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Proposed Penal Code amendment and threat of promotion of sexual abuse of children – VII

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by Kalyananda Tiranagama

Executive Director
Lawyers for Human Rights and Development
(Part VI of this article appeared in The Island of 19 June 2023)

The Bill proposes to repeal these two Sections. If these two sections in the Penal Code are repealed, then anal sex and homosexual conduct (of male or female) in public or private will no longer be an offence. According to the submissions of the Additional Solicitor General, the repeal of the two provisions will not result in any lacuna in the law, placing the children in a vulnerable situation without any protection against sexual abuse, as the remaining provisions – S. 365B and S. 345 – of the Penal Code will provide adequate protection to the children against sexual abuse.

Let us examine S. 365B and S. 345 – of the Penal Code and see whether they can provide adequate protection to the children against sexual abuse, as submitted by the learned ASG.

S. 365B – Grave sexual abuse:

S. 365B (1) Grave sexual abuse is committed by any person who, for sexual gratification, does any act, by the use of his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363, in circumstances falling under any of the following descriptions, that is to say: – (a) without the consent of the other person;

(aa) with or without the consent of the other person when the other person is under sixteen years of age;

(b) with the consent of the other person while such other person was in lawful or unlawful detention or where that consent has been obtained by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt;

(c) with the consent of the other person where such consent has been obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.

(2) Whoever –

(a) commits grave sexual abuse shall be punished with rigorous imprisonment for a term not less than seven years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person;

(b) commits grave sexual abuse on any person under 18 years of age (on a person between 16 to 18 years – only if committed without consent) shall be punished with rigorous imprisonment for a term not less than ten years and not exceeding twenty years and with fine and shall also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.

Grave sexual abuse dealt with by S. 365B is an act committed by any person, for sexual gratification, using his genitals or any other part of the human body or any instrument on any orifice or part of the body of any other person, being an act which does not amount to rape under S. 363 of the Penal Code.

· Unlike in the case of carnal intercourse against the order of nature and gross indecency, in grave sexual abuse the act itself is not an offence. It becomes an offence only where it is committed (a) with or without consent on a person under 16 years of age; or (b) without consent of the person; or (c) with the consent of the person obtained while such other person was (i) in lawful or unlawful detention or (ii) by use of force, or intimidation or threat of detention or by putting such other person in fear of death or hurt; (iii) with the consent obtained at a time the other person was of unsound mind or was in a state of intoxication induced by alcohol or drugs.

· It is true that, as submitted by the ASG, with regard to any sexual conduct constituting grave sexual abuse, the consent of the child is immaterial where the offence is committed in respect of a child below the age of 16.

· But what about the children in the age group of 16 – 18 years? Are they not children? Are they not entitled to protection by the law against sexual abuse?

· Any person can commit any of the sexual acts mentioned in S. 365B with the consent of any child over 16 years of age.

· S. 365B will not provide any protection to such children and they will be left without any protection and open to abuse.

· Will they get any protection from S. 345 as submitted by the learned ASG. Let us see.

S. 345 – Sexual harassment

S. 345 – Whoever by assault or use of criminal force, sexually harasses another person or by the use of words or actions, causes sexual annoyance or harassment to such other person commits the offence of sexual harassment and shall on conviction be punished with imprisonment of either description for a term which may extend to five years or with fine or both, and may also be ordered to pay compensation of an amount determined by court to the person in respect of whom the offence was committed for injuries caused to such person.

Explanation: 1. Unwelcome sexual advances by words or action used by a person in authority in a working place or any other place shall constitute the offence sexual harassment.

2. For the purpose of this section an assault may include any act that does not amount to rape under S. 363.

· From the words used in the Section like assault or use of criminal force, sexual annoyance or harassment, unwelcome sexual advances for describing the offence, it is crystal clear that S. 345 is not intended to deal with cases of consensual sexual conduct.

· From the explanation given it clearly appears that it is intended to deal with a different type of offence;

· Even where an offender is convicted the Court has the discretion to release the offender with only a fine imposed, without any jail sentence imposed.

· From the lenient penalty laid down in the Section it clearly appears that it cannot protect children from being subject to grave crimes like anal sex.

· Children will not get any protection from S. 345 against gross acts of sexual abuse as submitted by the learned ASG.

** While making submissions before the Court, the learned ASG had stated: ‘‘Even if S. 365A is deleted in its entirety, behaving indecently in public can still be addressed under S. 7(1)(b) of the Vagrants Ordinance as well as S. 261 of the Penal Code, without criminalising a person’s sexuality.’’

*** On an analysis of S. 7(1)(b) of the Vagrants Ordinance and S. 261 of the Penal Code, it appears that the submission of the learned ASG is far from the truth.

Vagrants Ord. S. 7(1)(b):

‘any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place – shall be guilty of an offence and shall be liable on summary conviction to imprisonment of either description for a period not exceeding six months, or to a fine not exceeding one hundred rupees, or to both.

S. 261 of the Penal Code:

A person is guilty of a public nuisance who does any act or is guilty of an illegal omission, which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

· After S. 365A is repealed, gross indecency will no longer be an offence. There is no definition of gross indecency in any penal law. At present the Police can act under S. 7(1)(b) of the Vagrants Ordinance, arrest and prosecute a person committing any act of gross indecency in any public place because gross indecency is an offence punishable under S. 365A of the Penal Code. After S. 365A is repealed, when gross indecency is no longer an offence, how can the Police arrest and prosecute a person under S. 7(1)(b) of the Vagrants Ordinance?

· The Police may end up as respondents in Fundamental Rights Applications for committing an illegal arrest.

· Vagrants Ordinance is not a law enacted to deal with this type of issues; Vagrants Ordinance was enacted in 1841, to deal with problems created by labourers brought from South India to work temporarily in upcountry plantations, who had run away and taken shelter in various places to escape from being sent back to India after their period of work was over. This Ordinance has been amended 11 times before the Independence in 1948.

· It is an Ordinance enacted to deal with following categories of persons: (a) persons behaving riotously or disorderly in public streets; (b) persons who are deemed idle and disorderly persons; (c) persons who are deemed to be rogues and vagabonds; and (d) persons who are deemed to be incorrigible rogues.

· Having no income whatsoever, women belonging to these categories were soliciting men and engaging in prostitution to earn their living. S. 7 of the Vagrants Ordinance is intended to deal with them:

S. 7(1)(a) – any person in or about any public place soliciting any person for the purpose of the commission of any act of illicit sexual intercourse or indecency, whether with the person soliciting or with any other person, whether specified or not;

(b) any person found committing any act of gross indecency or found behaving with gross indecency, in or about any public place.

·Often these acts were committed in public toilets or other places close to bus stands or railway stations or road sides; this term ‘gross indecency’ is used here to cover all types of sexual acts – vaginal sex, anal sex, oral sex, or any other sexual act.

· Generally, it is under S. 7(1) of the Vagrants Ordinance the Police act for arresting street prostitutes and other women loitering at the bus stands and railway stations at night soliciting men for sexual activities and producing them in Courts.

** S. 261 of the Penal Code appears to be equally inapplicable to cover this situation. Only an act which causes any common injury, danger or annoyance to the public or to the people in general dwelling in the vicinity or an act which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right amounts to a public nuisance under this Section.

· Display of a person’s sexual orientation will not necessarily cause injury, obstruction, danger or annoyance to the public.

· If any person engages in sexual intercourse, anal sex, oral sex or any other sexual act or displaying their sexual organs openly in a public place that may necessarily lead to public annoyance.

· No person in his or her senses will engage in sexual intercourse, anal sex, oral sex or any other sexual act or display their sexual organs openly in a public place.

(To be concluded)



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Opinion

Why Sri Lanka needs a National Budget Performance and Evaluation Office

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President Dissanayake presenting Budget 2026 in Parliament

Sri Lanka is now grappling with the aftermath of the one of the gravest natural disasters in recent memory, as Cyclone Ditwah and the associated weather system continue to bring relentless rain, flash floods, and landslides across the country.

In view of the severe disaster situation, Speaker Jagath Wickramaratne had to amend the schedule for the Committee Stage debates on Budget 2026, which was subsequently passed by Parliament. There have been various interpretations of Budget 2026 by economists, the business community, academics, and civil society. Some analyses draw on economic expertise, others reflect social understanding, while certain groups read the budget through political ideology. But with the country now trying to manage a humanitarian and economic emergency, it is clear that fragmented interpretations will not suffice. This is a moment when Sri Lanka needs a unified, responsible, and collective “national reading” of the budget—one that rises above personal or political positions and focuses on safeguarding citizens, restoring stability, and guiding the nation toward recovery.

Budget 2026 is unique for several reasons. To understand it properly, we must “read” it through the lens of Sri Lanka’s current economic realities as well as the fiscal consolidation pathway outlined under the International Monetary Fund programme. Some argue that this Budget reflects a liberal policy orientation, citing several key allocations that support this view: strong investment in human capital, an infrastructure-led growth strategy, targeted support for private enterprise and MSMEs, and an emphasis on fiscal discipline and transparency.

Anyway, it can be argued that it is still too early to categorise the 2026 budget as a fully liberal budget approach, especially when considering the structural realities that continue to shape Sri Lanka’s economy. Still some sectors in Sri Lanka restricted private-sector space, with state dominance. And also, we can witness a weak performance-based management system with no strong KPI-linked monitoring or institutional performance cells. Moreover, the country still maintains a broad subsidy orientation, where extensive welfare transfers may constrain productivity unless they shift toward targeted and time-bound mechanisms. Even though we can see improved tax administration in the recent past, there is a need to have proper tax rationalisation, requiring significant simplification to become broad-based and globally competitive. These factors collectively indicate that, despite certain reform signals, it may be premature to label Budget 2026 as fully liberal in nature.

Overall, Sri Lanka needs to have proper monitoring mechanisms for the budget. Even if it is a liberal type, development, or any type of budget, we need to see how we can have a budget monitoring system.

Establishing a National Budget Performance and Evaluation Office

Whatever the budgets presented during the last seven decades, the implementation of budget proposals can always be mostly considered as around 30-50 %. Sri Lanka needs to have proper budget monitoring mechanisms. This is not only important for the budget but also for all other activities in Sri Lanka. Most of the countries in the world have this, and we can learn many best practices from them.

Establishing a National Budget Performance and Evaluation Office is essential for strengthening Sri Lanka’s fiscal governance and ensuring that public spending delivers measurable value. Such an office would provide an independent, data-driven mechanism to track budget implementation, monitor programme outcomes, and evaluate whether ministries achieve their intended results. Drawing from global best practices—including India’s PFMS-enabled monitoring and OECD programme-based budgeting frameworks—the office would develop clear KPIs, performance scorecards, and annual evaluation reports linked to national priorities. By integrating financial data, output metrics, and policy outcomes, this institution would enable evidence-based decision-making, improve budget credibility, reduce wastage, and foster greater transparency and accountability across the public sector. Ultimately, this would help shift Sri Lanka’s budgeting process from input-focused allocations toward performance-oriented results.

There is an urgent need for a paradigm shift in Sri Lanka’s economy, where export diversification, strengthened governance, and institutional efficiency become essential pillars of reform. Establishing a National Budget Performance and Evaluation Office is a critical step that can help the country address many long-standing challenges related to governance, fiscal discipline, and evidence-based decision-making. Such an institution would create the mechanisms required for transparency, accountability, and performance-focused budgeting. Ultimately, for Sri Lanka to gain greater global recognition and move toward a more stable, credible economic future, every stakeholder must be equipped with the right knowledge, tools, and systems that support disciplined financial management and a respected national identity.

(The writer is a Professor in Management Studies, Open University of Sri Lanka and you can reach Professor Abeysekera at nabey@ou.ac.lk)

by Prof. Nalin Abeysekera ✍️

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Comfort for some, death for others: The reality of climate change

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climate

The recent Cyclone Ditwah struck South and Southeast Asia in an unprecedented way, causing floods, landslides, deaths, displacement of thousands, and severe soil degradation. For many in Sri Lanka, the disaster is seen as a natural event that the government should have anticipated. Yet, the reality is that small countries like ours have little power to prevent disasters of this scale. Despite contributing minimally to global carbon emissions, we are forced to bear the consequences of ecological harm caused largely by wealthier nations. Excessive consumption and profit-driven production in capitalist economies fuel climate change, while the Global South suffers the resulting losses in lives, homes, and livelihoods. The dead, the disappeared, and the displaced from Cyclone Ditwah demand climate justice—a justice that addresses structural inequality, exploitation of nature for profit, and the failure of global powers to take responsibility.

The Role of Excessive Consumption

The environmental crisis is driven by excessive consumption, particularly in developed countries. Cars, electronics, clothing, and other consumer goods require immense energy to produce, much of it from fossil fuels such as coal, gas, and oil. The transportation of raw materials and finished products adds further emissions, while waste from overconsumption ends up in landfills, releasing methane, a potent greenhouse gas. This cycle of consumption, production, and waste underscores a systemic problem: climate change is not merely an environmental issue, but a symptom of an economic system built on profit, not sustainability.

Market-Based “Solutions” and Greenwashing

Neoliberal economies are not silent in the face of climate change—they perform “sustainability” while offering superficial solutions. Many corporations engage in green branding to appear environmentally responsible, even as their practices remain unchanged. Carbon trading, for example, allows companies to buy and sell the right to emit CO₂ under a capped system. While intended to reduce emissions, it often commodifies pollution rather than eliminating it, enabling wealthy actors to continue environmentally harmful practices. Since many developing countries do not strictly enforce carbon caps, wealthy corporations often relocate their factories to these regions. Meanwhile, the burden of “reductions” is shifted to marginalised communities, turning these areas into pollution havens that endure the worst effects of climate disasters despite contributing the least to the problem. Market-based solutions, therefore, frequently reinforce existing inequalities rather than addressing the structural causes of climate change.

International Agreements and Structural Limitations

The global community has reached multiple climate agreements, including the UNFCCC (1992), the Kyoto Protocol (1997), and the Paris Agreement (2015). Yet these agreements remain constrained by capitalist agendas and weak enforcement mechanisms. Most rely on voluntary national commitments, peer pressure, and reporting transparency rather than legally binding obligations. Countries can submit inadequate Nationally Determined Contributions (NDCs) and remain technically compliant, rendering the agreements more symbolic than transformative. While not entirely ineffective, international agreements often prioritise narrative performance over real structural change, allowing wealthy nations to avoid meaningful responsibility for emissions and ecological harm.

Climate Justice and Social Inequalities

Climate change is inseparable from social injustice. Marginalised communities—those affected by poverty, colonial histories, racial discrimination, or gender inequality—face the greatest risks from environmental disasters. These populations generally lack safe housing, and even when warned to evacuate, they have few resources or means to recover from disasters. General climate policies, which have been influcned by capitalist agendas, that focus solely on emissions reduction or “green” initiatives fail to address these deeper inequalities. True climate action must empower communities, redistribute wealth, and integrate social justice with environmental sustainability. Only by tackling the structural drivers of both inequality and ecological harm can we move toward genuine climate justice.

Conclusion

Cyclone Ditwah and other climate disasters are reminders that the effects of environmental degradation are unevenly distributed. The Global South pays a heavy price for the consumption patterns and industrial practices of the Global North. Market-based solutions, superficial sustainability initiatives, and weak international agreements are insufficient to address the systemic roots of climate change. Achieving climate justice requires a fundamental rethinking of economic priorities, social structures, and global responsibility—placing people and the planet above profit.

The author is a postdoctoral fellow at Harvard Divinity School.

by Anushka Kahandagamage ✍️

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Ditwah wake-up call demands a national volunteer community service for rebuilding Sri Lanka

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Volunteers helping disaster victims. (Image courtesy BBC)

The Tsunami of 2004 struck our coasts, but the recent Cyclone Ditwah has delivered an unprecedented blow, devastating and traumatising the entire country. President Anura Kumara Dissanayake rightly called it the “largest and most challenging natural disaster” in Sri Lanka’s history.

The toll is staggering: Over 600 people were confirmed dead, with hundreds still missing. More than 2 million citizens – nearly one in ten people—have been affected. 41,000 to 86,000 houses are damaged or completely destroyed. The damage is widespread, with 22 of the island’s 25 districts declared disaster-affected areas. A provisional economic damage estimate reaching up to USD 7 billion—a figure that instantly consumes about 7% of our national GDP. This was not merely a natural disaster; it was a crisis amplified by systemic failure, culminating in a catastrophe that now demands a radical, long-term policy response.

Unlike the Tsunami, the destruction to our vital inland infrastructure—roads, bridges, railway lines, and power networks—has been colossal, crippling the nation’s ability to recover. Over 25,000 members of the tri-forces have been mobilised, and the nation rightly hails their courageous and relentless efforts in rescue and relief. They should now be graduated from ‘Rana Viruvo’ to RUN VIRUVO considering the efforts they are still putting into the relief operations in this unprecedented calamity. But the scale of the rebuilding effort requires a permanently sustained unified national mechanism, perhaps learning from their rich experiences.

Why did devastation reach this cataclysmic level?

Unlike a sudden earthquake/Tsunami, a cyclone’s path is largely traceable. Yet, the “post-mortem” on Ditwah reveals a horrifying truth: the storm’s devastation was amplified by our own institutional failures.

The India Meteorological Department (IMD) which runs the Regional Specialised Meteorological Centre (RMSC) monitors the oceans in this region and issues alerts for cyclones. It serves all the regional countries — Bangladesh, Maldives, Myanmar, Oman, Pakistan, Sri Lanka and Thailand. The RMSC first predicted the formation of a depression as early as November 13 and issued an alert over the possibility of a cyclone forming on November 20. From November 23 onwards, IMD/RMSC had been routinely sharing frequent weather updates with Sri Lanka.

Robust models from the India Meteorological Department and the RMSC provided ample warnings of the depression and subsequent cyclonic intensification. Some of these predictions by the RMC and even the BBC forecasted rainfall over 300- 400 mm which could go up to even half a meter per day. True to their forecasts, Matale tragically received unprecedented rainfall of around 520 mm, triggering fatal landslides. Ditwah’s impact was worsened by its unusually slow movement over the island which sustained heavy rainfall over several days.

The Governance Gap

The critical breakdown occurred between the scientific prediction and the state’s executive arm. Warnings, if not taken seriously or acted upon, become meaningless data points. The core issue is a fragmented disaster management system that lacks the “unified command structure” required for real-time data sharing and rapid deployment. As one analyst noted, the disaster delivered a hard lesson: we entered one of our worst natural disasters in decades without a functioning national strategy and with a severe deficit in “adaptive capacity.

Scientific forecasts were not translated into an appropriate, urgent disaster preparedness program by the Sri Lankan state apparatus. Public reports indicate that national preparedness was woefully short of what was needed. The warnings failed to translate into a coherent, proactive response into an appropriate disaster preparedness action program on the island. This failure points directly to long-standing institutional deficits.

The Strategic Imperative: Dedicated Workforce for a $7B Recovery

President Anura Kumara Dissanayake rightly emphasised that restoring public life requires a unified operational mechanism that goes beyond normal state administration. To tackle this immense task, the Government has established a ‘Rebuilding Sri Lanka Fund’ to finance the medium- and long-term recovery, including essential infrastructure and public health issues.

This newly established ‘Rebuilding Sri Lanka Fund’ addresses the financial cost, but it does not solve the fundamental manpower crisis which is a key bottleneck in retarding the progress of this formidable undertaking. Rebuilding 247 kilometers of impacted roads, restoring two-thirds of unusable railway lines, clearing hundreds of landslides, and repairing crucial irrigation systems demands a sustained, disciplined, and massive workforce that normal state administration simply cannot provide. Furthermore, with the changing climate, events of this nature and magnitude may be more frequent in the future.

As such, there is a moral call to a strategic imperative. The immediate, ad-hoc spontaneous public volunteerism is commendable, but the scale of the task ahead requires a permanent, non-partisan national investment in human resources. The time for piecemeal recovery programs is over. Ditwah has forced the issue of structural accountability and national capacity onto the policy agenda.

A Call for Mandatory National Service

One of the most responsible paths forward is to utilise this crisis to institutionalise a robust National Service System, transforming a generation of youth into a standing army for climate resilience and nation-building. To fail to do so would be to guarantee that the next storm will bring an even higher price.

Sri Lanka cannot afford to be unprepared again. The solution is to immediately mobilise and, for the long term, institutionalise the patriotic energy of our youth into a robust, structured National Service System. This service should be more than just disaster relief; it is a long-term investment that will:

i) Build the Nation: Provide a rapid-response labour force for future disasters, infrastructure projects, and conservation efforts.

ii) Forge Character: Instill essential skills like discipline, leadership, accountability, and responsibility in our youth, thereby contributing to lower rates of substance abuse and crime.

iii) Strengthen Unity: Promote social cohesion and reinforce national identity by having youth from all backgrounds work together for a common cause.

The legal framework for such a move already exists. The Mobilisation and Supplementary Forces Act, No. 40 of 1985, already gives the government the powers to issue a National Service Order to enlist people in a National Armed Reserve. This mechanism can be adapted to establish a non-military, civilian-focused service.

Sri Lanka already has a government supported National Volunteer Service affiliated to her Social Services Department. It coordinates volunteers, develops management systems, and works with partners like the UN volunteers. This service can be improved and upgraded to tackle challenges in natural and/or human induced disasters which are going to be more frequent with greater intensity, at times.

In the immediate term, the large number of existing volunteers dispersed all over the island need to be engaged as understudy groups, working directly alongside the armed forces and government departments in the recovery process which is already happening in a number of instances.

Ditwah is our wake-up call for longer-term strategic planning and policy reforms. Alongside reacting to catastrophes in a piecemeal manner in the short-term, we must systematically start building a resilient nation with a vision for the future. Investing in a structured, mandatory Civilian National Service is the only way to safeguard our future against the inevitable challenges of climate change and to truly rebuild Sri Lanka.

Globally over 60 countries have national service portfolios mostly of military nature. Both Germany and France have recently reintroduced their national services to meet their own specific needs. In the US, the National Community Service centers around the Corporation for National and Community Service (CNCS), a federal agency that runs programs like AmeriCorps and Senior Corps, mobilising millions of Americans in service to address needs in education, disaster relief, environment, and more, fostering civic duty and offering educational awards for service.

Incorporate National Service into Educational Reforms

We must mobilize our youthful energy into a national service portfolio unique to our own needs giving due recognition to our history, geography and culture. As a long-term investment, this should be initiated while children are still in school, preparing them mentally and physically to contribute to nation-building.

A well-designed National Volunteer Community Service would instill discipline and foster essential skills like leadership, responsibility, and mutual respect, while contributing at the same time to national development. We can tailor this service to tackle our unique challenges in public safety, disaster relief, and environment conservation.

Existing school programmes like scouting and cadeting can be innovatively transformed to lay a sound foundation for this life-changing National Service for all schoolchildren. According to the initial estimates of UNICEF, over 275,000 children are among the 1.4 million people affected both physically and mentally who need careful rehabilitation.

The current educational reforms are an ideal platform to impart crucial values in patriotism and introduce essential skills like time management, discipline, and accountability. This system could not only build successful individuals but also help decrease social issues like substance abuse and crime among youth.

In the immediate future, to meet the demands of the recovery effort now, currently available volunteers should be engaged as understudy groups, working alongside the armed forces and government departments involved in the rebuilding process. The long-term investment in a Mandatory National Service, on the other hand, will strengthen our national identity and contribute to the “unified operational mechanism” the President has called for.

The author can be contacted at nimsavg@gmail.com

by Emeritus Professor
Nimal Gunatilleke

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