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Doctrine of immunity in Emperor’s Clothes

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By I. P. C. MENDIS

Ranil Wickremesinghe has emerged as the chief “dramatis personae” in the current constitutional deadlock drama. Whether the stars had foretold the event is not known. He was never a man in a hurry.  He was cool as a cucumber when he was sacked as Prime Minister by the latter and seeking the help of the apex Court regained the position. He has chosen to confront the Supreme Court in what appears to be a battle of wits as to who has the whip-hand – the Executive President or the Supreme Court. The SC ruling in respect of the release of funds for the local government (LG) elections has opened the door for many a fundamental issue, not the least being the question of immunity and that of effectiveness and priority for SC decisions. The presidential circular does not list election expenditure as an essential item.  Indeed, a direct confrontation prima facie.

Elections Commission

One does not need much grey matter to realise that as far as the government is concerned, it does not have an iota of interest in conducting the relevant election. The pointers came in very clear terms through the “machinations” of the Government Printer, the IGP and the Secretary to the Treasury.  And in this time-consuming and futile exercise, the EC through its own volition reduced itself casting away its so-called independence to be nothing more than a pen-pusher – a far cry from the Deshapriya’s lion roar of yesteryear asking violators of election laws to be shot at the head.  Fair enough  for the EC to write to  the Secretary to the Treasury (the custodian of state coffers)  but when it was clear that there was a questionable delay, it had  a duty and responsibility to bring the issue to the notice of court to which it is bound by ruling to hold the elections. The Secretary to the Treasury is bound by the Constitution to perform his duties under the direction and control of his Minister and has taken an oath to uphold the Constitution. He has no leeway to pass the buck or to treat a SC ruling as subordinate to any other source.  Nothing of the sort has happened before.  The Minister of Finance may hold the office of President substantively but that does not ‘ipso facto’ imply that he enjoys the immunity he enjoys in his substantive office while performing duties in areas other than those in Presidential office. If   not anything else, this episode has the potential to become a dangerous precedent. It has to be immediately resolved once and for all.

Immunity of Parliamentary Proceedings

The question arises as to whether the immunity prescribed is limited to parliamentary proceedings. There is also the relevant issue of “absolute”and “qualified” immunity which has to be examined and argued with due reference to authorities such as Erskine May, the SL. Constitution and other such Constitutions. And who else is qualified to do it but the relevant professions, including the legal fraternity?  The question arises whether the immunity is limited to parliamentary proceedings. If so, any action initiated or proceeded with by the Hon. Speaker in entertaining a motion of “Privilege” and any follow-up action thereon in tabling it, etc,. could be construed as “contempt of court”    We have had the sad and unfortunate episode of Shirani Bandaranaike, which nobody wants to repeat and make SC judges  the hunting ground  of  politicians of one hue or another.  No-one wants our judiciary to be reduced to being a plaything of politicians.  The judiciary expects unequivocally and requires no repetition of the treatment of Shirani B or Neville Samarakoon.

Legal Fraternity and the BASL

The BASL has proudly felicitated President Wickremasinghe on completion of 50 years at the Bar (yet not in practice).  The country would not certainly seek to deny him the accolade. Yet,  the BASL and the “Black-coated” gentry in particular,  who thought it opportune to invade the courts of justice in their hundreds unsolicited to defend the Aragalaya  demonstrators without a fee almost exercising undue influence vicariously in the course of justice,  and the frenzy  in which they  took to the streets demanding the ouster of Mohan Pieris, was conspicuous by its absence in strength vocally and otherwise except through a tame letter.



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Opinion

Landslide victories

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by Chula Goonasekera
Nagananda Kodithuwakku

President AKD and the NPP deserve applause and heartfelt congratulations for their organisation, information gathering, and dissemination of a vision that resonates with the people. They have successfully created an enormous wave of funding and support, culminating in a decisive victory over the corrupt factions that have contributed to the destruction of our nation and motherland. The NPP’s anti-corruption message resonated deeply with voters who have suffered across many sectors of society, including the economy, education, healthcare, and nutrition. The public trust generated by this movement has led to an exemplary landslide victory for the NPP in this general election.

However, as voters, we must remain mindful that Sri Lanka has witnessed landslide election results in 1970, 1977, 2010, and 2020—all of which ultimately resulted in a landslide toward the nation’s ill-being, leaving the country burdened with massive debts, corruption, indiscipline, brain drain, and economic collapse.

What is ironic in 2024 is that this landslide victory may be one of the most significant of the century. However, it also calls for critical reflection. For the first time, even Jaffna voted in favour of the NPP. This could indicate the beginning of the end of the divisive politics that have historically exploited racial and religious divisions. Perhaps this marks the dawn of a new, more unified political landscape—one that promotes a united Sri Lanka as one nation working toward an equal society across every corner of our motherland.

Despite the landslide, we must be fully aware of the potential for disinformation if proper actions and preventive measures are not taken. The constitutional gates of covert and overt political corruption remain open while, as a nation, we lack the compensatory capacity to face another political or financial crisis. Therefore, we must remain vigilant and ensure the continuity of national oversight to keep our new parliament and president on track despite the many distractions that could hinder their efforts for national freedom and development. One key strategy is to remain non-aligned but work with external forces through clear, transparent, and fair agreements that prioritise national benefit.

In this context, the priority for the NPP should be to make the Judiciary and the Bribery Commission independent, supported by a robust quality assurance system and a clear definition of ‘contempt of court’ to embed accountability. No national institution—especially the judiciary—can thrive without accountability and transparency. A recent example from the UK, the Post Office Scandal, underscores this point: a national service organisation made wrongful decisions that destroyed the lives of many innocent people, wrongly labelling them as criminals. A documentary exposing this injustice was widely circulated in the media, leading to justice for many victims, some of whom were no longer alive to witness it. In Sri Lanka’s current legal environment, such exposure could easily be misconstrued as contempt of court, with all involved potentially facing jail time.

An independent Judiciary and Bribery Commission, free from political interference, can be achieved through a parliamentary act requiring a two-thirds majority. This is paramount and should be implemented at the earliest opportunity to prevent politics from undermining legitimate processes. Such reforms will help resolve the deadlock that has stifled progress—particularly in addressing political corruption, including linked severe offences such as rape and murder. Furthermore, these reforms will clarify the constitutional changes necessary to prevent the legitimisation of political corruption, enabling the cleanup of a constitution that has been manipulated countless times to allow corrupt politicians to act with impunity despite blatant violations of good governance.

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Srinivasan believed in Sri Lanka’s true potential: An appreciation

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Historical ties between Sri Lanka and India date back to the Ramayana era and the visionary missions of the Great Mauryan Emperor Ashoka. The emperor tasked his own son, Arahant Mahinda, and daughter, Bhikkhuni Sangamitta, with spreading the teachings of Gautama Buddha (dhamma), laying the foundation in the island nation of Lanka, probably visualising its potential in cultivating a unique culture.

In 1977, Sri Lanka opened its economy while our great neighbour India had a closed economy. The Indian Bank, a wholly owned entity of the Government of India, decided to set up the bank’s first offshore banking unit in Sri Lanka. The unit became the first Foreign Currency Banking Unit (FCBU) owned by a foreign bank in Sri Lanka and started operations in 1979.

The bank appointed the young banker V Srinivasan to head the FCBU unit in Colombo, which led to many transformational changes in banking and entrepreneurial relationships between the two countries. Late V Srinivasan had the rare opportunity to leave his footprint, being the only officer serving as the CEO of Indian Bank’s two overseas branches in Sri Lanka and Singapore.

The Indian Bank’s FCBU unit raised foreign currencies and arranged investments in the Katunayake Free Trade Zone and several other BOI-approved projects. Under Mr. V Srinivasan’s leadership, many projects were financed, including the first multi-purpose apartment and shopping complex in Kollupitiya, and value-added rubber and textile manufacturing projects in the Free Trade Zone in Katunayake. These projects enabled industrial technological know-how to flow into Sri Lanka. The Indian Bank recognised V Srinivasan’s leadership and promoted him to the bank’s CEO in the Colombo branch in 1985, thus managing the bank’s decades-old domestic operations specialising in international trade. During this period, he identified the true potentials in the Sri Lankan economy, such as financing value addition and branding of Ceylon Tea, and financing the construction of a glass-bottomed multipurpose boat as a tourist attraction.

Unfortunately, all the innovative projects came to a grinding halt with the July 1983 riots in Sri Lanka. Although the bank’s assets were subject to many risks impacting viable operations, V Srinivasan demonstrated his kindness by saving the bank’s vital intellectual capital, the human resource, from destitution and distress because of the ruthless communal riots in Sri Lanka. His passion for spotting talent and his caring attitude towards the well-being of staff probably made him the bank’s youngest General Manager, leading Human Resources prior to his retirement from the bank in 2011.

This writer was fortunate enough to sense and learn the social orientation of the business of banking as a budding banker under his stewardship. During his tenure, I had the opportunity to engage in negotiations as a young trade unionist. Our friendship continued even after both of us left the services of the Indian Bank for many decades. The last time I met Mr. V Srinivasan, his wife Kalpana, and his son Prasanna and family was while he was holidaying in Sri Lanka in 2010, catching up with beautiful memories. Mr. Srinivasan passed away at the age of 73 on 9th November 2024 in Chennai. May his departed soul rest in peace. Om Shanti.

Jayasri Priyalal

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Opinion

‘Ethnicity’ can no longer ‘hold voter’

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A map showing districts won by the NPP

“Even in the modern world which, due to advancement in Science, has all the opportunities for comfortable living, man has to suffer because of this disease of nationalism and its inevitable political tentacles.”– Dr E.W. Adikaram

by Susantha Hewa  

It’s hard to find in history instances where people in their numbers have cast off their outer shell of ethnicity (as well as religion) to change systems. It goes without saying that people enjoy an immense sense of fellow feeling when they jointly celebrate victories of cricket and other triumphs.  However, the results of the recently concluded parliamentary election clearly showed people from all Tamil dominated Northern districts and Muslim dominated Eastern districts coming together spiritedly to back the NPP from the Sinhala dominated South. They have joined hands against their perceived political oppressors- which is nothing short of spectacular, given the obstinacy of our ethnic and other prejudices.

Sri Lanka has set an example of the above rare feat at the recent general election. It’s reassuring that many Sri Lankans are awakening to the reality that ethnicity is a veneer largely of a cultural and political making and not of biological making as we are generally made to consume. Most scientists agree that ethnicity is not a biological category but a socially constructed identity. Modern research demonstrates that the concept of race/ethnicity is a social construct without any scientific basis.

According to medical researchers A. Smedley and B.D. Smedley, people generally think that “population differences in health and intelligence are the result of immutable, biologically based differences between ‘racial’ groups, despite overwhelming evidence that racial groups are not genetically discrete, reliably measured or scientifically meaningful”. Enthusiastic believers of ethnic differences have their work cut out to disprove a substantial body of scientific evidence against ethnicity being a biological category. The fact is, our culturally constructed and politically pampered bigotry about ethnicity has been proving too resilient for insights from science slowly trickling down to our collective consciousness.

After all, scientific knowledge cannot be imposed on you like ‘ethnicity’ or religion; nor can it be made politically expedient to keep people in ignorance. The anthropologist, Prof. Robert Wald Sussman says “Being antiracist is not simply political correctness, it is proven science” (The Myth of Race: The Troubling Persistence of an Unscientific Idea). At last, Sri Lanka’s parliamentary democracy, tested rigorously at a general election, has proved to be a measure of the progressivity and the political awakening of a fragmented populace and served as a valuable precursor of unity rather than division. Most importantly, it has stumped many of those who are still charmed by the supposed imperishability of the deep-rooted perception of ethnicity. All those who wish to see the blossoming of an enlightened community without self-debilitating and inherited biases, the November 14 election will be a cultural awakening, if not a significant turning point in politics.

The age-old myth of ‘ethnicity’ being synonymous with “language” can no longer hold water. Language is the finest medium of human communication and it can do very well without acquiring any unintentional indignity of interlanguage enmity. As languages, there is no conflict between languages, i.e. English, Mandarin, Hindi, Spanish, Tamil, Sinhala, Bengali, Urdu, Ainu, Njerep or even Lemerig, no matter how widely or sparsely they are spread and spoken. Languages keep enriching one another by mixing with and borrowing from (no obligation to return) the others.

However, unfortunately, we, who have no choice but acquiring the language of our parents or the guardians, often grow up with the false idea of being distinctly different from those who speak other languages, which is tragically misunderstood as being rooted in genetics. It is heartening that history has instances, however rare, of proving such tenacious myths untenable. The recent election is a case in point.

All those who have transcended their socially inherited biases in showing their unity to halt sociocultural and political stagnation of a nation have done Sri Lanka proud. It shows their political acumen sharpened primarily by economic woes. It is no mean feat for individuals in a society to have overcome the alluring biases they are steeped in, be they religious, caste-based or ethnic – the cast-iron biases that lull us into a false sense of belonging while actually alienating us from others for imagined differences.

In his book ‘Annihilation of caste’, Dr. B.R. Ambedkar, who was a fierce critic of the caste system in India, writes, “Brahminism… is the very negation of the spirit of Liberty, Equality and Fraternity”. And, commenting on Dr. Ambedkar’s statement above, Arundhati Roy, an admirer of Dr. Ambedkar, says, “Brahminism precludes the possibility of social or political solidarity across caste lines. As an administrative system, it is pure genius” (The doctor and the saint). What both of them condemn as deeply harmful is the flourishing of entrenched biases when they are interlaced with politics, where the connections may be apparent or more devious than meets the eye. As many would agree, Brahminism may perhaps not have been unique in strangling the life and freedoms of people in human history, with the complicity of repressive systems of governance. Skin colour, race, ethnicity, religion – all have been equally capable of being subjugated by politics to keep the people in prolonged servitude.

Let’s hope that, in Sri Lanka, as well as in other parts of the world, there will be a gradual diminution of equally incapacitating biases, which would otherwise continue to keep the masses in their deadly grip, thus hampering their progress towards civilsation.

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