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Enhancing the Constitution’s Rigidity

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SC on 22A – Part III

(Continued from yesterday)
by Dr. Jayampathy Wickramaratne,
President’s Counsel

In this, the final part of this article, the writer argues that while the Supreme Court’s determination on the Nineteenth Amendment Bill allowed some flexibility in reducing the powers of the President, its determination on the Twenty-first and Twenty-second Amendment Bills has further strengthened the Executive Presidency. In both its determinations on 21A and 22A, the Court did not consider the important fact that the provisions of Article 30, which made the form of government in Sri Lanka ‘presidential’, are not entrenched and, therefore, can be amended without a referendum.

SC on 21A and 22A: Steps backwards

The Samagi Jana Balavegaya’s Twentieth Amendment Bill sought to completely do away with the Executive Presidency. A three-member Bench (Jayasuriya CJ, Janak De Silva J and Obeysekere J) disagreed with the decision on 19A, stating that it is difficult to reconcile the statement that the President is not the sole repository of executive power with the unambiguous statement in Article 4(b) that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President elected by the People.

The Court adopted two tests to determine whether a violation of Article 4 leads to a violation of Article 3 as well. According to the delegation test, any change in the executive power delegated to the President by the People that brings in another person or institution must be with the approval of the People. The alienation test is that any transfer, relinquishment or removal of a power attributed to one organ of Government to another requires the approval of the People. Applying the delegation test, the Court held that the proposed amendment to Article 4(d) that executive power shall henceforth be exercised by the President and the Cabinet of Ministers required approval at a referendum. Applying the delegation test, the Court found that the proposed provision that the President shall act on the advice of the Prime Minister also requires such approval.

The Court also held that the proposal that the President would be elected by Parliament and not by the People violated Article 4(e), according to which the franchise shall be exercised at the election of the President as well.For the above and several other reasons, the Court concluded that the abolition of the Executive Presidency would require approval at a referendum.

However, the Court did not deal with two constitutional provisions that deal directly with the President and the manner of his election. Article 30 (The President of the Republic) originally read as follows: “(1) There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. (2) The President of the Republic shall be elected by the People, and shall hold office for a term of six years.” By the Nineteenth Amendment, the President’s term of office was reduced to five years.

That the President should be not only the head of the state and head of the executive but also the head of the government is what makes the form of government in Sri Lanka “presidential”. Under the 1972 Constitution, the President was the head of the state and head of the executive but not the head of government. Also, he was required to act on the advice of the Prime Minister. Thus, it is Article 30(1) that made the difference when Sri Lanka adopted the 1978 Constitution.

However, Article 30(1) is not entrenched. It is not in the list of provisions in Article 83 that triggers off a referendum. It is not only Article 30(1) that was left out of the list of entrenched provisions. The provision contained in Article 30(2) that “[t]he President of the Republic shall be elected by the People” was also left out of the list of entrenched provisions. What is most important is that only the second part of Article 30(2), that “[the President] shall hold office for a term of six years”, was entrenched to the extent that an extension of the term of the President to over six years would require a referendum. These omissions must be considered to be deliberate. This is fortified by the fact that Article 4 is not an entrenched provision.

In dealing with 22A, the Supreme Court followed its reasoning in the determination on 21A. Accordingly, it was held that to provide that the President should act on the advice of the Prime Minister in appointing Ministers and Deputy Ministers and removing them required approval at a referendum. The Court also determined that the proposed provision that if the President does not make appointments to the independent Commissions as recommended by the Constitutional Council within fourteen days, the appointments would be deemed to have been made also required similar approval. As discussed in Part I of this article, the Court held that the President must necessarily have the power to dismiss the Prime Minister.

The writer respectfully submits that the Court committed a serious error in determining in the 21A case that approval at a referendum is needed to provide that the President shall be elected by Parliament and that s/he should ordinarily act on the advice of the Prime Minister. The determination flies in the face of the non-entrenchment of Article 30 (1) and the provision in Article 30(2) that the President shall be elected by the People. While deciding not to entrench Article 4, the framers did not entrench Article 30(1) and the election of the President by the People. It is reasonable for one to expect the Court to have dealt with Article 30 and its non-entrenchment to the extent discussed above. The error was carried on to the determination on 22A.

The writer clearly prefers the Supreme Court’s determination on 19A and hopes that the Court would review its determinations in the 21A and 22A cases and also discuss the implications of the non-entrenchment of Article 30 in an appropriate case.

Constitutional Rigidity

A necessary consequence of the 21A and 22A determinations is enhancing the rigidity of our Constitution. The 19A determination allowed some flexibility in amending the Constitution with a two-thirds majority. It is easy for one to say that any amendment can be referred to the sovereign People, but the fact is that there has been an aversion to submitting amendments to a referendum. A referendum is costly in financial terms; it could also be costly in political terms for whatever the ruling party is.

During the recent Aragalaya, the need to bypass the procedure laid down in the Constitution was raised by several groups. Some even suggested invoking the controversial ‘doctrine of necessity’ used in Pakistan and elsewhere to legitimise military dictatorships. Most in the legal community, however, explained that it is in the interests of constitutionalism to follow the procedure laid down in the Constitution.

We must remember how dicta of the Privy Council in Bribery Commissioner v Ranasinghe and Ibralebbe v The Queen led to a belief that section 29 (2) of the Independence Constitution was unalterable. This, in turn, led to the 1972 Constitution being enacted, bypassing the procedure laid down in the Independence Constitution. The Constitution that emerged was one imposed by the ruling coalition. While the complete break from the British Crown, retention of the parliamentary form of government, the introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.

Restrictive judicial interpretations that make a Constitution too flexible or too rigid must both be avoided. Delivering the Justice S. Sriskandarajah Memorial Oration in 2015, Professor N. Selvakkumaran emphasised the need to strike an acceptable balance between the rigidity of constitutional structures and the flexibility of constitutional interpretation. He considers this to be of vital importance if a Constitution were to endure real and functional democracy upholding the rule of law and fundamental rights and liberties of the people. In this respect, the judiciary plays a pivotal role in sustaining and promoting democratic governance in the country.



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Lasting solutions require consensus

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Social Media training

Problems and solutions in plural societies like Sri Lanka’s which have deep rooted ethnic, religious and linguistic cleavages require a consciously inclusive approach. A major challenge for any government in Sri Lanka is to correctly identify the problems faced by different groups with strong identities and find solutions to them. The durability of democratic systems in divided societies depends less on electoral victories than on institutionalised inclusion, consultation, and negotiated compromise. When problems are defined only through the lens of a single political formation, even one that enjoys a large electoral mandate, such as obtained by the NPP government, the policy prescriptions derived from that diagnosis will likely overlook the experiences of communities that may remain outside the ruling party. The result could end up being resistance to those policies, uneven implementation and eventual political backlash.

A recent survey done by the National Peace Council (NPC), in Jaffna, in the North, at a focus group discussion for young people on citizen perception in the electoral process, revealed interesting developments. The results of the NPC micro survey support the findings of the national survey by Verite Research that found that government approval rating stood at 65 percent in early February 2026. A majority of the respondents in Jaffna affirm that they feel safer and more fairly treated than in the past. There is a clear improving trend to be seen in some areas, but not in all. This survey of predominantly young and educated respondents shows 78 percent saying livelihood has improved and an equal percentage feeling safe in daily life. 75 percent express satisfaction with the new government and 64 percent believe the state treats their language and culture fairly. These are not insignificant gains in a region that bore the brunt of three decades of war.

Yet the same survey reveals deep reservations that temper this optimism. Only 25 percent are satisfied with the handling of past issues. An equal percentage see no change in land and military related concerns. Most strikingly, almost 90 percent are worried about land being taken without consent for religious purposes. A significant number are uncertain whether the future will be better. These negative sentiments cannot be brushed aside as marginal. They point to unresolved structural questions relating to land rights, demilitarisation, accountability and the locus of political power. If these issues are not addressed sooner rather than later, the current stability may prove fragile. This suggests the need to build consensus with other parties to ensure long-term stability and legitimacy, and the need for partnership to address national issues.

NPP Absence

National or local level problems solving is unlikely to be successful in the longer term if it only proceeds from the thinking of one group of people even if they are the most enlightened. Problem solving requires the engagement of those from different ethno-religious, caste and political backgrounds to get a diversity of ideas and possible solutions. It does not mean getting corrupted or having to give up the good for the worse. It means testing ideas in the public sphere. Legitimacy flows not merely from winning elections but from the quality of public reasoning that precedes decision-making. The experience of successful post-conflict societies shows that long term peace and development are built through dialogue platforms where civil society organisations, political actors, business communities, and local representatives jointly define problems before negotiating policy responses.

As a civil society organisation, the National Peace Council engages in a variety of public activities that focus on awareness and relationship building across communities. Participants in those activities include community leaders, religious clergy, local level government officials and grassroots political party representatives. However, along with other civil society organisations, NPC has been finding it difficult to get the participation of members of the NPP at those events. The excuse given for the absence of ruling party members is that they are too busy as they are involved in a plenitude of activities. The question is whether the ruling party members have too much on their plate or whether it is due to a reluctance to work with others.

The general belief is that those from the ruling party need to get special permission from the party hierarchy for activities organised by groups not under their control. The reluctance of the ruling party to permit its members to join the activities of other organisations may be the concern that they will get ideas that are different from those held by the party leadership. The concern may be that these different ideas will either corrupt the ruling party members or cause dissent within the ranks of the ruling party. But lasting reform in a plural society requires precisely this exposure. If 90 percent of surveyed youth in Jaffna are worried about land issues, then engaging them, rather than shielding party representatives from uncomfortable conversations, is essential for accurate problem identification.

North Star

The Leader of the Lanka Sama Samaja Party (LSSP), Prof Tissa Vitarana, who passed away last week, gave the example for national level problem solving. As a government minister he took on the challenge the protracted ethnic conflict that led to three decades of war. He set his mind on the solution and engaged with all but never veered from his conviction about what the solution would be. This was the North Star to him, said his son to me at his funeral, the direction to which the Compass (Malimawa) pointed at all times. Prof Vitarana held the view that in a diverse and plural society there was a need to devolve power and share power in a structured way between the majority community and minority communities. His example illustrates that engagement does not require ideological capitulation. It requires clarity of purpose combined with openness to dialogue.

The ethnic and religious peace that prevails today owes much to the efforts of people like Prof Vitarana and other like-minded persons and groups which, for many years, engaged as underdogs with those who were more powerful. The commitment to equality of citizenship, non-racism, non-extremism and non-discrimination, upheld by the present government, comes from this foundation. But the NPC survey suggests that symbolic recognition and improved daily safety are not enough. Respondents prioritise personal safety, truth regarding missing persons, return of land, language use and reduction of military involvement. They are also asking for jobs after graduation, local economic opportunity, protection of property rights, and tangible improvements that allow them to remain in Jaffna rather than migrate.

If solutions are to be lasting they cannot be unilaterally imposed by one party on the others. Lasting solutions cannot be unilateral solutions. They must emerge from a shared diagnosis of the country’s deepest problems and from a willingness to address the negative sentiments that persist beneath the surface of cautious optimism. Only then can progress be secured against reversal and anchored in the consent of the wider polity. Engaging with the opposition can help mitigate the hyper-confrontational and divisive political culture of the past. This means that the ruling party needs to consider not only how to protect its existing members by cloistering them from those who think differently but also expand its vision and membership by convincing others to join them in problem solving at multiple levels. This requires engagement and not avoidance or withdrawal.

 

by Jehan Perera

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Unpacking public responses to educational reforms

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A pro-government demonstration calling for the implementation of the education reforms. (A file photo)

As the debate on educational reforms rages, I find it useful to pay as much attention to the reactions they have excited as we do to the content of the reforms. Such reactions are a reflection of how education is understood in our society, and this understanding – along with the priorities it gives rise to – must necessarily be taken into account in education policy, including and especially reform. My aim in this piece, however, is to couple this public engagement with critical reflection on the historical-structural realities that structure our possibilities in the global market, and briefly discuss the role of academics in this endeavour.

Two broad reactions

The reactions to the proposed reforms can be broadly categorised into ‘pro’ and ‘anti’. I will discuss the latter first. Most of the backlash against the reforms seems to be directed at the issue of a gay dating site, accidentally being linked to the Grade 6 English module. While the importance of rigour cannot be overstated in such a process, the sheer volume of the energies concentrated on this is also indicative of how hopelessly homophobic our society is, especially its educators, including those in trade unions. These dispositions are a crucial part of the reason why educational reforms are needed in the first place. If only there was a fraction of the interest in ‘keeping up with the rest of the world’ in terms of IT, skills, and so on, in this area as well!

Then there is the opposition mounted by teachers’ trade unions and others about the process of the reforms not being very democratic, which I (and many others in higher education, as evidenced by a recent statement, available at https://island.lk/general-educational-reforms-to-what-purpose-a-statement-by-state-university-teachers/ ) fully agree with. But I earnestly hope the conversation is not usurped by those wanting to promote heteronormativity, further entrenching bigotry only education itself can save us from. With this important qualification, I, too, believe the government should open up the reform process to the public, rather than just ‘informing’ them of it.

It is unclear both as to why the process had to be behind closed doors, as well as why the government seems to be in a hurry to push the reforms through. Considering other recent developments, like the continued extension of emergency rule, tabling of the Protection of the State from Terrorism Act (PSTA), and proposing a new Authority for the protection of the Central Highlands (as is famously known, Authorities directly come under the Executive, and, therefore, further strengthen the Presidency; a reasonable question would be as to why the existing apparatus cannot be strengthened for this purpose), this appears especially suspect.

Further, according to the Secretary to the MOE Nalaka Kaluwewa: “The full framework for the [education] reforms was already in place [when the Dissanayake government took office]” (https://www.wsws.org/en/articles/2025/08/12/wxua-a12.html, citing The Morning, July 29). Given the ideological inclinations of the former Wickremesinghe government and the IMF negotiations taking place at the time, the continuation of education reforms, initiated in such a context with very little modification, leaves little doubt as to their intent: to facilitate the churning out of cheap labour for the global market (with very little cushioning from external shocks and reproducing global inequalities), while raising enough revenue in the process to service debt.

This process privileges STEM subjects, which are “considered to contribute to higher levels of ‘employability’ among their graduates … With their emphasis on transferable skills and demonstrable competency levels, STEM subjects provide tools that are well suited for the abstraction of labour required by capitalism, particularly at the global level where comparability across a wide array of labour markets matters more than ever before” (my own previous piece in this column on 29 October 2024). Humanities and Social Sciences (HSS) subjects are deprioritised as a result. However, the wisdom of an education policy that is solely focused on responding to the global market has been questioned in this column and elsewhere, both because the global market has no reason to prioritise our needs as well as because such an orientation comes at the cost of a strategy for improving the conditions within Sri Lanka, in all sectors. This is why we need a more emancipatory vision for education geared towards building a fairer society domestically where the fruits of prosperity are enjoyed by all.

The second broad reaction to the reforms is to earnestly embrace them. The reasons behind this need to be taken seriously, although it echoes the mantra of the global market. According to one parent participating in a protest against the halting of the reform process: “The world is moving forward with new inventions and technology, but here in Sri Lanka, our children are still burdened with outdated methods. Opposition politicians send their children to international schools or abroad, while ours depend on free education. Stopping these reforms is the lowest act I’ve seen as a mother” (https://www.newsfirst.lk/2026/01/17/pro-educational-reforms-protests-spread-across-sri-lanka). While it is worth mentioning that it is not only the opposition, nor in fact only politicians, who send their children to international schools and abroad, the point holds. Updating the curriculum to reflect the changing needs of a society will invariably strengthen the case for free education. However, as mentioned before, if not combined with a vision for harnessing education’s emancipatory potential for the country, such a move would simply translate into one of integrating Sri Lanka to the world market to produce cheap labour for the colonial and neocolonial masters.

According to another parent in a similar protest: “Our children were excited about lighter schoolbags and a better future. Now they are left in despair” (https://www.newsfirst.lk/2026/01/17/pro-educational-reforms-protests-spread-across-sri-lanka). Again, a valid concern, but one that seems to be completely buying into the rhetoric of the government. As many pieces in this column have already shown, even though the structure of assessments will shift from exam-heavy to more interim forms of assessment (which is very welcome), the number of modules/subjects will actually increase, pushing a greater, not lesser, workload on students.

A file photo of a satyagraha against education reforms

What kind of education?

The ‘pro’ reactions outlined above stem from valid concerns, and, therefore, need to be taken seriously. Relatedly, we have to keep in mind that opening the process up to public engagement will not necessarily result in some of the outcomes, those particularly in the HSS academic community, would like to see, such as increasing the HSS component in the syllabus, changing weightages assigned to such subjects, reintroducing them to the basket of mandatory subjects, etc., because of the increasing traction of STEM subjects as a surer way to lock in a good future income.

Academics do have a role to play here, though: 1) actively engage with various groups of people to understand their rationales behind supporting or opposing the reforms; 2) reflect on how such preferences are constituted, and what they in turn contribute towards constituting (including the global and local patterns of accumulation and structures of oppression they perpetuate); 3) bring these reflections back into further conversations, enabling a mutually conditioning exchange; 4) collectively work out a plan for reforming education based on the above, preferably in an arrangement that directly informs policy. A reform process informed by such a dialectical exchange, and a system of education based on the results of these reflections, will have greater substantive value while also responding to the changing times.

Two important prerequisites for this kind of endeavour to succeed are that first, academics participate, irrespective of whether they publicly endorsed this government or not, and second, that the government responds with humility and accountability, without denial and shifting the blame on to individuals. While we cannot help the second, we can start with the first.

Conclusion

For a government that came into power riding the wave of ‘system change’, it is perhaps more important than for any other government that these reforms are done for the right reasons, not to mention following the right methods (of consultation and deliberation). For instance, developing soft skills or incorporating vocational education to the curriculum could be done either in a way that reproduces Sri Lanka’s marginality in the global economic order (which is ‘system preservation’), or lays the groundwork to develop a workforce first and foremost for the country, limited as this approach may be. An inextricable concern is what is denoted by ‘the country’ here: a few affluent groups, a majority ethno-religious category, or everyone living here? How we define ‘the country’ will centrally influence how education policy (among others) will be formulated, just as much as the quality of education influences how we – students, teachers, parents, policymakers, bureaucrats, ‘experts’ – think about such categories. That is precisely why more thought should go to education policymaking than perhaps any other sector.

(Hasini Lecamwasam is attached to the Department of Political Science, University of Peradeniya).

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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Chef’s daughter cooking up a storm…

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Emma being congratulated on her debut Sinhala single // Emma Shanaya: At the launch of ‘Sanasum Mawana

Don Sherman was quite a popular figure in the entertainment scene but now he is better known as the Singing Chef and that’s because he turns out some yummy dishes at his restaurant, in Rajagiriya.

However, now the spotlight is gradually focusing on his daughter Emma Shanaya who has turned out to be a very talented singer.

In fact, we have spotlighted her in The Island a couple of times and she is in the limelight, once gain.

When Emma released her debut music video, titled ‘You Made Me Feel,’ the feedback was very encouraging and at that point in time she said “I only want to keep doing bigger and greater things and ‘You Made Me Feel’ is the very first step to a long journey.”

Emma, who resides in Melbourne, Australia, is in Sri Lanka, at the moment, and has released her very first Sinhala single.

“I’m back in Sri Lanka with a brand new single and this time it’s a Sinhalese song … yes, my debut Sinhala song ‘Sanasum Mawana’ (Bloom like a Flower).

“This song is very special to me as I wrote the lyrics in English and then got it translated and re-written by my mother, and my amazing and very talented producer Thilina Boralessa. Thilina also composed the music, and mix and master of the track.”

Emma went on to say that instead of a love song, or a young romance, she wanted to give the Sri Lankan audience a debut song with some meaning and substance that will portray her, not only as an artiste, but as the person she is.

Says Emma: “‘Sanasum Mawana’ is about life, love and the essence of a woman. This song is for the special woman in your life, whether it be your mother, sister, friend, daughter or partner. I personally dedicate this song to my mother. I wouldn’t be where I am right now if it weren’t for her.”

On Friday, 30th January, ‘Sanasum Mawana’ went live on YouTube and all streaming platforms, and just before it went live, she went on to say, they had a wonderful and intimate launch event at her father’s institute/ restaurant, the ‘Don Sherman Institute’ in Rajagiriya.

It was an evening of celebration, good food and great vibes and the event was also an introduction to Emma Shanaya the person and artiste.

Emma also mentioned that she is Sri Lanka for an extended period – a “work holiday”.

“I would like to expand my creativity in Sri Lanka and see the opportunities the island has in store for me. I look forward to singing, modelling, and acting opportunities, and to work with some wonderful people.

“Thank you to everyone that is by my side, supporting me on this new and exciting journey. I can’t wait to bring you more and continue to bloom like a flower.”

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