Features
1956, SWRD, Sir John, some ministers and drafting a Throne Speech on short order
(Excerpted from the Memoirs of a Cabinet Secretary by BP Peiris)
In view of the dissolution of Parliament, I sat down to draft the Queen’s Speech. I drafted five different speeches, one for each person who might be a potential Prime Minister: Sir John, S.W.R.D., Philip Gunawardena, Dahanayake and N. M. Perera. The elections were spread over three days, and on the last day, April 12, 1956, was S.W.R.D.’s election at Attanagalla.
On the first day’s results, it was clear that there was a swing towards S.W.R.D.’s party, the Mahajana Eksath Peramuna. On the second day’s results, his position had considerably improved and it was clear to any thinking man that, if S.W.R.D. won his own seat on the 12th, he would automatically be Prime Minister.
The shortness of the time given for the drafting of the Queen’s Speech must have struck him as a constitutional lawyer because, on the 12th morning, while polling in his electoral area was going on, he asked me on the telephone to come to his bungalow to draft the Speech.
DS.’s and Dudley’s Secretary was N. W. Atukorale. When Sir John came in, Atukorale was elevated to Queen’s House and P. Nadesan took his place. Nadesan was an efficient officer and was known as Sir John’s man. He was able to write a speech for Sir John for the opening of a Commonwealth Conference or a Volley Ball court. If S.W.R.D. came in, everyone knew that Nadesan had to go; and he went.
Many, including my father, thought that I would have to go likewise although I saw no reason for taking a kick. When S.W.R.D. phoned over the Queen’s Speech, I told him that I did not mean any disrespect, that I wished to act constitutionally as Secretary to the Cabinet, that Sir John was still the Prime Minister, that he was not still member for Attanagalla, that I had no doubt that he would be elected, that I knew the urgency of the matter, that I had a draft ready, and that I would see him early the next morning with Sir John’s permission.
In the afternoon of the 12th, I drove to Kandawala. Sir John, dressed in a sarong and banian, was signing cheques for each of the minor employees of the External Affairs Ministry. When I explained my problem, he readily granted me permission to see SWRD. He then invited me to a drink. As it was only five o,clock, I said I would prefer a glass of iced water, and he said “You b…, you are also refusing my drinks, now that I am down?”
I said it was not that, that I had some drinks at lunch time, and that my throat was a bit parched. He was annoyed but asked the servant boy to bring two glasses of iced water. When I was there, Sir John’s house which is normally full of people was deserted by those who pretended to be his friends and enjoyed his hospitality while he was in power.
And so, the next morning, at 6. 30, I was on SWRD.’s doorstep at Rosmead Place. He had been returned by an enormous majority and was to be our next Prime Minister. I inquired from a servant boy whether the master was up and was told that he was reading a mass of newspapers. I sent my name in and was asked to come upstairs – I went in, in some trepidation, and again told him, that I meant no disrespect and that I was there with Sir John’s permission, and that at Sir John would be handing in his resignation as Prime Minister at noon.
SWRD. then made a short speech at me in a very loud voice. He said he saw no disrespect but complete integrity, that public officers from Government Agents down to village headmen had worked against him (“against me, against me” he shrieked about three times) in the election, and that he admired the correct and upright stand I had taken. He said I was the one public servant, he knew, who had acted correctly during the election. I knew now that I had saved my skin. He asked for my draft and read the three pages which I had written, slowly and carefully. He then took a blue pencil and cancelled all three pages saying “Pedestrian English Peiris, pedestrian English Take this down”, and with his usual intellectual superiority and arrogance, started dictating.
He was naturally elated at his success at the election and his future as the Head of the country. Several times I had to ask him to go slow on his dictation because I knew no shorthand, and he said “Sorry, my dear fellow”. What he dictated to me was not a Queen’s speech but a vitriolic attack on Sir John and the United National Party, an attack which he should properly have made on the floor of the house of Representatives or at a public meeting.
At the end of his dictation, I thought it my duty to point this out, which I did, adding that the Governor-General might refuse to read the Speech. There is the instance of King George V refusing to read a Speech until some objectionable words referring to His Irish subjects had been deleted. He said “take my order”.
While he was dictating to me, the servant boy was coming up every few minutes saying that another gentleman had arrived, and this was before seven o’clock in the morning. SWRD. was unwashed and unshaved and dressed in pyjamas and a dressing gown, not in the shirt and cloth. He was an Oxford man, and an Oxford man cannot easily slough his culture.
About the servant boy’s tenth visit, he lost his temper and shouted at the boy to tell them all to clear out of his house. I reminded him that he was now the Prime Minister and that his remark, if conveyed, would make a very bad beginning. I suggested that he go down as he was, in his dressing gown, see who these gentlemen were, and ask to be excused because he was extremely busy about the formation of a Cabinet and time was short.
He agreed and we both descended the stairs, he with one arm round my shoulder, and I with the draft of the Queen’s Speech under my arm. Before he lost his temper, he had suggested that I wait for bacon and eggs – Oxford again.
I cannot describe my surprise when I came down and saw who the gentlemen were who were calling so early in the morning on the new Prime Minister. They were all gentlemen in high places who used to frequent Kandawala and who had done a quick somersault and a long jump to the winning side. ‘Gosh,’ I thought, ‘aren’t there any decencies in life? What they were there for, I never found out because SWRD ordered me to get back to my office and get on with the job I had in hand.
The senior hands on my staff had dealt with the Queen’s Speech since 1974 and they were surprised when they read the draft in my long-hand before they typed it. They came to me and asked “Is this the Queen’s Speech?” And I said “No. This is Mr Bandaranaike’s speech. I am not going to have this printed”.
When the draft was typed, I took it back to Rosmead Place and asked S.W.R.D. to read in type what he had dictated to me. I told him that the language was far too strong and had to be toned down. He was calmer now; the first flush of victory and elation had receded and he was giving his mind to more urgent and important things like Cabinet-making. He again read the draft carefully, said that he agreed with me and asked me to tone it down.
I asked him whether he wished to see the second draft; time was running short. He said, “Certainly not, my dear fellow. You tone it down; you know my ideas; I can trust your discretion; have your amended draft translated and printed”. As Prime Minister, he was a mellow man. As Minister of Local Government he had been a terror to his colleagues and to the public servants who worked in his Ministry.
His Permanent Secretary, E. W. Kannanagara, told me that he had to be the shock-absorber.
The Speech, toned down by me and read by the Governor-General in S.W.R.D.’s excellent English, contained promises which the Government could not possibly fulfil. A people’s Government had been returned and the people had to be pampered and pleased, whether the Government could afford the luxury or not.
At the Opening of Parliament, the People’s Ministers, including the Prime Minister, were in national dress, wearing blue scarfs to indicate the party. I was surprised to see Ministers M. W. H. de Silva and Stanley de Zoysa in this dress. M. W. H. looked dignified as a judge of the Supreme Court in a full-bottomed wig and gown. Stanley, with his monocle and that meticulous English pronunciation of his which reminded you of a University Don – well, really, you had to look at him twice before you could recognize him. To the Senate and the House of Representatives, Ministers went in the national dress. To the Cabinet, they came in the most nondescript attire.
The first paragraph of S.W.R.D.’s first Queen’s Speech read as follows:
“The free votes of the people democratically cast at the last general election are a clear indication of dissatisfaction with many aspects of policy and administration hitherto pursued. My Government intends, in pursuance of its declared policy, to effect many changes with expedition and efficiency, but in a manner which will neither result in injustice nor cause confusion and dislocation.”
1956,SWRD, Sir. John,
The Speech continued:
“My Government wishes to assure minorities, religious, racial and otherwise, that they need have no fear of injustice or discrimination in the carrying out of its policies and programmes. My Government will ensure to all citizens the rights, privileges and freedoms to which they are entitled in a democratic state.”
Compare this with the following sentence in the Speech:
“It will also take necessary steps for the adoption of Sinhala as the one official language of the State.”
Was the Sinhala only policy not a discrimination against a minority? Was the Assisted Schools takeover not an injustice? Was it a blow at the Roman Catholic community? Are these some of the changes which the Government intended to effect with expedition and efficiency? If these were, then, many more were to follow in the years to come, some overtly, some surreptitiously and yet others by camouflage.
In SWRD.’s Cabinet there was one woman. There was also Dahanayake, later to be Prime Minister, who was always punctual and who came barefooted to meetings with a bottle of eau de cologne and, before he gave up smoking, with a tin of Peacock cigarettes. C. P. de Silva was a double first in mathematics and excelled, by reason of his previous experience as a Civil Servant, in matters relating to land and irrigation.
M. W. H. de Silva, Q. C., Minister of Justice and a kinsman of mine had held high office; he had been a Judge of the Supreme Court and our High Commissioner in India. His nickname in Hultsdorp was the ‘mule’ because, once he had made up his mind, nothing would make him change it. To illustrate this, I shall relate an incident which took place when I was an Assistant Legal Draftsman drafting the Constitution and he was Acting Legal Secretary.
A telegram had come from the Secretary of State asking for an amendment to be drafted on certain lines. M. W. H. told me the lines on which to draft. This was, in my opinion, not the lines that the Colonial Office intended, but I did not tell him so. Instead, I discussed the matter with D. S. Jayawickrama, Assistant Legal Secretary and E. H. T. Gunasekera, Crown Counsel, both of whom agreed that my interpretation of the telegram was right and that M. W. H. was wrong.
I accordingly ignored the Acting Legal Secretary’s order and drafted according to what I thought the Secretary of State wanted and took the draft to M. W. H. to be told “This is not what I want. Please draft on these lines”. I told him politely that I did not think that his interpretation of the telegram was correct, and he, equally politely, told me not to waste his time but to draft as directed by him.
I therefore went and prepared a fresh draft, but was careful to send it to him with a letter in which I said that the draft gave effect to his oral instructions but, in my opinion, did not give effect to the Secretary of State’s instructions as set out in his telegram. My second draft was telegraphed to England and soon there came back a telegram saying that the draft was not what they wanted.
M. W. H. sent for me and asked me to re-draft and I said “I told you, Sir”. All that the mule said was “Well, your job is to draft. Draft again”. I said “Here’s my first draft which you rejected earlier” and he was compelled to accept it. Except for this idiosyncrasy, he was a straight and honest and upright man, pleasant in his manner, with a sense of wit and humour. During a Cabinet discussion in which he was not interested, he would doodle, always the figure of a female.
There was William Silva, young in years, as Minister of Industries. He appeared to understand his work and the nature of his duties and made a useful contribution to the discussion. In charge of Finance was Stanley de Zoysa, an old Royalist, about two years senior to me at school, and an exceedingly polite man. Philip Gunawardene, Minister of Agriculture and food must, as a student, have spent long hours poring over Das Kapital. I had never met him before, but when I was a student in London, I had seen him addressing the mob on Sundays in Hyde Park from a soap box – a platform called the Indian Freedom League.
He always wore a canary jersey, and was a very effective and forceful speaker, with plenty of venom against the Britisher, ready wit and repartee. I mentioned this fact to him at his first meeting when I introduced myself, and he agreed that my memory was correct. He is the only Minister I have worked with since the beginning of Cabinet Government who came to a meeting thoroughly prepared, not only on his own memoranda, but also on the papers submitted by other Ministers. He would bring with him a number of Sessional Papers, Administration Reports and other official documents not referred to in the other Ministers Cabinet Papers but relevant to the issue. When he spoke, he never failed to make a useful contribution to the discussion.
As Minister of Agriculture, he was in charge of Paddy Lands and brought what the landowners thought was a revolutionary Bill. As Minister of Food, he was in charge of the Co-operative Wholesale Establishment. In all his functions, he was inclined to take as much legislative power as possible into his hands. This, the other Ministers resented, particularly, the Prime Minister. Philip was definitely of the Left. SWRD, in spite of his public statements that he was for democratic socialism or for socialistic democracy or for the middle path or for pancha sila (he was so clever in stating or not stating his position that I think nobody ever understood what exactly he stood for) was inclined towards the Right. A rift had to come, and it came. Philip’s draft legislation, submitted for Cabinet approval, gave the Cabinet the idea that he, and not SWRD was to be the virtual dictator. What with the Paddy Lands Act, the Multipurpose Cooperative Societies, the People’s Bank and the Co-operative Banking system, and a heap of other legislation he proposed, he would have been in a position to wield tremendous power in the country.
These proposals were obviously put forward to implement his political creed and not for the furtherance of his personal position. I believe he was an honest man, not capable of being bribed or influenced. When be was annoyed, his reaction was violent.
Among the other Ministers were Mrs Wimala Wijewardena, Messrs A. P. Jayasuriya, Kuruppu, Marikkar and Maithripala Senanayake.
The Cabinet came to certain decisions at its first meeting. Ministers had no time to formulate their thoughts in memoranda and the discussion was on very general points. As a People’s Government, they did not believe in Honours and decided that no recommendation should be made to Her Majesty the Queen for the conferment of Imperial Honours on citizens of Ceylon and that Her Majesty be humbly and respectfully requested to be graciously pleased to refrain from conferring such Honours on such of Her subjects as were Ceylon citizens.
Some Ministers thought that the appointment of an advocate to be a Queen’s Counsel was the conferment of an Imperial Honour. Local honours suffered the same fate. Our Diplomatic Missions abroad, Ministers and public officers were informed that no alcoholic liquor was to be served at official functions. The Senate and the House of Representatives were requested to close their bars: the House acquiesced, the Senate refused.
The Prime Minister informed his Ministers that it was his intention to obtain the services of an expert from the United Kingdom to advise the Government with regard to the nationalization of the transport services. On the budget drastic changes could not be made as the budgetary proposals for the next financial year had already been drawn up by the public officials concerned. While accepting the general structure of the next budget, Ministers were requested to include, wherever possible, in the draft estimates, all necessary items in furtherance of the policy of the Government and to omit any items which were in conflict with that policy.
With a view to bringing down the cost of living, it was proposed to reduce the price of rice and sugar. It was pointed out that a reduction in the price of rice by one cent a measure would mean an annual loss to revenue of seven million rupees, and a similar reduction in the price of sugar would mean a loss of three million rupees. In spite of the difficult financial position, something had to be done by the Government, and it was agreed to reduce the price of rice by ten cents a measure and the price of sugar by five cents a pound.
The Minister was asked to explore the possibility of buying sugar direct on a Governmental basis with a view to eliminating middlemen and reducing the cost to the consumer. The Governments of the United States of America and the Union of Soviet Socialist Republics made offers of economic aid which the Cabinet gratefully accepted.
The Cabinet considered seriously the question of abolishing the death penalty for murder, although the murder rate in Ceylon was probably the highest in the world. We had a Buddhist teetotal Minister of Justice, M. W. H., who was strongly in favour of the proposal, and he persuaded the Cabinet to agree to a suspension of the death penalty for a period of three years in the case of murder, abetment of murder and abetment of suicide. A sentence of life imprisonment was substituted.
On July 7, 1956, the Official Language Act, declaring Sinhala to be the one Official Language in Ceylon, came into operation. This immediately split the country into two, separating the Sinhalese from the Tamils whose ancient language had been removed from the scene altogether. This controversial piece of legislation antagonized the entire Tamil community and, for the first time after years of DS’s strenuous efforts to make the numerous races and communities, religious and otherwise, of the country into one homogeneous whole, the country was being divided by SWRD.’s Sinhala only Act.
Features
Trials-at-Bar in Sri Lanka: Use and abuse
It is reported that a Trial-at-Bar is being contemplated in respect of allegations against former President Ranil Wickremesinghe regarding misuse of state resources for a visit to a British university on his return from attending sessions of the United Nations in New York and an official visit to Cuba. If this is correct, it would make legal history in our country, because there has been no previous instance of the procedure of a Trial-at- Bar being invoked against a former Head of State.
In view of the constitutional importance of the issues involved, the attempt is opportune to consider the conceptual and statutory foundations of our law relating to Trials-at-Bar, the boundaries of its application in practice, and the nature of the responsibilities attributed to the principal functionaries with regard to the conduct of these proceedings.
I. The Statutory Framework
A Trial-at-Bar is an extraordinary procedure operating over and above proceedings in regular courts exercising criminal jurisdiction at first instance. Its form is that of three judges of the High Court, sitting usually without a jury, to try an indictable offence. The main provision is contained in Section 12 of the Judicature Act, No. 2 of 1978: “Notwithstanding anything to the contrary in this Act or any other written law, a Trial-at-Bar shall be held by the High Court in accordance with law for offences punishable under the Penal Code and other laws”.
The law of Sri Lanka makes provision for Trials-at-Bar in two different contexts.
(a) Mandatory
The trial of any person for the gravest offences against the State, constituted by Sections 114, 115, and 116 of the Penal Code, must in all circumstances be held before the High Court at Bar by three judges without a jury, despite any other law. This is the effect of Section 450 of the Code of Criminal Procedure, Act No. 15 of 1979.
The gist of offences to which this provision is applicable is conspiracy or preparation to overthrow, by unlawful means, the Government of Sri Lanka. This provision was applied in the case of 24 persons alleged to have attempted a coup d’état against the Government of Prime Minister Sirimavo Bandaranaike, a year after its election in July 1960 (R v. Liyanage).
(b) Discretionary
Outside this category, where recourse to a Trial-at-Bar is compulsory, there are other situations in which, as a matter of discretion, the Chief Justice may order use of this procedure. This course of action may be resorted to “in the interest of justice and based on the nature or circumstances of the offence”.
Trials-at-Bar, which may proceed either on indictment or on an information exhibited by the Attorney-General, are required to be held as speedily as possible, and generally in the manner of a High Court trial without a jury.
The power of appointment of High Court judges conducting a Trial-at-Bar is specifically vested in the Chief Justice. The Court, once appointed, has full authority regarding summoning, custody, and bail, subject to the restriction that bail may usually be granted only with the consent of the Attorney-General.
II. Appropriate Parameters
A useful point of departure, as a means of determining the proper limits of this judicial procedure, is to examine the character of offences which have led in our country throughout the post-Independence era to the constitution of Trials-at-Bar. A classification of the decided cases during this entire span of more than seven decades is attempted here for this purpose.
(1) Murder
Several Trials-at-Bar in Sri Lanka have been concerned with charges of murder, not per se, but invariably combined with circumstances which impart to the offence the added element of exceptional public importance, in terms of grave jeopardy to established institutions, public tranquillity, or seminal values underpinning governance.
The following are examples:
(a) the murder of a High Court judge engaged in the trial of five persons accused of capital offences pertaining to trafficking in drugs (Sarath Ambepitiya);
(b) the murder of a Member of Parliament in the midst of mob violence on a street, in the throes of widespread protests aimed at bringing down the incumbent government (Amarakeerthi Athukorala);
(c) the killing of two youth while in police custody (the Angulana case);
(d) the killing of villagers by Army personnel during a public demonstration (the Rathupaswala case);
(e) the disappearance of a social activist and human rights defender (Prageeth Ekneligoda).
(2) Offences involving State security and possible contravention of International law
* charges pertaining to firearms and ammunition and their use on the high seas (the Avant Garde case).
(3) Alleged gross dereliction of duty by senior government officials, including a former Secretary to the Ministry of Defence and a former Inspector-General of Police, leading to the death of a large number of persons by explosions in public places such as churches and hotels (Easter Sunday Bombing case).
(4) Grave corruption allegations in respect of procurement or other major misdemeanours
* two Trials-at-Bar were appointed to hear cases arising from the Central Bank bond scam in 2016, alleged to involve a former Minister of Finance, a former Governor of the Central Bank, his son-in-law and others (Central Bank bond case);
* charges against a previous Minister of Health, senior officials of the Ministry, and others in connection with the procurement of substandard immunoglobulin vials, leading to deaths and grievous bodily harm (Keheliya Rambukwella);
* charges filed by the Financial Crimes Investigation Division against the Chief of Staff of a former President and a former Chairman of the Sri Lanka Insurance Corporation for alleged large-scale misappropriation of public funds (Gamini Senerath, Priyadasa Kudabalage).
(5) Sedition involving communal overtones and potential disturbance of the public peace (S.J.V. Chelvanayakam and others).
(6) Allegations relating to extra-judicial executions
* the trial of a previous Army Commander for statements made by him regarding unlawful execution of surrendering LTTE cadres (Sarath Fonseka White Flag case).
(7) Criminal defamation in volatile contexts
In 1954, in the earliest of this series of cases, allegedly defamatory remarks were published by the defendant in a newspaper known as Trine. The gist of the allegations was that Sir Oliver Goonetilleke, who had just relinquished the position of Minister of Finance to accept appointment as Governor-General, had engaged in “swindles on an international scale” (R v. Thejawathie Gunawardena).
The heinous character of the offences alleged, and the scope of their potential ramifications in all these settings, are evident at a glance. The distinguishing feature is not merely the gravity of the offence, but imputation of a wider dimension to it, typically in the form of a serious affront to the public wellbeing.
In the Thejawathie Gunawardena case, for instance, where the propriety of recourse to a Trial-at-Bar was vigorously challenged, the Supreme Court held that there was no ground for complaint because of the predominant element of public mischief apparent from the circumstances. This was due to the inflammatory content of the statements published, which could foreseeably “disturb or endanger the government” by igniting public feeling. Gravity of the allegations, from this point of view, and their probable impact on public confidence in the integrity of basic institutions of governance, were the factors relied upon to take the case out of the regular category of defamation litigation and justify use of the Trial-at-Bar procedure.
This characteristic of a high threshold of public importance, accompanied by complexity and volatility of the surrounding circumstances, is the central thread which runs through the diverse situations in which Trials-at-Bar have been constituted in Sri Lanka.
III. The Roles of Pivotal Functionaries
The principal responsibility is that of the Chief Justice and the Attorney-General. The essential nexus between their statutory functions is a salient feature of the law.
(i) The Chief Justice
In Somaratna Rajapaksa v. Attorney-General, it was clearly recognised that the repository of power to constitute a Trial-at-Bar is the Chief Justice, but subject to the requirement that an indictment or information “furnished by the Attorney-General” operates as the material basis for exercise of the Chief Justice’s authority in this regard.
An explicit trajectory is established, linking the initiative by the Attorney-General with the Chief Justice’s decision.
(ii) The Attorney-General
Action by the Attorney-General is located within the overall ambit of prosecutorial discretion vested in him in respect of a wide range of matters, including assessment of the sufficiency and probative value of evidence to warrant institution of criminal proceedings, the decision to indict, and withdrawal of a prosecution by means of the entering of a nolle prosequi. The recommendation in respect of a Trial-at-Bar falls into place within the field of this broad authority.
The crucial attribute of the Attorney-General’s functions in this area is that he acts in a quasi-judicial capacity. A basic anomaly in the role of the Attorney-General in our constitutional system is that he combines, in his office, a variety of functions and responsibilities which entail some degree of conflict with one another. Despite this lack of institutional coherence and consistency, what is beyond doubt in the present condition of the law is that, throughout the whole gamut of prosecutorial decision making, the Attorney-General is required to eschew all political and other extraneous considerations and to arrive at his decisions in a spirit of total objectivity.
This is one of the cornerstones of our system of criminal justice. Although there is a statutory choice or discretion built into the Attorney-General’s responsibility, H.N.G. Fernando C.J. has aptly commented: “Our law has conferred on the Attorney-General powers which have been commonly described as quasi-judicial and traditionally formed an integral part of the system of criminal procedure” (Attorney-General v. Don Sirisena). In similar vein, the Supreme Court, in Victor Ivan v. Sarath N. Silva, Attorney-General, observed: “The Attorney-General’s power is a discretionary power similar to other powers vested in public functionaries, held in trust for the public, and not absolute or unfettered”.
While the purview of prosecutorial discretion residing in the Attorney-General, by virtue of enacted law as well as inveterate tradition, is strikingly extensive, it is not an untrammeled power: it is not beyond the reach of the courts. In a trilogy of progressive decisions by the Court of Appeal, Sobitha Rajakaruna J., (prior to his elevation to the Supreme Court), asserted the principle that the Attorney-General’s decisions, in appropriate circumstances, are amenable to judicial review: Sandresh Ravi Karunanayake v. Attorney -General (CA/Writ/ 441/2021), Duminda Lanka Liyanage v. Attorney-General (CA/Writ/323/2022), Nadun Chinthaka Wickremaratne v. Attorney-General (CA/Writ/523/2024).
In Attorney-General v. Karunanayake, Samayawardhana J ( with the concurrence of Thurairaja and Janak de Silva JJ.) declared: “Politically motivated indictments following regime change pose a serious threat to the rule of law and public confidence in the office of the Attorney-General and the entire justice system. Judicial oversight plays a vital role in ensuring that prosecutorial discretion is exercised independently, fairly, and in compliance with the law”.
The Supreme Court of our country has shown no inhibition in directly addressing the question whether the Attorney-General has properly exercised his discretion in laying the information which served as the basis of a Trial-at-Bar.
In Thejawathie Gunawardena’s case, in proceedings before the Supreme Court, it was strenuously contended on the defendant’s behalf that the Attorney-General had acted ultra vires for a collateral or improper purpose. The submission was that the person allegedly defamed was no longer holding public office, and invocation of the extraordinary procedure associated with a Trial-at-Bar was, therefore, unjustifiable. The Supreme Court, sitting in appeal, having considered the issue in depth, rejected the submission on the ground that his tenure had been very recent, and that the proximity of his connection with the incumbent government gave rise to the likelihood of intensifying public feeling because of the volatility and range of the allegations made against him.
These trends of judicial opinion have the effect that the principle of justiciability of the Attorney-General’s initiative in this regard is firmly embedded in our law.
IV. Conclusion
Trials-at-Bar serve a salutary purpose, but within stringently circumscribed limits. The decided cases in our country, spanning more than 75 years, indicate with exemplary clarity the confines within which this extraordinary procedure has legitimacy. The essential consideration is that there should not be room for the slightest doubt that immaterial factors may have come into play in the exercise of discretion.
This far transcends the entitlement of individuals to due process and impinges upon the health and vitality of procedures central to the administration of justice. My teacher, Professor Sir William Wade, pre-eminent among exponents of administrative law in our time, who had the distinction of holding Chairs of Law successively in the Universities of Oxford and Cambridge, told me that if he were asked to identify succinctly, in one sentence, the substance of the common law tradition, he would have no hesitation in replying that it consisted of robust hostility to unbridled discretion in public functionaries. Even the appearance of neglect of this rudimentary principle places in jeopardy the fulfilment of public aspirations about the quality of criminal justice.
By Professor G. L. Peiris ✍️
D. Phil. (Oxford), Ph. D. (Sri Lanka);
Former Minister of Justice, Constitutional Affairs and National Integration;
Quondam Visiting Fellow of the Universities of Oxford, Cambridge and London;
Former Vice-Chancellor and Emeritus Professor of Law of the University of Colombo
Features
Extended mind thesis:A Buddhist perspective
After listening to Prof. Charitha Herath deliver his lecture at the World Philosophy Day Conference at the University of Peradeniya and then reading his excellent article, “Buddhist insights into the extended mind thesis – some observations” published in The Island (14.01.2026) I was prompted to write this brief note to comment on the Buddhist concepts he says need to be delved into in this connection. The concepts he mentioned are prapañca, viññāṇasota and ālayaviññāṇa.
Let us look at the Extended Mind Thesis in brief. “The extended mind thesis claims that the cognitive processes that make up the human mind can reach beyond the boundaries of an individual to include as proper parts aspects of the individual’s physical and sociocultural environment” … “Such claims go far beyond the important, but less challenging, assertion that human cognition leans heavily on various forms of external scaffolding and support. Instead, they paint the mind itself (or better, the physical machinery that realises some of our cognitive processes and mental states) as, under humanly attainable conditions, extending beyond the bounds of skin and skull.
Extended cognition in its most general form occurs when internal and external resources become fluently tuned and deeply integrated in such a way as to enable a cognitive agent to solve problems and accomplish their projects, goals, and interests. Consider, for instance, how technological resources such as pens, paper, and personal computers are now so deeply integrated into our everyday lives that we couldn’t accomplish many of our cognitive goals and purposes without them (Kiverstein J, Farina M, Clark A, 2013).
It may be seen from the above that the Extended Mind Thesis is mainly concerned with human cognition. It seems that the tools that humans use to help them in the cognitive process are actually components of the extended mind. This is mentioned in Prof. Herath’s article as well. Though Buddhist theory of cognition does not imply such a relationship that involves the implements utilised in the process of acquiring knowledge, it proposes an inextricable relationship between the cogniser and the cognised. For instance, the eye-consciousness does not arise unless the object of cognition is present.
Reality of the world according to Buddhism is based on the relationship between the cogniser and the cognised. This theory is supported by the way in which Buddhism analyses the complex formed by the human personality and the world, which it does in three systems, expounding the bond between the two. First is the five aggregate analysis, second is the 12 bases (ayatana), and the third is the eighteen elements (dhatu). Whether this kind of entanglement is possible without some means of extending the mind is an interesting question.
According to Buddhism, the mind is not a substance but rather a function that depends on it. There are three terms that are used to refer to mind and possibly these may indicate different functions though they are very often used as near-synonyms. The terms are mano, citta and viññāṇa. The term mano is used to refer to the aspect of mind that functions as one of the six sense-faculties. Mano is responsible for feelings and it also coordinates the functions of the other sense-faculties. Citta generally means consciousness or combinations of consciousness and the other mental-factors, vedanā, saññā, sankāra as seen in the Abhidhamma analyses.
The term Viññāṇa means basic awareness of oneself and it is also used in relation to rebirth or rebecoming. It has a special responsibility in being the condition for the arising of nama-rupa, and reciprocally nama-rupa is the condition for consciousness in the paticcasamuppada formula. Further, the term “consciousness-element” is also used together with five other items; earth-element, water-element, fire-element, air-element and space-element which seem to refer to the most basic factors of the world of experience, indicating its ability to connect with the empirical world (Karunadasa, 2015). In these functions, consciousness may assume some relevance in the Extended Mind Thesis.
Further if we examine the role of consciousness in rebirth we find that a process called the patisandhi-viññāṇa has the ability to transmit an element, perhaps some karmic-force, from the previous birth to the subsequent birth. In these functions the enabling mechanism probably is the viññāṇasota, the stream of consciousness that Prof. Herath mentions, and which apparently has the ability to flow even out of the head and establish links with the external world.
It may be relevant at this juncture to look at the contribution made by Vasubandhu, the 4th Century Indian Buddhist philosopher. Vasubandhu’s interpretation of saṃskārapratyayaṃ vijñānam (consciousness conditioned by volitional actions) treats the stream of consciousness as the mechanism of continuity between lives. He emphasises that this stream continues without a permanent entity migrating from one life to the next. The “stream” manifests as the subject (ego) and object (external world), which are both considered projections of this underlying consciousness, rather than independently existing entities. Vasubandhu also had proposed a kshnavada (theory of moments) to explain the stream of consciousness as consisting of arising and disappearing of consciousness maintaining continuity. These propositions may lend support to the Extended Mind Thesis.
Prof. Herath has mentioned the term prapañca (Pali – papañca) which generally means concepts. In the context of the extended mind thesis it needs to be examined in relation to the Buddhist theory of perception, because the former mainly pertains to cognition. As mentioned by Prof Herath, Ven. Nanananda in his book “Concept and Reality” has discussed this subject emphasising the fact that in Buddhist literature the term papañca is used mainly in the context of sense-perception. He says that “Madhupindika Sutta” (Majjima Nikaya) points to the fact that papañca is essentially connected with the process of sense perception. According to the Buddhist theory of perception the final outcome or the final stage of the process is the formation of papañca. Following the formation of concept there is proliferation of the concept depending on the past experience the individual may have in relation to what is perceived.
This process of perception, as given inthe Madhupindika Sutta, leading to conceptual proliferation is at the beginning impersonal and in the later stages it becomes personal with the involvement of the human personality with its self-ego and craving and finally leading to total bondage. And this bondage is between the human mind and the external world. Whether this entails an extended mind needs to be researched as suggested by Prof. Herath.
The third concept that Prof. Herath referred to in his lecture is the Yogacara idea of ālayaviññāṇa. Yogacara in its analysis of consciousness has added two more types of consciousnesses to the six based on the six senses, which is the classification mentioned in Early Buddhism and the two additional ones are kleshaviññāṇa and ālayaviññāṇa. The latter is called the storehouse-consciousness as it carries the seeds of karma. It is also called the approximating consciousness as it approximates at two levels; in this birth by collection of defilements and in the next birth by carrying them across in rebirth. The latter function may be relevant to the Extended Mind Thesis as it has the ability of projection beyond the body of the present birth and transmit to the body of the next birth.
If one is interested in researching into the concept of ālayaviññāṇa one must be aware that the three masters of Yogacara, i.e. Maithreyanata, Asanga and Vasubhandhu did not agree with each other on the nature of ālayaviññāṇa. While Maithreyanata was loyal to the early Yogacara idea that appeared in Sandhinirmocana Suthra, Asanga modified it to suit his thesis of idealism. Vasubandhu, however, adhered to the views of Early Buddhism and according to Kalupahana (1992) what he in his Trimsathika describes is the transformation of the consciousness and not the eight consciousnesses in the order in which they appear in Yogākāra texts. Here one is tempted to suggest that Asang’s idealism which propounds that the external world is a creation of the mind may lend support to the extended mind thesis. Idealism in Yogacara Buddhism may be another subject that needs to be researched in the context of the extended mind thesis.
Turning to recent research there is theoretical and speculative support from quantum theory for the idea of extended consciousness, but it remains a controversial area of research within physics, neuroscience, and philosophy. Several frameworks suggest that consciousness is not confined to the brain but is a fundamental, non-local phenomenon rooted in quantum processes that may connect minds to each other or the universe at large. (Wagh, M. (2024). “Your Consciousness Can Connect with the Whole Universe, Groundbreaking New Research Suggests”. Popular Mechanics. Retrieved from https://www.popularmechanics.com/scienc)
Finally, while it may not be clear whether the Extended Mind Thesis, as proposed by A. Clark and others (2013), has anything to do with consciousness it may be worthwhile to research into this matter from a Buddhist perspective, which will have to strongly bring into contention the factor of consciousness, which perhaps may have the potential to develop into an Extended Consciousness Thesis.
by Prof. N. A. de S. Amaratunga ✍️
PhD, DSc, DLitt
Features
Why siloed thinking is undermining national problem-solving
The world today is marked by paradox. Never before has humanity possessed such extraordinary scientific knowledge, technological capability, and research capacity. Yet never before have we faced such a dense convergence of crises—climate change, biodiversity loss, pandemics, food insecurity, widening inequality, disaster vulnerability, and social fragmentation. These challenges are not isolated events; they are deeply interconnected, mutually reinforcing, and embedded within complex social, ecological, economic, and technological systems. Addressing them effectively demands more than incremental improvements or isolated expertise. It requires a fundamental shift in how we think, research, and act.
At the heart of this shift lies transdisciplinarity: an approach that moves beyond siloed disciplines and engages society itself in the co-creation of knowledge and solutions. As Albert Einstein famously observed, “We cannot solve our problems with the same thinking we used when we created them.” The persistence of today’s global challenges suggests that our prevailing modes of problem-solving—largely mono-disciplinary and compartmentalised—are no longer adequate.
The limits of siloed knowledge
Over the past few decades, global investment in research and development has grown dramatically. Global R&D expenditure exceeded USD 3 trillion in 2022, and the worldwide scientific workforce has expanded to more than 8.8 million researchers, producing millions of academic papers annually across tens of thousands of journals. Indeed, the number of scientists has grown several times faster than the global population itself. This extraordinary expansion reflects humanity’s faith in science as a driver of progress—but it also sharpens an uncomfortable question about returns on this investment. Millions of scientists across the world produce an ever-expanding body of academic literature, filling tens of thousands of specialised journals. This disciplinary research has undoubtedly driven remarkable advances in medicine, engineering, agriculture, and information technology. The positive contributions of science to human civilisation are beyond dispute. Yet its effectiveness in addressing complex, real-world challenges has often fallen short of expectations, with impacts appearing disproportionate to the vast resources committed. Yet the translation of this vast knowledge base into tangible, scalable solutions to real-world problems remains limited.
The reason lies not in a lack of intelligence or effort, but in the way knowledge is organised. Disciplines are, after all, social constructs, each shaped by its own conceptual, theoretical, philosophical, and methodological traditions. While these traditions enable depth and rigour, they also encourage intellectual compartmentalisation when treated as ends in themselves. Modern academia is structured around disciplines—biology, economics, engineering, sociology, medicine—each with its own language, methods, reward systems, and institutional boundaries. These disciplines are powerful tools for deep analysis, but they also act as intellectual blinders. By focusing narrowly on parts of a problem, they often miss the broader system in which that problem is embedded.
Climate change, for example, is not merely an environmental issue. It is simultaneously an economic, social, political, technological, and ethical challenge. Public health crises are shaped as much by social behaviour, governance, and inequality as by pathogens and medical interventions. Poverty is not simply a matter of income, but of education, health, gender relations, environmental degradation, and political inclusion. Approaching such issues from a single disciplinary lens inevitably leads to partial diagnoses and fragmented solutions.
The systems thinker Donella Meadows captured this dilemma succinctly when she noted, “The problems are not in the world; they are in our models of the world.” When our models are fragmented, our solutions will be fragmented as well.
Wicked problems in a hyper-connected world
Many of today’s challenges fall into what scholars describe as “wicked problems”—issues that are complex, non-linear, and resistant to definitive solutions. They have multiple causes, involve many stakeholders with competing values, and evolve over time. Actions taken to address one aspect of the problem often generate unintended consequences elsewhere.
In a hyper-connected world, these dynamics are amplified. A disruption in one part of the global system—whether a pandemic, a financial shock, or a geopolitical conflict—can cascade rapidly across borders, affecting food systems, energy markets, public health, and social stability. Recent crises have starkly demonstrated how local vulnerabilities are intertwined with global forces.
Despite decades of research aimed at tackling such problems, progress remains uneven and, in many cases, distressingly slow. In some instances, well-intentioned scientific interventions have even generated new problems or unintended consequences. The Green Revolution of the 1960s, for example, dramatically increased cereal yields and reduced hunger in many developing countries, but its heavy dependence on agrochemicals has since contributed to soil degradation, water pollution, and public health concerns. Similarly, plastics—once hailed as miracle materials for their affordability and versatility—have become a pervasive environmental menace, illustrating how narrowly framed solutions can create long-term systemic risks. This gap between knowledge production and societal impact raises a critical question: are we organising our research and institutions in ways that are fit for purpose in an interconnected world?
What is transdisciplinarity?
Transdisciplinarity offers a compelling response to this question. Unlike multidisciplinary approaches, which place disciplines side by side, or interdisciplinary approaches, which integrate methods across disciplines, transdisciplinarity goes a step further. It transcends academic boundaries altogether by bringing together researchers, policymakers, practitioners, industry actors, and communities to jointly define problems and co-create solutions.
At its core, transdisciplinarity is problem-driven rather than discipline-driven. It starts with real-world challenges and asks: what knowledge, perspectives, and forms of expertise are needed to address this issue in a meaningful way? Scientific knowledge remains essential, but it is complemented by experiential, local, and indigenous knowledge—forms of understanding that are often overlooked in conventional research but are crucial for context-sensitive and socially robust solutions.
As C. P. Snow warned in his influential reflections on “The Two Cultures,” divisions within knowledge systems can themselves become barriers to progress. Transdisciplinarity seeks to bridge not only disciplines, but also the persistent gap between knowledge and action.
Learning from nature and society
Nature itself provides a powerful metaphor for transdisciplinary thinking. Ecosystems do not operate in compartments. Soil, water, plants, animals, and climate interact continuously in dynamic, adaptive systems. When one element is disturbed, the effects ripple through the whole. Human societies are no different. Economic systems shape social relations; social norms influence environmental outcomes; technological choices affect governance and equity.
Yet our institutions often behave as if these connections do not exist. Universities are organised into departments with separate budgets and promotion criteria. Research funding is allocated along disciplinary lines. Success is measured through narrow metrics such as journal impact factors and citation counts, rather than societal relevance or long-term impact.
This mismatch between the complexity of real-world problems and the fragmentation of our knowledge systems lies at the heart of many policy failures. While societal challenges have grown exponentially in scale and interdependence, organisational structures and problem-solving approaches have not evolved at the same pace. Attempting to address borderless global issues using rigid, compartmentalised, and outdated frameworks is therefore increasingly counterproductive. As former UN Secretary-General Ban Ki-moon aptly stated, “We cannot address today’s problems with yesterday’s institutions and mindsets.”
Transdisciplinarity and sustainable development
The United Nations Sustainable Development Goals (SDGs) offer a vivid illustration of why transdisciplinary approaches are essential. The 17 goals—ranging from poverty eradication and health to climate action and biodiversity—are explicitly interconnected. Progress on one goal often depends on progress in others. Climate action affects food security, health, and livelihoods. Education influences gender equality, economic growth, and environmental stewardship.
Achieving the SDGs therefore requires more than sector-by-sector interventions. It demands integrated, cross-sectoral responses that align research, policy, and practice. Transdisciplinarity provides a framework for such integration by fostering collaboration across disciplines and sectors, and by grounding global goals in local realities.
For countries like Sri Lanka, with complex socio-ecological systems and rich cultural diversity, this approach is particularly relevant. In Sri Lanka, more than 6,000 individuals are engaged in research and development, with over 60 per cent based in universities and other higher education institutions. This places a particular responsibility on academic and institutional leaders to create environments that encourage collaboration across disciplines and with society. Policies, assessment schemes, funding mechanisms, and incentive structures within universities can either reinforce silos or actively nurture a transdisciplinary culture. Sustainable development challenges here are shaped by local contexts—coastal vulnerability, agricultural livelihoods, urbanisation patterns, and social inequalities—while also being influenced by global forces. Transdisciplinary engagement can help bridge this global–local divide, ensuring that policies and innovations are both scientifically sound and socially meaningful.
Why transdisciplinarity is hard?
Despite its promise, transdisciplinarity is not easy to practice or institutionalise. Deeply entrenched disciplinary identities often shape how researchers see themselves and their work. Many academics are trained to excel within narrow fields, and career advancement systems tend to reward disciplinary publications over collaborative, problem-oriented research.
Institutional structures can further reinforce these silos. Departments operate with separate budgets and governance arrangements, making cross-boundary collaboration administratively cumbersome. Funding mechanisms often lack categories for transdisciplinary projects, leaving such initiatives struggling to find support. Time pressures also matter: genuine engagement with communities and stakeholders requires sustained interaction, yet academic workloads rarely recognise this effort.
There are also cultural and ethical challenges. Different disciplines speak different “languages” and operate with distinct assumptions about what counts as valid knowledge. Power imbalances can emerge, with certain forms of expertise dominating others, including the voices of non-academic partners. Without careful attention to trust, equity, and mutual respect, collaboration can become superficial rather than transformative.
The way forward: from aspiration to practice
If transdisciplinarity is to move from rhetoric to reality, deliberate institutional change is required. Sri Lanka, in particular, would benefit from articulating a clear national vision that positions transdisciplinary research as a core mechanism for addressing challenges such as climate resilience, public health, disaster risk, and sustainable development. National research agencies and universities can play a catalytic role by creating dedicated funding streams, establishing transdisciplinary centres, and embedding systems thinking and stakeholder engagement within curricula and research agendas. First, awareness must be built. Universities, research institutes, and funding agencies need to invest in dialogue, training, and pilot projects that demonstrate the value of transdisciplinary approaches in addressing pressing societal challenges.
Second, leadership matters. Institutional leaders play a critical role in signalling that transdisciplinary engagement is not peripheral, but central to the mission of knowledge institutions. This can be done by embedding such approaches in strategic plans, allocating seed funding for collaborative initiatives, and recognising societal impact in promotion and evaluation systems.
Third, structures must evolve. Flexible research centres, shared infrastructure, and streamlined administrative processes can lower the barriers to collaboration. Education also has a role to play. Introducing systems thinking and problem-based learning early in undergraduate and postgraduate programmes can help cultivate a new generation of researchers comfortable working across boundaries.
Finally, ethics and inclusivity must be at the forefront. Transdisciplinarity is not merely a technical methodology; it is an ethical commitment to valuing diverse forms of knowledge and engaging communities as partners rather than passive beneficiaries. In doing so, it strengthens the legitimacy, relevance, and sustainability of solutions.
A collective learning challenge
Peter Senge once observed, “The only sustainable competitive advantage is an organization’s ability to learn faster than the competition.” This insight applies not only to organisations, but to societies as a whole. Our collective ability to learn, unlearn, and relearn—across disciplines and with society—will determine how effectively we navigate the challenges of our time.
The shift from siloed disciplines to transdisciplinary engagement is therefore not a luxury or an academic trend. It is a strategic necessity. In a world of complex, interconnected problems, fragmented knowledge will no longer suffice. What is needed is a new culture of collaboration—one that sees connections rather than compartments, embraces uncertainty, and places societal well-being at the centre of scientific endeavour.
Only by breaking down the walls between disciplines, institutions, and communities can we hope to transform knowledge into action, and action into lasting, equitable change.
A final word to Sri Lankan decision-makers
For Sri Lanka, the message is clear and urgent. Policymakers, university leaders, funding agencies, and development institutions must recognise that many of the country’s most pressing challenges—climate vulnerability, public health risks, food and water security, disaster resilience, and social inequality—cannot be solved within institutional silos. Creating space for transdisciplinary engagement is not a marginal reform; it is a strategic investment in national resilience. By aligning policies, incentives, and funding mechanisms to encourage collaboration across disciplines and with society, Sri Lanka can unlock the full value of its scientific and intellectual capital. The choice before us is stark: continue to manage complexity with fragmented tools, or deliberately build institutions capable of learning, integrating, and responding as a system. The future will favour the latter.
by Emeritus Professor Ranjith Senaratne ✍️
Former Vice-Chancellor, University of Ruhuna,
Former General President, Sri Lanka Association for the Advancement of Science
Former Chairman, National Science Foundation
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