever since the establishment of constitutional government and the introduction of democratic institutions in Ceylon. Such interest however, is a healthy sign of a vibrant Democracy. The paper recognizes this development as such and the legitimate right and the duty of the elected representative to represent matters about his electorate and its constituents. Similarly, it also recognizes the responsibility that an elected Government has towards its constituency and its accountability to the country for its actions through the government machinery and the need to implement its policy through that machinery effectively. But what is described as political interference in this essay is undue political pressure being brought to bear by elected representatives of the people on those in public service in matters other than policy that is detrimental to Good Governance, Democracy and Rule of Law.
The origins of political interference run far in to constitutional history. As pointed out by the Donoughmore Report, the affliction seems to have been present as early as 1924. The Commission in their report while paying attention to the effect of one of the most important aspects of constitutional reform in Ceylon that a transfer of responsibility is likely to have on the public services of the Island, took cognizance of the conditions under which public officers were serving and the difficulties that confronted them at the time. Referring to the rapid succession of reforms, they said that it was inevitable that such reforms should cause great strain on the public services of the Island and that “The glamour of political reforms obscured the
4. Report of the Special Commission on the Ceylon Constitutic 5. Ibid 6. Ibid

prosaic but not less important claims of administrative efficiency and essential adjustments failed to be made.” Referring to the role played by the Unofficial Members in the Legislative Council, the Commissioners said that as the power of the Unofficial Members increased, it led to the continued attacks on officers of the Government. In justification of this position they explained that it was due to the fact that the Unofficial Members did not realise that they formed part of the Government as they were given no executive responsibility. That drove them into the artificial position of a permanent Opposition. “It was natural if not inevitable that from this vantage- point they should make full use of every opportunity which presented itself to embarrass the Government and therefore its officers.” It was a question of enjoying power without responsibility. Thus, it became a familiar phenomenon in and out of the Council to heap abuse and criticism on the Government officials giving them no opportunity for reply. No class or grade of public officer was exempt from this painful experience. This attitude of the Unofficial Members left them with un certainty of their own positions. Commissioners also pointed out that the fact that a resolution for the reduction of the Civil Service vote by Rs.5 that was carried out the previous yearand the appointment of a Select Committee of the Legislative Council to review the salaries of the Government officials and even the cadre of Government Departments aroused the serious anxiety of the Ceylon Services. Taken the combination of all these circumstances the result was that it disheartened the Ceylon Services and hampered their initiative while undermining their morale. Commenting on this situation and proposing future Safeguards the Commissioners said:
on. (1928).
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We regard this legacy of discontent as one of the most serious consequences that have followed in the train of the existing constitution. It is obvious that political progress cannot be in the best interest of the country if achieved at the expense of administrative efficiency: indeed with every fresh transference of responsibility the need of an experienced and efficient public service becomes more pronounced. But efficiency implies confidence and contentment, and unless public officers can be secured from political interference and from the anxieties which they have experienced under existing constitution it is impossible to expect that Ministers will receive from them that active cooperation so essential to the successful operation of the new system. ... it will be necessary to guarantee to public officers just and equitable treatment.
DONOUGHMORE REFORMS
Thus, on the one hand while the Commissioners sought to correct the weakness of the existing system of divorce of responsibility of the Unofficial Members from the power they exercised by entrusting the Executive Committees with the responsibility of recommending to the Governor the candidate best qualified for appointment, they provided for the appointment of a Public Service Commission and other safeguards to protect Government officers from Parliamentary interference on the other. Such measures the Commissioners believed will protect all classes and grades of public officers from political interference and encourage in the members of the Executive Committee a sense of high responsibility.
They viewed appointments & promotions in the public service as that
7 bid 8. Ibid
31

which causes greatest anxiety giving rise to the most persistent controversy readily arousing communal feelings. They also recognized the tendency on the part of the constituents to exercise political or communal pressure on the Members in support of particular candidates for appointments to or promotions in the Public Service. The Commission proposed the establishment of a Public Service Commission as machinery for dealing with appointments and promotions in order to protect Members of the Council from the pressure of their constituents. At the same time they thought that such a device would inspire in the Public Service a confidence that appointments and promotions will be decided on strict merits of the case without regard to the vicissitudes of political life or the fluctuations of communal sentiment. The Commission they recommended, however, was devoid of executive power with no right of interference with Government Departments. They were to be subject to full control of their respective Ministers. This was “not only to inspire confidence in the Public Service but also to assist Ministers and Executive Committees and Officers of the State in maintaining that independence of judgement and continuity of policy so essential to the preservation of the Public Services as a compact, harmonious and
8 وو
efficient whole'.
SOULBURY REFORMS
But the working of the constitution showed that these good intentions unfortunately were thoroughly misplaced. Commenting on its working the Soulbury Commission in their report said, that “It cannot be said that the disabilities noticed by the Donoughmore Commissioners have diminished to any great extent since 1931, not withstanding the Commissioners'

Page 34
strictures'. The Commission traced the problem of political interference to “certain provisions of the 1931 Constitution, notably Article 32 of the Ceylon (State Council) Order in Council, which imposes on Members of the State Council the duty of taking an active interest in the administration of the various subjects and functions of Government with which the Executive Committee was entrusted: and Public Services Regulations No. 13 and 15, which gave the Executive Committees the right to make recommendations for the filling of practically all important appointments". This apparently provided the opportunity for the Ministers and Council Members to interfere in personnel questions. The fact the Donoughmore Commissioners deplored shows that the provision was not intended for such interference. Soulbury Commissioners saw this as something designed to perpetuate political interference and commented that “this interference continues to be one of the principal sources of discouragement and illfeeling throughout the Public Service,
especially among the senior officers".
This being so, they disagreed with the Constitutional Scheme prepared by the Ceylon Ministers' set out in Sessional Paper XIV (and later withdrawn) stating “Nor can we agree with the provision in Article 66 (2) for the delegation of powers relating to personnel matters to Ministers, since, as we have said, the primary object of our recommendations in this regard is to remove the public services so far as possible from political influence' (emphasis added). Accordingly, in their wisdom they recommended that the powers of appointment, promotion, transfer, dismissal and disciplinary control of public
9. Ceylon, Report of the Commission on Constitutional Refon 10. Ibid. 11, Ibid. 12. Ibid 13. See Part VII Section 57-65 of The Constitution of Ceylon. 14. Reported in newspapers in head lines, and the Inspector-Ge of the PM's remarks and to exhort them to do their duties im meeting according to the same circles.

officers originally vested in the Governor be now transferred to an independent Public Service Commission (PSC) and also made provisions for its independence. Chief among the provisions were: (1) that the Commission was to be appointed by the Governor-General in his discretion (2) their salaries were to be determined by Parliament and were not to be diminished during their term of office (3) the Governor-General may remove a member only for an assigned cause (4) the Members were to hold office for five years and were to be eligible for a second term (5) the Chairman was to be nominated by the Governor-General and (6) any interference with the PSC was made a punishable offence".
In spite, we know of attempts made by no less a person than the Prime Minster himself to subvert the system legally adopted. The legend has it that a certain Prime Minster is alleged to have said once, that'Public Service Commission or no Commission, I get who I want'. We also have the story going round in police circles how the same Prime Minster exhorted the then Inspector-General of Police, Osmund De Silva that the Police should have that 'extra bit of loyalty' to the Government, and how the Inspector-General responded in return by exhorting his officers that what they should uphold is the Rule of Law" although he knew that he would be falling out of favour with the Premiere and that it would affect his tenure. There were others too who followed in the footsteps of IGP Osmund De Silva, the legendary figures like late Deputy Inspector-General of Police Sydney de Zoysa who daunted such interference by yet another Prime Minster requesting that a certain constable applicant be recruited to the Department despite the
n. (1969).
Sessional Paper III (1948). heral summoning OICC Stations by police message to inform them partially regardless as reported in the official minutes kept on this
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fact that he did not have the required physical qualifications, and yet survived in his post to tell the tale.
With all these attempts behind the scenes the Public Service Commission at that time worked reasonably well without a major hiccup until the introduction of the first Republican Constitution in 1972 that vested the responsibility of appointments, transfer, dismissal and disciplinary control of all State Officers with the Cabinet of Ministers by Article 106 and other provisions in Chapter XII of that Constitution giving an open cheque for political interference". This was the start of the process of politicization of the public service in general and the Police in particular.
POLICE & POLITICS
Although the Soulbury Reforms consciously provided safeguards for the Public Service in an attempt to rectify the shortcomings under the Donoughmore Constitution it albeit provided some political space in designing the various safeguards for the Public Service as was evident from the working of the PSC and the attempts made by two Prime Ministers to put pressure on the public officers that are now public knowledge. But by 1970s this kind of undue interference by politicians of the ruling party in police matters seems to have spread far and wide and grown well in proportion. The best evidence is the Report of the Basnayake Police Commission issued in 1970.
In 1965 the Governor General appointed a four member Commission of Inquiry headed by former Chief Justice Hema Basnayake called the "Police Service Commission' to inquire into and report on the organization, administration and discipline 15. The Constitution of Sri Lanka (Ceylon). (1972). 16. Sessional Paper XXI (1970). Final Report of the Police Comm
17. Ibid. 18. Ibid.

of the Police Force and the powers and duties of the members of the Police Force. Their Terms Of Reference had special focus on eight points. Issuing their report in 1970, the Commissioners said that the evidence before the Commission showed that there is political interference in the sphere of appointments and promotions". Such interference they said affects the impartial discharge of their duties and consequently their independence. It would also tempt the officers in the Department to seek the help of politicians whom they oblige on their own behalf. They pointed out that there was in fact evidence to show that there were instances where police officers have invoked the assistance of politicians in such matters.
This, the Commissioners said undermines the morale of the Service. Commenting further, they said that the efficient maintenance of law and order by the Police depends on non-interference with the performance of their duties. This is a prerequisite to the efficient maintenance of law and order. They should have the freedom of performing their duties without the fear of coming underexternal pressure".
Accordingly, they recommended that a special Commission known as the "Police Service Commission' be set up to deal with appointments, transfers, promotions and the disciplinary control of the Police Service. This was to replace the Public Service Commission as far as matters connected with the Police Service were concerned. They envisaged that the establishment of such a Commission willentail the introduction ofan amendment to the Ceylon (Constitution) Order in Council by removing the Police Service from the jurisdiction of the PSC. These safeguards have been provided for in the Police Act drafted by the Commission".
lission

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Furthermore, referring to the position of the Inspector-General they said that although there is no other public servant who is called upon to bear so great a responsibility as the Inspector-General of Police he is haunted by the fear like any other public servant who has reached the optional age of retirement that he may be retired if he does not please those in power. Therefore, in addition they recommended the IGP should be suitably protected with immunity against irresponsible exercise of the power of removal like in the case of the Supreme Court Judges, the Auditor General and the Commissioner of Elections. They felt that the appointment of a Police service Commission coupled with the protection provided against the removal of the IGP except for proved misconduct and then only after an address of both Houses should go a long way in Securing the Police from political interference. The security of tenure of the Head of the Service and the protection of the higher Echelons from political interference, they thought, should improve the efficiency of the Service. Thus, Basnayake Police Commission as far back as 1970 went to great length in analyzing the problems confronting the police and even produced a completely reoriented "Police Act' to replace and to rectify the many shortcomings in the "Police Ordinance' of 1865". But these recommendations went unheeded and were totally ignored."
In 1978 a Committee of five headed by Mr. J.W. Subasinghe called the "Subasinghe Committee" was appointed by the President of the Republic to report on several issues relating to the Police. The Committee in their report (1979) observed amongst other things that “the Police Service was not up to that
19, Ibid. 20. In fact the Commissioners almost resigned in disgust becaus
Commendations. See page 23 of the Report. 21. Two of the Members of the Committee were retired Inspectic 22. Subasinghe Salaries Commission Report. (1979). Unpublish 23. Ibidi

degree of efficiency or efficacy as one would expect such a Service to display in a modern state, that its morale was low and that it had a poor public image. It did not attract public respect or co-operation". Further, it had a poor public image. Neither did it attract public respect or co-operation. One of the main reasons for this unhappy state of affairs they said was due to political interference in matters of recruitment, appointments, promotions, transfers, disciplinary procedure, grading of stations etc. and in the performance of the lawful duties of Police Officers. Moreover, they pointed out that political patronage had over a period of time superseded efficiency and integrity. This was one of the causes of the breakdown of discipline in the Police Service.'
Analyzing the functions and the objectives of the Police they said that the Police service cannot on the one hand be just another unit of Civil Service of Sri Lanka, nor can it be on the other hand a unit of the Armed Services. They were of the opinion that it has to be organized and trained as an agency of law enforcement not only to perform civilian duties, but also to take its place with the Armed Services in a state of Emergency brought about either by civil commotion or insurrection. Thus, going on the basis that the Police Service of Sri Lanka has to be a service su i gen e ris, they m a de S e V e ral recommendations in line with that thinking. Chief among them were that the InspectorGeneral (to be re-designated DirectorGeneral) should enjoy the status of a Secretary of a Ministry and be directly responsible to the President in the administration of the Police Service. However, they did not recommend the establishment of a separate Police Service
e of the attitude of the government in paying no heed to there
}rs-General Aleric Abegunawardena and Stanley Senanayake.
ed.

Page 37
Commission as Basnayake Police Commission did. Instead they suggested that a Committee of the PSC be appointed to exercise the powers of the Commission in respect of officers of the Police Service whose appointments etc. are vested in it by Article 55 (1) of the Constitution. This Committee could then be vested with authority to make the appointments etc. of all ranks of police officers as provided for in the Constitution under Article 55 (1) including its delegation to the Inspector - General (Director-General)'. Even these recommendations did not receive the attention of the government.
In the meanwhile, the effects of these constitutional provisions brought about by Article 106 and the other provisions in Chapter XII of the first Republican Constitution (1972) on the Police have had far reaching effects on its morale, and the discipline. Consequently delivery of services to the people suffered severely, resulting in the lowering of quality and professional standards that used to be maintained in the Police previously. With the proclamation of the Second Republican Constitution, the provisions of Chapter XII were given effect to more or less completely with regard to the control of the Public Service in Chapter IX (The Executive) of the 1978 Republican Constitution'. The effects of that on the Police have far exceeded that referred to by Basnayake Police Commission (1970) or the Subasinghe Committee (1979) in their reports. This is confirmed by the report produced by the Jayasinghe Committee in 1995°
In 1995 once again a three-man Committee was appointed by the President headed by Mr. W. T. Jayasinghe, a former
24. Ibid. 25. The Constitution of the Democratic Socialist Republic of Sri I 26. Sri Lanka Police Service, Suggestions for improving its effici
Committee appointed on 24.02, 1995 27. Ibid.

Secretary to the Ministry of Defence "to inquire into and report on the reorganization of the Police Service'. The Committee in their report said that all the officers who appeared before them were agreed that undue pressure was brought to bear in the matter of appointments, promotions, postings, and even transfers. These undue pressures Were mostly from politicians and those close to politicians. They also agreed that this was one of the main reasons for the breakdown of discipline, loss of morale and high incidence of corruption in the police. The interference did not stop with personnel matters like transfers, promotions etc. It extended even to operational matters like criminal investigations. As a result of increasing incidence of interference by MPP in investigations the Committee said that some of the officers who were fair and acted impartially were removed and transferred from their stations overnight at the instance of the MP because the offender happened to be a supporter of the MP, and yet others who had a well known track record of corruption or inefficiency were promoted over the heads of those conscientious and dedicated officers. They also pointed out how in recent years junior officers have been promoted over their seniors, ostensibly on the ground of outstanding merit. This affected the morale of the entire Service.'
While tracing back the history of the police to the British times in an attempt to explain this phenomenon, the Committee said that the sole function of the police during that time was to safeguard the interests of the rulers. Even after Independence, this stance of the police did not change. The prime duty of the police now became the safety of the State instead. In the process the police saw
anka. (1978). 2ncy and effectiveness. Report of the

Page 38
their immediate role to be safeguarding the interests of the government in power, which eventually took the form of safeguarding interests of the Member of Parliament (MP) of the ruling party. They then went onto show how this relationship between the Police Officer and the MP became a particularly sensitive one, much more than that with other Government Officials because of the special demands of those constituents close to him to help them escape the rigorous application of the law by the police. In view of the fact that every Government is faced with this dilemma resulting from this sensitive relationship between the MP and his constituents and consequently the MP and the police, the Committee thought that in the circumstance it would help the Government and the MPP themselves if a Police Service Commission is established as recommended by the Basnayake Police Commission in 1970 by easing the constituents' pressure on MPP on police matters on the one hand, and that it will also go a long way to restore the morale and confidence in the police themselves on the other." Almost all the officers who appeared before the Commission were “vehemently in support of the establishing of such a Commission.” They were further of the view that the Commission should play an active role, unlike the previous PSC in laying down policy and ensure that they are scrupulously followed. Therefore, while recommending the establishment of a Police Service Commission they were of the view that the Commission should be appointed by the Constitutional Council of Parliament and the members of that Commission should consist of senior serving or retired administrators,
28. Much the same sentiments expressed by Donoughmore Cor
the Constitution. (1928).
29. Sri Lanka Police Service, Suggestions for improving its eff
24.02:1995
30. The 17" Amendment to the Constitution: The Need For Fur
May 2006.
31. Ibid.

judicial officers, police administrators, and
academics in sociology. They also suggested that the Constitution should be suitably amended to give effect to the establishment of a Police Service Commission." The recommendations were of no avail. Once again the government did nothing to implement these recommendations.
CRITIQUE
17" Amendment however, was not the result of any of these recommendations. These recommendations lay ignored for more than three decades when suddenly some politicians in the opposition woke up from their slumber about police reforms and thought of acting only after they had been themselves victims of delayed reforms and at the receiving end of a series of events affecting their own political interests.
The background to the 17" Amendment had its origins in the Report of the Citizens' Consultation on Free and Fair Elections and Depoliticisation of Key Institutions, which was set up by the Leader of the Opposition". This was a reaction to what happened at the Wymba Elections in 1998 where it was alleged that “massive thuggery and vote rigging took place on an unprecedented scale"That year a Drafting Committee was set up under the chairmanship of Mr. Karu Jayasuriya, MP where the OPA was represented by its General Secretary. A report was drawn up by the Citizens' Consultation but it lay dormant till 2000 when a first draft of the 17" amendment was made. After further consultation with an Expert Committee where three Senior
mmissioners. See page 103 of Report of the Special Commission on
ciency and effectiveness. Report of the Committee appointed on
ther Strengthening. Munasinghe Tudor (2006). OPA Journal Vol. 21.
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Deputy Inspectors-General assisted in Police matters' a preliminary draft was presented by the OPA to the political parties. But what ultimately came out in Parliament on 3" October 2001 was something entirely different from the OPA Draft. If not for the JVP who put pressure on the PAGovernment, the 17" Amendment would not have seen the light of day even in this form.'
Nevertheless the Amendment has wittingly or unwittingly introduced some of the m e asures contain ed in the recommendations made by Basnayake Police Commission and the Jayasighe Committee. One of the major r e c o m m e n d at i ons of B a s na y a ke Commission was the establishment of a separate Police Service Commission outside the jurisdiction of the PSC with an amendment to the Constitution. 17" Amendment has already taken this step. It has also met the condition set by Jayasinghe Committee that the Police Service Commission be appointed by a Constitutional Council. Yet, out of all the Institutions setup under the 17"Amendment, the National Police Commission was the most criticised by the politicians in the ruling party. Moreover, several promotions granted by the Commission were challenged under Fundamental Rights Provisions of the Constitution. Further, the Commission and the Inspector-General could not see eye to eye on many issues."
One of the other major conditions set by the Basnayake Police Commission was the Security of Tenure of the Inspector-General. It said that “An Inspector-General who has reached the age of optional retirement or has only a few years to reach that age is haunted by the fear that if he does not please those in
32. Dr. Kingsley Wickremasuriya, Mahesan Selwaratnam & Gam 33. The 17"Amendment to the Constitution: The Need For Furth
34. Article 41A and 155A of the 17" Amendment. 35. Sessional Paper XXl (1970). 36. Removal of Officers (Procedure) Act No. 5 of 2002.

power he may be retired either at once or the moment he reaches the age of optional retirement.” They pointed out that the head of so important a department should be haunted by such fear in the performance of his very responsible duties is not in the public interest. Basnayake Commission therefore, recommended that the Inspector-General should be protected against irresponsible exercise of the power of removal. This safeguard is now provided by the Amendment under Article 41C by way of subsequent legislation in the form of Act No. 5 of 2002 which stipulates that the InspectorGeneral (amongst others) shall not be removed from office except in accordance with the procedure laid down in the Act.' But, the power of granting extension of service is still in the hands of the President. That has not changed and the Amendment is silent on the matter. So he will continue to be haunted by the fear of threat of retirement and that fear will continue to hang over the incumbent like the 'Sword of Damocles' in the future as well if steps are not taken to rectify this sooner than later. Therefore, it will not be a matter of surprise if the IGP continues to secure his position by pleasing those in power in order to stay in office in spite of the many safeguards now provided, thus restoring the status quo that prevailed before the Amendment.
Even if this fear is effectively removed through further constitutional amendments, recent experience has shown that this argument is somewhat flawed in the present context of things, considering the tendency some incumbents have shown to overreach their term in order to secure their position so that they could continue to remain in office even after reaching the age of retirement. The temptation not only to prolong his stay in
ini Gunawardena er Strengthening. Munasinghe Tudor
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office as long as possible, but also to try and secure high office even thereafter, has been reinforced by the recent practice of the governments offering prestigious postings abroad to the retiring Inspectors- General. This encourages 'you scratch my back and I scratch yours' kind of attitude. It also vitiates all the good intentions contained in the legislation designed to ensure impartiality of the police through securing the tenure of the Head of the Department. Remedy may, therefore, lie in the appointment of the IGP for a fixed period of contract, say for 3-4 years (as was the practice previously but discontinued later) with a 'Retirement Package' that will enable him to live comfortably well, without the lure of extensions beyond retirement age, ambassadorial postings or other high office so that he could do his duty by the people".
These, however, are safeguards against an IGP in office. What are the safeguards against the chances of an unscrupulous aspirant getting into office through political lobbying? This has often remained an open question probably until the next IGP stakes. So, safeguards have to be built not only against undue political pressure on the incumbent IGP, but also against aspirants from getting to the top post through political lobbying. These are realities that cannot be ignored considering the precedents set in the past. This is the stage at which the safeguards are necessary most, more than at any other time. All other safeguards that have been proposed would be set at naught, for having secured the post (including that of DIG / Senior DIG) through lobbying it will be natural for the incumbent to feel obliged to his political 'Godfathers', howsoever secure he is in his office. So when we are discussing ways and means of building public confidence in the police, what should be
37. IGP Osmund De Silva had such a contract of tenure including 38. Kingsley Wickremasuriya. "Independent Police Commission: 39. See the Commission Circular No. 880 dated 15" August 2006 40. Kingsley Wickremasuriya. Independent Police Commission:

uppermost in our minds is not only an "Independent Police Commission', but also an independent Head of the Police who by the circumstances of his appointment alone can infuse confidence in the public. Selection procedures (similar to the appointment to the post of Vice Chancellor)"that are transparent enough to infuse public confidence in the appointment of the Inspector General have to be put in place in the future towards this end, without delay.
A further safeguard as far as undue interference in routine police matters including investigations is concerned could be introduced by a Section in law similar to Article 155F. This could be a deterrent against undue interference of any sort, political or administrative. Therefore, the need of the hour is not to rush with deadlines for reasons of expediency but to study the problem in depth and bring meaningful reforms that will restore public confidence in the police, in due process, and democracy."
Besides what has been discussed above, the Amendment has many other deficiencies. Chief among them is the inconsistency it has with regard to the conditions of choice of persons to be appointed to the various Commissions including the Constitutional Council itself. For instance, the conditions set out in Article 41A (4) that stipulates the type of persons to be appointed to the Constitutional Council as regards their position of eminence, integrity, political affiliations etc. differs from those set out for appointment to the PSC under Article 54 (2), to the Election Commission under Article 103 (3) and to the Police Commission under Article 155A (2). This leaves their impartiality and independence and consequently their suitability for appointment to those Commissions, open to
his predecessor. (2006). OPA Journal Vol. 21. May 2006. Whys & Wherefores.' Sunday Island October 29" 2000 P7 of the University Grants Commission.
Whys & Wherefores. Sunday Island October 29" 2000 P7
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serious question as that happened in the case of appointment of the Chairman to the Election Commission. Therefore, if we are to expect a high standard from persons to be selected to all these institutions with regard to their position of eminence, integrity, political affiliations and morals, standards set for selection to all Commissions including the Constitutional Council should be equal.
Yet another point of controversy is the vesting of appointment, promotion, transfer, disciplinary control and dismissal ofheads of Departments in the Cabinet of Ministers. This last provision was something that was introduced by the United Front Government in 1972 in the first Republican Constitution as already discussed. It was repeated in the 1978 Constitution by the UNP Government and is now retained in the 17" Amendment under Article 55 (3). Both the leadership of the Government and the Opposition had included the provision in the Amendment by design on the grounds that they should have control of the Heads of Departments to ensure implementation of their Policy." Even if all the other conditions are in place with regard to an Independent National Police Commission, appointment procedure of the IGP and his security of tenure, this one provision under Article 55 (3) in bringing the IGP under the disciplinary control of the Cabinet of Ministers will emasculate any impartiality or independence that the 17" Amendment sought to achieve in the Police.
Thirdly, the very fact that Article 155A, subsection (5) provides that “A Member of the Commission shall be eligible for reappointment"for a second term makes the Commission vulnerable to political influence. As such this provision of a second
41. Tudor Munasinghe The 17"Amendment to the Constitution:
OPA Journal Vol. 21. Pp. 36-41 42. Seventeenth Amendment to the Constitution (2001). 43. Report of the Special Commission on the Constitution. (192: 44. Ibid

term could make serious inroads in to the attempt to bring independence in to the NPC and make a mockery of the entire exercise. Thus, with these weaknesses in the Amendment its ability to establish an impartial Police Service is doubtful. However, the solution seems to be the extension of the term to one term of 5 years instead of the current 3 year period, like in the case of the Bribery Commission.
CONCLUSION
We have seen that political interference in the affairs of the Public Service was a problem even before the Country gained Independence from the British. It had its origins in the early 1920s. That was understandable. It seemed to be one of the strategies adopted by the Unofficial Members of the Legislative Council in their struggle against the Colonial power for independence. They were just cutting their teeth in parliamentary power and showing their muscle by trailing their guns on the hapless officers under the British. by harassing and humiliating them. To put it succinctly in the own words of the Donoughmore Commissioners, “The glamour of political reforms obscured the prosaic but not less important claims of administrative efficiency and essential adjustments failed to be made.” As the power of the Unofficial Members increased, it led to the continued attacks on officers of the Government. Perhaps it was due to the fact that Unofficial Members were given no executive responsibility. That drove them into the position of a permanent Opposition. They made use of every opportunity from this vantage- point to embarrass the Government and therefore its officers". It Was a question of enjoying power without
The Need For Further Strengthening.
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responsibility. The opportunity was legally theirs it being in the Constitution of the Legislative Council. The Donoughmore Constitution however, tried to rectify this by adding responsibility to power in the hope that the opportunity will be used to develop towards responsible government. But this trust seems to have been utterly misplaced. Politicians refused to learn. Realising that left to them on their own that our politicians will abuse their freedom to behave as responsible statesmen, the Soulbery Commissioners did the next best thing and gave them freedom of governance within certain safeguards in the Country's interest. Their interest was the efficiency and effectiveness of the Public Service.
On the one hand, the Donoughmore Commissioners said referring to the circumstances that disheartened the 'Ceylon Services' and hampered their initiative, undermining their morale that they regarded this legacy of discontent as one of the most serious consequences that have followed in the train of the existing constitution. It is obvious that political progress cannot be in the best interest of the country if achieved at the expense of administrative efficiency: indeed with every fresh transference of responsibility the need ofan experienced and efficient public service becomes more pronounced. But efficiency implies confidence and contentment, and unless public officers can be secured from political interference and from the anxieties which they have experienced under existing constitution it is impossible to expect that Ministers will receive from them that active co-operation so essential to the successful operation of the new system and that it will be necessary to guarantee to public officers just and equitable treatment." Recognizing the tendency on the part of the constituents for political or communal pressure on the
45. Ibid. 46. Tudor Munasinghe The 17" Amendment to the Constitution: (

Members in support of particular candidates for appointment and promotions in the Public Service, they even proposed a machinery for dealing with this problem in the form of a Public Service Commission (PSC) in order to protect the Members of the Council from the pressure of their constituents. The Soulbury Commissioners on the other hand expressed similar sentiments. They said that interference continues to be one of the principal sources of discouragement and illfeeling throughout the Public Service. They said their primary objective was to remove the Public Service as far as possible from political interference. The Basnayke Police Commission, Subasinghe Committee and Jayasinghe Committee have all repeated the ill-effects of political interference with regard to the functioning of Police (one of the watchdogs of Democracy) adnauseam and in much stronger terms. But what is clear from the provisions in the 1972 Republican Constitution as already discussed and its repetition in the next constitution in 1978 is that this bent on interference has taken the better of politicians of all hues in this country. They still want to perpetuate this legacy by holding on to the provisions of the Republican Constitution vesting the power of appointment, promotion, transfer, disciplinary control and dismissal of heads of Departments in the hands of the Cabinet of Ministers, the pretext being that they should have control of the Heads of Departments to ensure implementation of their Policy."
One may however, ask the question as to what policy has been implemented at least with regard to the Police over the period? And one may also ask the question what has been achieved through such policy implementation for three long decades since taking control of the Public Service in 1972? The answer seems to be a Police that is servile, inefficient, and corrupt doing the
OPA Journal Vol. 21. Pp. 36-41

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biddings of the political bosses of the ruling party vis-a-vis the Rule of Law. Therefore, it is obvious that this is just an excuse to perpetuate political expediency rather than implementing policy. The allegation that 'politicians have tried to sabotage the 17" Amendment to the Constitution from the day it was enacted' is therefore, not without justification."
Be that as it may, the main stumbling block to the effective implementation of the 17" Amendment seems to be the nonfunctioning of the Constitutional Council. 17" Amendment as already discussed needs revision and rectification of this, and other deficiencies. The simple practical solution to the problem of non-functioning of the Constitutional Council however, is the introduction of a further amendment as suggested" by adding an additional sub paragraph (8) to Article 41E allowing the Constitutional Council to function despite a vacancy, provided other conditions are fulfilled. The suggestion is quite acceptable as there is such legal provision present in the Constitution in respect of the Judicial Service Commission and the other Commissions introduced by the 17" Amendment. It is this same problem of not having such a provision that prevented the Bribery Commission from functioning effectively for over a year.
However, Constitutional Council mechanism is too complex a system. It in any case encourages political lobbying. Further, the working of the first ever Constitutional Council showed that it was neither impartial nor efficient. It took more than one year for the Constitutional Council to fill the vacancy in the Bribery Commission giving the impression that the delay was deliberate and by implication that it was obstructing the process of investigation of the Commission. This was a time that some of the political
47. Ibid. 48. Ibid.

heavy weights were being investigated for corruption. The vacancy was filled after much vacillation inspite of pressure of public opinion. Further no Election Commission has yet been established, once again owing to the alleged partiality of the Council. The process of appointment was stalled because the nominee of Constitutional Council for the post of Chairman of the Commission was a politically controversial person who had allegedly played an active role in the United National Party. Moreover, given the composition of the Council it was no less a political mechanism than what existed in the past. It is something too much to expect from a politically constituted body to act neutrally. Besides, the Council met only once a month and sometimes not even once and showed no sense of urgency in spite of the members being handsomely remunerated. Considering all the circumstances it was an unnecessary drain on the government coffers and a burden on the taxpayer.
Instead, it is a more practical solution to allow the President to choose those to be appointed to these Commissions, not in the same manner as in the past but on a different mechanism. True, we may have had bad experiences in the past allowing the President to have his choice. That was because the President had a free hand and could choose without restriction. There were no guidelines in the selection process set for him. This practice however, could be streamlined by getting him to work within given conditions. He could be allowed to use his discretion within a restricted framework by laying down conditions of selection and having a panel of professional experts act as a "Search Committee' to help him in the selection process. For instance it could be laid down that the persons to be chosen should be of eminence, should have long experience and proved management skills in

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that particular field and be of impeccable integrity. They should be persons who have not engaged in active party politics and be politically neutral except for exercising their voting rights." The process could be made transparent through certain mechanism as available in other countries and add more conditions if necessary. The President should also be required to obtain by-partisan political consensus before the appointment is made. If a system of this nature could be agreed upon it will simplify matters.
After all no amount of law or regulation can make a Commission (or for that matter the Police) independent or impartial if the
49. See Article 41 (4), Article 54 (1) & (2) etc.

individuals in the organisations are not such minded or of such bent. Besides, the experience has shown that no amount of safeguards is going to work one hundred percent, because the circumstances are such that the politician will still be compelled to find ways and means of subverting any system (how good for the country) that stands in the way of his survival. All that can be done therefore is to create the right conditions and environment for those who want to be fair and independent and monitor their performance to ensure that they keep their independence undiluted over the period of their term of office.
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ETHICAL VALUES AND
Eng. Heimal Pieris*
*Chartered Civil Engineer and Arbitrator on Civil Engineering disputes. The Representative member, Engineering Profession, OPAExecutive Committee. Has functioned as the Chairman, Ethics and Professional Affairs Committee, of the OPA.
Particip, defined guides
individ dealing in gener study of and col Many pl human
being cu virtue a Mahatm and poli
In practice, an indiv based on his personal religions of the world Buddhism and the Mus common ethical values, be honest and truthful, one's neighbour- irrespe sound; to respect author justice with mercy, anc unique teachings and death, forgivenessands but ethical values as de all the great religions.
At a personal leve guide and govern action be based on any particul values. Some of these a covenants and convent Rights, e.g. right to life one's religion, freedom The need for transparer
43
 
 
 
 
 
 

SOCIETY
ating in an OPA seminar in 2003, I Ethics as "the value structure that the actions of a person, whether ual or corporate, in his/her/their s with any other person, or with society al.'. Ethics has also been defined as “the voluntary human action, both individual lective, according to moral precepts.” hilosophers have dwelt on the subject of values. Aristotle viewed happiness as ultivated by virtue. The Stoics associated is flowing from harmony with nature. a Gandhi connected ethics with religion tics.
fidual's ethical values are more often than not religious values, and happily all the great l, of which four Christianity, Hinduism, lim faith, are practised in Sri Lanka, - teach to guide man's actions and behaviour; - i.e. to not to give or to take bribes, to be helpful to ctive of his race, caste or creed; to be morally ity and the rule of law; to value life; to temper so on. Religions can and do have their beliefs on subjects such as creation, life after alvation from sin, human suffering and so on,- ascribed above, largely remain common to
or indeed at a national level, ethics which s and attitudes need not however necessarily arreligion, but can flow from shared human re now enshrined in recognised international tions, relating to various facets of Human and dignity, right to practice and manifest of speech, freedom of information, and so on. cy and accountability in governance too has

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been recognised and are gaining in importance. Recognised international organisations of repute such as the United Nations, Amnesty International, Tansparency International, and others such, are non governmental agencies, safeguarding the interests of affected peoples all over the world, while trying to ensure that internationally accepted norms and values, are respected by governments and those in authority.
It needs to be recognised that ethical conduct whether at a personal, corporate or at a national level will not necessarily flow from codes of ethics and conduct. There needs to be enforceableandjusticiable laws and regulations governing conduct at every level, thereby providing the necessary checks and balances to ensure compliance. There also needs to be the political will to enforce such laws, effectively. The severity of punishment for unethical and corrupt practices can vary from place to place. In China the death penalty has been prescribed for economic crimes perhaps on the basis that such crimes can result in the deaths of many. A radical political party in Sri Lanka too has recently called for the death penalty to be enforced for major economic crimes. In America persons found guilty of major corporate fraud which is considered a criminal offence, are sentenced to stiff jail sentences; e.g. in the recently concluded "Enron' case. Other developed democracies, too, prescribe harsh penalties for fraudulent conduct. Such measures serve as effective 'checks and balances' to curb blatant corruption, and thereby to safeguard the public, particularly where public funds are involved.
In Sri Lanka such measures are known to be woefully inadequate. There is a growing clamour both in the media and among intellectuals that there is an urgent need to curb corruption, particularly in high

places. In a recent editorial titled "remove lifeline to curb corruption', the Daily Mirror, of 29. Dec 06, has taken to task political VIPs for proposing to increase their salaries upto “150 to 300 %', while.- quote- “... the ordinary people are in a struggle to beat the spiralling cost of living with the meager income they get'. The editorial also points out, quote- “a mission of the US foreign relations committee says the government of Sri Lanka, does not take corruption as an important issue'. This is a serious indictment. The Island in their editorial of 2.Jan 07, titled "Battling corruption: Here's a way”, refers to a remedy for corruption formulated by the UNDP, which has reportedly "prepared a national plan to help Sri Lanka battle, inter alia, corruption and waste.” The editorial adds -"How can corrupt politicians and bureaucrats be expected to support such a plan? If implemented they will be the first casualties. ....... ” The above examples amply reflect the public perception of the woeful state of affairs and inadequacy, in the matter of curbing corruption in our land. It is therefore imperative that influential independent organisations such as the OPA, which have emphasised the need for ethical values within our professions, as also within Society, in general, should identify major impediments, which hamper national development, whether it be in the economic, spiritual or moral spheres, and which result from a neglect of Such ethical values. Urgent remedial measures need to be identified and implemented. Increased public awareness is a prerequisite.
As stated earlier ethical values often flow from our respective religious beliefs. One of the great teachers of ethical values of the last century was Mahatma Gandhi, who was a practising Hindu, but one who made a deep study of other religions, particularly of Christianity, Buddhism and the Moslem faith, all of which are practised in Sri Lanka,

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as also in his own motherland, -India. He held a deep conviction, that religion and ethical conduct are best taught by example In a lecture to a College in Sri Lanka, explaining his faith in God, he had stated “We do not need to proselytize either by our speech or by our writing. We can only do so really with our lives. Let our lives be open books for all to study’. The above is quoted p483 in a book titled Mahatma Gandhi "Essays and Reflections', edited by Dr. Sarvapelli Radhakrishna, the famed Indian philosopher and statesman, -quoted from a book by Gandhi's lifelong friend C.F.Andrews p484). Radhakrishna, in his own essay , has this to say about the Mahatma. “He felt that all religions at their best prescribe the same discipline, for man's fulfillment. The Vedas and the Tripitaka, the Bible and the Koran, speak to us of the need for self-discipline. The place of prayers and fasts in the lives of the Hindu sages, the Buddha, and Jesus is well known. The voice of the Muezzin, which breaks the silence of the early dawn, with the summons that has echoed for nearly fourteen centuries; Allah Akbar, God is great, -affirms that prayer is better than sleeping....Gandhi recalls us to the age old tradition of India, the tradition not of mere tolerance, but of profound respect of all faiths'p.338,339). In recent years however, the growing fundamentalist “Hindutva' movement, has shaken the foundations of India's secular tradition, based on mutual respect and tolerance.
It is good to dwell on the teachings and example of Mahatma Gandhi, when considering this subject of “Ethical values and Society', as he can be considered a real life example of one who transcended narrow religious belief and dogma, and used religion, which can be considered the fountain of all ethical values, -to teach ethical values to others, by and through his own example and sacrifice, and thereby to try to bring about reconciliation, in a
45

divided society, and in a strife ridden world. Gandhi was assassinated in Jan 1948, by a Hindu fanatic, while at prayer, shortly after Indiagained independence.
Gandhi clarifies how religious dogma, and erroneous interpretation, can result in unethical practices, contrary to true teaching. Quote p478,479,- “Hinduism tells everyone to worship God according to his own faith or Dharma, and to live at peace with all religions. That being my conception of Hinduism, I have never been able to reconcile myself to untouchability. I have always regarded it as a excrescence......untouchability is repugnant to reason and to the instinct of mercy, pity or love. ...And as I love Hinduism dearer than life itself, the taintie of untouchability, has become for mean intolerable burden'. This is an example where the teaching and the actual practice of a religion are seen to be at variance, -the result perhaps of “man's inhumanity to man”
The Mahatma had a great admiration for Christ's teaching as contained in "the Sermon on the Mount'. He has observed,p481 - “If then I had to face only the Sermon on the Mount and my own interpretation of it, I should not hesitate to say 'oh yes I am a Christian”. He however castigated Christians of his day for not practising its teachings, and stated-quote "...you will have to take up sackcloth and ashes with regard to the failure to perform that which is taught in Christ's sermon'. He referred to Christ's teaching that “You cannot serve God and Mammon'. He told the students p484- “fly from that self-destroying but destructive show of Mammon, which I see around me today. For you cannot serve Mammon and God, together'. How true this is, even today, -and true for all time.
When considering the subject of Ethical Values, the lure of money or “filthy lucre”, is very relevant. In an article written by me,

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titled “National priorities crying for attention” published in July 2001, I statedquote “to my mind, particularly with increasing globalisation, the single most destructive and corrupting force today is the growing "money based values', in society. We need to protect our youth from this danger and understand that the great religions of the world teach us that "the love of money is the root of all evil". Let us try to see virtue in simple living both as individuals and as a nation, and also strive to build bridges in our divided land, so that O. O. O. 0. ”. That observation remains relevant today, with little change, and We as professionals need to strive collectively to improve ethical standards in our society and to steer our youth away from all pervading unbridled 'money based values'.
When studying the impact of ethical values on society, one cannot but consider the subjects of religion and politics, because of their impact on such values, and their interaction. While it is fashionable today to blame the politicians for all our ills, we need to recognise that politicians are an integral part of society and that their conduct only reflects the sad state of affairs in our society in general. Finally, we are all responsible.
Mahatma Gandhi had some pertinent observations on the interplay of ethics, religion and politics. He has stated “My devotion to truth, has drawn me into the field of politics;....”. Radhakrishna further explains p342 quote "He Gandhi looked upon politics as a branch of ethics and religion. It is not a struggle for power and wealth, but a persistent and continuous effort to enable the submerged millions to attain the good life, ...to train them for freedom and fellowship, for spiritual depth and social harmony. A politician who works for these ends cannot help being religious. ....or take the side of evil

46
against good. ....'. We in the OPA have stressed the need for politicians too to adhere to a prescribed code of ethics. Perhaps the Mahatma's ideas can give strength and direction to our thoughts, on this.
Emperor Asoka a great warrior king who ruled much of India and Afghanistan, over two thousand years ago, was greatly influenced by Buddhism, later renounced war and sent out missionaries to neighbouring lands including Sri Lanka to spread the teachings of the Buddha. He was an exemplary monarch, who can be considered an embodiment of the desirable virtues in ethics, politics and religion, and one who practised 'good governance', another subject which interests us professionals in the OPA. Buddhism today is the religion of the majority in Sri Lanka, and the true practice of the Buddha's teaching can therefore have a direct impact on ethical values in Sri Lanka. This applies to the teachings of the other major religions toO.
Listening to religious talks and discussions on the radio, I have observed, that they often deal with abstract and abstruse teachings of religion and dogma, but do not in any effective manner correlate such teachings to the glaring national and social problems of the day, as they perhaps should. In Sri Lanka today, the problem of war and peace is uppermost in people's minds. Laksiri Mendis a lawyer in a recent article titled 'good governance and a lasting peace', has said “ It is absolutely necessary to incorporate inter-religious values such as compassion, love, fairness, equity, honesty, forgiveness and reconciliation in order to establish a lasting peace. These values build confidence and establish a culture of peace in negotiating a peace settlement with the LTTE. After all inter religious values teach nothing but peace and therefore

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incorporation of such values into the negotiating brief is of paramount importance to the Sri Lanka's Peace process.” How very true. He has ended on a "tuneful' and meaningful note by quoting the 'great song writer and composer John Lennon Beatles'; quote- “You may say I am a dreamer; I am not the only one. I hope you will join me; to make this world a better one'. Cited above is an example of the interrelation of politics, religion and ethical values, which impact on the seemingly intractable ethnic problem, - and the ongoing peace process.
There are many glaring social problems, resulting from a failure to live by ethical standards and values. As listed earlier, one of the important ethical values - is the 'value of life', particularly of human life. Sri Lanka reportedly has one of the highest murder and suicide rates in the world, despite the fact that we have one of the highest literacy levels in Asia. Our sociologists, as also religious, political, and civil society leaders need to address their minds to such pressing problems, to analyse and advise on urgent remedial measures as also to impart ethical and religious values. Another major evil is widespread alcoholism, reportedly only second to France. Laws alone have little effect on such social problems. Gandhi has said the best way forward is to teach by example. Perhaps this is what is sadly lacking, in our land today.?
Following an article I wrote in the press in July '06, titled "Ingredients for a lasting Peace', I was invited to participate in discussions of the “task force on disaster management' set up by the College of General Medical Practitioners . From their discussions, the acronym “SCRIPPT” has evolved, which lists the following desirable human qualities; quote, - “Sanctity of life, Calmness, Responsibilit, Innovativeness creativity), Prevention of
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disaster, Preparedness for disaster, and Tolerance ..'. Their thinking is explained thus: quote- “this approach is somewhat similar to that of a branch of ethics known as virtue ethics. Here the emphasis is more on producing good people rather than working out the ethically correct response in a given situation. Good people it is thought will usually do the right thing when the time comes.” This provides food for thought. The participants have been multidisciplinary. More professional bodies can perhaps follow the example of these medical professionals , and organise such ethics based, public interestinitiatives.
There are other examples. At the recent induction ceremony of the President, OPA, the speakers highlighted this need. The Medical and Legal professions were commented on, perhaps as they impact on the public most. Examples of unethical practices were mentioned , such as the influence of drug companies on doctors and the unjustifiable 'calling for dates' by lawyers, and the resultant laws delays ...I recall Romesh de Silva PC, pointing out that he has been against lawyers banding together under 'SLFP, UNP, Catholic or any other such title". Pertinent comment,- as political patronage can result in undeserving persons being given titles of doctorates, "presidents-counsel' and such, thereby down grading the true value of such honours? Judge C.J. Weeramantry the internationally renowned jurist, has done much to promote ethical values, 'crosscultural dialogue', and the need for encouraging"peace studies', and has lectured on these. He has observed that, quote - "Legal systems grow in rigidity without being tem pered by broa de ning perspectives of morality and religion'.
I have above tried to show through examples drawn from Sri Lanka, and outside), how ethical values and their non adherence, can affect society and its

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governance, as also how the practice of ethics, politics and religion interact and impact on ethical values in society. While laws if implemented effectively, can curb unethical practices, they will not suffice in imparting ethical values. Those most responsible for imparting ethical values in Society are the religious leaders, teachers, parents, professionals, intellectuals and others such. It is they who can most influence politicians as also youth and other important segments of society. As aptly pointed out by Gandhi and others, teaching by practice and example, is the best way forward. Even if we cannot change society or the world at large, we can make an effort to change ourselves. None of us is perfect, but we can try to be better, as also be willing to learn, from each other. A good start is through simple living and eschewing “money based values”. Letus strive to give up ostentatious living, and flaunting wealth, driving about in super luxury cars, and living beyond our means, whether as individuals or as a nation. The progressively declining value of the SL Rupee, is indicative of our plight. In India even the rich and powerful largely use Indian made 'Ambassador' cars. With globalisation that too might soon change for the worse. In Sri Lanka more professionals and others can use public transport and thereby set a good example, while helping to ease traffic congestion. It will be desirable for even a

few religious leaders, politicians, professionals, business leaders and other influencial, high profile persons, to try to set a public example in simple living . This can and will have a multiplier effect, and the message can spread through the fabric of society, - in our much blessed land.
References.
4Article titled “National priorities crying for
attention -Hemal Pieris” published in the Island on 4" and 5" July 01 4Published paper titled “Professional Ethics
and Society”-Hemal Pieris, read at an OPA seminar titled "Professional Interface', March 2003. 4Article titled “Ingredients for a lasting
peace” Hemal Pieris published in the Daily Mirror of 24.06.06, and the Island of 10.07.06 4Article titled “Good governance and a
lasting peace” Laksiri Mendis.- published in the Island of 02.01.07 4Discussion paper titled "SCRIPPT"-
prepared by the SL College of General
Medical) Practitioners. 4Lecture note on “Culture, Religion and Legal
Systems” Aug 06, -Judge C.G. Weeramantry. aTISL National Integrity awards booklet Dec
2006. øY“Mahatma Gandhi Essays and Reflections”-
[book 566 pages) -Edited by Dr Sarvapelli Radhakrishna. Published in India by Jaico (2003 Edition
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ASYMMETRICAL DEVO AN ANSWER TO SRI LANKA'S NATIONA
Professor Kumar David
*Chair Professor of Electrical Engineering. South China University of Technology.
Honorary Fellow, ISE Department. Hong Kong Polytechnic University.
PREAMBLE
This ar commit respects recogn represe] that too and it is not that it is sir discuss federali
SerᏙe a$ infeasib
Politics wholen Sinhala war and in, and the war since it bloody
secessic Indian c
SOVEREIGNTY A
A viable non-milita the following to win p and Muslim people til on the issues discusse
* The Sinhalese n political, adm be subverted nation states.
49
 

OLUTION:
AL QUESTION
ticle is not addressed to those who are ted either to a unitary democratic polity that s all citizens individually but does not lize the need for separate ethnic ntative structures, nor to those who believe much water has flowed under the bridge now too late to stop short of secession. It is such views are unworthy of consideration; nply that the purpose of this article is to
a model or form of devolution (or sm or semi-federalism) that would best s an alternative to either of these currently ble options.
has to be the art of the feasible; unitary ess is infeasible since 50 years after -Only, the events of 1958 and 1983, a civil much else, the Tamils are not going to buyif enforced, will be a recipe for prolonging . Secession is perhaps even less feasible Would have to be preceded by a long and civil war, a decisive victory of the onists, and a different international and limate than currently prevails.
AND NATIONALTY
Lry constitutional settlement must incorporate bublic acceptance among the Sinhalese, Tamil ne Up-Country Tamils impinge less severely d in this article.
eed to be assured that the new constitutional, inistrative and military arrangement cannot for the division of the island into two separate

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* The Tamils of the North and East need territorial space enabling selfgovernment in day to day administration, autonomy in social a n d cultura l m atters an d opportunities for economic development. They must be able to live without fear of racial violence in all of Sri Lanka.
* The Muslims must have recognition of the separate identity of their community, guarantees of freedom of religious and cultural practice, and an assurance that in the North and East they will not be subsumed under a larger Tamil umbrella.
Since the conflict and the search for a settlement are rooted in ethnicity, the principles enunciated above too are couched in terms of the identity and nationality. That is to say, it is not economic rationality or political principles, but the concerns of people as members of ethnic entities that a new constitution must address first and foremost. Personally, I do not emote or subscribe to ethnic sentiments, but that is beside the point. The consciousness of the overwhelming majority of my countrymen is circumscribed at this level; hence the solution must recognise this reality.
Administrative decentralisation on a district basis, as opposed to constitutional devolution or power sharing, may have been a practical and efficient form of governance in a situation where a deep ethnic chasm had not opened; it may have worked as envisaged in the Banda-Chelva Pact fifty years ago. But today a solution must take the ethnic bull by the horns and formulate answers which are acceptable to different ethnic communities. Therefore the Swiss Cantonal constitutional

devolution model of twenty-six district size, not necessarily linguistic, units, in a Sri Lanka size country, too is not relevant anymore, if it ever was, and may be set aside from consideration.
THE PRO SA I C O P T IO N FEDERALISM
Through a process of military exhaustion and political filtering, federalism has emerged as perhaps the maximum that one community can grant and the minimum that the other will accept. It seems to be the only viable compromise hence a few words about the US and Indian examples. The US declares itself formally federal, India has a federal constitution de facto though it does not use the term so boldly. Both incorporate power sharing between the centre and states, include a bicameral centre and separate state assemblies with a well defined division of power, though in the US the powers of states are wider than in India. The Indian central executive has powers to dissolve state governments and Acts of Parliament can create new states by simple majority. Opportunity for the US President and Congress to interfere with state governments is much more constrained and creation of new states requires constitutional change. However, the budgetary role of the two arms of Congress in the US (pork barrel and all) is larger than that of its Indian counterpart; the Indian central planners are the primary potentates in setting national economic priorities and directions.
However, federalism a la USA or India won't fit here. Why? The first problem is how many federal units? Imagine an arrangement with eight or nine units mapping the Provincial structure! Imagine each Provincial Council of today endowed with legislative powers akin to those of state legislatures in the USA and India! The objections are obvious.

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* Sri Lanka is small and it is meaningless to have a plethora of state legislatures, jurisdictions, administrative codes and guardians of public order variety would be inefficacious and wasteful.
* Many units, experience has shown, does not mean greater devolution to the grass roots. The existing Provincial Council system has achieved nothing in vigour, efficiency or devolved administration. On the contrary, a profusion of opportunistic politicos, arranged in layers, fattening on the public purse, have materialised.
The problem of the number of units is not one of principle but of practicality for Sri Lanka. A federal system with eight or nine or for that matter four or five legislatures, jurisdictions and budgets, in a country of this size, would beham-fisted.
THE TWO-UNT OPTION
What about federation into just two units a NE (North-East) Unit and what for want of a better name I will call RSL (Rest of Sri Lanka)? This structure will address the ethnic issue head on - excellent. It will also be conducive to economic and social development since demographic and geographic specificity can be better dealt with directly. Lower level decentralisation concerns pertain to provincial and district social and economic administrative matters; they do not justify separate federal legislative and governing organs.
One difficulty of the two-unit model is the great difference in size, population and resources between the NE-Unit and RSL. A lopsided federal arrangement won't work; it will store up trouble for the future unless power sharing structures and fiscal devolution are correctly designed right from
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the outset. There is, of course, no reason to assume that this cannot be done.
A greater difficulty is the merger of the North and East, or some part of the latter. Reliable census data is not available but the Muslims and Tamils are the largest communities, each about 35% and the Sinhalese number about 25 to 30%. Hence the NE-Unit, whatever its boundaries, will be substantially multiethnic, hence its design poses challenges. The separation of Amparai District (less than 20% Tamil) will not be an adequate answer since Trincomalee District is about one-third each Muslim, Tamil and Sinhalese. More on this topic anon in the Section on transitional provisions.
ASYMMETRICAL IDEVOLUTION
Enter Asymmetrical Devolution, both in Centre-Unit and within-Unit relations, but first a remark about devolution in the UK. The UK model provides for devolved units in Scotland and Wales, with minimal adjustments to parliament at Westminster, and a unit in Northern Ireland with ties to both Westminster and Dublin. What is remarkable is that there is no separate unit for England itself, by popular choice, though legal provision exists. This is the cue for Sri Lanka the structure put in place in the NEUnit requires no corresponding adjustment in RSL which can be left largely untouched. Adapting, but not blindly borrowing from Britain, an asymmetrical framework can help tackle the two impediments touched on in the paragraphs above. (See the Economist of 20" 26"May for special reports surveying the UK experience; fiscal devolution seems not to have been got quite right in the UK). The more recent Spanish model is also pertinent though experience is limited since it is still quite new.

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Asymmetrical Devolution provides the opportunity to design sui generis, from the ground up; to tailor the details specifically for the NE-Unit and to address issues of Muslim representation; to consider a separate Muslim sub-Assembly with the right to concur or be consulted on specified issues; and to design administrative units at the District and sub-District level. Since it would be spurious to mirror these arrangements in RSL, the envisaged total structure is asymmetrical.
Secondly, since there is, in effect, only one Unit to be concerned about (RSL marches on as before), Centre-Unit power sharing (legislatures, finances, judiciary and police) can be designed on a one-of basis. It's a oneof civil war we are involved in and calls for a one-of solution. Taking the ethnic bull by the horns, without playing the concealment game that only a general rearrangement of all Provinces is in hand, is essential when dumping the pernicious JRJ constitution and enacting a democratic alternative.
Devolution dispirits the urge to secede. Seven years of Scottish home rule did not whet the separatist appetite but quite to the contrary sent it straight out of fashion. So while anti-devolutionists here bite their nails and fret that autonomy and devolution in the North and East will spell the doom of Sri Lankan sovereignty, the Scottish National Party (SNP) is reeling, bewildered by what hit it. While 74% of Scotsmen and women said yes to devolution in 1997, recent opinion surveys show disillusionment entirely to be expected as only about 50% think the new system is working well. No, no, almost no one wants to go back on the change, but they no longer blame the English for their problems. It is Holyrood (Scottish Parliament) and the Scottish Executive that “feels the lash of Scottish tongues”.

I say: "Damned good! This is healthy democracy at work; it's exactly the way it should be!" The Scots are no longer concerned about the “bloody English” they have plenty of their own problems to worry about declining mining and industry, paying for university education and personal care for the elderly both of which have been made free, an economic growth rate that is consistently 1% below England, and the idiocy of their own politicians.
Conversely in Ethiopia, the refusal to recognise Eritrean autonomy ended in its secession. The explicit recognition of selfdetermination, including the right to secede, in the new Ethiopian Constitution has defused interest in secession among the remaining minorities. The first step in the break up of Yugoslavia was Serb machinations attempting to undermine Kosovo's limited autonomy. The paranoia in Sri Lanka that autonomy paves the road to division is a perversion; it is the civil war of minorities who feel suffocated that drives the logic of separatism.
NON-NEGOTABLE ISSUES
There are certain fundamental issues which have to be taken as non-negotiable premises in their own right, or because this article addresses only non-secessionist constitutional options:
Protection of human rights must be a sine
qua non above allelse
Guarantee of democratic rights and institutions (possibly with a brief interlude in the NE during which transitional restrictions quickly wither away)
A constitution based on acceptance and respect for a multi-ethnic, multireligious, plural society. (Personally I am of the view that the constitution

Page 55
must be secular and the special place of any religion or language must be dismantled; this however I will not insist upon as a non-negotiable issue).
The vesting of foreign policy, immigration, customs and defence in the central government as is usual in all federal unions. (Flexibility in foreign investment and customs regulations can be valuable, as the development of the Provinces and Special Administrative and Economic regions of China has shown).
The eventual consolidation of all military forces into a single armed forces command structure - obviously implied by the notion of sovereignty.
GOVERNANCE AND THE DIVISION OF POWERS
What should be the separation of powers between the Centre and the Units? It is unnecessary to enter into debates on matters of detail until the principle of Asymmetrical Devolution is first sufficiently popularised and accepted. The following can serve as guide lines; the separation of powers and allocations contained in the lists appended to the aborted 2000 constitutional proposals, the LTTE's ISGA proposals, the current arrangements in other countries including India and the apparently successful Scottish model.
Sri Lanka has ended up with a failed state classification on its report card hence the birth of a new constitution, based on asymmetrical principles or otherwise, is an opportunity to address a range of governance malfeasances. Asymmetrical Devolution, federalism or anything else cannot achieve much unless good governance, in a broad sense, is established. Even economic development is contingent on settling the

national question. The French philosopher Louis Althusser invented the term “overdtermination' to describe a society where everything else depended on and was shot through with the implications of one factor. Though a little fancy sounding, he would have said: “The social whole in Sri Lanka is overdetermined by the ethnic instance', and this sure makes sense.
A particularly difficult problem in all federal and semi-federal structures is what is called “fiscal federalism', meaning the arrangements and proportions relating to the collection and distribution of revenues. This is an issue in its own right and there is extensive practical experience in many countries as well as academic research and literature on the topic. What taxes and revenues will the centre collect and what will units collect, on what basis will central revenue be distributed to units and how much retained for its own use? The answers are linked to the distribution of activities, including services (healthcare, education) and economic development programmes, between centre and the units. A fuller discussion mustawaita second paper.
TRANSTIONAL PROVISIONS
An extended discussion of how the transition to a new constitutional dispensation is to be implemented is a somewhat separate topic from the essential concepts and structure of Asymmetrical Devolution, which is the remit of this paper. Hence only two matters, viz.: what mechanism will be used to decide whether the Eastern Province, or part thereof, is to be attached to the Northern Province, and secondly what degree of curtailment of democratic rights will be permitted in a putative NE unit during the transition, will be touched on here.
It is true that the LTTE and most Tamil parties consider the merger of the North and

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East a near non-negotiable condition for a settlement, but it is not fear of this ultimatum that should detain us here. The two aspects that we need to ponder are (a) what the people want, and (b) historical legitimacy, but there's the rub these considerations are likely to be in conflict.
The ethnic composition of the three districts that make up the Eastern Province make it very likely that the Amparai District will almost certainly reject a merger and Batticaloa may opt to merge with the North by a fair majority. The Trincomalee District is likely to reject a merger by a slim majority thanks not only to the inscrutable idiocy of ethnic cleansing the Muslims out of the North in 1992 earning the LTTE their eternal hostility, but also as a demographic consequence of state sponsored population Settlement since independence. A further complication is that the Trincomalee District forms the land link necessary for physical contiguitybetween the North and Batticaloa.
Reliable census data is not available, especially for the Trincomalee District, after the 1981 census and one can only conjecture that now the Muslims and Tamils are the largest communities, each about 35% and the Sinhalese number about 25 to 30%. It is even possible that the Muslims are the most numerous in the Eastern.
The Tamil argument for merger, however, issues from reference to historical rights. TNA leader R. Sampanthan speaking in Parliamenton November 7" had this to say:
Between 1947 (year of independence) and 1981 (last available census in the North-East) the national increase of the Sinhala population was 24.0%; in the same period the increase in the Sinhala population in the Eastern Province was 880%. The Sinhala population in the Eastern Province in 1827 was 0.5%; in

1881 was 4.7%; in 1921 was 4.5%; in 1946 (time of independence) was 9.9%; in 1953 (time of B-C Pact) was 13.1%; in 1963, 19.9% and in 1981 was 24.9%. The Tamil population which was 74.5% in 1827 has been reduced to 42.1% in 1981. This was because the Tamil speaking people were denied equality before the law and equal prote cti on of the la w sin c e independence. New electoral and administrative divisions were unjustly carved out, so as to discriminate against the Tamil speaking people and confer disproportionate benefits on the Sinhala people.
It was the struggle of the Tamil people in the north-east for substantial self-rule, which brought about new constitutional arrangements. The IndoSri Lanka Agreement and the subsequent legislative measures and arrangements were the consequence of this struggle and were intended to accommodate legitimate Tamil a s p ir at i o n s . No m e a n ing fu l consideration of any individual's right is possible in isolation from the fundamental rights of others (the historical inhabitants), which has been denied since independence for several decades, and which was going through the incipient stages of acceptance.
There is legitimacy in both points of view and the way out is to separate the Amparai District and initially merge the remainder of the Eastern Province with the North. A referendum in the remainder of the East after people have had some experience of how well the new arrangement is functioning is justifiable. In any case it is to be noted that if Amparai is separated the remaining rump Eastern Province is majority Tamil, or nearly SO.
Finally to democracy in the transition; but

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letitfirst be said that even if some restrictions are placed on democratic rights (a nonelected NE Unit administration for three years for example) even the briefest shackles on human rights must be abhorred.
The LTTE interim government must progressively make way for elected bodies quickly and in successive stages; the courts and a credible police system must function soon; press freedom and political rights guaranteed from day one; there must be no impediments to free personal movement. A

rapid democratisation schedule has to be agreed between the principal parties. An international presence, including an international force, must be in place to guarantee that the schedule is adhered to and that neither principal party attempts to run away with the kitty in violation of fundamental agreements once reached.
* Note by Editor. Tamil population up to the 1981 Census had included all Tamils, including Tamils of Indian Origin.

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MANIPULATING THE PEOPLE FOR FE
Dr. Susantha Gunatilakeo*
* Fellow World Academy of Arts and Science. Author among others of Recolonisation. Foreign Funded NGOs in Sri Lanka (2006 Sage); Anthropologizing Sri Lanka: A Civilizational Misadventure (Indiana University Press, 2001); Toward a Global Science: Mining Civilizational Knowledge (Indiana University Press 1999, Sage India 2000)
FEDERALAN
As the issue is facts very clear. B the world while t states that are m unitary forms characteristics in with federal form them are the U. federalism in the linguistic bounda
Federal states enlarged bit by b. the United State Declaration of Ir European stock a
 

DERALISM
ri Lanka although with a predominantly Sinhala opulation is a multicultural, multi-ethnic Dciety. The question we have to pose is what olitical and Social arrangements we should make ) live with each other in harmony. To give an nswer we must have some basic facts correct. ut this is not an easy task because there is a large (mount of deliberate and unconscious isinformation, especially drawn up by LTTE ld other separatists as well as by foreign funded GOs interfering in our local politics. (In parts of ldiasuch NGOsare being called FGOs, Foreign overnment Organisations). A few years ago, at e OPA Annual Sessions I gave a talk based on coup research to clarify some of these issues. Let Le proceed in the same vein and try to remove }me of the cobwebs.
D UNTARY STATES
federalism versus the unitary state, letus make some y far the unitary system of government is the norm in he federal system is the exception. Thus of the 191 embers of the United Nations, 127 countries have of government. Countries that have unitary clude France and Japan. The number of countries s of government is only about 25. Prominent among SA, Canada, Australia, Germany and India. But 2 USA, Australia and Germany has no ethnic or
CS.
had in some instances grown up as a country it by adding different territories. The classic case is s where from the original 13 states who made a dependence from the British (all of them were of nd the majority ethnically British). Later the United
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Page 59
States gradually added new states by acquisition, by war, treaty and other means. The striking feature of anybody who has lived in the United States is that of a considerable degree of ethnic and religious variety perhaps the largest such variety anywhere else in the world. This is most vividly seen in New York City where perhaps 150 to 200 nationalities speaking nearly 200 different languages and live side by side, and sometimes, especially for new migrants, without a common language to communicate with their neighbours. I personally have experienced this very well having lived in New York City and enjoyed every minute of it. Ethnic variety can be a source of strength.
Yet the United States is not a melting pot as was popularly imagined earlier. It is a melange of ethnicities and religious cultures with some overlap. Thus in New York City itself there are ethnic pockets, for example Chinatown in downtown Manhattan, Little Italy next to it, Astoria for Greeks, AfroAmericans in Harlem, Latinos in parts of East Harlem, Russians in Brighton Beach, Flushing changing hands from Jews to East Asians and so on. In some of these neighbourhoods signboards are in different languages for example Spanish, Russian, Chinese, Greek, Hindi etc. Yet there are no formal ethnic boundaries in New York City or for that matter in the whole of the United States. There are areas such as states near the Mexican border which has large Spanish speaking populations but there are no ethnic boundaries. The nearest Sri Lankan illustration of this diversity without borders is in areas of Colombo where recent Tamil and Muslim migrants have come pouring in from the North and the East. In Wellawatte, Tamils - some poor, others rich from expatriate money in high-rise air
57

conditioned comfort - jostle with Sinhalese selling vegetables and Muslims outside the mosque. The message I want to give is that the most powerful country in the world, the United States has say 50 federal states but does not allow ethnic borders.
INDIAN SOLUTIONS
India has a very much larger population than Sri Lanka and with a larger collection of social divisions than Sri Lanka based on ethnicity, religion, caste, tribe India is being foisted on Sri Lanka as an example for us to follow. Before discussing the Indian example some basic facts of India's influence on Sri Lanka's separatism should be made very clear. These have been suppressed in the popular discourse either wilfully or through ignorance. Sri Lankan Tamil separatism has close links with the rise of Tamil nationalism and later, of separatism in South India. Indian Tamil separatism in fact was at times against India getting Independence from the British and wanted a separate Dravidistan paralleling the case of Pakistan. Later, especially with the Indian Central Government making the cry for separatism illegal and after the 1962 India-China border war, these demands for a separate independent state died down and is virtually non-existent in present India. In the meantime however, close links had been forged by Tamil separatist parties in India from the 1950s onwards with Sri Lankan parties with separatist tendencies like the Federal Party and its successor the TULF. These links have been very well documented in some of the scholarly literature. The big drive for Sri Lankan separatism however did not arise from these local Tamil chauvinist parties or from the indirect influence of South Indian Tamil racism.

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The big push for Sri Lankan separatism came when the Indian Central Government based on an Indian foreign policy decision decided to subvert Sri Lanka by training, arming and dispatching different Tamil separatist groups. All the armed separatist groups were trained in India except that of the Vikalapa Kandayama for which Dayan Jayatileke was indicted. This Indian policy of sponsoring armed groups was somewhat parallel to the then Indian government under Indira Ghandi sponsoring a Punjabi group under Brindanwale to suppress the Punjabi insurgency. Ostensibly this Indian indirect invasion of Sri Lanka was justified in some Indian circles as "to teach J.R. Jayawardenaa lesson" for his pro-Western foreign policy. In other Indian circles, it was said that Sri Lanka was under the "natural" sphere of Indian influence a parallel to the discredited Monroe Doctrine of the US where Latin America was declared by the US to be under its sphere of influence. The culmination of Indian interference was the so-called Thimpu Principles which were imposed under Indian over lordship and the later Indian Accord signed with warships outside Colombo harbour. These steps exactly paralleled United States behaviour with its smaller neighbours at the height of the Monroe doctrine. Even now, India interferes directly and indirectly in our affairs a contrast to all our the South Asian neighbours, our South EastAsian neighbours and the most important East Asian country namely China which latter stands out as a beacon of non-interference in other nations' internal affairs.
The Indian Monroe doctrine recognized the historically untenable demarcation of the North and East as self-styled "traditional

58
homelands of the Tamils". Several Sri Lankan historians have shown how this myth was artificially created in face of basic facts. The basis for this is the infamous Minute by Cleghorn who falsely stated that "Two different nations from a very ancient period, have divided between them the possession of the island; first the Cingalese [sic] ....and secondly the Malabars Tamils". Cleghorn's extent of ignorance of the country was illustrated by the fact that he went on to say that the Sinhalese "derive their origin from Siam.'
There was a Kingdom of Jaffna from the 13th century to the early part of the 17th century. But except during the brief heyday of its power, it seldom controlled any thing more than the Jaffna peninsula. The first detailed map of Jaffna Kingdom by Baldaeus in 1672 AD shows it being confined to the Jaffna Peninsula and Mannar Peninsula. And there are indications from Portuguese sources that although Jaffna may have been ruled by a Tamil king, a significant portion of its population was Sinhalese. (This of course is paralleled by areas of the South been settled by fresh migrants from South India). Before the colonial powers, the entire East was ruled by the King of Kandy. The British when it started rehabilitating the tank country in the 19th century tried to bring in Tamil settlers but to no avail.
These and other objective facts show that the traditional homelands of the N&E is historically untenable. The respected Indian journal Economic and Political Weekly called it an "elaborate hoax'. The inevitable conclusion must be that Sri Lanka; in spite of the Sinhalese being in a majority did not have tightly demarcated ethnic enclaves. There

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were often ethnic admixtures as well as over time, Tamil speakers becoming Sinhala by learning the language and vice versa. The central message is that we were and are a mixed community.
The only mono ethnic entity is of very recent origin and is in the Jaffna peninsula after the LTTE either killed off or drove away the Muslims and Sinhalese who lived among Tamils. At the last stage of this ethnic cleansing non-Tamils were given just 24 hours to leave the area. This deliberate ethnic cleansing is to be differentiated from the anti-Tamil riots in the South which, dastardly as they were, was not done as a formal policy to drive away Tamils and create mono ethnic wastelands.
This leads us to "Indian solutions" to India's ethnic problems. How India herself reacted to violent attempts at secession like that in Sri Lanka is instructive, the nearest parallel being to the once Punjabi insurrection for independence. India reacted most violently with mass killings of suspected separatists till this revolt was laid to rest. But how about Indian states, in the Indian federation?
Again a few forgotten facts require mention. India at the time of Independence was not just British territory, there were also independent kingdoms ruled by Maharajahs and Nawabs. These were all initially amalgamated into independent India. Later there was redrawing of internal boundaries based on linguistic states-although there was considerable debate whether there should be states based on language. A striking feature of these linguistic states is that they are not monolinguistic. Many have other language speakers within them. In fact, minority

59
language speakers in such a linguistic state can be surprisingly very high. Significantly many of these states have a larger proportion of minority speakers than the proportion of Tamil speaking persons within Sri Lanka.
Professor G.H.Peiris has pointed out such plain statistics. Thus in the North West of India, in the state of Jammu and Kashmir 47.8 percent of the population are minority language speakers while the North East state of Assam has 39% minority language speakers. Of the South Indian states, Karnataka has a 34.1% minority that do not speak as their mother tongue the majority Kannada language, Tamil Nadu has 16.1% of non-Tamil speakers, Andra Pradesh has 14.7% who do not speak Telugu the regional and official language. The average of minority language speakers for all linguistic states in India is 17.1%.
It should be noted that Sri Lanka has an area roughly comparable in size to the average Indian state. What this means is that if Sri Lanka was a part of India, it would probably be a state and the proportion of Tamil speakers would be no different from the proportion of minority language speakers in the average Indian state. There is however one difference in today's Sri Lanka. Whereas in Indian states only the principle language is considered the official regional language (apart from Hindi and English) in Sri Lanka, the minority language namely Tamil whose proportion of speakers is equivalent to that the average Indian state, is given recognition as an equal official language on par with Sinhalese. So Tamil speakers, at least at the formal, official level have more rights than they would in an Indian state. But of course practice would be different from legal formality.

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GROUND FACTS TODAY
The issue of federalism to the North and East has been drastically changed by the recent Supreme Court judgment which separated the Northern and Eastern Provinces which had been joined together through the sub imperial machinations of India. But what of federalism for the ethnically cleansed Northern region and ruled by Sri Lanka's version of Hitler? It is interesting to examine another dimension, namely the actual population statistics to see how unfair the federal demand is.
The LTTE has not allowed a census in these areas for the very obvious reason that it will reveal that the population has voted with their feet by walking away from areas of LTTE influence. From visitors to the Northern Province, we know intuitively that the population has diminished. We also know of the rapid growth of the Tamil population in areas like Wellawatte and other parts of the Colombo district. We also know of mass Tamil migration as refugees (on real or phony grounds). The question to be raised is how much exactly the Sri Lankan Tamil population is.
The CIA fact book (which is a reliable source) describes Sri Lanka's population as follows: Sinhalese 73.8%, Sri Lankan Moors 7.2%, Indian Tamil 4.6%, Sri Lankan Tamil 3.9%, other 0.5%, and "unspecified" 10% (based on the 2001 census provisional data). Here it appears that the Sri Lanka Tamil population some of whose leaders are the ones demanding separatism or federalism is today only 3.9% of the population but the unspecified 10% hides some significant facts

60
as the LTTE did not allow a census. No census has been allowed by the LTTE due to large out-migration of Tamils to the Western Province and foreign countries. This incidentally has forced the LTTE into increased child recruitment.
To get at the true figures for the actual Sri Lankan Tamils living in Sri Lanka one has to get an estimate of Sri Lankan Tamil outmigration from Sri Lanka. Pro-Tiger websites give some interesting statistics. The Sri Lankan Tamil population around the world is found in the websitestamiltigers.net and in tamilnation.org. These sites give us a figure of the total of Sri Lankan Tamils living outside Sri Lanka as 697,000, which is a very significant proportion of the original Jaffna Tamil population. Figures in LTTE web sites have however to be treated with caution.
But there are other indirect sources. For example, the Mackenzie Institute of Canada mentions that “Toronto has become the World's largest Sri Lankan Tamil city, with as many as 200,000 here, and another 50,000 or so in other cities. Estimates on how many are here in Canada vary, and are at odds with census data suggesting much illegal immigration'. Under such calculations, Colombo becomes the second largest Sri Lankan Tamil city, with Jaffna trailing behind to a third position. Many of these migrants have gone as economic refugees and almost all of them (for example with their children being educated into the culture of those countries and not to Sri Lankan Tamil culture) will not return to Sri Lanka. What this means is that federalism or separatism is being sought for a very small percentage of the present and future Sri Lankan population.

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FEDERALISM PROPONENTS
If seen in objective terms federalism has no place in Sri Lanka, the question we have to pose is how has it come to occupy such a visible part of the national debate. If one takes national political parties, the present UNP advocates it, as do the Old Left in the form of the LSSP and the CP. The present government under the label "Mahinda Chintanaya' does not support it, as do not the JVP and MEP. Of the ethnic parties, the TNA being a proxy of the LTTE is undecided and seems to swing from separatism to federalism. (One should note here that the TNA was not properly elected but is there in Parliament because of LTTE guns barring other politicians). The other ethnic Tamil parties are for varieties of federalism while the Sinhalese ethnic JHU is for a unitary state. The SLMC has apparently not made up its mind.
The UNP leadership under Ranil Wickremasinghe is today not of the same calibre as under his predecessors like J.R.Jayawardene and Premadasa, who whatever their other shortcomings had strong leadership qualities. The present UNP leader not only seems to relish in losing a string of elections but also enjoy functioning as a puppet of the self-styled international community especially the Norwegians. In its heyday the UNP scorned federalism. When it had a 5/6" majority and could change the constitution, as it indeed did many times, it shied away from federalism.
But the concept of the unitary state in the constitution was enshrined by another set of now depleted politicians, namely the LSSP and the CP. They were the main champions of the 1972 Constitution which enshrined the

unitary concept. In fact it was a leader of the LSSP, Dr Colvin R. de Silva who steered that constitution through Parliament. Today these two parties are a rump of their former glory. They have no electoral power and more damagingly, take a diametrically opposite stand to the unitary position they had taken when their better leaders were in power. A disgrace to their anti-colonial predecessors they, for example Vitharana of the LSSP evokes the re-colonising slogan of "support from the international community" as support for this dead left's present support of federalism. This re-colonising project also occurs within the CP. Its leader D.E.W.Gunasekera has accepted the colonial NGO the Berghof Foundation as a partner in his own Ministry. Berghof wants to demilitarise the Sri Lankan armed forces the opposite cry of the former CP and LSSP demanding removal of any foreign military presence from Sri Lanka. Any selfrespecting former leader of the CP or of the LSSP who fought against colonialism would be shuddering at this turn of having a set of suddas with their own agendas guiding our political future. And as the CP and the LSSP wants to deal with the Hitler like racist LTTE, these past leaders would be further repulsed as the present leadership does not seem to find anything wrong with negotiating with LTTE demands based on racism, ethnic cleansing, and raw fascism.
These former leaders of the CP and the LSSP would also shudder at how foreign funded NGOs with definite political agendas on Sri Lanka have infiltrated Sri Lanka (in India they are being increasingly labeled FGOs-Foreign Government Organisations). In no other time in our Post Independence existence are our very modes of thinking being subject to foreign funded propaganda

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efforts. One has only to read some of the stated objectives of organisations like the National Peace Council, International Alert and the Berghof Foundation to realise that they have formally laid out plans to brainwash the influentials in the country from the topmost positions in Sri Lanka downwards. We have had our thoughts franchised out to these extensions of foreign powers and the present CP and LSSP are in total cahoots with them.
But in spite of these machinations and conspiracies against democracy, the LTTE seems to be under considerable threat both from within and outside. And changing the constitution from unitary to federalism requires a two thirds majority in Parliament and a referendum. The LTTE has realized that this is not feasible - clearly evident through some of their pronouncements.
Anybody going to the North and East will see that it has lagged behind the rest of the country. The reason is not because of deliberate discrimination but simply because

the LTTE led war has prevented delivery of services and investment through the normal organs that operate in the rest of the country. It was with tears in my eyes that I recently saw the rusting hulk of what was the cement factory in KKS where I had first worked. Once normalcy prevails as in Tamil predominant Wellawatte, one would see rapid development. Rapid development is required in the war-torn areas.
Once normalcy is restored, in fact huge new investments in the spirit of positive discrimination must be made in the North and East reminiscent of say the Mahaveli development. But normalcy to be restored requires removal of the fascist one-man rule of Prabhakaran. And the only means of doing this is not feeding his Hitlerite dreams but by defeating him using all means possible including of course through the military option, which given the present LTTE weakness should be much easier than earlier. Our main task should be to free the Tamil people from this monster so that they could breathe freely and prosper within Sri Lanka.

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A FALSE CLAIMS ACT / INTEREST LITIGATION FINANCIAL CONTROL
R.M.B. Senanayake*
*Formerly of the Ceylon Civil Service
The rec and bu1 Benjam State V Anyone the CC conclus and not billion Report Audit ( Revenu Refund
COPE Report ha the public exchequer b accused of diverting Manufacturing Corpora taxes by Fraudulent F sample test check by th million. Another test ch
vehicles showed that registration which caus illegal import of moto duties on the orders of Cabinet decision. Minis businessmen varying e losses to revenue. T government projects, a and subsidy claims expenditure. It is well fraud in government p Services; or subsidies
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AND PUBLIC WILL MAKE MORE EFFECTIVE
'ent COPE Report shows how politicians reaucrats have together robbed the state. in Franklin once remarked that the US was being run by a band of brigands. 2 who reads the recent Audit Reports and OPE Report will come to the same ion. There have been “computable losses n-collection of taxes amounting to Rs.389 during the last five years, according to the of the Auditor General on Special Project on the Management of Government Tax Le Parliamentary Series 02. Frauds in VAT Samounted to Rs 1.3 billion.
is drawn attention to massive losses caused to y Ministers and officials. President CBK was
Rs 944 million from the State Rubber ation. There has been a massive defrauding of Registration of imported motor vehicles. A le Auditor General revealed frauds of Rs 11.4 neck by the Audit on the registration of motor
fictitious documents were produced for sed a fraud of Rs 3.4 million. There has been r vehicles without the payment of customs the Minister in charge but in violation of the sters have favored particular importers another ven Cabinet approved conditions and causing typically, public purchases, contracts for nd payments for services rendered or welfare account for nearly half the total public -known that there is rampant corruption and rocurement of such goods, public works and and direct transfer of resources to the poor.

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There is no doubt that there is large scale robbery of State funds.
Although there was much fuss made about the COPE Report it will end up in the dustbin of history like similar reports before. There has never been any action taken on such reports by COPE or Parliament. To expect the Executive arm of the government to take action is like the folk proverb of going to the fortune teller whose son was the robber to ascertain who the robber was. All that the public see is the slinging of mud by sections of the Opposition at some former Ministers who had crossed over to the government from the Opposition UNP, accepting Ministerial posts. In other countries debates in Parliament on COPE Reports are bipartisan since the Members of Parliament are more concerned about how to put things right rather than engage in mutual recrimination. It is the duty of parliament to control public finances. But here it is always partisan politics all the way. This is not the working of a mature democracy. The Members of COPE are appointed not because of their political partisanship but because they are men of stature who are expected to be objective and honest in their deliberations and reporting of recommendations. The Members of Parliament are then expected to take a nonpartisan attitude in the debates on the COPE Report and decide on proper actions not merely to punish those at fault but also to put in place systems which will prevent such frauds, los ses to revenue and misappropriations of public funds in the future. This is unlikely to happen given the partisan nature of the debates in Parliament on the COPEReport. This COPEReport will

then go the same way as its predecessors, namely to the historical dust bin. Ministers referred to in the Report could take up the position that they are not governed by the Financial Regulations which are issued only under the hand on the Minister of Finance. But to bind all those involved in financial matters or transactions on behalf of the state we need a law, an Act of Parliament similar to the Administrative Procedures Act in USA.
Several global efforts are being made to improve procurement procedures. The adoption of a model law on public procurement of goods and construction by the UN Commission on International Trade Law, and the WTO procurement rules which came into force in 1996 are two such examples. But good laws and rules are not enough. We need innovative approaches, sensible and simple mechanisms for easy enforcement, and effective justice system for speedy redress.
What can civil society do in these circumstances? In the US, many public agencies adopta simple rule in procurement: the contractor must supply goods and services at the most favorable terms to the government i.e., the price cannot be higher than that charged to any private customer. This is a legal obligation on any supplier of goods & services to the government. Admittedly such a regulation can be enforced only in respect of standard goods and services, and cannot apply to customized goods and services, or Sophisticated items for which the government is the sole buyer. I like to quote from an article by Mr. JAYAPRAKASH NARAYAN on Tackling

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Public Fraud who describes the False
Claims Actin USA.
He states that under this law, any person can unearth fraud or false claims, and file suit on behalf of the US against those who have falsely claimed federal funds for any procurement of goods, works or services. Such a whistleblower is called a "relator, and the False Claims Act litigation is called Qui Tam litigation. Persons who file successful Qui Tam suits can recover 15 25% of any settlement or judgment reached in a case if the government intervenes in the action, or up to 30% if they pursue it on their own. Private Citizens and lawyers thus have an enormous incentive to detect false claims and corruption and file Suits. Consequently, a huge industry of unearthing false claims has sprung up, and hundreds of QuiTamsuits are filed every year.
The 1986 amendments to False Claims Act enhanced Qui Tam provisions, increasing the financial incentives and reducing the jurisdictional hurdles to filing
65

such suits. Since then, 4000 Qui Tam suits have been filed, resulting in $6 billion recovered. In addition, $4 billion was recovered in government-initiated claims. In all such cases, a person making false claim is liable to thrice the amount of damages sustained by the government, plus a civil
penalty.
It is high time we enacted similar laws providing incentive to citizens to unearth fraud and corruption. There are practical, simple, effective methods to set things right. Sensible laws and effective legal system to enforce them are crucial to prevent public fraud which has become endemic in our society.
It is also necessary to introduce legal provision by an Act of Parliament to allow citizens to resort to Public Interest Litigation as in India. Recently some civic minded citizens there resorted to Public Interest Litigation to have some Ministers convicted of criminal behavior, removed from their posts of Ministers. When oh! Oh when Will we see such legislation in our country? Until then it is open sesame for our crooked Ministers and members of Parliament.

Page 68
GLOBAL INTEGRATI AND NATIONAL INT MANAGING CHANG
Saman Kelegama*
*Executive Director,
Institute of Policy Studies of Sri Lanka
PROBLEMS (
It would be worth examples is ther fine-tuned to the have not taken p labour market he graduates. Whil growth the sectic University syster
The private secto daily conduct of well qualified d students with a government to k market until th programmes fo] programme had graduates (espec should take plac local languages
necessary requir demands but this
 

ON
ERESTS: E IN SRI LANKA
he economic reform exercise that started in Sri anka in 1977 has gone through various phases er the last 30 years. With increasing global teractions more and more reforms in the mestic economy are required for the economy be in partial or total harmony with global Langes and to respond to new situations. Policy akers seem to know where to move the ionomy and what sort of reforms is needed for at purpose. However, implementing reforms or langes in the economy has been painfully slow. other words, managing change has become an sue in the country.
DF CHANGE: soME EXAMPLES
while to illustrate this by a few examples. One of the eforms in the education sector. They have not been growing needs of the economy. Education reforms lace to the extent to serve the new demands of the 2nce compelling the government to absorb 40,000 2, the private sector is considered the engine of or does not find the bulk of the output from the nuseful for their operations.
ruses English as indispensable for recruitment and business affairs. Thus they have a tendency to reject omestic language trained graduates in favour of fluent English background. It is difficult for a eep on saying to these graduates to stay in the job le private sector absorbs them. Even special such graduates such as the Tharuna Aruna limited influence in reducing the waiting list of ially with Arts degrees). Thus education reforms e to produce employable graduates whether in the or in the English language. Therefore change is a ement in the education system for the growing new change is slow to come.
66

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Another example related to jobs creation by the private sector is the type of labour laws governingjob creation. Although the country has had nearly 30 years of an open economy it is still managing the open economy by using labour laws that were designed to suita closed economy of the 1960s and 1970s. Most private sector companies are concerned about certain labour laws which are too rigid for managing enterprises in the open economy. Sometimes when there is excess competitive pressure some adjustment in the labour force needs to be done, however, if the labour laws (in this case, the Termination of Workmen Act) do not permit or hinder such adjustments the only option for the company sometimes is to lower the scale of its operation or to refrain from pursuing labour intensive methods of production. It is known that some companies resort to capitalintensive modes of production just to evade the hassles of having more labour in the firm, while some firms resort to sub-contracting arrangements to evade the negative implications of the labour laws. In the long run it is the employable people who suffer consequent to these techniques of the private sector. One cannot blame the private sector for doing this because it is the government that has not changed labour laws to suit the current situation.
Another example of delays in managing change is the electricity sector. As far back as the late 1990s the experts warned the government that the hydro-electricity sources were gradually diminishing and hence to meet the increasing future electricity demands the government should look at other low cost power generation methods such as bio-fuel, coal power, dendro, etc. However, in spite of these warnings no effective action was taken in this respect. Coal power sites were selected, feasibility studies were done, etc., but due to various protests the government kept on postponing the initiation of cheap electricity
57

generation, especially through coal power. When a crisis emerged in the mid-1990s with electricity cuts and black-outs the easiest route was taken in solving the problem via diesel oil powerplants the costliest source of electricity generation. It became a habit thereafter of approving diesel power plants one after another so much so that it created a diesel power lobby which got together and discouraged the government from going for coal power projects. Today the country is 65 per cent diesel power dependent a pathetic situation for a country that depended 95 per cent on hydropower in the early 1990s.
It was another instance where managing change was a problem to the government. The respective governments did not have a strategy to buy-off opposition and go ahead with coal power generation.
MANAGING CHANGE: PRACTICAL PROBLEMS
Reverting to the key problem, i.e., change, in any change there are winners and losers. The winners are more in number but are scattered and not well organized. The losers are smaller in number but well organized (for example, via Trade Unions) and determined to resist change. They manipulate the print and electronic media with effortless ease and pursue their case very aggressively. Meanwhile, the potential winners of reforms remain silent. Most often the government is held to ransom by the losers and hence the government while recognizing that there is a need for change does not go ahead with reform and resort to various 'stop gap' methods to address the issue.
First, the governmentallows the status quo to continue while recognizing that there is an urgent need for change. Thus, it sometimes resorts to ad hoc measures for short-run management and most often these short term patch-up arrangements aggravate the

Page 70
problem in the medium term. As mentioned the rapid approval of diesel power projects aggravated the power scenario from a differentangle.
Second, it appoints another committee to look into the recommendations almost equivalent to re-inventing the wheel. This is especially so at the time of a change of government. The new Minister will appoint a Committee to look into the problem when there is already a report on the subject matter and for some unknown reason the existing report is considered not “our report”. Basically by doing this what is done is buying time and hence ifa pro-reformer asks what is happening in regard to the reform programme, the answer is that it is being looked into by a special committee.
Third, when the government knows that there are political difficulties with going ahead, it just allows the report to rest. This is just sitting on the issue assuming that with time there may emerge suitable conditions to go ahead with the programme or reforms. In other words, it assumes that time will take care of it. The best example of this is the Norochachalai Coal Power Plant. The authorities concerned sat over the issue for a very longtime until the crisis aggravated and there was no other way out. It is better late than never but when it commenced the damage (in this case, high electricity rates) was already done.
But most often it is seen that the government mis-reads the strength of the losers. In the case of Norochchalai for example, both contenders of the 2005 Presidential election played it safe saying that they will not go ahead and it needs to be further studied, and so on. But after the Presidential election, the President made a clear statement (January 2006) that come what may he is going ahead with the Norochchalai project and a Chinese party was brought in to undertake it. A few

months after this decision was announced, local government elections were held (March 2006) and the people of Norochchalai also got the chance to vote. If the people of Norochchalai were so vehemently opposed to the project, these polls were the best opportunity to show their protest. At the elections the ruling party won handsomely
without any difficulty even with some of its
coalition partner parties contesting separately. It clearly showed that the whole protest and the large amount of losers from the project were highly exaggerated. The fact that the protestors are very vocal and are able to get the media behind them made the government feel that it was a strong force against change or reform, which however was not in reality the case.
Why is there opposition to change in
contemporary Sri Lanka'? This is partly due to mishandling of the reforms in the past. Several mistakes have been made in the past that has made a mark on the stakeholders. First, was resorting to reform without addressing in-house matters, which in other words meant exposing the country to global forces without addressing the institutional and regulatory issues in the country - sometimes called "behind the border' problems. If the economy is exposed more to the global forces of competition without addressing the "behind the border problems the consequences can be quite disastrous with many people forming adverse opinions about economic reform. Thus in a country like Sri Lanka, it is not prudent to implement reform and change in the system on a hurried basis or 'shock therapy' basis because there are many factors"behind the border' related to
supply, regulations, and institutions that first
need to be addressed before implementing reform.
Mishandling of the reforms in the past has also revived the slogan of "preserving national interests' and this in turn has

Page 71
increased resistance to change. If equity and human considerations are totally overlooked in the reform process the stakeholders perceive that the profit motive and corporate interests are going to be the key determinants of the sector's future. In some instances, this fear has proved to be the case. When this is the case it is always easy to play the national interest card even if it does not mean much on aparticular reform issue such as in the case of education or the power sector.
Thus, managing a reform process is crucial if the country is to go ahead with change. The losers protest needs to be minimized and accommodated. For such management, dialogue on reform and marketing the reform programme are important factors. Needless to say, for any changes to take place there has to be support and acceptance of such changes. Even in Socialism it was said those days that radical transformation of the economy cannot be done unless the level of social consciousness is high. Thus all reforms must start with clear objectives and the merits of reforms have to be popularized. Then the politicians must be lobbied to accept such changes.
Making changes in a new system is easier than in an older well entrenched set up. In other words, making changes in a country with old systems in place like that of Sri Lanka will be more difficult than in a new country like Singapore. For instance, H.M. Oliver (1957: i) {"Economic Opinion and Policy in Ceylon', Duke University Commonwealth-Studies Centre, Cambridge University Press, London noted: “Ceylon reacquired its independence only in 1948, after being under European rule for nearly five centuries. Its civilization is old and hence probably more resistant to change than would be a younger and less integrated culture”. Thus in a country like Sri Lanka, abrupt changes in broad strategy or in detailed components of a given strategy
69

require considerable support and understanding by the population. This is not primarily because of the power of those who profit from possible rents, but rather because the community's history, institutions, and organizations create a milieu in which change that affects deeply rooted views and practices cannot be seen as either appropriate or necessary. It then takes some event of some magnitude to convince the population and the government that new directions are necessary and possible.
ROLE OF PROFESSIONALS
Whatever government is in power in Sri Lanka it needs assistance in managing change from the experts because currently the policy-making process is basically the result of day-to-day ad hoc measures. Planning and innovations are rarely taken into consideration by the key policy makers who are basically reacting to the emerging situations and problems. It is also the case that sometimes the technocrats tend to cater to the whims and fancies of the politicians just to be on their goodbooks and for the sake of their own survival. It is here that the professionals have a role. They can be a strong force in assisting the government in managing change.
In a democratic set-up, the government hasto get the people behind it to go ahead with reform or change. This can only be done by addressing the fears and aspirations of the losers of reform and those who stand on behalf of the losers. These fears can only be addressed by a dialogue with the stakeholders preparing them to the new scenario. In this process articles in the media both print and electronic can go a long way in gradually diluting the opposition. Here the professionals can play a major role, i.e., articulating the need for reform and advising the government on how to meet opposition arguments and manage change. “One size fit

Page 72
all” tool kits no longer work in Sri Lanka, thus the country has to look at “international best practices' to come up with its own package for such management.
Today it is observed that the Sinhala and Tamil media are still dominated by writers who argue against change even though the debate is more open in the English media. Outdated ideas are still articulated very passionately using the so-called national interest, past failures, profit motive and labour exploitation and so on. These gain a lot of credibility in the absence of an alternative view in favour of change and especially in the vernacular media.
In most countries there is what is called a 'second track with regard to managing

change. It is here that the professionals should act together as a pressure group to taking Sri Lanka forward. If not the country will remain as one Minister said “the sick man of South Asia' or as one economist stated “a case of missed opportunities” for the next decade. Some of the leads that Sri Lanka possess interms of high attainments in basic living standards or as the pioneer of economic liberalization in South Asia will be things of the past well overtaken by other countries who are much more underdeveloped than Sri Lanka today. The country will be still struggling to manage change. The professionals have to ensure that this does not happen and this is the challenge for them to make a contribution to take Sri Lanka forward to the 21" century.

Page 73
OPA OFFCE
Presic Dr. Hilca rY VM.
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71

EBEARERS
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OPA MEMBE
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GOOO in
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3ත් බැරකුව DathBaIThi

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Hatton Nation unk, Head Ofcc HNB Tower, No, 479, "T BJnyah Mawatha, Colombo 10, Sri Lanku.
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