Opinion
Consensus as mediation for two-person criminal dispute resolution
By Jolly Somasundram
(macsoma@gmail.com)
“Philosophers have only interpreted the world. It is time to change it”
Karl Marx
There was growing disenchantment in the 1970’s- 80’s, about the equity of the prevailing Bentham based Utilitarian system of resolving minor, two-person criminal disputes. The system was implemented in Sri Lanka (then Ceylon), on the recommendations of Cameron- Britain’s Benthamite jurist- and implemented since 1832, by a newly established Court system. One consequence of implementation was giving birth to a new cadre of professional pleaders called lawyers.
The philosophical principle which underlay Bentham’s thought was to provide the greatest happiness to the greatest number. The concerns of the distraught losers were of no concern to the Court. It was hard luck for them. Cameronian dispute resolution was operated and outputs delivered through a lynchpin decision maker- a learned judge- who, after a trial, where a forensic inquiry on all aspects and issues was assayed and, after consulting precedents, laws and lawyers, delivers with reasons, a binding but appealable verdict. The verdict had a winner and a loser. It could be the Hammurabi code in action, so ancient were its putative origins.
The Hammurabi inspired code had its merits but also suffered a number of critical downsides, among them, it being expensive, time consuming and leaving behind an embittered loser. For the disputants, the need for presence in a majestic Court building was awesome by itself. The events enacted therein, appeared théàtre. First, there had been a live dispute in which the disputants were participant/actors. In the second round, in Court, the proceedings were called to order in a stentorian voice of the Court crier. The disputants were represented by two or more black-garbed individuals- called lawyers- arguing, not in search of the Socratic truth but how best to accomplish their brief, irrespective of veracity of the events presented. The truth was not a hard objective reality- like a diamond- but a fungible commodity. The bemused watching disputants, were prevented from instantly setting the record straight, under rules of contempt. These lawyers were arguing about a disembodied dispute to which they were not privy, one they had known only second hand when events were related in Chambers by the disputant who had retained him. The Cameronian Court drama ended as a zero- sum game, without the disputants having a say on how it was conducted nor on its outcome. The case concluded as another transaction, reconciliation not being given much attention. It was a bureaucratic, Correct justice fulfilling the rules, but not dealing with developmental justice, which covers what is Right, the one that would take into account human frailties like perception and visual agnosia. Kurosowa’s brilliant film, ‘Rashomon’, deals plausibly with the subject. Four eye-witnesses to the same incident, recounted it later in four different ways. Many, including Rawls- the pre-eminent philosopher of Law- questioned the ‘justice’ of this justice.
A fresh jurisprudence was called for, based on a Steve Jobs’ rethink, deriving out of insights from human psychology. Law is a life form which is all about managing social relations in a dexterous and acceptable manner. The Ministry of Justice (MoJ) of the 1970’s-80’s gave intense thought to the creation of a more equitable arrangement and amend the Cameronian bureaucratic model which decides- blindfolded and with a pair of weighing scales- on what is Correct. The new approach should also be about what law ought to be ie decide on what is Right. This is the developmental mode in the Rawlsian model.
The time was ripe to soft- revolution Cameronian modalities. It should be a fresh template, to ease access to justice at the grassroots and deliver it as fair justice, a win-win remedy. A greening of justice was called for, not reddening it with embarrassment. Justice should be dealt as a public good, like education or health, available to all, not only to those who could afford it. The focus of Justice should be to give attention to the most disadvantaged, the vulnerable, the poor, the marginalised, the shirtless ones- the descamisados.
The MoJ (Ministy of Justice)/ MBC (Mediation Boards Commission) new model is a version of alternate dispute resolution, authored by the MoJ and implemented by the MBC. It is an effort to give life to a foundling Pygmalion and offer it intellectual sustenance, in the light of new thinking and its requirements. The narration, now presented, is uncommissioned, pro-bono exercise. It has no authority.
The founder MoJ’s suggested recommendations would take the breath away, for its sheer swashbuckling thinking! Refreshed with a new view of the nature of Man, these recommendations were derived out of intuition and extraordinarily creative, out- of- the- box thinking. Founder MoJ’s recommendations placed every accepted Cameron jurisprudence on his head. There was no judge, the two disputants were their own judge. The disputants- at a dyadic level, (the lowest point of the polity)- and in intense, engaged, inclusive in camera discussions, by themselves, of themselves, for themselves, to themselves, among themselves, with themselves, will eventually emerge with a consensually derived resolution to their dispute, assisted– if approved by the two disputants- with a trained mediator. All three, the two disputants and the mediator will be from the same community, perhaps travelling to and from the mediation venue in the same bus, thus cementing community support for the result. No lawyers were permitted, no politicians were selected as mediators. It was a do- it- yourself (DIY) justice. A dissatisfied disputant could take recourse at the next higher level of the judiciary. If it were thought all this was a Mad Hatter’s party of Prepositions, nothing could be more wrong, as the whole initiative turned out a grand success. The co-founder MBC, starting with zero in 1988, had built about 350 units in thirty-five years, working every Sunday morning with about 8500 volunteers spread all over the island, the largest number of volunteers in the island. It was not a top-bottom Benthamite justice but a Rawlsian bottom-up one.
The disputants found their own justice! If there were a feeling that this were anarchy- a dream of a mentally tested- it would be wrong. The other co- founder, the MoJ persisted and, as mentioned, in thirty-five years of committed endeavour there are now about 350 functional dyadic mediation boards, meeting every Sunday, the country experiencing a throbbing democratic happening of give, take and compromise in 350 mediation centres.
The subject and function of mediation is vested with the Ministry of Justice (MoJ). To implement its proposal the MoJ got parliamentary approval to enact a dedicated Act of Parliament called Mediation Boards Commission Act No 72 of ’88 with a Minister and Secretary and a public enterprise with a Board of five, called the Mediation Boards Commission (MBC). Both MoJ and the MBC report to parliament through COPE. No outside agency- a NGO, private sector, international aid agency etc., could give directions to the MBC. The MBC is the trustee of the People on matters pertaining to two-person mediation. With power comes responsibility.
The Board is responsible for all acts of the mediation function, particularly to safeguard the hard won two-person, mediation function from being debauched. If it does not know what is happening, it is its job to find out ignotatio juris non excusat (ignorance is no excuse). A cardinal principle the board should follow uncompromisingly, is not to look the other way when it becomes aware of wrong doing, in order to safeguard its job. Don’t canvas a human sacrifice! But alas!
Sec 6 of mediation Act defined a mediation board as “Any person may make an application to the chairman of a panel of any mediation board for settlement by mediation of any dispute, arising wholly or partly within the mediation board area of any offence specified in the second schedule of the Act and alleged to be committed within the mediation board area.”
a) A mediation board comes into life for a specific purpose, when a disputant seeks mediation,
b) A mediation is a two-person activity. It is not a mass meeting,
c) Mediation deals with a dispute, an event that takes place in a time or place.
It is not a conflict.
Institution building requires a vision. A Vision is a leitmotif that unites all aspects of an activity. The operational arm of the MoJ-MBC’s initiative for building and operating mediation boards, was the Mediation Board Commission (MBC). The laying down of the Vision is the sole prerogative of the MBC, not to be questioned by non-entitled outsider bodies like an NGO, the private sector, international bodies etc. If there are aid agreements they have to be within the Vision laid by the MBC. The MBC laid the Vision of two-person mediation boards as,
“Arrive at a consensual resolution for a two-person conflict” It is said: therefore it is There are no mediation boards but two- person mediation boards
The recommendation of the MoJ was bizarre but worked. The taste of the pudding is savoured only in its eating. The, about 350 mediation boards- each one having about eight to ten panels, cover the entire island. This breakthrough variant of alternative dispute resolution produced by the MoJ/MBC initiative, has no lawyers- they are prohibited by law- and no politicians- they are vetoed by non-selection by the MBC board. Both decisions gave mediation boards substantial credibility. They meet in camera, assisted by trained volunteer mediators who are from the same community as the disputants, whose participation is approved by both disputants.
These two disputant, in intense democratic discussions, get evolved a consensual settlement. There is a 62% settlement rate.
Their beneficial reach goes deeper and is more comprehensive than Greek democracy which caps at the Polis. Women and slaves had no say in the polis. Mediation, coverage goes to the dyad (two person), the lowest point of the community.
A consensual mediation settlement has further upside benefits, going beyond the immediate dispute that was resolved. The settlement generates ripple benefits like personal reconciliation of the two estranged disputants, widening and strengthening the social and community fabric but most beneficial of all, it has set in train a building of an ideology of CONSENSUS, as an indispensable social virtue for resolving disputes of any kind. It is Consensual Armament. A thousand mile journey has a first step: building of consensus, as a value system has- so far taken about 350 independent dispersed steps.
Mediation’s character is baked into Mediation Boards Act No 72 of 1988. By Sect 6 (1) of the Act, “any person can make an application for settlement by mediation of a dispute.” It is an access to justice mechanism which greens justice at the lowest level of the polity, a two-person dyad. Simultaneously, it serves as a poverty alleviation device. It is cost-free since lawyers are prevented from being present.
The MBC drew a schematic diagram, drawing attention to the fundamental differences between adversarial dispute resolution- the Bentham model and its mediation form, the Rawls Model.
Every element on the right should be present in a consensually settled dispute.
The ambit of the of criminal disputes covered by mediation are as follows:
Voluntary hurt,
Grievous hurt on provocation,
Wrongfully restraining a person,
Assault or using criminal force,
Dishonest misappropriation of property,
Mischief,
Criminal trespass,
House trespass,
Defamation
Painting defamatory material,
Insult to cause breach of peace,
Criminal intimidation.
The MoJ/ MBC initiative was undertaken entirely by locals with, perhaps, a foreigner trace element. In the natural sciences, discovery is about finding what is already there, eg Dirac’s anti-matter, penincillin, dna, emc2 .In the social sciences, discovery is in creating what is not there, building from zero. The Taj Mahal was built marble slice by marble slice, the Sistine chapel daub by daub, a MoJ/MBC jurisprudence in thirty five years and on-going. The new jurisprudence, created by MoJ/MBC, of two-person dispute resolution through Consensus and no judge, is an act of creation, a vindication of Steve Jobs’, Think Different.
Opinion
Why Bachelor of Arts and no Spinsters …, LSE degrees and titles, again?
Three matters concerning universities. The eminent botanist Dr. Upatissa Pethiyagoda asked (17/12) why there were Bachelor of Arts degrees and no Spinsters …. degrees. When universities were first founded in medieval times, the intelligentsia was almost entirely churchmen: priests, friars and monks. There were no women in the clergy. Churchmen held power in studium generale which about the 15th century came to be called universities.
Universities governed themselves, a common feature of many organisations in medieval Europe, where authority was fragmented. (The seeds of present claims for autonomy in universities, bolstered by new and other powerful factors, lay there.) Although graduates from the Arts Faculty comprised the overwhelming majority in universities, and the arts faculty was fons et origo ceteris (source and origin of all others), graduates of the Faculty of Theology controlled universities. For centuries to come this practice continued. The church and, more recently, laymen who governed universities, did not permit the admission of women to universities. In Dr. Pethiyagoda’s university in the UK, women were formally admitted to degrees only in 1948! In Oxford, women had been admitted in 1920-21. That explains why there are no “Spinster graduates”, even though, in some universities, women comprise the majority that graduates. However, change has been rapid since then. The present vice-chancellor of Cambridge University is a woman. The Master of Trinity Hall, one of the smaller but older colleges in that university, is a woman who was an academic in the US, previously.
Then it was asked whether LSE could offer a degree (in The Island, on the same day). LSE cannot, because it is not a university but only a School at the University of London, like the Imperial College of Science and Technology, King’s College or SOAS. Similarly, one cannot get a degree from the Harvard Business School. The model of the University of London was copied in India, when the British established universities there in 1857, the year of the mutiny. (Ramachandran Guha once remarked that two mutinies began in 1857; the other being the establishment of universities whose alumni were a force in pushing the British out of India.) As a result, Delhi University or Calcutta University has large numbers of colleges, where standards of teaching vary widely. The University of Bangalore is reputed to have hundreds of affiliated colleges.
P. A. Samaraweera, philosophiae doctor, (20/12/24) insists on calling a university degree a title: ‘…(PD) is incorrect in his analysis of a Ph.D. as a title’. Well, of course, Alice (in Wonderland) retorted, ‘I mean what I say’ and Dr. Samaraweeera may assert that same privilege. But korala, muhandiram, maha mudali, professor, archdeacon and judge are titles, not university degrees. B.A., D.Phil., and D.Litt. are degrees and not titles. His appellation ‘Dr.’ is not a title, whereas he may hold the title ’professor’. I went back to history to explain what it is, not what the future should be. He might find it difficult to explain why he, a chemist (say) holds a degree ‘doctor of philosophy’, having never, even in school, studied philosophy. The explanation is in the history of universities. Well into the 21st century, President Emmanuel Macron, a few months ago, opened the University of Paris-Saclay and it will have deans, provosts, and other office holders whose titles derive from the University of Paris which started about 1210 CE. Robert Grosseteste, Bishop of Lincoln, Chancellor of Oxford, in the 14th century, had he miraculously been transported to the occasion, may have found the entire setup familiar as he was ‘a French poet, an agriculturist, a lawyer, a physician, and a preacher; ….’ ( Rashdall, Vol.III p.241). He may even have understood the proceedings. Modern universities follow procedures adopted in old Europe: wear your cappa (degree gown and cap) and compare those vestments with what a Catholic priest, a bishop or the pope wears. Need I say more?
Philosophiae Doctor
Opinion
Going easy on Year 5 Scholarship trial
“The goal of education is not to increase the amount of knowledge but to create the possibilities for a child to invent and discover”
– Jean Piaget
“[They] are confined for four or five years in small cages, being kept in the dark and not allowed to set foot on the ground”. One might wonder whether the foregoing sentence is one which is meant to serve as a metaphorical description of the joyless life of most of our primary-level students, who are regimented for two to three years to face the Year 5 Scholarship exam. Well, no.
It doesn’t have the remotest connection to modern-day exams or an education system unwittingly designed to drain childhood of its inherent pleasures. It refers to a custom, a ‘persecution’ ingrained in primeval cultures, the remnants of which may still be found in many societies including ours. The quote is from a well-known book on anthropology, “The Golden Bough: A study in magic and religion” written by Sir James Frazer. The sentence describes a widespread taboo in primitive societies, which resulted in the “seclusion of girls at puberty”. However, it is a pity that today, one is likely to see in it, at least a faint reference to the otherwise happiest period of our youngest citizens, who are pressured to prepare for an exam, which is superimposed, for reasons unrelated to the goals of education, per se. Rather, it is designed to make tens of thousands of underprivileged children work harder than they reasonably can, because the successive governments have not been able to provide the required infrastructure facilities to their schools to enable them to continue studies till they enter the tertiary level. In other words, the well-known exam is an instance of making our children sacrifice their childhood till the rulers, if they ever will, set right the larger economic wrongs.
Whereas, in ancient times, young girls were made to carry the burden of superstition and patriarchy, today young children of all sexes are forced to pay the price for political and economic bungling. Ultimately, a problem resulting from lack of opportunities for many, is upgraded and embellished as ‘providing opportunities’ for the few ‘smart’. And, its grand title is Year 5 Scholarship Exam. What we conveniently forget is that this ‘exam’ is a wrong medicine produced to compensate for political quackery, which justifies the continuation of substandard education for the ‘condemned’ majority. It seems that the onward march of human progress, while doing away with cultural wrongs, is shy of getting rid of economic wrongs. A local saying seems apt here – one may say that the Year 5 scholarship exam has been serving as a metaphor for an annually produced loincloth expected to cure politically induced child-diarrhea.
The reported leaking of three questions from the Grade 5 scholarship exam held this year and the reports of such incidents in the past show its undesirable influence on the children, parents and other vested interests. At least, it has raised an unhealthy spirit of competition considerably removing the sense of joy which should be an essential part of these children’s learning experience. This is particularly relevant because the exam has drawn both students and their parents into a prolonged spell of obsession, which has severely undermined the importance of leisure and fun that should be part and parcel of a wholesome childhood. The prolonged fixation on the exam results tied to their ‘future success’ robs these fledgling scholars of the joys of ‘free learning’, which should otherwise give them that vital sense of adventure and excitement in gaining new knowledge. Bertrand Russell’s quote, “There is much pleasure to be gained from useless knowledge”, which refers to the unplanned learning pursuits that may enhance the quality of life of adults, may not be totally irrelevant in any discussion on child education.
As history and anthropology bear evidence, children have always been defenceless against many of those well-meaning programmes imposed on them by adults. It is a pity that today the parental ambitions triggered by social forces, have invaded and highjacked the childhood of our clueless kids. Particularly vulnerable are those underprivileged children who form the majority. Whereas the children of privileged families enjoy the freedom of engaging in many leisure pursuits while receiving their primary level education without undue stress, a large number of children belonging to the lower strata of society are grievously saddled with the scholarship exam to the exclusion of all fun and recreation.
As Ms. Ruth Surenthiraraj highlights in her article titled, “A case for the non-essential” (Kuppi Talk) published in The Island of December 10, “…entertainment, leisure, or the space to create is often perceived as being directly and positively correlated to being able to afford either the time or the resources to enjoy it”. This is a valid critique of a smug social attitude, which tends to give credence to the warped idea that the underprivileged in society may ‘prudently’ forget about entertainment. Reducing childhood to a strenuous struggle for future success is sad. And, any programme relating to education or otherwise, which, directly or indirectly, helps consolidate the idea that deprived children may ‘wisely’ shun any entertainment ‘for their own good’ can be nothing short of catastrophic.
Susantha Hewa
Opinion
Christmas Roots and Hearts Aglow:
Rekindling Faith, Peace, and Love Below…!
(Practical Tips for Christmas Bliss)
by Rev. Fr. (Dr.) Eymard Fernando
Bishop’s House, Kurunegala.
In an increasingly and incredibly materialised and commercialised world today, the core meaning of Christmas often seems distorted, being overshadowed by consumerism, bustling sales, and extravagant festivities. Yet, at its heart, Christmas is a season meant for reflection, change, love, and unity – a time when people gather to celebrate gratitude and generosity centred around the Divine Baby. As we explore the roots of Christmas and what it can mean for us in today’s world, we uncover themes of faith, hope, peace, and kindness that transcend religious boundaries, reminding us of the true purpose and value of God becoming man.
Therefore, let us delve a little into the origins and deeper significance of Christmas, exploring ways to return to these roots through themes of generosity, togetherness, and humility. By rediscovering these essential values, we can certainly celebrate Christmas as a season that brings light and life to our world.
A Season of Faith and Reflection
Christmas has its origins in the Birth of Jesus Christ, a moment celebrated by Christians as the arrival of hope and salvation. However, even beyond its religious significance, Christmas season has become a time when many reflect on themes of love, hope, and renewal. The story of the Nativity conveys universal values: humility, peace, and the power of hope.
The Birth of Jesus in a humble manger represents a profound lesson about simplicity and compassion. As theologian Henri Nouwen noted, “Jesus was born in the least expected place to the least expected people in the least expected way.” This simplicity, intertwined with humility, challenges the commercialised image of Christmas today. Instead of focusing on luxury and excess, the roots of Christmas invite us to value the simple, meaningful aspects of life: faith, family, and fraternity.
In today’s world, we can return to these roots by setting aside time for personal reflection during Christmas. Practising gratitude, being mindful of those less fortunate, and reaching out to loved ones are all different ways we can honour the spiritual foundation of Christmas. Thus, we all can benefit from a moment of stillness and introspection during this busy time of the year.
The Spirit of Generosity and Compassion
Christmas has always been a season of sharing, inspired by the gifts of the Magi to the Christ- Child and later, Saint Nicholas’ acts of charity as santa claus. However, the tradition of sharing has gradually shifted from simple acts of kindness to an intense focus on material gifts. According to American sociologist Juliet Schor, “We give to show love, but in a culture that equates love with spending, our giving has been commercialized.”
However, in recent years, a shift towards alternative, meaningful sharing has gained momentum in the form of a worthy ‘retromarch’. Many individuals and families now choose to give to charity in a loved one’s name or to offer experiences rather than material goods. This form of sharing very much aligns with the true spirit of Christmas, embodying generosity without extravagance.
Likewise, local initiatives, such as community food drives and clothing and toy collections, have become popular ways to give back. Participating in these efforts allows people to connect with others in their communities, creating a shared sense of purpose and compassion. As Mother Teresa famously said, “It’s not how much we give, but how much love we put into giving.” By focusing mainly on the intention behind our gifts, we can bring the spirit of Christmas alive in our own hearts and communities. However, the magic of Christmas is not very much in presents and parties, but in His Presence!
Family and Togetherness: A Time for Connection
The Christmas season is often one of the few times in the year when families come together, setting aside time to reconnect, reflect, and celebrate. This emphasis on togetherness is deeply rooted in the season’s traditions, dating back to ancient winter solstice festivals where communities gathered to share warmth and light during the darkest days of the year.
In modern times, when families may be dispersed across cities or even continents, Christmas remains a crucial opportunity to reconnect. This communal emphasis shows how Christmas, regardless of religious affiliations, has become a unifying tradition centred on family.
Simple traditions – like sharing a meal, decorating a Christmas tree, or singing carols together – allow families to pause, connect, and create memories. These rituals not only strengthen family bonds but also convey the essence of Christmas for younger generations. As American author Richard Paul Evans, best known for his inspirational and heartfelt novels says, “The smells, tastes, and sounds of Christmas are the roots that nurture a family tree.” By focusing on togetherness, Christmas serves as a reminder of the love and connection that sustain us all throughout the New Year.
Peace on Earth: Seeking Unity in This Divided World
One of the most significant messages of Christmas is the call for ‘Peace on Earth’. Yet, today’s world is marked by political, social, cultural, economic and various other divisions, making the pursuit of peace and unity more relevant than ever before. From the hymn ‘Silent Night’ to the angels’ proclamation of peace, Christmas has long symbolized hope in times of conflict.
A poignant historical example of Christmas promoting peace is the Christmas Truce of 1914, during World War I. British and German soldiers, entrenched on the Western Front, laid down their arms on Christmas Eve to exchange greetings, sing carols, and share small gifts. This unexpected truce, though brief, reminded soldiers of their shared humanity amidst the horrors of war. It symbolised the power of Christmas to transcend differences and bring people together, even during a time of darkness and death.
Today, peace-oriented traditions continue to play an important role during Christmas season. Interfaith gatherings, community meals, and charitable events all serve as spaces for people from different backgrounds to connect and understand one another. In a world often divided by ideological and political differences, Christmas can become a season with a reason for open dialogue, compassion, and understanding. Embracing Christmas’ call for peace and unity allows us to honour its roots in ways that resonate with our global context.
Practising Simplicity and Mindfulness
While Christmas has grown as a metaphor for lavish celebrations and enchanting tamashas, the season’s roots actually encourage simplicity and mindfulness. The traditional story of Jesus’ Birth in a manger speaks to a humble beginning, one that invites us to cherish what truly matters in life. Embracing that simplicity allows us shift our focus from material abundance to the richness of shared experiences.
In recent years, minimalism and mindfulness have gained popularity as antidotes to the consumer-driven spendthrift lifestyle with a ‘shop till you drop’ psychosis. Many people now opt for simpler, handmade gifts or choose to forgo elaborate decorations in favour of natural elements. These preferred choices reflect a desire to connect more authentically with the true meaning of Christmas. Instead of flashy lights or mountains of gifts, families can create meaningful memories through acts of kindness or spending quality time together strengthening family ties. One modern example for this is the ‘Reverse Advent Calendar’ tradition. Instead of receiving a treat each day, participants place an item – such as dry rations or clothing – in a box to donate to those in need. This practice helps to instil gratitude and generosity, shifting the focus from consumption to community service. By embracing a simpler and more mindful and meaningful approach, we honour the humble roots of Christmas and foster a deeper sense of appreciation for life’s countless blessings.
A Journey of Rediscovering…
Returning to the roots of Christmas is a journey of rediscovering faith, kindness, and togetherness in a world that often moves at a very rapid pace. The true spirit of Christmas calls us to reflect on values that transcend time and culture: humility, compassion, peace, unity, and love. In embracing these themes, we transform Christmas from a season of materialism into one pregnant with meaning.
As we celebrate Christmas this year, let us remember that this event is not about what we have, but about who we are with and how we make others feel. It is a season of opening our hearts and minds to others, of putting love into action, and of finding moments of peace and tranquility in the midst of cacophony, disorder and chaos. By going back to the roots of Christmas, let us therefore invite joy, hope, and kindness into our lives, allowing Christmas grow and glow with renewed purpose and profound meaning resulting in a new birth in our own lives!
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