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Implementing Geneva resolutions

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By Dayantha Laksiri Mendis

“Treaties and Non-treaty instruments are the bones and sinews of global politic, making it possible for states to move from talk through compromise to solemn commitment.”

Professor Thomas M. Frank

Taking Treaties Seriously

[1988] 82 AJIL 67

 

Implementation of the Geneva Resolution is an onerous task. It will encounter various challenges and dilemmas. It requires the establishment of institutional structures and national legislation to give effect to operative part of the Geneva Resolutions. Implementing legislation must not offend the 1978 Constitution and the 1976 Vienna Convention of the Law of Treaties (VCLT 1976)

 

The Geneva Resolutions

The Geneva Resolution can be classified as a non-treaty instrument. It is different from a treaty in many respects (Anthony Aust – Modern Treaty Practice). It does not require the consent of the State to be bound by such Resolutions. It has a preambular and operative part. It is likely to be interpreted in the same way as a treaty by reference to articles 31 and 32 of the VCLT 1969. It resembles the Resolutions of other UN Specialized Agencies such as IMO or ICAO which are of a binding nature.

The proposed Geneva Resolution is likely to be different and devastating for Sri Lanka if it is based on the Report of the UN High Commissioner for HR. If so, it is desirable at this point of time to draft a counter resolution and outline Sri Lanka’s proposals relating to reconciliation and accountability without taking a confrontational approach at this time.

 

Operative part of the Geneva Resolutions

Implementation of the operative part of the Geneva Resolutions can be dealt under four areas. These areas are – (a) Establishment of a Truth-seeking and reconciliation commission; (b) Investigation into violations relating to human rights and international humanitarian law (IHL); (c) Reparation to victims; and (d) Guarantee of non-recurrence. All these areas are seen as an integral part of transitional justice.

 

(a) Truth-seeking and reconciliation

Establishment of a Commission for Truth-seeking and Reconciliation is an important consideration in dealing with transitional justice. It is a sensitive area. It can “open old wounds” and therefore such investigation should not be undertaken in Sri Lanka. It can create “new wounds” that can get festered over a period of time. If so, the situation might become worse for reconciliation.

In South Africa, such a commission was established under National Unity and Reconciliation Act No. 34 of 1995. It was necessary to do so as apartheid was inherently anti-democratic and unjust system perpetrated by a white minority. The global community denounced apartheid with sanctions and recognized the right to self determination by the majority community. In Sri Lanka, LTTE was engaged in an armed conflict to establish a separate state in defiance of the Constitution and International law. The global community proscribed LTTE as a terrorist organisation.

Hence, we should gently reject this requirement in the preambular part by reciting the reasons as outlined above.

 

(b) Investigation into violations relating to human rights and humanitarian law

Geneva Resolutions require investigation into violations relating to human rights and international humanitarian law (IHL). It is a requirement of transitional justice. Investigation should not be restricted to the final phase of the war, where Sri Lankan security forces had to proceed, amidst protests, to save the territorial integrity and sovereignty of Sri Lanka from the tentacles of the rebel forces who used child soldiers and civilians as a human shield

The Resolution requires Sri Lanka to establish a credible domestic mechanism. It must be fair to the accused as well as to the victims. The Resolution requires the inclusion of Commonwealth judges and prosecutors along with national judges and prosecutors. Inclusion of Commonwealth Judges and Prosecutors may encounter political and constitutional issues. In this context, when formulating the Report on Sri Lanka, the UN High Commissioner for Human Rights should read article 46 of VCLT 1969 which says that any treaty or non-treaty instrument should not offend the fundamental principles of the Constitution.

Any investigation relating to violations of human rights law or IHL would be dangerous in Sri Lanka, unless such investigation is conducted as a non-international armed conflict under common article 3 of Geneva conventions 1949.

Unfortunately, in Sri Lanka, the Common Article 3 was not given effect to by the Geneva Conventions Act of 2006. The initial draft Bill prepared by me in 2001 incorporated the provisions relating to Common Article 3 of the Geneva Conventions of 1949 (draft Bill is on file with me) on the advice of the top legal advisers at ICRC headquarters in Geneva. These legal advisers came to the conclusion after consulting Jean Simon Pictet’s five points enshrined in the negotiating record (travaux preparatoires) of the Geneva Conventions 1949 and I was given the go ahead to draft the requisite legislation.

International human rights standards are also not properly transformed into national legislation in Sri Lanka. There are many “deficiencies” and “inconsistencies” in our national legislation. Assistance to and Protection of Victims of Crime and Witnesses Act, No. 4 of 2015 requires substantial amendments.

 

 

 

Unless international human rights standards are properly transformed into the domestic legal system by way of new legislation or amendment to existing law using the correct legislative techniques, any domestic mechanism established for this purpose will not be effective and will not be able to function according to international standards.

Operative part of the resolution will recite that accountability will be determined under common article 3 of the Geneva Conventions of 1949 and therefore national legislation needs to be enacted to incorporate common article 3 of the Geneva Conventions to the existing Geneva Conventions Act 2006 (A draft Bill is annexed as a schedule to this paper to illustrate the requisite amendment).

 

(c) Reparation to victims and tracing missing persons

Reparation to victims is also an important requirement under Geneva Resolutions to promote reconciliation. Legislation has been already enacted to establish a domestic mechanism for such reparation. The amount granted is too small and may be increased in the future.

It does not take into account reparation already provided to victims of war either through legislation or army routine orders or Cabinet Memoranda.

Unfortunately, the civilian victims, especially women who have lost their husbands or children have not been adequately compensated. Hence, there is a great need to compensate civilians who have suffered due to eviction, injuries, unlawful killing and/or and those who have suffered due to suicide bomb attacks. The legislation must clearly identify those who are really entitled to these benefits in the context of the Sri Lanka’s armed conflict.

Operative part should recite the continued implementation of national legislation relating reparation and of missing persons.

 

(d) Guarantee of non-recurrence

Guarantee of non recurrence is a very challenging requirement of the Geneva Resolutions.

In most countries, the reconciliation between ethnic and religious groups are handled by an Ethnic Relations Commissions. In developing countries such as Guyana and Trinidad and Tobago, these Commissions are established through constitutional provisions. These Commissions are empowered by law to take action where there is a threat to ethnic or religious harmony.

These Commissions have produced enormous literature relating to peace, harmony and development and organised drama festivals to promote racial and ethnic reconciliation. I have seen many plays written by Eric Brathwaite in Georgetown and Port of Spain and cried how backward my beloved country is in regard to reconciliation and creating ethnic harmony and unity. We have not understood that national security is ethnic harmony and unity, and ethnic harmony and unity is national security.

These Commissions are empowered to refer any matter to a Tribunal established by legislation. Such matters include “hate speech” or any act which causes ethnic disharmony. Issues relating to burial or cremation regard to those who died from covid19 should be referred to such a Commission and not to politicians or religious bigots

Establishment of an Ethnic Relations Commission and a Tribunal may satisfy the reconciliation requirement, as these Commissions have prevented a fully fledged armed conflict between diverse religious groups and ethnicities in many countries.

Operative Part should recite the establishment of such institutions to make reconciliation more effective and efficient. It can be described as a 13+.Ethnic harmony is national security.

 

Additional requirements

Geneva Resolutions imposes additional requirements. These include the full implementation of the 13th Amendment, reform of the Prevention of Terrorism Act and the Public Security Ordinance. Implementation of the 13th Amendment, PSO and the PTA is part of the “domain reserve” under article 2(7) of the Charter of the United Nations. Hence, such intervention is not fair and legitimate.

 

Impact on State sovereignty

Implementation of the Geneva Resolutions and the recent Report of the HR Commissioner can impact on State sovereignty. In today’s world, State sovereignty is diminished through ratification, accession or succession to treaties. A treaty per defitionem may restrict State sovereignty. However, a non- treaty instrument is not in the same category unless there is express or implied consent to be bound by it. Co-sponsoring gives implied consent

In regard to ratified treaties, a State cannot hide behind state sovereignty to avoid international obligations. International compliance and control measures established by various legal regimes demonstrate that state sovereignty is diminished and the Westphalian Order does not exist anymore in its pristine form.

Implementation of the Resolutions may offend the provisions of the Constitution. In Sri Lanka, the Constitution grants sovereignty to the people and its elements are enshrined under Article 4 of the 1978 Constitution of Sri Lanka. If the legislative implementation of the proposed Resolution offends the Constitution, Sri Lanka should propose an alternative counter resolution which is in harmony with our constitutional provisions.

 

Conclusions

Implementing the Geneva Resolutions is an exacting task. It will encounter many challenges and dilemmas. The draft report evince that High Commissioner has not understood the atrocities committed by the rebel forces or Kadi’s Case in the European Court of Justice on freezing of assets without due process.

High Commissioner has gone on to declare unfairly and wrongly that security forces who saved Sri Lanka’s territorial integrity and sovereignty as enemies of mankind (Hostes Humanis) by subjecting them to universal jurisdiction and International Criminal court. (preambular part).

At this time, we must not forget that President Mahinda Rajapaksa saved the country from the rebel forces. If not for him, the armed conflict would have dragged on for many years. In this context, he was assisted by India, Pakistan, USA and many other countries. He was also assisted by the Defence Secretary, Army Commander and many others. Since then, we have enjoyed freedom from fear and freedom from unlawful killing. (preambular part need to recite this fact).

Geneva Resolution must not be rejected in toto. A rejection might send wrong signals to UN Member States. After all, the UN is the best friend of small and weak States, although the Thucydides’ doctrine (powerful States do what they can and small States must accept what they must) still continue to apply in the conduct of international relations and diplomacy. Notwithstanding the aforementioned phenomenon, the UN has assisted small and weak States in situations where might is not right. Let us engage with quiet diplomacy and convince the international community to go along with our counter resolution. (preambular part needs to recite some of these observations)

Hence, it is necessary to draft a counter resolution and identify how we intend to deal with reconciliation and accountability taking into account ground realities, constitutional provisions and the political ramifications.

We need to understand Morgenthau’s realism in dealing with this vexed issue and not engage in an unnecessary confrontation with Western countries. In my career, I have experienced quiet diplomacy and good reasoning with my Western counterparts at the UN or in diplomatic circles constitute the best tools that lead to victory at the end of the day. Such a strategic approach is important as the victories on the battlefield.

ANNEX

GENEVA CONVENTIONS (AMENDMENT) ACT 2021

 

AN ACT

to amend the Geneva Conventions Act 2006 (No. 4 of 2006); to give effect to common article 3 and for connected matters.

BE IT ENACTED

by the Parliament of ……………

Short title and date of commencement

1. This Act may be cited as the Geneva Conventions (Amendment) Act 2021 and shall come into operation as the Minister may appoint by Order published in the Gazette.

 

Amendment of section 2 of the Act

2. Section 2 of the Geneva Conventions Act No. 4 of 2006 is hereby amended by adding immediately after section 2, the following section 2A.

“2A.(1) A person who in Sri Lanka commits or aids, abets or procures any other person to commit a breach of paragraphs (a), (b), (c) or (d) in sub-article (1) of Common Article 3 of the Conventions as provided in Schedule V to this Act is guilty of an indictable offence.

7

(2) A person who commits an offence under section 2A is liable –

(a) Imprisonment for life or any lesser period where the offence involves the willful killing of a person protected by the relevant Convention; and

(b) Imprisonment for a term not exceeding fourteen years for any other offence.

 

(3) An offence against section 2A shall not be prosecuted in a Court except by indictment in the name of the Attorney General.”

 

Amendment of the Schedules

(3) The Schedules to the Geneva Conventions Act No. 4 of 2006 is hereby amended by inserting immediately after Schedule IV, the following new Schedule V

SCHEDULE V (Section 2A)

CONFLICTS NOT OF AN INTERNATIONAL CHARACTER

In the case of an armed conflict, not of an international character occurring in the territory of the one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions.

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons:

(a) Violence to life and person in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking hostages;

(c) Outrages upon personal dignity in particular humiliating and degrading treatment;

(d) The passing of sentences and carrying out of executions without previous judgment pronounced and regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

 

(2) The wounded and sick shall be collected and cared for.

 

Mendis LLB (Cey), MPhil (Cantab) is former Legal Adviser to the ICRC, Lecturer on IHL at the KDU and University of Colombo, former Ambassador to Austria and Permanent Representative to the UN in Vienna, former UN Legal Expert and Legal Adviser to several Caribbean, African and Asian countries. He has drafted diverse legislation, treaties and non non-treaty instruments at the time he served as Commonwealth Legal Expert to the Caribbean Community Secretariat in Guyana, South America.



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Will new UGC Circular 06/2026 strengthen or weaken open and distance learning in Sri Lanka?

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Balancing Quality Assurance with Educational Access

Sri Lanka’s higher education system has long sought to balance two equally important national objectives: maintaining academic quality while expanding access to university education. Open and Distance Learning (ODL) has been one of the country’s most successful mechanisms for achieving this balance, particularly for working adults, teachers, government officers, rural communities, and thousands of students who were unable to enter conventional degree programmes. In addition to undergraduate and postgraduate degrees, sub-degree qualifications such as Certificate, Diploma, and Higher Diploma programmes have gained remarkable momentum over the past two decades. These programmes have become increasingly popular by providing flexible, affordable, and employment-oriented learning opportunities for school leavers, working professionals, and aspiring entrepreneurs.

With the introduction of the new UGC regulatory framework, these sub-degree programmes also come under a more comprehensive system of oversight. Strengthening quality assurance and protecting academic standards are legitimate policy objectives that can enhance the credibility and recognition of university qualifications. However, the expansion of centralised regulation also raises important questions regarding institutional autonomy, flexibility, and the future growth of Open and Distance Learning.

Globally, higher education is increasingly moving towards greater institutional autonomy, decentralised decision-making, flexible programme delivery, and innovation supported by robust quality assurance mechanisms. Sri Lanka, however, appears to be adopting a more centralised regulatory approach. While greater oversight may improve accountability and consistency, excessive centralization risks reducing institutional flexibility, slowing innovation, increasing administrative burdens, and limiting the ability of universities to respond quickly to emerging educational and labour market needs. The challenge, therefore, is not whether regulation is necessary, but whether it achieves an appropriate balance between ensuring quality and preserving the autonomy and adaptability that have been central to the success of Open and Distance Learning.

Greatest Concern

The greatest concern is whether the new regulatory framework may unintentionally reduce access to higher education, particularly in regional universities that have historically served disadvantaged communities. Universities such as Sabaragamuwa, Uva Wellassa, Rajarata, Wayamba, South Eastern, Eastern and several others were established not only to decentralize higher education but also to stimulate regional development. Their external degree and distance learning programmes have become an important bridge connecting universities with rural populations.

These programmes have enabled thousands of school teachers, public servants, private-sector employees, farmers, entrepreneurs, and young adults from economically disadvantaged families to obtain university qualifications without relocating to major cities. For many families, Open and Distance Learning is not simply another educational option, but also it is the only realistic pathway to higher education.

The sustainability of many Open and Distance Learning (ODL) programmes has faced challenges for several years. Some programmes have struggled to demonstrate strong labour market outcomes, particularly where curricula have not evolved in line with changing industry needs. However, this is only part of the picture. In many disciplines, especially agriculture, agribusiness, community development, media and vocationally oriented fields, diploma and certificate holders have become successful entrepreneurs, agricultural extension workers, and local development leaders. Therefore, the value of external education should not be assessed solely by graduate employment statistics but also by its contribution to entrepreneurship, lifelong learning, rural development, and community empowerment.

Less Discussed Challenge

Another, less discussed challenge is the institutional attitude towards external education. Over the years, Open and Distance Learning programmes have sometimes faced resistance from sections of the university community, including internal student groups, some academics, administrators, and policymakers. Concerns over resource allocation, workload, infrastructure, and institutional priorities have occasionally created tensions between internal and external programmes. Rather than viewing these programmes as complementary components of a university’s mission, they have sometimes been perceived as competing for limited resources. Such perspectives can discourage collaboration and prevent universities from making the most effective use of shared academic expertise, facilities, and infrastructure. As publicly funded institutions, universities have a responsibility to maximise the use of their academic resources for the benefit of society. The challenge is not to choose between internal and external education, but to develop policies that promote equitable resource sharing, mutual respect, and efficient utilization of facilities while maintaining high academic standards for all learners.

Academic staff engaged in Open and Distance Learning (ODL) programmes frequently receive relatively modest remuneration considering the substantial additional responsibilities involved, including course design, online and face-to-face teaching, travel, student mentoring, assessment, and quality assurance activities. In recent years, higher personal income tax rates on additional earnings have further reduced the financial attractiveness of external teaching for many academics. Consequently, some experienced lecturers are becoming increasingly reluctant to participate in ODL programmes, creating a growing challenge for universities in recruiting and retaining qualified teaching staff. If this trend continues without appropriate policy interventions, it may adversely affect the long-term sustainability, quality, and expansion of external education.

There are also concerns that the implementation of the new UGC circular with its additional regulatory requirements and financial ceilings on programme operations and staff remuneration, where applicable may further reduce institutional flexibility and academic participation. If these concerns are not carefully addressed through consultation and periodic policy review, the combined effects of increasing regulatory constraints, financial disincentives, and declining academic participation could undermine the future growth and sustainability of Sri Lanka’s Open and Distance Learning sector. At the same time, programme operating costs have increased substantially due to inflation, technology investments, administrative expenses, and taxation. Consequently, tuition fees have risen, making university education increasingly difficult for lower-income students.

If additional regulatory requirements significantly increase administrative complexity or operating costs without corresponding institutional support, there is a legitimate concern that some programmes may become financially unsustainable. The result could be a gradual reduction in course offerings, fewer academic staff willing to participate, declining student enrolments, and ultimately the closure of programmes that have served rural Sri Lanka for decades. Such an outcome would conflict with one of the fundamental purposes of public universities that to expand educational opportunities beyond urban centres. Quality assurance should never be compromised. Students deserve programmes with qualified academic staff, robust assessment systems, modern learning technologies, and effective student support services. Public confidence in university qualifications depends upon maintaining high academic standards. Nevertheless, quality assurance should function as an enabling framework rather than becoming an administrative barrier. Policies should encourage innovation, flexibility, and accessibility while ensuring accountability. The challenge is therefore not whether regulation is necessary, it certainly is, but whether regulation has been designed with sufficient consideration of institutional diversity. Regional universities operate under financial and human resource constraints that differ considerably from those of larger metropolitan institutions. A uniform regulatory framework may therefore produce unequal consequences across the university system.

Broader socioeconomic impact

Another important consideration is the broader socioeconomic impact. Open and Distance Learning contributes not only to education but also to local economies. Regional study centres create employment opportunities, stimulate local businesses, generate demand for accommodation and transport, and support digital infrastructure development. More importantly, they allow educated professionals to remain within their communities while upgrading their qualifications. In an era where governments emphasize lifelong learning, digital education, workforce reskilling, and inclusive development, policies should strengthen but not unintentionally weaken the national Open and Distance Learning ecosystem.

The University Grants Commission should therefore consider establishing a comprehensive consultative review involving universities, academic staff, students, employers, quality assurance experts, and regional stakeholders before full implementation of major regulatory reforms. Such a review could identify practical adjustments that preserve academic quality while ensuring that regulations remain realistic, affordable, and supportive of institutional sustainability.

Higher education policy should not only regulate universities; it should also empower them to fulfil their national mission. Sri Lanka cannot afford to reduce educational opportunities for those who have the fewest alternatives. For thousands of working adults and rural students, Open and Distance Learning represents hope, opportunity, and social mobility. Any reform affecting that opportunity deserves careful consultation, thoughtful implementation, and continuous evaluation.

The ultimate objective should be clear: to improve quality without sacrificing accessibility, to strengthen accountability without reducing opportunity, and to ensure that Sri Lanka’s universities remain engines of inclusive national development rather than becoming institutions accessible only to those who can afford conventional education.

Disclaimer:

The views expressed in this article are solely those of the author, presented to encourage constructive discussion on higher education policy reforms, and do not necessarily reflect the views or positions of any institution or organization with which the author is affiliated.

About the Writer:

Prof. M. P. S. Magamage is a senior academic at the Sabaragamuwa University of Sri Lanka and a distinguished scholar with extensive international experience. He is a Fulbright Scholar, Indian Science Research Fellow, and Australian Endeavour Fellow, and has served as a Visiting Professor at the University of Nebraska–Lincoln, USA. Beyond his academic achievements, Prof. Magamage has played significant roles in national policy and disaster-related governance, higher education policy development. He can be contacted at magamage@agri.sab.ac.lk.

by Prof. M. P. S. Magamage

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Appleby Plays Chicken

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Tales of Mystery and Suspense 11

After the horrors of modernity and the absurdity of murder in the midst of the preposterous Ballet Stroganoff, I turn to more orthodox crime fiction. It fits into the tradition of the golden age of crime fiction, though it was not published between the wars, but rather in the fifties.

It was a quintessential Oxford book, written by Michael Innes, the pseudonym of the Christ Church English don J I M Stewart. I read it in a quintessentially Oxford setting, the Chalet in the French Alps where in the seventies I had been to several reading parties.

I was not really a Chalet type, for most of the others from the College were from British public schools, blond and athletic, though the patron as we called the Senior Tutor who ran our parties did ask exceptions to add to the mix, such as my fellow classicist Reggie Oliver now well known for collections of horror stories. But they too walked, whereas after my first effort, up the hill to the restaurant hotel which supplied our wine, I said firmly I would not walk again.

So, I would sit in the chalet and read, for it had a wonderful collection of books, dating from the previous century when it had been founded by a famous Balliol don. And last year, when I was asked if I would like to join a party for former Chaletites, I found after I had staggered down to the place from the hotel – now only a restaurant – that it would be best not even to try that short walk until the time came to leave.

Stewart

I had five days of tranquil bliss, marvelling at the two other older men who did walk, but quite content with my books. And having reread a book I had loved half a century earlier, I turned to thrillers of which there was a great collection.

I had enjoyed the few Innes books I had read previously, but this one was new, and apt for it began with a reading party. Appleby Plays Chicken (also known as Death on a Quiet Day) features his favourite detective, Police Commissioner Sir John Appleby. The party was not in the Alps but in a quiet English village, and begins with a game of chicken involving fast driving, which leads the thoughtful undergraduate who sensibly chickened out going for a long walk the following day. During the walk, he comes across a dead body, and realizes that the murderer must be the man he sees walking away on the other side. But he comes up and seems to be helping the boy with the investigation, when he suddenly pulls a gun.

That leads to a long chase over the moors, with other sinister figures popping up, though the last one turns out to be Appleby, who had noticed blood on the shoe of the boy who had been put into an ambulance. Finding himself in a police station, the boy relates what happened, and the two of them go back to the tor, only to find another dead body there. But this belongs to someone else, in fact the man who had appeared on top and pulled out a pistol. And his murderer is on another hill nearby and nearly knocks off Appleby.

He gets away, despite the police cordon Appleby had summoned, and the story moves to the hotel and two strange people there, a man who the students think is a clergyman, and a military man whom Appleby says is a blackmailer. Then a message comes to the don in charge of the party, that his brother, a landowner in the neighbourhood, was missing, presumed drowned.

Meanwhile the supposed clergyman is waiting for his daughter, who it seems was the young lady in a car which seemed to offer refuge to the fugitive boy, but when he next came across it his pursuers had taken it over. A telegram comes from her to say she was staying over with her friends, but the boys realize that it had come from nearby, and they hare off in pursuit.

Appleby and the don and the clergyman and the military man go to the house of the drowned brother and then follow the youngsters to a tower where they believe the girl is being kept. Appleby tells the original young man to go first, and then the others follow, to find the girl and the clergyman and the military man all together there, which leads to a dramatic conclusion, in which the villain falls to his death and the don follows in trying to save him.

It turns out that this is a spy story too, the brother having been blackmailed by the man who killed him when he burnt on the tor the papers that were wanted. Then the mastermind killed the blackmailer, and the don, coming across the bodies, decided that his brother had to disappear, in a bog, to avoid disgrace. He then took his clothes to the shore by his house so that he could be presumed drowned.

And the girl was an accomplice, while the clergyman was the mastermind, which became clear when he fell into the trap of writing a blackmailing letter on the military man’s typewriter. But this was after Appleby had damaged it slightly so the fact that it was typed in the latter’s absence could be identified.

All very complex, and eccentric as Innes is wont to be, but wonderfully exciting, if quite different from the reading parties I was familiar with.

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The Dark Side of Meritocracy

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During the colonial era, Sri Lanka had a stronger economy than Singapore. Over the past seven decades, however, the two countries have followed sharply different paths. Singapore’s rise as a global economic hub is often attributed to three core principles: meritocracy, pragmatism, and honesty.

Critics argue that Sri Lanka’s problems reflect a failure to uphold these principles, a point that needs little proof, as we have seen it all firsthand. Today, there is renewed interest in restoring these values to governance, especially pragmatism and honesty, both of which Sri Lanka urgently needs. Meritocracy, however, is not that simple: the ways merit is assessed and acquired can undermine the very purpose meritocracy is meant to serve. While Sri Lanka must embrace meritocracy, we must take measures to prevent it from drifting into the dark side.

Meritocracy is commonly defined as a social, political, or economic system in which people are chosen for positions based on ability, talent, and effort, collectively called merits, rather than wealth, class, or inherited privilege.

Sri Lanka has a deep-rooted culture that not only tolerates but often venerates inherited privileges such as nepotism—advancement based on family ties or close personal connections; patronage—rewards and positions given in exchange for loyalty or political support; cronyism—favours given to friends or allies, especially in business or politics; aristocracy—power based on inherited status, class, or birth; and oligarchy—power held by a small, privileged group. These are legacies of a long history of monarchy, colonialism, and feudalism. Furthermore, social divisions based on religion, ethnicity, and caste add to the complexity. Our culture has a way of resigning itself to these social injustices by attributing them to fate or bad karma.

These deep-rooted practices have all but replaced meritocracy, causing immense damage to the country’s economy and social fabric. Therefore, adhering to meritocracy seems the obvious thing to do, but there are two unseen problems lurking beneath. First, an individual’s ability to earn merits depends on many factors, and the opportunities for earning merits are not equally available to all, a legacy of our past unjust practices. For those who have less or no opportunities to earn merits, the competition is over even before it begins.

Merit not a single universal quality

Second, “merit” is not a single universal quality. It varies with the job or position. A pilot, teacher, farmer, judge, engineer, and political leader each require different forms of ability, judgment, discipline, and responsibility. Therefore, merit must be assessed according to the demands of the role, not merely by the results of a standard test or formal qualifications, as practiced today. If we practice meritocracy under the present conditions, we will not get the expected outcome: meritocracy. Ironically, a cyclical process.

Therefore, adhering to meritocracy while ignoring the conditions that rob the opportunities to gain merits will only perpetuate unjust and outdated systems under the pretext of fair and progressive reform. Merit is a wonderful way to choose a pilot, but a terrible way to decide who deserves a dignified life.

This is a complex issue, and Sri Lanka has tried to address it in many ways in the past, with questionable, if not disastrous, results. The key point of this analysis is that our definition of merit is narrow and misleading. “Merit” is rarely an objective, universal metric. What one organisation values as merit may differ drastically from another. Our system equates merits or skills with the ability to perform on tests, starting from Grade five through final examinations at university. That is a problem as it does not measure the ability to do a job successfully.

Standard tests measure convergent thinking, that is, finding the single correct answer to a problem, but they completely miss identifying divergent thinking, which involves generating novel, creative solutions where no single answer exists. In other words, it is the ability to be “street smart” when confronted with real life problems that counts. Not the ability to cross the box in a test paper. Convergent thinking can be quantified; that is what test scores provide, and that has become the standard currency of merit in our society. On the other hand, there is no test to quantify the divergent thinking ability needed to solve complex problems on the ground. It is that skill we need to identify and nurture if we are to succeed economically and socially as a country.

The sunset example

A few terms used in relation to this subject need clarification: in the first scenario presented in the illustration, only the person standing on the highest ground can enjoy the sunset. The fence, which may have been erected for safety or as a boundary, blocks the view of the two people on lower ground. This is inequality. If the height of the fence were lowered enough for all three people to see the sunset, as in the second scenario, that would represent formal equality: treating everyone the same, regardless of where they stand. It seems fair, but it has drawbacks.

First, when the fence is lowered, the original purpose of the fence may be compromised or lost. If the fence were built for safety, someone on higher ground could trip and fall over the cliff on the other side. Second, the person on higher ground could still see the sunset for longer than the others. For example, if one person’s position is one foot higher than another’s, he or she could see the sunset about 4.2 seconds longer; if the difference is 1,000 feet, the sunset lasts about 2 minutes and 13 seconds longer. In other words, the person on higher ground still has an inbuilt advantage. This is true in real life as well. In the third scenario, the fence is lowered proportionally. There is an appearance of equality, but the longer sunset enjoyed from higher ground has not been addressed. In the fourth scenario, conditions have been equalized in a more justifiable way.

That is the theory. British sociologist Michael Young is credited with coining the term meritocracy in his 1958 satirical book The Rise of the Meritocracy. He warned that a pure meritocracy could create a permanent, arrogant ruling elite whose members believed they owed all their success solely to their own efforts, while making the lower classes feel entirely responsible for their poverty. Scholars across the developed world are raising concerns about the outcome of true meritocracies, including in our model country, Singapore (Ong Ye Kung, 2018).

Permanent arrogant ruling elite?

Create a permanent, arrogant ruling elite? That is a dire warning we cannot ignore. Such a condition can create new divisions, disrupt national unity, and damage economic development. Sri Lanka has experienced enough of it: two youth uprisings, a civil war, ongoing social tensions, and a failed economy. Let us be clear, deep down, the root cause of these conflicts is the lack of equal opportunities to participate in the country’s economy and earn a decent living. Those with ulterior motives may give different meaning, but that is the reality. We cannot afford repetitions.

Tests that measure convergent thinking ability by asking how quickly one can find the single correct answer to a carefully structured problem. The test taker’s ability to answer such questions does not depend on education alone, but it also depends on family status and support, social background, nutrition, safety, and access to networking. In some cases, geography, disability, caste, ethnicity, religion, and political influence also come into play. Unequal opportunities create unequal merit. Therefore, a purely meritocratic system can appear fair while still rewarding advantages accumulated long before competition begins. When there are so many factors in play, equalising all of them, creating a just environment, let alone the most crucial factor, education, can be a herculean task.

The better alternative is to use a measure of divergent thinking ability, but that presents several problems. Divergent thinking is the thought process used to generate creative ideas by exploring many workable solutions. Instead of looking for a single, correct answer, which is convergent thinking, divergent thinking expands outward in multiple, non-linear directions. It is often spontaneous, free-flowing, and associated with “thinking outside the box.” Convergent thinking ability peaks during early adulthood and diminishes with age, whereas divergent thinking ability increases throughout life. Experience counts. Therefore, to assess divergent thinking ability, it is necessary to observe an individual’s performance while he or she is facing real-life problems over a longer period than what it takes to do a standard test.

Reasons for reassessing the push

Sri Lanka has other reasons for reassessing the push to establish a conventional meritocracy. According to available data, one-fifth of Sri Lanka’s labour force is employed in the public sector, while the rest is divided between the private sector and informal employment in a two-to-three ratio. This means that more than 60% of the labour force consists of small-scale, unregistered family units, subsistence farmers, street vendors, three-wheel drivers, daily-wage laborers, and independent tradespeople such as plumbers, carpenters, and masons. In addition, it is estimated that about 8.6 to 9.2 million Sri Lankans who can work are not actively looking for employment; more than 71% of them are female.

Promised Justice

The promised “justice” of meritocracy does not reach them. For example, the country had been self-sufficient in rice on many occasions, but rice farmers remain trapped in a cycle of enduring poverty with little hope of escape. Sri Lanka’s Inequality Index increased from 37.7 in 2019 to 39.8, reflecting the disproportionate burden on the informal labour force, even though Sri Lanka was declared an Upper-Middle-Income country by the same monitoring organization. Our system does not provide the opportunity for all citizens to participate in the economy, and that is a major hindrance to economic development.

Success and justice require assessing both the convergent and divergent thinking abilities of an individual as an entry requirement as well as during their performance in the position. The private sector practices this, but the current public sector system fails on both counts. The perils of selecting or electing people who are not qualified to do the job do not need explanation. Sadly, that has been Sri Lanka’s legacy. In addition, the current system fails to assess the job performance of elected or selected people and hold them accountable. Public sector jobs are for life. Pay increases and promotions are predetermined and, unlike in the private sector, are not based on performance or productivity.

This is the fundamental reason for needing education reforms. Our education system was first designed to provide clerical support to colonial administrators. Conditions have changed, but the system remains stubbornly unchanged. The education system is not designed to meet the country’s needs. On one hand, it has created a shortage of qualified people to provide essential services. On the other hand, brain drain fulfills the needs of affluent countries at the expense of hard-earned taxpayer money.

University graudates

In this system, higher education has been enlisted in defining merit and conferring the credentials that a market meritocracy rewards, while distorting the mission of higher education. Many university graduates end up in teaching positions when they have no teaching experience. The same applies to university teachers as well. This writer has seen his share of university teachers who would not have tenure if their students were allowed to grade their performance, as happens in most Western countries.

The lack of a system to evaluate employee performance, particularly in the public sector, is a serious error. In the current system, this is the only opportunity to assess divergent thinking ability, or the so-called soft skills and mindset, which, along with hard skills, are crucial in delivering the intended service and achieving personal growth: actual merit. Instead, public sector employees’ promotions and pay increases follow a fixed timetable, irrespective of their performance. This guaranteed-for-life employment system not only eliminates accountability but also kills motivation to do the job well and discourages innovation. Both individuals and the country suffer as a result.

The other drawback is the social devaluation of vocational skills in favour of professional skills—another residue of our feudal past that refuses to go away. This prestige hierarchy places undue emphasis on university education at the expense of vocational training. Both students and parents are under severe pressure to do well at exams, and this creates a wholesale drive to send children to elite schools in the capital and feed a massive tuition industry. This fixation on a few professions fails to recognise the significance of the other vocational professions to the economy.

Professionals may claim that they have invested more in achieving their skills and deserve preferential treatment, but they should not forget that farmers, plantation workers, and domestic workers abroad, to name a few, contribute to maintaining the infrastructure that allows professionals to earn their merit: the ‘moral desert.’ Society must have the decency to recognise their contribution, not in slogans, but by providing them with the means to lead a decent life.

Even under the best of conditions, meritocracy has become another form of hereditary system, much as aristocracy was. Affluent, privileged parents have figured out how to pass their privilege on to their children, not by bequeathing them land or estates, as in aristocratic societies, but by equipping them to compete successfully and get well-paid jobs, particularly in the private sector, and amass wealth. Meritocracy fails because it turns success into a moral claim, breeds arrogance among winners, creates shame among losers, reproduces privilege, and undermines democratic solidarity. Critics see it as a way to whitewash elitism (Sandel 2021, Markovits 2019, Littler 2017, Frank 2016, Guinier 2015).

Shortcomings

On the surface, meritocracy is the right practice. Indeed, meritocracy must be practiced; one cannot hire a mechanic to pilot a plane just because he is well connected. Yet, even under the best of conditions, meritocracy has shortcomings; and efforts to provide justice in earning merit, as shown in the fourth scenario in the illustration, not only unachievable, but it can create new social problems, as we have seen in our own past. Besides, such measures are only temporary, like medication given for an acute illness. They should not remain in place indefinitely. Lasting solutions must honor the dignity of work rather than credential achievement alone. That will also solve the rampant shortage of qualified workers while addressing the issue of brain drain. Most Nordic countries and some Eastern European countries have found their own solutions to this problem.

Nordic approaches may not transfer directly to Sri Lanka, but one conclusion is clear: our education system must be reformed to address these conditions. Sri Lankans spend more on the thriving shadow education system than the education department’s budget, while other pressing issues get neglected, for example, childhood malnutrition. Education should not merely grant credentials of limited value at home while serving affluent countries at taxpayers’ expense. In Singapore, our model country, meritocracy is not a “moral desert” driven solely by exam competition; it is grounded in “national duty.” We have recognised our past mistakes, but solving such a complex problem needs long-term strategic planning. Therefore, now is the right moment to begin a serious dialogue and include the right strategy in our plan for a happy and prosperous nation.

by Geewananda Gunawardana, Ph.D.

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