Features
A CONSTITUTIONAL BLUEPRINT
Dr Nihal Jayawickrama
Shortly before the Presidential Election, Mr. Anura Kumara Dissanayake, the leader of the NPP, committed himself to the abolition of the office of Executive President. Following his election by the people to the office of President of the Republic, and the overwhelming majority which his party received in the general election, it may be confidently assumed that steps will shortly be taken to implement that commitment.
The events that followed the enactment of the 19th Amendment to the Constitution in 2015 demonstrated the futility of the partial abolition of the Executive Presidency. That amendment, while requiring the President to act on the advice of the Prime Minister, enabled the incumbent President (through a transitional provision) to preside over meetings of the Cabinet and also hold three key portfolios. When a few months later Parliament was dissolved, the general election was conducted under laws which had been formulated to complement an executive presidency.
No provision was made for the election of the constitutional Head of State. A JVP Bill that sought to rectify the omission was held by the Supreme Court to require approval at a referendum in a determination which, it is submitted, was flawed in law and made per incuriam (lack of regard for the law or the facts). Therefore, the abolition of the office of Executive President should be but one element in a comprehensive restructuring of the governmental structure. In other words, a new Constitution.
Contrary to popular belief, the approval of the people at a referendum is not required for the repeal and replacement of the Constitution. What is required under Article 82(5) is that the number of votes cast in favour amounts to not less than two-thirds of the whole number of members of Parliament. Indeed, a referendum is not suitable for consulting the population on a complex issue such as the text of a new Constitution.
For example, in Canada in 1992, a Bill designed to give effect to the multicultural character of that country, known as the Charlottetown Accord, which had been agreed upon by all the First Ministers and territorial and aboriginal leaders, was rejected at a national referendum for reasons which had no relevance whatsoever to the question at issue. Foremost among these was the widespread unpopularity of the then Prime Minister of Canada. In the United Kingdom in 2017, the referendum on the question of leaving the European Union received the affirmative votes of some who believed that it would lead to the restoration of the British Empire. An unnecessary referendum on the Constitution could lead to a voter who disapproves of a single provision voting to reject the Constitution altogether.
UNNECESSARY PROVISIONS
In designing a template for a new Constitution, it is useful to commence by identifying those provisions of the present Constitution which should be omitted altogether.
The State
The 1972 Constitution described the State in the following terms:
Sri Lanka (Ceylon) is a Free, Sovereign and Independent Republic.
The 1978 Constitution added the words “Democratic Socialist” while rejecting the socialist policies of its predecessor and extending the life of Parliament without a general election. Accordingly, I would suggest that the 1972 formulation be restored.
The Unitary State
The whimsical intervention of a senior Cabinet Minister, acting on impulse, resulted in the inclusion of the following provision in the 1972 Constitution:
“The Republic of Sri Lanka is a Unitary State”
The 1978 Constitution not only repeated this provision, but also prevented its repeal except with a two-thirds majority in Parliament and approval of the people at a referendum. This impetuous, ill-considered, and wholly unnecessary embellishment would, in the years to follow, reach the proportions of a political battle cry.
Sovereignty
The 1972 Constitution contained the following provision:
“In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable”.
The 1978 Constitution expanded on that provision, making it unamendable except with a two-third vote in Parliament, followed by a referendum, and thereby stultified the legislative process.
Until 1972, all power flowed from the British monarch. The supreme law then in force was the Ceylon (Constitution) Order in Council 1946. However, the 1972 Constitution was not enacted by Parliament under powers conferred by that Order-in-Council. The 1972 Constitution was an autochthonous Constitution. It was drafted, adopted and enacted outside the existing constitutional framework, not in Parliament but at Navarangahala, a school hall, by persons who were elected to the House of Representatives at the general election of 1970. They asserted that sovereignty flowed not from “The King’s Most Excellent Majesty in Council”, but from the People who had given them a mandate “to function as a Constituent Assembly to draft, adopt and operate a new Constitution that will declare Ceylon to be a free, sovereign and independent Republic”. It was in the exercise of that sovereignty that they proceeded to draft and enact a new Constitution.
That sovereignty of the people was declared to be inalienable in the sense that it could not be transferred, for example, to a foreign power, the military, or a political party, or indeed restored to the British Crown. That was the rationale for asserting for the first time in a constitution of our country that sovereignty was in the People. It was unnecessary to have reaffirmed it in the 1978 Constitution. Nor does it require repetition today. I have not been able to find a similar provision in any other Commonwealth constitution.
Buddhism
The question of constitutional protection for Buddhism was first raised when the 1972 Constitution was being drafted. It was originally sought to impose a duty on the State to protect the institutions and traditional places of Buddhist worship. Over time, that proposal metamorphosed into a requirement that the State shall give to Buddhism “the foremost place”, and shall “protect and foster Buddhism”, whatever these terms might mean. Representatives of lay organizations urged that Buddhism be declared the state religion, while some senior monks emphatically opposed the concept of a state religion and were more interested in the establishment of ownership of property required for the performance of rites and rituals.
This constitutional provision is very divisive and provocative and identifies those Sri Lankan citizens who profess their belief in the great religions such as Hinduism, Christianity and Islam as being “the other” in the Sri Lankan polity. What the Buddha preached was a philosophy of life. Tolerance and pluralism form the basis of that philosophy. If Buddhist Philosophy was able to survive in the hearts and minds of the people through 450 years of western colonial rule, a constitutional injunction is surely not necessary to keep it alive in the free, sovereign and independent Sri Lanka.
Directive Principles of State Policy
The 1972 Constitution introduced for the first time an ideological statement of “Directive Principles of State Policy” which were declared to be not enforceable in any court; not to confer legal rights; and no question of inconsistency with them could be raised in the Constitutional Court or any other Court. However, in another part of the Constitution it was stated that the exercise and operation of the guaranteed fundamental rights and freedoms shall be subject to such restrictions as may be necessary for “giving effect to the Principles of State Policy”.
Consequently, when the Bill to vest the Associated Newspapers of Ceylon Ltd was challenged, the Constitutional Court held that although the Bill infringed the freedom of association of the shareholders and directors of the company, it was nevertheless validated by the fact that it sought to achieve two of the Principles of State Policy, namely, “the development of collective forms of property”, and “raising the moral and cultural standards of the people”. The 1978 Constitution too contains a similar statement of unenforceable Principles of State Policy.
Political ideology should have no place in a national constitution. Values and priorities change with the needs and pressures of a given time. The Constitution, which is the supreme and fundamental law, must therefore be sufficiently flexible to enable different shades of political opinion to be developed and implemented from time to time.
ESSENTIAL ELEMENTS OF A NEW CONSTITUTION
Recognition of Diversity
The Constitution must recognize that Sri Lanka is not only a secular State, but is also a multi-ethnic, multi-religious, and multi-cultural State. The tragedy of Sri Lanka is that many of our politicians have refused to recognize the fact – the unalterable, immutable, and enduring fact – that we are a multicultural country. In the contemporary multicultural State, minority communities have rights in common with, and no less than, everyone else. Indeed, because of the need to protect the distinctive character and identity of minority communities, which is what constitutes the cultural mosaic of the State, they even enjoy additional rights. For example, contemporary international law protects the physical existence of minority groups by criminalizing genocide, by recognizing the right to seek asylum, and by prohibiting discrimination.
International Human Rights Law now provides guidance on the minimum acceptable standards for peaceful co-existence in a multicultural society. They include the right of minorities to use their own language, to profess and practise their own religion and the right to enjoy their own culture. International law also recognizes the right of a minority to determine its political status, and the right to participate effectively in decision-making, both at regional and national levels. Therefore, power-sharing at the centre is a requirement that should be incorporated in the Constitution. Whichever political party forms the government, it should be mandatory for the different ethnic groups to be represented in the Cabinet, at least in proportion to the number of such members elected to Parliament.
The Official Languages
The Constitution must recognize Sinhala, Tamil and English as the Official Languages of the State.
The 1978 Constitution declares Sinhala and Tamil to be the “official languages”, and English to be the “link language”, whatever that might mean in terms of constitutional law. Thereafter, Sinhala and Tamil are described as the “national languages”. Then follow several other provisions detailing the language of administration, of legislation and of courts. Language is not only a mode of communication; it is also the medium through which knowledge is acquired. It is unfortunate, but true, that Sinhala does not serve either purpose adequately. Political leaders with foresight and sagacity, on the African continent, and in countries such as India, Singapore, and Malaysia, retained English – now the acknowledged international language. They adopted it as the medium of instruction, and thereby ensured that their peoples could communicate with the world beyond their geographical boundaries and acquire the knowledge that now emerges as rapidly as the old is debunked, and equip themselves to serve the global community in capacities other than as domestic helpers and semi-skilled workers.
A Constitutional Head of State
For thirty years after Independence, this country had a constitutional Head of State. He symbolized the State, not the ruling party. He was the principal unifying figure in the country; the non-partisan, independent, symbol of the State who provided stability to the State. He was accessible to anyone of whichever political persuasion, especially when the heavy hand of government was felt. He performed the ceremonial functions of the government, leaving to the political head the resolution of the important matters of State. Although the constitutional Head of State was required to act on advice, there have been troubling times when the Cabinet of Ministers sought his advice on how to deal with a particular situation. There have also been occasions when the constitutional Head of State requested reconsideration, or even declined to act as advised until he was furnished with sufficient reasons for doing so.
In a multicultural country such as Sri Lanka, it is desirable that, in addition to the President, there should also be two Vice-Presidents. A new Constitution should therefore provide that:
· There shall be a President of the Republic who is the Head of State, the Head of the Executive, and the Commander-in-Chief of the Armed Forces.
· There shall be two Vice-Presidents who shall belong to two different ethnic groups, and neither of whom should belong to the ethnic group of the President.
· The President and Vice-Presidents shall be elected by Parliament. Their term of office shall be six years.
· The President and Vice-Presidents shall, except as otherwise provided by the Constitution, act on the advice of the Prime Minister, or of such other Minister to whom the Prime Minister may have given authority to advise the President on any function assigned to that Minister.
· Whenever the President is prevented by illness or other cause from performing the duties of his office or is absent from Sri Lanka, a Vice-President designated by the Prime Minister shall act in the office of the President.
The Electoral System
The election of members of parliament from 21 District Lists, based on proportional representation, was introduced by Mr. J.R. Jayewardene as an integral element in the presidential executive system of government. Since each District encompassed several former constituencies, the expenditure involved in campaigning in such a large extent of territory, and the need to raise money for that purpose from various sources, inevitably on a quid pro quo basis, has been identified as one of the principal factors leading to corruption. The return to the first past-the-post system of single-member/multi-member constituencies, supplemented with an element of proportional representation to ensure that unrepresented interests are adequately represented, and that there is an equitable distribution of seats based on the totality of votes cast for each political party, ought to be an essential adjunct to the parliamentary executive system of governance.
Local Government
Local government is best undertaken by restoring the time-tested institutions, namely, village councils, urban councils, and municipal councils, complemented perhaps with District Development Boards. The extremely expensive concept of nine Provincial Councils, each with a Governor and a Board of Ministers, introduced at the request of the Government of India at the height of the ethnic conflict, has lost its relevance and ought to be abandoned.
Fundamental Rights
Over 30 years ago, Sri Lanka signed and ratified the two international covenants that define the universally accepted civil, political, economic, social, and cultural rights. However, successive governments failed to give constitutional force to the rights recognized in them, or to provide effective remedies. The 1978 Constitution selectively designated a few of these rights as fundamental rights and subjected even those to numerous restrictions. For example, the right to life is omitted. Others omitted include family rights, the right to privacy, the right to property, the freedom to leave the country, the right to seek, receive and impart information and ideas, the right to a fair hearing in respect of civil rights and obligations, and the rights of accused persons.
“Birth or other status” is not a prohibited ground of discrimination, thereby enabling the perpetuation of the concept of illegitimate children. And, of course, none of the economic, social, or cultural rights are recognized. Finally, all existing law is declared to be valid and operative notwithstanding any inconsistency with the chapter on fundamental rights. Thereby, the entire body of law enacted over a period of 176 years, a veritable armoury of archaic powers and more recent intrusions into human dignity, remains in force notwithstanding any conflict with fundamental rights.
When the citizens agree to be governed, what they insist in return from the rulers is that their rights and freedoms be effectively guaranteed. The Constitution should provide, as it does in many other countries, that an international human rights treaty, when ratified, will have the force of law, superseding any inconsistent existing law. If the government is unwilling to do so, why ratify a treaty at all? Alternatively, at least the provisions of the two international human rights covenants should be incorporated in the Constitution. That is not only a matter of sound common-sense and prudent governance; it is also a solemn treaty obligation.
Ex Post Facto review of Legislation
The concept of anticipatory review of a Bill is intrinsically flawed. It is a procedure whereby a Bill is examined and tested for constitutionality, not with reference to an act performed in the course of its actual implementation, but on a purely hypothetically basis. It is particularly important (even if the existing provisions for examining the constitutionality of Bills are retained) that the judicial review of legislation be restored. It is often when a law is being applied that its negative impact on a fundamental right, or on any other provision of the Constitution, becomes evident; not when a Bill is examined in the abstract.
The meaning and content of laws also do not remain frozen in time. Consider, for instance, the Right to Life, which was originally thought to mean only the arbitrary deprivation of life. Over the years it has been interpreted to include the right to food, the right to livelihood, protection from the illicit dumping of toxic and dangerous substances and waste, access to medical services and protection from nuclear weapons, as well as the protection of the unborn child. The concept of Torture now includes minimum or mandatory sentences, and corporal punishment in schools. These are contemporary definitions of constitutional provisions which judges and lawyers may not have invoked when a particular Bill was examined in the abstract.
A Constitutional Court
The concept of constitutional jurisprudence is now a permanent feature of democratic political systems. It is derived from the principle of the separation of powers. A Constitutional Court, consisting of judges possessing the required expertise, should be established at the apex of the judicial hierarchy to exercise the fundamental rights and constitutional jurisdictions, including the judicial review of legislation. It will also enable the Supreme Court and other regular existing courts to focus on the enormous backlog that has developed over the years. The Constitutional Court does not review decisions of other courts but may do so if a question of great general or public importance arises in the proceedings of any court. It is a specialized court whose fields of competence are distinct from those of the Supreme Court.
Permanent Secretaries
The 1946 Constitution required a Permanent Secretary to exercise supervision over the departments assigned to the Ministry “subject to the general direction and control of his Minister”. General direction and control referred to matters of policy only, as clarified by Prime Minister Dudley Senanayake. In the 1972/1978 Constitutions the word “general” was deleted. Thereafter, the Permanent Secretary was required to perform his functions “subject to the direction and control” of the Minister, while being himself personally responsible to Parliament as “the chief accounting officer” of the Ministry. The Minister, and through him numerous parliamentarians and constituents, became directly involved in the decision-making processes of government departments without incurring any accountability. The process of politicising the public service began. It is essential that the 1946 provision be reinstated.
CONCLUSION
We need to look ahead to the next 25 years and ask whether the framework of governance prescribed in the 1970s is appropriate or adequate to meet the challenges of the new millennium. Instead of regular and repeated assertions of Independence and Sovereignty, which reminds one of the fish that grows in a pond and considers itself the king of the sea, we must awaken to the reality that Sri Lanka, in common with the rest of the world, is now inextricably linked to the global village. As a former Chief Justice of Kenya once observed, we must not overstay our welcome in the pond when the ocean beckons.
Dr Nihal Jayawickrama, LL.B (Ceylon), Ph.D (London) is a former Permanent Secretary to the Ministry of Justice who also served briefly as Attorney-General. He was Associate Professor of Comparative Constitutional Law at the University of Hong Kong, and the Ariel F. Sallows Professor of Human Rights at the University of Saskatchewan in Canada. He is the author of The Judicial Application of Human Rights Law (Cambridge University Press, 2002, 2nd ed.2017, 1200 pp). This article is based on a paper presented by him at the Sri Lanka Law College 150th Anniversary International Research Conference last week.
Features
Size of the table: Just how big is world’s gambling business? Part I
by Prof. C. A. Saliya
The first of a five-part series on the business of gambling: legal, illegal, and everything murky in between.
It is a Friday evening in Colombo. On the waterfront, a queue of well-dressed tourists files past a doorman and into the blinking lights of a casino floor, where a croupier is dealing baccarat to a table of high rollers. A few kilometres away, under an awning strung with festival lights, reading a racing paper from dawn to dusk, a group of neighbours sit cross-legged around a well-worn deck of cards, playing a fast, noisy game called Buruwa, small notes changing hands with every round. And in a bedroom somewhere between the two, a 19-year-old is staring at his phone, watching a candlestick chart jump up and down, one thumb hovering over a “Buy” button on a trading app he downloaded because a friend said it was “basically like the stock market, but faster.”
Four completely different scenes. Three completely different legal statuses, one fully licensed, one technically a legal offence, one not even classified as gambling at all. And yet, underneath the silk shirts, looking at the odds and potential winner of a sports event such as horse racing, the card mat/table, and the trading screen, all four people are doing exactly the same thing: putting money at risk on an outcome they don’t control, against a system built to take more from them than it gives back.
That is what this five-part series is about. Not whether gambling is right or wrong, readers can decide that for themselves, but what it actually is, as a business. How big is it? Who really profits from it? Why do some countries embrace it while others jail you for it? And why does something as old as dice and as new as a forex app keep reinventing itself, generation after generation, under different names?
A business bigger than most countries
Start with the numbers, because they are almost too large to take in.
The part of the gambling industry that operates in the open, licensed casinos, regulated sportsbooks, state lotteries, officially approved betting apps, is itself enormous. The global casino industry alone was worth an estimated $328 billion last year, and is expected to grow to nearly $580 billion within the decade. Just one city, Macau, generates more casino revenue in a year than most countries collect in total tax. Online betting and gaming, taken together, is projected to be worth well over $200 billion by the early 2030s.
But that is only the legal half of the picture, and it may not even be the bigger half.
According to a recent industry study, the world’s unregulated online gambling market, offshore casinos, unlicensed sportsbooks, betting apps operating without a licence anywhere near their customers, was worth an estimated $5.9 trillion in 2025. Trillion, not billion. The same report described this shadow industry as effectively the third-largest economy on Earth, behind only the United States and China, with unlicensed operators now taking in roughly three-quarters of all the money wagered online worldwide. In the United States alone, a country with plenty of legal, regulated betting options, illegal gambling operators reportedly pulled in nearly $100 billion last year, and that figure has been growing even as more American states legalise betting, not shrinking.
That last point is worth sitting with for a moment, because it cuts against the assumption most people make: that legalising something automatically starves the black market that grew up around it. Sometimes it does. But sometimes, and gambling seems to be one of those times, legalising a small, taxed, tightly-regulated slice of the market just makes the whole pie bigger, and the illegal operators simply grow alongside the legal ones, competing for the customers the legal market doesn’t reach or doesn’t satisfy.
Why is gambling illegal here, but legal there?
Roughly 40 countries ban gambling outright, no casinos, no betting shops, no lottery tickets, nothing. Most of them are in the Middle East and North Africa, where the ban traces back to Islamic teaching that treats games of pure chance as a kind of theft dressed up as entertainment, taking someone’s money without giving them anything of real value in return. Saudi Arabia can jail you for years for running an illegal gambling operation. Places like Qatar and Kuwait actively block gambling websites at the national internet level.
Then there is a much larger, blurrier middle ground, countries where gambling is technically restricted but everybody does it anyway, more or less in plain sight, because enforcement is patchy or simply not a government priority. Sri Lanka, as we’ll see across this series, sits partly in this middle ground itself: horse racing and licensed casinos are legal, a village card game played at every second festival is technically not, and online betting occupies a grey zone the government is only now trying to define properly.
And then there are the countries, an increasingly long list, that have gone the other way entirely: from banning gambling to actively licensing and taxing it, because they decided a controlled, visible industry was easier to manage than an invisible one they couldn’t tax or police at all. The United Arab Emirates, historically one of the strictest prohibition states in the Gulf, is in the middle of exactly this pivot right now, setting up its first licensed casinos and a national regulator from scratch.
Older than money itself
Gambling did not arrive with casinos, and it certainly did not arrive with smartphones. Archaeologists have found dice carved from animal bone in Mesopotamian ruins thousands of years old. One of the oldest stories in Indian literature, the Mahabharata, turns on a disastrous game of dice that costs a king his kingdom, his brothers’ freedom, and very nearly his wife’s dignity, a three-thousand-year-old cautionary tale about exactly the kind of “one more hand” thinking that still ruins people today. Renaissance Venice opened what many historians consider the first true public casino, the Ridotto, in 1638, a government-sanctioned gambling house, tellingly, set up specifically so the state could control and tax an activity it had already failed to stamp out through banning it.
Sri Lanka’s own relationship with gambling follows a similar, very human pattern: the activities favoured by the wealthy and the colonially connected, racecourses, private clubs, card games played for high stakes behind closed doors (in five-star hotel rooms), tended to be tolerated or quietly legalised, while the games played by ordinary people in villages and back streets were the ones written into law as crimes. That gap opened under British rule with horse racing on one side and an 1889 law criminalising “unlawful gaming” on the other, and in many ways it has never fully closed. Sri Lanka is now in the middle of its biggest gambling law shake-up in decades, with a new Bill working through Parliament that would scrap three separate old ordinances, on horse racing, general gambling, and casinos, and replace them with a single modern regulator responsible for everything, from a Colombo casino floor to an online betting app. Whether that new regulator actually closes the old gap between “gambling the wealthy do” and “gambling everyone else does” is a question we’ll come back to throughout this series, and especially in our final instalment.
What’s coming next
Over the next four weeks, this column will go deep into each corner of the gambling world:
Part 2
takes us inside the casino business itself, from the glittering, foreign-passport-only casinos of the Colombo waterfront, down to the humble village card game Buruwa (sometimes called “Baby Cutting”), which has been technically illegal since 1889 and is played completely openly at almost every festival (and in funeral houses) in the country anyway.
Part 3
looks at a form of gambling that doesn’t call itself gambling at all: online trading apps that let ordinary people bet on currencies, gold, and oil prices, often marketed as “investing,” even though the industry’s own disclosures show the overwhelming majority of users lose money. However, there are restrictions imposed by the Central Bank of Sri Lanka under the foreign exchange control.
Part 4
turns to sport, and specifically the oldest continuously legal form of betting almost everywhere in the world, horse racing, to explain, in plain terms, exactly how a bookmaker guarantees itself a profit no matter which horse wins.
Part 5
brings it all together, asking what fair, honest regulation of all these forms of gambling would actually look like, and whether Sri Lanka’s new law is close to getting there, or still years away.
Every one of these industries, the casino, the card circle, the trading app, the racecourse, shares the exact same mathematical backbone: a built-in edge that belongs to the house, dressed up in whatever costume makes it feel like something else, sport, investment, tradition, entertainment. The rest, as we’ll spend the next four weeks proving, is just packaging.
Next week: Part 2, From Bally’s to the Backstreet, inside the business of casinos and cards.
(Prof. C. A. Saliya, is a charted accountant, academic, researcher and former banker. He is the author of SAMAJA GAVESHAKAYA and Springer Publication DOING SOCIAL RESEARCH. He can be contacted at . The views expressed in this article are his own and do not necessarily represent those of the organisations with which he is affiliated.)
Features
From the missing to the missing truth and beyond
by Jehan Perera
The government is preparing to meet the challenge of the UN Human Rights Council next month. A Sri Lankan delegation led by Foreign Minister Vijitha Herath is expected to attend the 63rd session of the UNHRC in Geneva, where the UN High Commissioner for Human Rights will present a written update on Sri Lanka. The government has already submitted its response to the advance version of the report prepared by the Office of the High Commissioner for Human Rights. The Foreign Minister, accompanied by officials from Colombo and Sri Lanka’s Permanent Mission in Geneva, is expected to explain the progress made on reconciliation, accountability and human rights. This is therefore an important moment for the government. It is an opportunity not merely to defend its record but to make new commitments.
The government has been criticised, as were its predecessors, for the manner in which it has dealt with past human rights violations, especially those connected with the thirty year war. The vexed issue of thousands of missing persons remains at the centre of this criticism. The government has sought to strengthen the Office on Missing Persons by providing it with additional staff and resources. It has also given support to the excavations at the Chemmani mass grave. Justice and National Integration Minister Harshana Nanayakkara has told Parliament that the government has allocated Rs. 57 million for the excavations and related legal work, though that figure has not been set against the cost of comparable forensic operations elsewhere.
The government also took the significant step of holding a national event in Jaffna to mark the International Day of the Victims of Enforced Disappearances. Minister Harshana Nanayakkara attended the event together with the Chairman of the Office on Missing Persons (OMP), Mahesh Katulanda, and other senior officials and political representatives. Their presence was meant to demonstrate the government’s commitment to addressing the issue. But on the victims’ side there is continuing dissatisfaction. The commemoration in Jaffna was met by a protest outside the District Secretariat, organised by families of the disappeared, who demanded to know what happened to relatives who, according to their accounts, surrendered to or were taken away by the military and were never heard from again.
Jaffna Protests
The protests in Jaffna are a reminder of the gap that remains between what the government is trying to do and what the victims expect. For these families, compensation and death certificates are not substitutes for knowing what actually happened to those they lost. The protests, and the police action taken against some of those who demonstrated, were reported by the international and Tamil media and by international human rights organisations, and overshadowed much of what the government had hoped to showcase at the Jaffna event. The OMP’s mandate is to establish the fate and whereabouts of missing persons, clarify the circumstances in which they went missing, and provide redress and assistance to their families. Accordingly, it has sought to verify complaints, remove duplicate entries, encourage people who have not yet made complaints to come forward, and facilitate compensation and other forms of assistance. The families of victims expect the OMP to do more to clarify the circumstances in which their loved ones went missing. An example would be the disappearance of 158 displaced Tamil persons from the Eastern University campus in Vantharumoolai, Batticaloa District, who were rounded up and forcibly removed in front of thousands of other similarly displaced persons, including the officer in charge Prof T Jayasingam.
The government has also increased the support available to families of the missing, and says it is accelerating the OMP’s investigations. But the scale of what remains undone is stark. There are around 11,000 complaints remaining to be investigated, according to the Justice Minister, while the OMP has reported that final information has been established in only 31 cases, communicated privately to the families concerned. On the government’s own figures, that puts the clearance rate for establishing fate and whereabouts at well under one percent of the outstanding caseload. There is a limit to what the OMP can do even with more resources and time. Its mandate is primarily to establish the fate and whereabouts of individual missing persons. It was not intended to produce the comprehensive, public account of the past that victims and the country as a whole require.
In 2015, the government headed by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe committed itself to establishing such a commission as part of a comprehensive approach to dealing with Sri Lanka’s past. Human Rights Council Resolution 30/1, which the government co-sponsored, specifically welcomed the proposed establishment of a “commission for truth, justice, reconciliation and non-recurrence”, together with an Office on Missing Persons and an Office for Reparations. However, the commitment to a truth-seeking mechanism was never fulfilled. The government should consider setting one up now. There is a growing feeling among Tamil people in the North and East that the government is failing to deliver on promises that are important to them. On issues important to them, they feel this is once again a Sinhala-dominated government like all the ones that came before.
Establish Truth
For the past two years the government has been concentrating on problems that it deems are important to the country as a whole such as the economy, development, poverty alleviation and corruption and criminality. However, the government needs to demonstrate that national unity means addressing the concerns of all communities, including those whose wounds from the war remain unhealed. Some of its own institutions have begun to act on this. The Office for National Unity and Reconciliation recently staged a drama entitled From Yakaweva to Nandikadal, depicting relationships between people that transcend the destruction caused by war. The drama portrayed the sufferings as well as the prejudices on both sides of the divide, from the Kebithigollewa bus bombing to the final days of the war around the Nandikadal lagoon. Its central message is that without forgiveness there cannot be reconciliation.
Particularly moving was the fact that the actors themselves came from families touched by the violence on both sides. The son of an LTTE Black Tiger leader and the daughter of an Army officer were among those who performed, alongside others who had experienced and survived some of the sites of carnage. The fact that a state institution is taking this message of reconciliation forward is itself a testament to the government’s openness to dealing with the past. A government institution can reach a population far larger than any civil society campaign could reach on its own, simply because the machinery of the state is so much more extensive. It is in this context that the government needs to give serious thought to setting up a Truth and Reconciliation Commission as the next step in the truth-seeking process. Special care will need to be taken to ensure that those who are appointed are not only politically non-partisan, but are acceptable to all the communities.
A Truth and Reconciliation Commission cannot by itself resolve all the wounds of the past. Nor can it replace criminal investigations or judicial proceedings where these are necessary. But it can provide something that existing institutions cannot provide on their own. This would be a comprehensive national process through which victims can be heard and the truth can be established. The general population needs to understand what happened, so that the country can begin to acknowledge its past without passing it on indefinitely to future generations. The government has already taken several steps. It is supporting the search for the truth at Chemmani. It has begun reaching out to families of the disappeared. Its own institutions are producing messages of reconciliation. But these are still not delivering the results that the victims and their families want. The next step should be to bring these efforts together to begin the journey from the missing to the missing truth, and from there to comprehensive justice.
Features
The long road to educating Sri Lanka’s Bhikkhunis
A robe without recognition:
by Anushka Kahandagamage
Education is the right of every child. Yet somewhere between childhood and the robe, that right becomes precarious for many Buddhist women in Sri Lanka, threatening not only their social standing, but their fundamental access to learning and the institutional discrimination they face. This piece is not about Buddhist disciplinary rules, which discriminates women, rather about how the state’s refusal to fully recognise bhikkhunis as bhikkhunis quietly determines what they are, and are not, permitted to learn.
Unlike dasasil mathas, who occupy a distinct and unofficial category within Buddhist renunciation, bhikkhunis belong to a formally ordained order recognised within Buddhist monastic tradition itself. Dasa sil mata means ‘ten-precept mother.’ They are women who observe the ten precepts (rather than the fuller Vinaya) and live a renunciant, celibate life, often in robes, but formal ordination has not translated into formal recognition by the state. Even after a Supreme Court ruling affirmed their right to be identified as bhikkhunis on their National Identity Cards, many still do not hold one. This stems from the hesitation of the male-dominated Buddhist hierarchy to recognise these women as part of the Theravada tradition, specifically refusing to validate their higher ordination. The identity card lists her title as Dasa Sil Mata. The ruling exists on paper, but they are still waiting for their identity cards. This is not a small bureaucratic oversight. It is the first link in a longer chain, one that reaches, eventually, into the classroom.
A Name Withheld
In Sri Lanka, there are 827 pirivenas, traditional monastic colleges that have, for centuries, served as the primary institutions of Buddhist education. Of these, only 12 are dedicated to female renunciants at all, and of those 12, just five serve fully ordained nuns specifically. The imbalance is stark on its face: 827 institutions for monks, five for fully ordained nuns. But the discrimination here is not only a matter of numbers, but it is also written into the very language used to name these institutions. Monks’ schools are called pirivena, a term carrying centuries of institutional weight, historical continuity, and state recognition under Sri Lanka’s education laws. Bhikkhunis’ schools, by contrast, are not called pirivenas at all. They are designated Buddha Sravika Meheni Adhyapana Ayathanaya (Institute for the Education of Buddha’s Female Disciples), a separate, parallel term that, however similar in function, withholds from bhikkhuni institutions the same legal and institutional status that the word ‘pirivena’ confers. Since there are ten-precept mothers, the institutes have not given the same name as the pirivena and lack the official as well as social recognition they deserve.
A Pattern a Century in the Making
Following the decline of the Buddhist nun (bhikkhuni) order after the Polonnaruwa period, the first woman to be robed again was ordained in 1905 as a dasasil matha. Although dasasil mathas have long served important religious and societal roles, they have historically lacked access to formal education. Unfortunately, today also, this pattern continuous to exist. Education, in this context, is never just about literacy or dhamma study. It is the currency of religious authority. A bhikkhuni denied equivalent education or educated in an institution the state refuses to name a pirivena, is denied that religious authority. She may know the Tipitaka as well as any monk yet will lack the institutional stamp that would make a lay community trust her reading of it. It was not indifference from the public; it was the accumulated effect of a system that has spent centuries teaching devotees, implicitly, that a woman’s robe does not carry the same weight as a man.
The female renunciants, both dasasil mathas and bhikkunis, although they wear robes, have not been regarded as individuals capable of comprehending or preaching dhamma, simply because they are women. This is most visible in education, the pirivena system, developed historically to train bhikkhus, offered dasasil mathas and bhikkunis no equivalent institutional pathway, no comparable curriculum, certification, or state recognition. This exclusion is notable because it runs counter to Sri Lanka’s broader educational trends, where women have historically outnumbered men in general university enrolment, the gap here is specific to monastic/religious education rather than a reflection of wider societal restrictions on women’s schooling. The country’s National Education Commission Policy has a section on Pirivena education. However, it does not address the education of Buddhist nuns, nor does it mention nuns within the policy. I recently learned that the policy was being reviewed, with a committee appointed by the Ministry of Education, scheduled to begin the review on the 1st of September. This presents an important opportunity to raise the issue of nuns’ education and advocate for its inclusion in the revised policy.
The monks and nuns’ education institutes are funded by the government, which allocates only 5,000–6,000 LKR per student for the entire year. This sum is grossly inadequate to cover even basic institutional needs, accommodation, food, learning materials, and the maintenance of the physical premises, let alone to support any meaningful expansion of the curriculum. With this level of funding, these education institutes are struggling to sustain themselves, and many are forced to rely almost entirely on external support simply to remain operational. This is where the disparity becomes most visible. As female renunciants have historically not been taken seriously, regarded neither as authoritative teachers of dhamma nor as figures worthy of the same reverence extended to their male counterparts, their education centres receive far fewer lay offerings than those for male renunciants. The result is a widening resource gap that mirrors and reinforces the very discrimination that caused it. Underfunded institutions produce fewer well-trained female scholars, which in turn reinforces the perception that female renunciants are less capable, a perception that then justifies continued underinvestment. Without deliberate intervention, either through equitable government allocation or targeted lay support, this cycle is likely to persist rather than resolve on its own.
Sitting Alone at the Bo Tree
I was at Jaya Sri Maha Bodhi in Anuradhapura, where a few monks sat preaching in the shade of the Bo Tree, each surrounded by small clusters of lay devotees. Nearby, I noticed a few female Buddhist renunciants, though I could not immediately tell whether they were bhikkhunîs or dasasil mathas, since visually, in their robes and demeanour, they appeared indistinguishable to an outside observer. Most of them sat alone, without the small crowds of devotees gathered around the monks nearby. This, too, is not incidental. Because women cannot enter the sâsana through the same pathway to ordination, available to men, many Buddhist female renunciants remain dasasil mathas, a status that carries the appearance of monastic life without its legitamised spiritual standing. They observe the 10 precepts, wear robes, and live in renunciation, yet occupy a lower, unofficial rung in the religious hierarchy, one that grants them neither the ordination lineage nor the institutional recognition given to monks. However, in June last year, the Supreme Court of Sri Lanka delivered a landmark majority ruling in SC/FR/218/2013, affirming that fully ordained Buddhist nuns have the fundamental right to use the title ‘Bhikkhuni’ on their National Identity Cards, legally recognising the de facto existence of the Bhikkhuni Sanga.
A Closed Loop
Social discrimination and educational discrimination feed each other in a closed loop. Because bhikkhunis have fewer, less recognised institutions, fewer are formally trained to a standard the public recognises. Because fewer are recognised as authoritative teachers, fewer devotees seek them out or support them. Because they attract fewer devotees, the education institutions of female renunciants remain under-resourced and easy to overlook in state budgets and in popular imagination alike. A dasasil matha or bhikkhuni without an active following also lacks the economic support that following brings, since in Sri Lanka’s monastic economy, devotees are patrons as much as students. The precarity is not only spiritual or bureaucratic; it is material, and it compounds across a lifetime spent in robes.
Until bhikkhunis’ education is named, funded, and recognised on the same terms as that of bhikkhus, this will remain a story not only about missing ID cards or under-resourced schools, but about an education system that continues to decide, quietly and continuously, which students are worth investing in. Education was supposed to be the one place where the women can speak for themselves, instead, for these women, it has become just another place where women have to ask permission to be heard.
(Anushka is a Sociologist who is working on contemporary Buddhist movements. She was formerly attached to the University of Colombo)
Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.
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