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Is an air accident a crime?

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Air India Boeing B787 crashing last month

RCyAF/ SLAF, Air Ceylon, Air Lanka, Singapore Airlines Ltd, SriLankan Airlines Ltd. Former Member, Accident Investigation Team CAASL, Organisation of Professional Associations (OPA) Representative for ‘Aviation’

(This article was first published in The Island over 20 years ago. It is reproduced given its relevance to the current situation in the light of the Air India Boeing B787 crash on 12 June 2025.)

HISTORY

In 1852, a Balloonist crashed in France. Although criminal proceedings were contemplated it was declared that since his descent was involuntary, he would be exempt from any court action. Besides that, when he was losing altitude he had shouted for help! When in September 1908, Orville Wright crashed and killed Lt. Thomas E Selfridge (the first Air Crash victim of a powered aircraft), no criminal action was taken against the pilot.

However, as time went on it was not only the birds and fools that flew. Air travel became a big business. Keeping the aircraft flying cost money. More and more aircraft were now traversing the air on inter-continental flights and the equipment got larger. A single accident could kill a large number of people. (An accident, by definition is an event without apparent cause, an unexpected event, an unintentional act, chance, an unfortunate episode or a harmful event.)

Litigation against pilots involved in accidents started in 1956, when a French DC 6 crashed in Cairo, just before landing killing 49 passengers and 3 crew members. (The Crew was on duty for 22 hours!) Eight years later the Captain was found guilty of manslaughter and charged 5,000 francs. This was the first time a Pilot in Command was classified as a “criminal.” The court gave due consideration to the fact that the crew had been on continuous duty for a long time. The recommendations of Annex 13 had been ignored.

Annex 13 to the Chicago Convention pertaining to accident investigation came into force in 1951. It was developed from the original article 26 of 1944. Without question this was a landmark in terms of international cooperation in accident investigation. The Manual of Aircraft Accident Investigation developed from these recommendations outlines the objectives. “It is essential that all those concerned with an accident investigation should appreciate that the object of the investigation is to save lives and damage to property in the future by ascertaining the real causes of the accident and that the inquiry is not being held simply to find the culprit or assess blame.” It goes on to say ” An accident investigator is neither authorized nor required to arrive at findings of “guilty” or “not guilty” his duty is to discover all relevant facts and he has no obligation to fix the guilt, apportion blame, or recommend punishment”.

Now that a precedent was created, many cases were to follow. Capt. Russell F Kane of AerLingus, a practising lawyer, provides the following list.

In 1963, a de Havilland Otter crashed into a mountain in bad weather killing nine people. Two years later the Captain was sentenced to two years imprisonment with a three -year stay of execution of sentence.

In 1964, the pilot in command of a TWA B 707 was charged with criminal negligence. When his aircraft struck a powered roller following an abandoned take off in Rome, Italy. The takeoff was aborted when an engine fire warning sounded. The warning subsequently proved to be false. In the fire following the crash 45 people died. The pilot was later exonerated from criminal responsibility

In 1968, a B 727 crashed in marginal weather on an approach into Taipei. Fifteen people were killed including the wife of the American Captain. The pilots were charged with manslaughter and professional negligence. Their licenses were revoked and they were forbidden to leave Taiwan. The criminal courts acquitted the defendants and released them from jail.

In 1969, a YS 11 slipped off the end of the runway following a landing at Mayasaki Airport in Japan. Seven people were severely injured. The captain was sentenced to one year in prison in 1978 with a three-year stay of the sentence.

In 1972, a YS 11 –A, flown by the co-pilot crashed into the sea during an approach into Athens airport. The Captain was charged with manslaughter but was later acquitted.

In 1972, a DC 8 ran off the side of a runway during takeoff from the Haneda airport, Japan. Fourteen people were injured. The Captain was later sentenced to eight months in prison with a three-year stay of the sentence.

In 1974, in Nairobi, Kenya a Lufthansa B 747 crashed immediately after liftoff. The safety investigation concluded that the leading edge flaps were not extended. Seven years later the Flight Engineer only was tried and acquitted. The German court could not rule out the fact that the impact and the resulting fire had altered the position of the switches.

In 1977, a Caravelle belonging to a Swiss carrier crashed into the sea during a night approach into Funchal in Portuguese Madeira Islands. Thirty-six people died. The pilot in command who was carrying out a routine check on the other pilot was occupying the right seat. Seven and a half years after the accident both pilots were tried in Geneva and found guilty of negligence. The pilot in command was sentenced to two years in prison, the other pilot was sentenced to 18 months. They appealed the court ruling. The sentences were never served because the statute of limitations for prosecuting the pilots had expired.

Capt. Kane observed that the last two cases show that the pilots may be prosecuted in more than one jurisdiction. The state where the accident occurred waived prosecution in favour of the State of Registry.

In 1979 a Swiss DC 8 ran off the end of the runway following a landing at Athens. The Greek investigating body’s report found pilot error to be the only factor contributing to the accident. In January 1982 the pilots were charged. A trial under the criminal code was scheduled for April 1983. Both pilots were found guilty and sentenced to five years and two months in prison. On an appeal supported by the IFALPA the court acquitted the First Officer of all charges and reduced the Captains sentence to three years.

In 1983 following an accident of a B 707 in Ankara, the Captain and Co Pilot were tried under the Turkish criminal law. The outcome of the trial is unknown.

In 1983, an AVENSA DC 9 in Venezuela suffered a fracture of the landing gear resulting in a fatal accident. Their crime was an ILS approach on a NOTAMed unreliable system – a fact of which they were not advised. The failure of the left landing gear, which had been noted to have cracks (contained in the Deferred Defects for over six months), changed a long landing into a fatal accident, The Venezuelan pilots were originally sentenced to fifteen-years, a subsequent appeal reducing the charges to culpable homicide and the sentence to eight years. Eventually the President of Venezuela granted them a pardon.

In 1986 a Captain of a TU134A on a scheduled passenger flight in the Soviet Union reportedly ordered his crew to shutter the cockpit windscreen by taping paper and sunscreen. in place. He wanted to attempt a simulated blind landing. The landing flare began at 25 feet and the Aircraft slammed into the runway, broke into pieces and caught fire. The Captain was tried and found guilty. He received the maximum possible sentence of fifteen years in prison.

In August 1987, a B 737 on a cargo flight hit power lines on takeoff at Mexico City. More than fifty people on a highway were killed. Steps have reportedly been taken towards criminal prosecution.

In Feb 1997 a Sri Lankan Air Force AN 32 aircraft overran the runway, on takeoff at Ratmalana. The Russian Flight Engineer was charged with manslaughter. The Sri Lankan pilot in command who was the longest serving operational pilot never flew with the Air Force again!

The list goes on.

THE CURRENT STATUS

As one can see there is also a big interval of time between the event and the final outcome. Meanwhile the pilot has to put his career on hold and languish in a feeling of guilt. It is also true that many have fallen ill while waiting for the verdict. That is why some say that if the accident does not kill you that the inquiry surely will!

Somewhere in the UK, in a Royal Air Force hangar a sign -board says it all “To err is human but to forgive is not RAF policy!” How true. One must consider oneself lucky to have an incident/accident -free career. Macarthur Job a retired Australian Accident Investigator and Pilot quotes from the Bible “there but for the will of God go I”

For over fifty years Civil Aviation has been subjected to three great international conventions (Chicago, Tokyo and Warsaw). The details of day-to-day operations are organized under nineteen ICAO Annexes and associated guidance material. Unfortunately, many states have chosen not to ratify certain parts of the Conventions and “to declare a difference” with the ICAO Annexes. Once they have done that their local laws will apply in the chosen areas. Many airline pilots today fly legally blind and do not know that between the state of registry and the state where the incident/accident occurred the more restrictive law shall apply. . For example, if one follows the limit of eight hours “between the bottle and the throttle” (the limits of the Sri Lankan Air Navigation Regulations) and has an accident in Mumbai, one will be guilty of flying under the influence of alcohol, as the limits in India are twelve hours between!

All crewmembers who were found guilty were going about their job to the best of their ability. Certainly, the Pilots didn’t fly with the intention of crashing. In contrast, a Surgeon, when he loses a patient on the operating table, is not charged with manslaughter. The big difference is that the Surgeon usually loses one life at a time while the pilot may lose much more sometimes including his own. It is accepted that no other job in the world is regulated to this extent. After obtaining the pilots’ qualifications, they have to prove twice a year that they are healthy enough to fly. They have to prove twice a year that they are qualified to occupy the pilot’s seat to the Licensing authority of their country. They have to demonstrate to the Aviation Authorities’ pilot instructor/supervisor that he can cope with all the emergencies that come their way. They have to prove that they can fly solely with reference to instruments and that they are aware of all the safety procedures of the Cabin crew by an exam once a year. Then they have to prove to their employer that they are flying the airplane in the way the airline wants following their standard operational procedures (SOPs). Apart from this proof of qualification they are subjected to the same over and over again through the course of their careers.

Capt. Laurie Tailor, in his book “Air Travel. How safe is it?” says thus “Some member states of the ICAO follow that (Annex 13) concept, but in other countries the investigation and the following inquiry were regarded as the starting point for the apportioning of blame and subsequent litigation. Procedures that follow can lend themselves to that practice.”

With technical evidence being challenged by persons who are not competent to make assessments as to its value and criminal code legal procedures with the concept of prosecution, defence, hostile witnesses and guilt, taking precedence over finding the cause(s) of the accident and how to prevent a similar accident”

It was just a few days ago we read of a local Magistrate rejecting an official investigation report of a Sri Lankan Air Force helicopter accident with a Minister on board!

This “Old Timer” has seen many pilots being given a hard time by lawyers at inquiries, who are absolutely clueless on technical matters. For instance, questioning in an inquiry to a company B 737 accident in Madras (now Chennai) where one landing gear collapsed proceeded thus:

Inquiring Officer (a retired Judge):

“Capt. Xxxx, When did you know that you were flying to Madras on this flight?”

Captain:

“About two weeks before, when I got my Roster”

Inquiring officer:

“So Capt. Xxxx , I put it to you that you had two full weeks to check the Serviceability of the airplane!!”

Some of these inquiries can get rather hilarious as long as you are not the pilot under investigation! When the Captain of the Swissair crash, at Athens declared that at the latter stages of the rollout that he took over the braking, from the First Officer, the Presiding Judge thought that the Captain and the First Officer changed seats while the aircraft was rolling along the runway!

Another alarming development is the involvement of Law Agencies such as the CID and the FBI in the accident/incident investigations. These parallel investigations sometimes work at cross-purposes. At a law symposium in 1973 concerns were raised because the ‘Law’ was interfering with the accident inquiry in accordance with Annex 13. The Report states, “As just one case in point, consider the situation of the Head of an aviation safety office who found himself in jail one day because he was interfering with the local Police investigation of a particular aviation accident in his own country!” Where there is death and destruction the police assume that it is their duty to carry out independent investigations. This is the story in Sri Lanka. Our DGCA follows the CAA (UK) practice.

Capt. Ian Frow of the British Air Line Pilots Association says, “None of this is new. What is new is the increased enthusiasm for Aviation Authorities around the world to apply criminal sanctions to pilots who make mistakes. Our own CAA is now well down the path. In their case their attitude is encouraged by the Political and Consumer Groups who after Zeebrugge (the cross channel Ferry Boat disaster), Clapham Junction (the Rail crash), various holiday Coach accidents and some events of our Industry are demanding ‘Safer Transport’. Political neglect and under-funding have created a CAA which often has neither the ability nor the will to pursue tough targets like Airlines and Aircraft Manufacturers who are frequently implicated in accidents nominally put down as ‘crew error.’ Instead it takes the soft option and goes after the Flight Deck Crew, who as a group would never consciously act in a manner likely to cause an accident. It is not, however, totally unknown for both Manufacturers and Operators, when Commerce rules, to take a “calculated risk” with Safety”

Does all of this sound familiar?

So, is having an air accident a crime? It certainly looks like it from the front end of the aircraft! This is exactly why Air Safety experts are worried about “signs of the times”. After an accident or incident, the Accident Investigator has to rely on the help of the Pilots involved in the accident to reconstruct the chain of events that led to the event. Now if the Pilots are going to be legally liable they will certainly not give the full story to the Investigator. As someone put it a “damned if you do and damned if you don’t scenario”.

It was only a few days ago that a Captain of an US submarine was requesting immunity from prosecution when giving evidence in an accident with a Japanese Trawler. As expected, the request was not granted.

Unfortunately, many in our Industry assume that airline flying is inherently safe. The truth is while technology improved the “Human Factors” remained the same. It is hard to comprehend that intelligent people in high places think that “punishment” is an effective deterrent.

The Pilot Associations have already put their defenses up. They recommend to their membership to make statements like “Before making a report or statement of any kind, I wish to exercise my right to consult with my Association representative and/or attorney” to be made, after an accident or incident.

A POSSIBLE SOLUTION

The world is not perfect but we could strive for change. Given below is what the IFALPA is asking the ICAO and the lawmakers of the world to accept.

“Evidence given at the technical investigation should be considered as privileged and not be available for use in any subsequent disciplinary, civil, administrative or criminal proceedings nor for any public distribution.”

“Evidence other than the final report should not be made available to any body, which seeks to establish civil, criminal or administrative responsibility or apply disciplinary measures. Nor should any of this information be available for public distribution.”

“Records used in the reporting of near accidents or incidents, voluntary or mandatory, anonymous or not in a voluntary or mandatory system, shall not be made available for the purpose other than accident prevention. In no case shall the identity of the persons involved be disclosed to the public.”

“Any provisions relating to prosecution for violating of Air Navigation Regulations (ANRs) or Criminal Laws should be covered in legislation that is separate from the aircraft accident investigation legislation and, when foreign pilots are involved, should encompass the principal of “Transfer of Prosecution,” where appropriate, to the state in which such pilots were licensed.”

Our National Carriers Air Ceylon, Air Lanka and SriLankan have been extremely fortunate to have not had a “big one” where there was destruction to life and property and the pilots survived. Urgent lobby is needed to get the relevant laws, to protect the pilots from criminal action, into place.

So, until it is realised by all and sundry that criminal action is not the answer to improving Air Safety it is a good idea to plead lack of “mens rea” which simply means, “I did not mean to commit a criminal act Your Honor”

by Gihan Fernando ✍️



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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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