Features

Healing the nation – A question of leadership

Published

3 years ago

2023/01/1

Thilina Walpola

Deshamanya Dr P.R. Anthonis Memorial Oration

by Dr Nihal Jayawickrama

I am deeply honoured by the invitation of the Lanka-Japan Friendship Society to deliver the Deshamanya Dr P.R. Anthonis Memorial Lecture this evening. I was intrigued by the subject that was assigned to me, since a surgeon’s approach to healing a patient is usually to cut and remove a part of his or her anatomy. I wondered whether I was expected to advocate the same approach to healing the nation.

Coming, as I do, from a family of lawyers, with only one doctor of medicine produced in several generations, it was my brother who knew and worked with Dr Anthonis over many years. Dr Anthonis was one of a small group of brilliant surgeons of the 20th century that included Dr Noel Bartholomeusz and Dr M.V.P. Peries. I have had the good fortune never to have been subjected to Dr Anthonis’s scalpel, but I have had the privilege of meeting him socially, and he always treated me with the utmost kindness. To the memory of that remarkable surgeon, I dedicate my own thoughts on the subject I propose to address, with respect and affection.

‘Healing the Nation – A question of leadership’ immediately raises the question: what is expected of a political leader in a democratic society? Should the leader reflect the views, the fears and the prejudices of the electorate to which he has to return for re-election; or should he determine a path according to his own vision, his own values and his own judgment, and endeavour to lead his electorate along that path? President Jayewardene ruminated on this issue some years after he had left office and wondered how long one could go along with the wishes of the electorate.

A military leader does not have to worry about that, but a democratic leader must because the electors are his main and only support. It was difficult to be re-elected unless the leader continued to enjoy the support of those who had placed him in that position. However, he was willing to make an exception in regard to economic matters where external factors often determined what could or could not be done, however much that might displease the electorate. Incidentally, he had some sound advice for those aspiring to be leaders. Politics, he said, was a “stayers’ race”; a race where a man or woman who does not try to kick his neighbour or jump over him, but stays on till all the others disappear, wins the race. Therefore, he advised aspirants for political leadership that good health was vital: “look after your kidney, nurse your heart, eat little, don’t exercise too much, and in the end, you win the stayer’s race and you become the leader”.

Not being a politician, and not intending to be one at this stage of my life, I am free to disagree with President Jayewardene. I believe that a leader must possess a vision that he pursues with wisdom and integrity, and it is his responsibility to convince his electorate that he is on the right path. At the height of the American civil war, when things were not going well for the North, Abraham Lincoln was advised that he might need to compromise on slavery. Lincoln held firm on the issue of abolition. More recently, Nelson Mandela’s decision to be magnanimous in victory must have enraged tens of thousands of black Africans who had been subjected to oppression and brutality at the hands of the previous white apartheid regime. Yet, both Lincoln and Mandela achieved peace in their respective countries. That, in my view, was the result of leadership.

To establish the parameters for my presentation, I need to define the expression “healing the nation”. To heal is to mend, to reconcile, to rectify, or to restore. It presupposes that the nation is wounded, hurt, or broken. In this context, “the nation” must mean Ceylon or Sri Lanka. However, about a 100 years ago, Anagarika Dharmapala began writing aggressively of the “Sinhala nation”, and in course of time “Sinhala” became the equivalent of “jathiya” or “Lankika”. In 1944, the Communist Party made the first reference to the “Tamil nation”, a term that was finally affirmed in the Vaddukoddai Resolution of 1976.

In the contemporary world, this is not a matter for any real concern. For over several centuries “English” was synonymous with “British”, but today, the nation known as “Great Britain” comprises at least three nations: the English nation, the Scottish nation, and the Welsh nation. Each has a distinct language, religion and a proud culture. Scotland and Wales have their own legislative assemblies and are represented in Westminster in both the Parliament and the Cabinet. Together with Northern Ireland, these three nations constitute the United Kingdom. Similarly, the nation of Sri Lanka includes the Sinhala nation and the Tamil nation and several other communities, and it is to the break-up of that nation that I now turn.

THE BREAK-UP OF THE NATION

When did the break-up of the Sri Lankan nation occur? I would submit that it was not a single event, but a series of events that led to the nation being wounded, hurt or broken. In the first quarter of the 20th century, all the different ethnic communities stood together as Ceylonese in agitating for constitutional reform. However, with the introduction in 1931 of universal adult franchise, and with impending self-government, it was natural that minority communities would become apprehensive of majority rule. There was cause for this. The Sinhala Maha Sabha, established by S.W.R.D. Bandaranaike in 1937, was already engaged in creating a national consciousness among the Sinhalese. Meanwhile, following the election of the second State Council in 1936, the Sinhalese members, together with the European members, succeeded in electing a Board of Ministers that was exclusively Sinhalese – the so-called “Pan-Sinhalese Board of Ministers”.

The 1946 Constitution

The fears of the minority communities were set at rest by the Soulbury Commission which recommended the inclusion in the constitution of a package of safeguards. These were:Multi-member constituencies in those areas in which a substantial racial or religious minority lived.Six nominated members of the House of Representatives to represent any inadequately represented interests.

The Senate, which would serve the minorities as an instrument for impeding precipitate legislation, as well as a forum for handling inflammatory issues in a cooler atmosphere.An independent Public Service Commission which would guarantee strict impartiality in public appointments.A prohibition on Parliament from enacting any law which seeks to make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions were not made liable, or to confer on persons of any community or religion any privilege or advantage which was not conferred on persons of other communities or religions.

The Privy Council observed that these safeguards in the 1946 Constitution represented “the solemn balance of rights between the citizens of Sri Lanka, the fundamental conditions on which they accepted the Constitution; and these are therefore unalterable”.

At the conclusion of the first general election of October 1947, D.S. Senanayake, the leader of the newly formed United National Party which secured 42 of the 95 seats, formed a 14-member Cabinet in which he included two independent Tamils elected from the northern province: C. Sittampalam from Mannar, and C. Suntheralingam from Vavuniya, and one Malay, T.B. Jayah, from Colombo. Was the formation of this multi-ethnic Cabinet an act of leadership on the part of D.S. Senanayake, designed to consolidate the multi-ethnic, multi-religious and multi-linguistic nation of Ceylon? Or was it an act of political expediency to convince the British Government that the fear that the minorities entertained of majority rule no longer existed, and that Ceylon was ready and equipped for independence? I am inclined to the view that Senanayake, during whose tenure our national flag was designed and adopted, and who steered clear of language and religious issues, truly desired to maintain the equilibrium of a multi-ethnic state.

On February 10, 1948, Sir Oliver Goonetilleke, presenting an Address of Thanks on behalf of the Senate to the Duke of Gloucester who had opened the first Parliament of Independent Ceylon, exclaimed:

“We are of many races – Europeans, Indians, Burghers, Malays, Moors, Tamils, and Sinhalese. We are of different religions – Muslims, Christians, Hindus, Buddhists. We have majorities and minorities. We have, however, been in the past, and we shall be in the future, one nation”.

As a 10-year-old Royal College scout “on duty” outside the specially constructed Assembly Hall, and where the Independence Hall now stands, I was present and saw and heard Sir Oliver express that optimistic hope, although I may not have understood much of what he said.

However, on that February day, I returned home and did two things. I made a replica of the Assembly Hall using cardboard strips and colourful chocolate paper as a substitute for the ralipallan. I also began maintaining scrap books in which I pasted the newspaper reports of that event, and thereafter of all the significant events in the country, including the regular Miss Ceylon contests.

Unfortunately, in that “one nation”, the critical events that followed Independence were often determined by political expediency. This was in sharp contrast to the policies of Lee Kuan Yew who created one of Asia’s most peaceful and prosperous nations out of what he described as “a polyglot collection of migrants from China, India, Malaysia, Indonesia and several other parts of Asia”. In barely 30 years, Sri Lanka’s political leaders caused the disintegration of a nation which at Independence had solid foundations of freedom, perhaps more than any other British colony.

Citizenship and Franchise

The new nation’s first target was 211,915 registered Indian Tamil voters. As British subjects who had been continuously resident in Ceylon for at least five years, they were eligible to vote. At the 1947 general election, apart from electing seven candidates of the Ceylon Indian Congress, they had helped to secure the victory of 15 1eft-wing opposition candidates as well. It became a matter of priority for the Government to disenfranchise the Indian Tamil population. Accordingly, Parliament enacted a package of laws which had a profoundly debilitating effect on that community.

The Citizenship Act 1948 established the principle of citizenship by descent, and not by birth, by requiring proof of birth in Ceylon of one’s father, or paternal grandfather and great-grandfather. It thereby deprived the plantation Tamils, 12 per cent or an eighth of the country’s population, of their citizenship. The Indian and Pakistani Residents (Citizenship) Act 1949 made it virtually impossible for them to obtain citizenship by registration since it required proof of uninterrupted residence in Ceylon in the previous 13 years. The Ceylon Parliamentary Elections (Amendment) Act 1949 deprived those who were not citizens of their right to vote, thereby ensuring that by the time of the next general election of 1952, the number of Indian Tamil voters in the seven plantation area constituencies was reduced from 162,212 to a mere 3,191. It became impossible for that community to secure even a single seat in Parliament.

Did the Citizenship Act discriminate against the Indian Tamil community? In my view it did. However, when section 29 of the Constitution was invoked, both the Supreme Court and the Privy Council retreated. In what bore the stamp of classic political judgments they upheld the Act on the ground that it was “a perfectly natural and legitimate function of the legislature to determine the composition of its nationals.” While that may well be so, our Constitution provided that in performing that function, Parliament must not discriminate against a particular community already resident in the country. A million people were thereby rendered stateless.

The problems created by the presence of the Indian Tamils were, of course, sensitive and emotional. Even almost 30 years later, Hector Kobbekaduwa would exclaim, with reference to the 1947 general election:

With universal franchise, the constitution makers thought that the inarticulate peasantry should have their own representatives. But unfortunately, in the hill country, the change was from clay to fire. The Peri Sunderams, the Vythialingams, Natesa Iyers and Fellows-Gordons, and later the Thondamans and Jesudasans and other political adventurers, were swept into power in our areas through the Indian votes. It was a hopeless situation for us. We screamed for justice.

Marginalizing the Tamil community

The substantial disintegration of the nation, however, occurred with a series of politically expedient measures taken by successive governments which were directed at, or had the effect of, marginalizing the Tamil community. These were political decisions that were thought to appeal to the majority of the Sinhalese electorate who believed, as the Mahawamsa claims, that the passing away of the Buddha synchronized with the founding of the Sinhala race; that Sri Lanka was a “Dhamma-dweepa”, a nation brought into being for the specific purpose of keeping alive the message of the Buddha; and had for centuries harboured a historical, yet often dormant, grievance against the Tamils for having settled in a part of this “Dhamma-dweepa”.

One of the earliest of such measures were the government initiated and funded colonization schemes, which at the time appeared to be both timely and desirable. However, they resulted in Sinhalese families from the south being settled in the sparsely populated dry zone in the eastern, north-central and northern provinces. This was viewed by the Tamil community as a diabolical attempt to dilute the Tamil presence and seriously alter the ethnic composition in those provinces. It was argued by Tamil politicians that the government should have first invited the people of the provinces where lands were being distributed to come forward as recipients. Thereafter, people from the other areas would have had their share if there was sufficient land to distribute. This policy, which altered the demographical pattern that existed at the time of Independence, was to lead to violent ethnic conflicts in the colonized areas in later years.

The division of the Sinhalese from the Tamils, commencing at a very young age, began with the implementation of the policy to replace English with Sinhala and Tamil as the medium of instruction in schools. I was fortunate to have entered the primary school before this policy was introduced, and to have had the opportunity to go through school life in the company of fellow students from all the communities and to understand and appreciate their cultures, their strengths, their weaknesses, and their idiosyncrasies. To segregate children from a very young age based on their language was to ensure a permanent division between the two communities through life, with little or no opportunity to interact and understand each other.

That division was compounded when the SLFP and the UNP changed their language policies to that of Sinhala Only as the official language, repudiating one important element of the 1946 constitutional settlement on the basis of which the minorities had agreed to subject themselves to majority rule. For generations, the government clerical service had been a popular outlet for the educated Tamil youth who did not aspire to a university education but sought a habitation and a source of income away from the arid soil of his northern home. He or she was now required to qualify in Sinhala to enter, and thereafter to progress in, the public service.

Between 1977 and 1981, Tamils secured only 4.9 per cent of the vacancies in the government clerical service as against 93.6 per cent for the Sinhalese. The plight they now faced became evident from the case of Kodeeswaran, a Tamil who had been appointed to the General Clerical Service in 1952. He had successfully moved up the salary scale from Rs.1600 to Rs.3780 per annum by regularly passing proficiency tests in Tamil. In 1962, he was denied his increment because he did not present himself for the proficiency test which was now conducted in Sinhala. Many hundreds of Tamil public servants almost certainly found themselves in the same predicament as Kodeeswaran.Kodeeswaran challenged the Official Language Act in the District Court of Colombo. Mr O.L.de Kretser, District Judge, in a carefully considered judgment observed that:

If the members of each community were able to speak, read and write the language of each of the other communities, then it is obvious that the selection of the language of one community as the Official Language could not cause any handicap to the members of the communities whose language was not chosen, however much they resented the fact that their own language was not given pride of place. But every community in Ceylon is not literate in the language of the other communities, and the selection of the language of one community must cause at least inconvenience, if not disability, to the communities who are not literate in that language.

While observing that it was a legitimate function for Parliament to decide in what language official business should be carried on, he concluded that the Act nevertheless gave advantage to one community which the other did not have. Accordingly, he held the Official Language Act to be an infringement of section 29 of the Constitution, and therefore void. Once more, the Supreme Court retreated. Chief Justice H.N.G. Fernando avoided the substantive issue and held instead that a public servant in Ceylon had no right to sue the Crown for the recovery of his wages. On appeal to the Privy Council, the Chief Justice’s judgment was declared to be wrong, and the case was returned to the Supreme Court to address the substantive issue. For some inexplicable reason, the appeal was not listed for hearing until the Official Language Act was incorporated in the 1972 Constitution.

The 1972 Constitution marked the crucial decisive stage in the disintegration of the nation. The 1946 constitutional settlement was unilaterally abrogated. The Senate, the nominated members in the House of Representatives, the Public Service Commission, and the section 29 prohibition of discriminatory legislation were all omitted in the new Constitution, along with the judicial review of legislation. Sinhala was granted constitutional status, and Tamil was described as the language of translation. The issue of federalism was not even allowed to be raised. The Federal Party withdrew from the Constituent Assembly because they believed that they were unable to influence in any effective manner the course of its proceedings.

The most untimely introduction in the 1970s of a policy of standardization in respect of university admission was perhaps the final straw. Intended to secure a more equitable distribution, language and district-wise, of the limited number of places available in universities, it resulted in a large number of Tamil students being denied admission to the universities. The effect of this policy, and the enormity of the injustice it caused to the Tamil community, raised this issue to the level of a major human rights problem.

For instance, in 1975, the admissions on a district basis into the medical faculty were 29 from Galle and 29 from Jaffna, whereas on the basis of merit only 18 had qualified from Galle as against 61 from Jaffna. Similarly, on a district basis, Galle and Jaffna each secured 20 places in the science and engineering faculties, while on the basis of merit, 24 should have entered from Galle and 56 from Jaffna. Nothing could have been more frustrating to the educated Tamil youth than his inability to enter the stream of higher education owing to standardization and be diverted away from the mainstream of life in the country. This feeling of despair and non-fulfilment contributed immensely to the emergence of a militant youth movement. The drift to separation was now both rapid and intense, and accompanied by increasing violence. On 27 July 1975, masked gunmen shot and killed 48-year-old Alfred Duraiyappah, the SLFP Mayor of Jaffna.

The Vaddukkodai Declaration

One year later, at Vaddukkodai, on 14th May 1976, the Tamil United Front, together with the Muslim United Front, declared that:

The Tamils of Ceylon, by virtue of their great language, their religion, their separate culture and heritage, their history of independent existence as a separate state over a distinct territory for several centuries until they were conquered by the armed might of the European invaders, and above all, by their will to exist as a separate entity ruling themselves in their own territory, are a nation distinct and apart from the Sinhalese.

It was indeed ironic that Dr Colvin R. de Silva, the architect of the Constitution that abrogated the 1947 constitutional settlement, should have anticipated that this would happen. Addressing Parliament twenty years earlier this is what he predicted:

Do we, does this House, do our people want two nations? Do we want a single State, or do we want two? Do we want one Ceylon, or do we want two? And above all, do we want an independent Ceylon which must necessarily be a united and single Ceylon, or two bleeding halves of Ceylon which can be gobbled up by every ravaging imperialist monster that may happen to range the Indian Ocean? If we come to the stage where, instead of parity, we, through needless insularity, get into the position of suppressing the Tamil people from the federal demand which seems to be popular amongst them at present – if we are to judge by electoral results – there may emerge separatism.

(To be continued next week)
(This is a slightly condensed version of a speech delivered in Colombo in May 2016)

All News Advertisement

Features

Rebuilding the country requires consultation

Published

8 hours ago

2026/01/13

Sahan Weerasooriya

A positive feature of the government that is emerging is its responsiveness to public opinion. The manner in which it has been responding to the furore over the Grade 6 English Reader, in which a weblink to a gay dating site was inserted, has been constructive. Government leaders have taken pains to explain the mishap and reassure everyone concerned that it was not meant to be there and would be removed. They have been meeting religious prelates, educationists and community leaders. In a context where public trust in institutions has been badly eroded over many years, such responsiveness matters. It signals that the government sees itself as accountable to society, including to parents, teachers, and those concerned about the values transmitted through the school system.

This incident also appears to have strengthened unity within the government. The attempt by some opposition politicians and gender misogynists to pin responsibility for this lapse on Prime Minister Dr Harini Amarasuriya, who is also the Minister of Education, has prompted other senior members of the government to come to her defence. This is contrary to speculation that the powerful JVP component of the government is unhappy with the prime minister. More importantly, it demonstrates an understanding within the government that individual ministers should not be scapegoated for systemic shortcomings. Effective governance depends on collective responsibility and solidarity within the leadership, especially during moments of public controversy.

The continuing important role of the prime minister in the government is evident in her meetings with international dignitaries and also in addressing the general public. Last week she chaired the inaugural meeting of the Presidential Task Force to Rebuild Sri Lanka in the aftermath of Cyclone Ditwah. The composition of the task force once again reflects the responsiveness of the government to public opinion. Unlike previous mechanisms set up by governments, which were either all male or without ethnic minority representation, this one includes both, and also includes civil society representation. Decision-making bodies in which there is diversity are more likely to command public legitimacy.

Task Force

The Presidential Task Force to Rebuild Sri Lanka overlooks eight committees to manage different aspects of the recovery, each headed by a sector minister. These committees will focus on Needs Assessment, Restoration of Public Infrastructure, Housing, Local Economies and Livelihoods, Social Infrastructure, Finance and Funding, Data and Information Systems, and Public Communication. This structure appears comprehensive and well designed. However, experience from post-disaster reconstruction in countries such as Indonesia and Sri Lanka after the 2004 tsunami suggests that institutional design alone does not guarantee success. What matters equally is how far these committees engage with those on the ground and remain open to feedback that may complicate, slow down, or even challenge initial plans.

An option that the task force might wish to consider is to develop a linkage with civil society groups with expertise in the areas that the task force is expected to work. The CSO Collective for Emergency Relief has set up several committees that could be linked to the committees supervised by the task force. Such linkages would not weaken the government’s authority but strengthen it by grounding policy in lived realities. Recent findings emphasise the idea of “co-production”, where state and society jointly shape solutions in which sustainable outcomes often emerge when communities are treated not as passive beneficiaries but as partners in problem-solving.

Cyclone Ditwah destroyed more than physical infrastructure. It also destroyed communities. Some were swallowed by landslides and floods, while many others will need to be moved from their homes as they live in areas vulnerable to future disasters. The trauma of displacement is not merely material but social and psychological. Moving communities to new locations requires careful planning. It is not simply a matter of providing people with houses. They need to be relocated to locations and in a manner that permits communities to live together and to have livelihoods. This will require consultation with those who are displaced. Post-disaster evaluations have acknowledged that relocation schemes imposed without community consent often fail, leading to abandonment of new settlements or the emergence of new forms of marginalisation. Even today, abandoned tsunami housing is to be seen in various places that were affected by the 2004 tsunami.

Malaiyaha Tamils

The large-scale reconstruction that needs to take place in parts of the country most severely affected by Cyclone Ditwah also brings an opportunity to deal with the special problems of the Malaiyaha Tamil population. These are people of recent Indian origin who were unjustly treated at the time of Independence and denied rights of citizenship such as land ownership and the vote. This has been a festering problem and a blot on the conscience of the country. The need to resettle people living in those parts of the hill country which are vulnerable to landslides is an opportunity to do justice by the Malaiyaha Tamil community. Technocratic solutions such as high-rise apartments or English-style townhouses that have or are being contemplated may be cost-effective, but may also be culturally inappropriate and socially disruptive. The task is not simply to build houses but to rebuild communities.

The resettlement of people who have lost their homes and communities requires consultation with them. In the same manner, the education reform programme, of which the textbook controversy is only a small part, too needs to be discussed with concerned stakeholders including school teachers and university faculty. Opening up for discussion does not mean giving up one’s own position or values. Rather, it means recognising that better solutions emerge when different perspectives are heard and negotiated. Consultation takes time and can be frustrating, particularly in contexts of crisis where pressure for quick results is intense. However, solutions developed with stakeholder participation are more resilient and less costly in the long run.

Rebuilding after Cyclone Ditwah, addressing historical injustices faced by the Malaiyaha Tamil community, advancing education reform, changing the electoral system to hold provincial elections without further delay and other challenges facing the government, including national reconciliation, all require dialogue across differences and patience with disagreement. Opening up for discussion is not to give up on one’s own position or values, but to listen, to learn, and to arrive at solutions that have wider acceptance. Consultation needs to be treated as an investment in sustainability and legitimacy and not as an obstacle to rapid decisionmaking. Addressing the problems together, especially engagement with affected parties and those who work with them, offers the best chance of rebuilding not only physical infrastructure but also trust between the government and people in the year ahead.

by Jehan Perera

Features

PSTA: Terrorism without terror continues

Published

8 hours ago

2026/01/13

Sahan Weerasooriya

When the government appointed a committee, led by Rienzie Arsekularatne, Senior President’s Counsel, to draft a new law to replace the Prevention of Terrorism Act (PTA), as promised by the ruling NPP, the writer, in an article published in this journal in July 2025, expressed optimism that, given Arsekularatne’s experience in criminal justice, he would be able to address issues from the perspectives of the State, criminal justice, human rights, suspects, accused, activists, and victims. The draft Protection of the State from Terrorism Act (PSTA), produced by the Committee, has been sharply criticised by individuals and organisations who expected a better outcome that aligns with modern criminal justice and human rights principles.

This article is limited to a discussion of the definition of terrorism. As the writer explained previously, the dangers of an overly broad definition go beyond conviction and increased punishment. Special laws on terrorism allow deviations from standard laws in areas such as preventive detention, arrest, administrative detention, restrictions on judicial decisions regarding bail, lengthy pre-trial detention, the use of confessions, superadded punishments, such as confiscation of property and cancellation of professional licences, banning organisations, and restrictions on publications, among others. The misuse of such laws is not uncommon. Drastic legislation, such as the PTA and emergency regulations, although intended to be used to curb intense violence and deal with emergencies, has been exploited to suppress political opposition.

International Standards

The writer’s basic premise is that, for an act to come within the definition of terrorism, it must either involve “terror” or a “state of intense or overwhelming fear” or be committed to achieve an objective of an individual or organisation that uses “terror” or a “state of intense or overwhelming fear” to realise its aims. The UN General Assembly has accepted that the threshold for a possible general offence of terrorism is the provocation of “a state of terror” (Resolution 60/43). The Parliamentary Assembly of the Council of Europe has taken a similar view, using the phrase “to create a climate of terror.”

In his 2023 report on the implementation of the UN Global Counter-Terrorism Strategy, the Secretary-General warned that vague and overly broad definitions of terrorism in domestic law, often lacking adequate safeguards, violate the principle of legality under international human rights law. He noted that such laws lead to heavy-handed, ineffective, and counterproductive counter-terrorism practices and are frequently misused to target civil society actors and human rights defenders by labelling them as terrorists to obstruct their work.

The United Nations Office on Drugs and Crime (UNODC) has stressed in its Handbook on Criminal Justice Responses to Terrorism that definitions of terrorist acts must use precise and unambiguous language, narrowly define punishable conduct and clearly distinguish it from non-punishable behaviour or offences subject to other penalties. The handbook was developed over several months by a team of international experts, including the writer, and was finalised at a workshop in Vienna.

Anti-Terrorism Bill, 2023

A five-member Bench of the Supreme Court that examined the Anti-Terrorism Bill, 2023, agreed with the petitioners that the definition of terrorism in the Bill was too broad and infringed Article 12(1) of the Constitution, and recommended that an exemption (“carve out”) similar to that used in New Zealand under which “the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person” committed the wrongful acts that would otherwise constitute terrorism.

While recognising the Court’s finding that the definition was too broad, the writer argued, in his previous article, that the political, administrative, and law enforcement cultures of the country concerned are crucial factors to consider. Countries such as New Zealand are well ahead of developing nations, where the risk of misuse is higher, and, therefore, definitions should be narrower, with broader and more precise exemptions. How such a “carve out” would play out in practice is uncertain.

In the Supreme Court, it was submitted that for an act to constitute an offence, under a special law on terrorism, there must be terror unleashed in the commission of the act, or it must be carried out in pursuance of the object of an organisation that uses terror to achieve its objectives. In general, only acts that aim at creating “terror” or a “state of intense or overwhelming fear” should come under the definition of terrorism. There can be terrorism-related acts without violence, for example, when a member of an extremist organisation remotely sabotages an electronic, automated or computerised system in pursuance of the organisation’s goal. But when the same act is committed by, say, a whizz-kid without such a connection, that would be illegal and should be punished, but not under a special law on terrorism. In its determination of the Bill, the Court did not address this submission.

PSTA Proposal

Proposed section 3(1) of the PSTA reads:

Any person who, intentionally or knowingly, commits any act which causes a consequence specified in subsection (2), for the purpose of-

(a) provoking a state of terror;

(b) intimidating the public or any section of the public;

(c) compelling the Government of Sri Lanka, or any other Government, or an international organisation, to do or to abstain from doing any act; or

(d) propagating war, or violating territorial integrity or infringing the sovereignty of Sri Lanka or any other sovereign country, commits the offence of terrorism.

The consequences listed in sub-section (2) include: death; hurt; hostage-taking; abduction or kidnapping; serious damage to any place of public use, any public property, any public or private transportation system or any infrastructure facility or environment; robbery, extortion or theft of public or private property; serious risk to the health and safety of the public or a section of the public; serious obstruction or damage to, or interference with, any electronic or automated or computerised system or network or cyber environment of domains assigned to, or websites registered with such domains assigned to Sri Lanka; destruction of, or serious damage to, religious or cultural property; serious obstruction or damage to, or interference with any electronic, analogue, digital or other wire-linked or wireless transmission system, including signal transmission and any other frequency-based transmission system; without lawful authority, importing, exporting, manufacturing, collecting, obtaining, supplying, trafficking, possessing or using firearms, offensive weapons, ammunition, explosives, articles or things used in the manufacture of explosives or combustible or corrosive substances and biological, chemical, electric, electronic or nuclear weapons, other nuclear explosive devices, nuclear material, radioactive substances, or radiation-emitting devices.

Under section 3(5), “any person who commits an act which constitutes an offence under the nine international treaties on terrorism, ratified by Sri Lanka, also commits the offence of terrorism.” No one would contest that.

The New Zealand “carve-out” is found in sub-section (4): “The fact that a person engages in any protest, advocacy or dissent or engages in any strike, lockout or other industrial action, is not by itself a sufficient basis for inferring that such person (a) commits or attempts, abets, conspires, or prepares to commit the act with the intention or knowledge specified in subsection (1); or (b) is intending to cause or knowingly causes an outcome specified in subsection (2).”

While the Arsekularatne Committee has proposed, including the New Zealand “carve out”, it has ignored a crucial qualification in section 5(2) of that country’s Terrorism Suppression Act, that for an act to be considered a terrorist act, it must be carried out for one or more purposes that are or include advancing “an ideological, political, or religious cause”, with the intention of either intimidating a population or coercing or forcing a government or an international organisation to do or abstain from doing any act.

When the Committee was appointed, the Human Rights Commission of Sri Lanka opined that any new offence with respect to “terrorism” should contain a specific and narrow definition of terrorism, such as the following: “Any person who by the use of force or violence unlawfully targets the civilian population or a segment of the civilian population with the intent to spread fear among such population or segment thereof in furtherance of a political, ideological, or religious cause commits the offence of terrorism”.

The writer submits that, rather than bringing in the requirement of “a political, ideological, or religious cause”, it would be prudent to qualify proposed section 3(1) by the requirement that only acts that aim at creating “terror” or a “state of intense or overwhelming fear” or are carried out to achieve a goal of an individual or organisation that employs “terror” or a “state of intense or overwhelming fear” to attain its objectives should come under the definition of terrorism. Such a threshold is recognised internationally; no “carve out” is then needed, and the concerns of the Human Rights Commission would also be addressed.

by Dr. Jayampathy Wickramaratne
President’s Counsel

Features

ROCK meets REGGAE 2026

Published

8 hours ago

2026/01/13

Sahan Weerasooriya

JAYASRI: From Vienna, Austria

We generally have in our midst the famous JAYASRI twins, Rohitha and Rohan, who are based in Austria but make it a point to entertain their fans in Sri Lanka on a regular basis.

Well, rock and reggae fans get ready for a major happening on 28th February (Oops, a special day where I’m concerned!) as the much-awaited ROCK meets REGGAE event booms into action at the Nelum Pokuna outdoor theatre.

It was seven years ago, in 2019, that the last ROCK meets REGGAE concert was held in Colombo, and then the Covid scene cropped up.

Chitral Somapala with BLACK MAJESTY

This year’s event will feature our rock star Chitral Somapala with the Australian Rock+Metal band BLACK MAJESTY, and the reggae twins Rohitha and Rohan Jayalath with the original JAYASRI – the full band, with seven members from Vienna, Austria.

According to Rohitha, the JAYASRI outfit is enthusiastically looking forward to entertaining music lovers here with their brand of music.

Their playlist for 28th February will consist of the songs they do at festivals in Europe, as well as originals, and also English and Sinhala hits, and selected covers.

Says Rohitha: “We have put up a great team, here in Sri Lanka, to give this event an international setting and maintain high standards, and this will be a great experience for our Sri Lankan music lovers … not only for Rock and Reggae fans. Yes, there will be some opening acts, and many surprises, as well.”

Rohitha, Chitral and Rohan: Big scene at ROCK meets REGGAE

Rohitha and Rohan also conveyed their love and festive blessings to everyone in Sri Lanka, stating “This Christmas was different as our country faced a catastrophic situation and, indeed, it’s a great time to help and share the real love of Jesus Christ by helping the poor, the needy and the homeless people. Let’s RISE UP as a great nation in 2026.”