Features
REFLECTIONS ON THE LIFE AND TIMES OF LAKSHMAN KADIRGAMAR
by Tissa Jayatillake
From the time I was old enough to cultivate an interest in politics, I have familiarized myself with the life and times of those political personalities I took a liking to. The late Dudley Senanayake (who incidentally died in 1973 a day after Lakshman Kadirgamar’s 41st birthday) was the first I took to and I consider it my loss that I did not have the opportunity to get to know him personally.
Of the several politicians that I have subsequently taken note of, there were two I got particularly close to and they were both, coincidentally enough, Oxonians who happened also to be presidents of the Oxford Union in their time. I refer to Lalith Athulathmudali and Lakshman Kadirgarmar. Athulathmudali did not attend a local university prior to going up to Oxford, as did Kadirgamar. The former’s cake, (to borrow a metaphor from Kadirgamar himself) was not baked at home, unlike that of the latter for whom Oxford was only the icing on his superlative, home-produced, academic confection.
Although Lakshman Kadirgamar and I belonged to two different generations, we shared certain commonalities. Though not of Kandy, we both had our early education in that city (he at Trinity, I at Kingswood) and we were both products of the University of Ceylon, Peradeniya. If memory serves, he was a resident of Arunachalam Hall, which was also where I spent my undergraduate years. He was a ‘citizen of the world’, a Sri Lankan and a Tamil. Likewise I, too, prefer to transcend narrow boundaries and take pride in being in that order, a human resident of this planet, a Sri Lankan, and then a Sinhalese.
I liked Kadirgamar’s academic bent of mind. If he and I were given to clichés, I would have called him ‘a voracious reader’. I should, instead, describe him as a man of books. And many were the times when we compared notes on literary texts we both had read and enjoyed. Not infrequently he telephoned me to double check on a quotation from a Shakespearean play that he wished to include in a lecture or a speech he was writing up. He publicly denounced bribery and corruption in public office, a particular aversion of mine, which is not a safe or fashionable public stance for a politician to take and I admired him for his courageous stand.
Furthermore he was unpretentious, charming, mellow-toned and possessed of a fine if often ironic sense of humour. And there was something else he was proud to be– an outstanding sportsman. The last attribute meant, by definition, that he was by instinct and training, fair-minded. Could one possibly ask for more? My one regret is that I did not get to know Lakshman Kadirgamar as intimately earlier than I actually did. I console myself with the thought that quality ever trumps quantity when it comes to most good things of life. As Ranil Wickremesinghe noted in the course of his tribute to Lakshman Kadirgamar in Parliament, a meal with the late minister offered food for the body as well as the mind. On most occasions a mere chat over a drink with him provided such nourishment for the soul.
Apart from our regular meetings to talk of issues of the day, there were two key projects dear to his heart that brought us together and helped cement our friendship. Given the rich heritage we Sri Lankans are heirs to, Lakshman Kadirgamar was of the view that we should give to the world, as he so aptly put it, ‘something more than just tea, tourism and terrorism’. He thus had a long-term plan to enable Sri Lanka to continue to contribute to the world of culture and the arts as also to the further refinement of international relations and diplomacy. It was his desire to have a book published on a Sri Lankan artist that would be ‘an ideal brand label for Sri Lanka, an image which may be projected all over the world as the face of Sri Lanka in all of its many forms’.
The result of his endeavours in this regard is the monumental and exquisite The World of Stanley Kirinde (2005) authored by Sinharajah Tammita-Delgoda. Having initiated the book project, he next set his sights on the production of an academic journal for the study of politics and diplomacy via the Bandaranaike Centre for International Studies (BCIS) of which he was now chairman. He invited me to serve as editor and together we put in many hours to get International Relations in a Globalizing World (IRGW) off the ground. Lakshman Kadirgamar’s last public act on the evening of that fateful twelfth of August, 2005, was to preside over the ceremony to mark the release of the inaugural issue of IRGW. It was Kadirgamar’s expectation, through the regular publication of IRGW, to raise the level of Sri Lanka’s contribution to diplomacy. All these best-laid plans and goals were shattered on that dreadful August night in 2005. Unfortunately Lakshman Kadirgamar did not live to see (though he saw the finished product and admiringly flipped through its pages) the release of The World of Stanley Kirinde scheduled for 18 August, 2005.
In this tenth year after his death, it is as good a time as any, to assess dispassionately the late foreign minister’s contribution to Sri Lanka and the world, and to imagine the kind of role he might have played had he lived beyond his 73rd year. I consider Lakshman Kadirgamar to be one of the finest twentieth century Sri Lankans and far and away the best foreign minister Sri Lanka has had to- date. He was widely read and intelligent and, at the same time, hard-working and disciplined. He had the courage of his convictions and the inner strength to hold fast to his ideals from his entry into the fickle world of politics in 1994 until his tragic end in 2005.
I tend to view Lakshman Kadirgamar’s performance on the domestic political front less enthusiastically than that of his on the international stage. It is entirely possible that my lukewarm view has less to do with any inadequacy of Kadirgamar’s and more to do with my aversion to realpolitik, especially to its Sri Lankan variety. As I have asserted in an earlier tribute to him (2005), Lakshman Kadirgamar was the quintessential Sri Lankan. Almost a year before his death, in September 2004, he made a profound statement on Japanese National Television (NHK) that encapsulated his credo:
I am first and foremost a citizen of Sri Lanka. I do not carry labels of race or religion or any other label. I would say quite simply that I have grown up with the philosophy that I am a citizen of the world. I do not subscribe to any particular philosophy; I have no fanaticism; I have no communalism. I believe there should be a united Sri Lanka. I believe that all our peoples can live together, they did live together. I think they must in the future learn to live together after this trauma is over. We have four major religions in the country: Buddhism, Islam, Hinduism and Christianity. All these religions exist very peacefully. They get on very well. I see no reason why the major races in the country, the Tamils and the Sinhalese, cannot again build a relationship of confidence and trust. That is my belief.
It is this fervent belief in the essential goodness of his country and fellow citizens that form the cornerstone of his diplomatic labours. It was also the driving force behind his brilliant and spellbinding performance as our foreign minister. I relished in particular the manner in which he finessed the challenge of LTTE terrorism. To say it was primarily Lakshman Kadirgamar’s powers of persuasion and skillful handling of domestic issues and their international ramifications that redeemed Sri Lanka’s sullied image is surely no exaggeration. Dedicated, experienced and effective Sri Lankan Foreign Service personnel played their part in this restoration process, but the helmsman was clearly Lakshman Kadirgamar.
In their measured tributes to a book published in honour of Lakshman Kadirgamar (Roberts: 2012), three seasoned American diplomats I know intimately, Karl (Rick) Inderfurth, Peter Burleigh and Shaun Donnelly who interacted closely with Kadirgamar have testified to the latter’s major successes on the international stage, during his lifetime and even posthumously. Chris Patten, the British politician, reinforces this fact when he notes in the same publication that:
Lakshman Kadirgamar spent much of his diplomatic energy and his formidable eloquence in attempting to persuade foreign governments to proscribe the LTTE in their own countries and stop the raising of funds for terrorism in Sri Lanka. He scorned the ‘Nelsonian’ attitude to terrorism of some countries. He was particularly active in supporting the drafting of the 1997 UN Convention for the Suppression of Terrorist Bombings. The respect he enjoyed internationally meant that his assassination nudged some foreign governments into taking a tougher line in prohibiting active support for the LTTE in their own countries.
Peter Burleigh in a recent personal communication reiterated this foremost aspect of Kadirgamar’s achievement when he noted:
I personally believe that his efforts to get important governments like Australia, the UK and the US to ban money transfers to the LTTE was a key contribution to the long-term effort to defeat the group. And his personal efforts, and effectiveness, in that regard were essential to that success.
Although I recognize that politics may well be the art of the possible, my limited experience of it as a practitioner and deeper awareness of it as student, make me conclude that politics is a murky and dismal business. I have often wondered why men of the sensitivity of Neelan Thiruchelvam and Lakshman Kadirgamar ever took to politics. In a statement over national television in 1994, Lakshman Kadirgamar spelt out his reasons for doing so. I quote below the operative paragraph of that statement:
I have had a privileged life by birth, by education, by access to opportunities, and I have always felt that a time must come when you must give something back to the society in which you have grown up and from which you have taken so much. So-called educated people must not shirk responsibilities in public life. I have reached that stage in life when, without being heroic about it, I feel I should participate more fully in public life.
Whilst not taking anything away from his invaluable and splendid contribution as foreign minister, I remain convinced that he could have given more back to the society from which, by his own admission, he had taken so much by opting for a different if less glamorous public role than that of a high visibility politician. As with similarly gifted men as S.W.R.D Bandaranaike, N.M Perera, Pieter Keuneman, Felix Dias Bandaranaike and Lalith Athulathmudali before him, I am left with the nagging feeling that his stint in politics somehow diminished Lakshman Kadirgamar in the end. Such diminution as occurred may well have been due to the corrosive nature of politics and not due to any inherent flaw in Kadirgamar’s character.
Perhaps he permitted his colleagues and his party to exploit his standing in society and his professional stature when he decided ‘without being heroic about it. . . [to] participate fully in public life’. Be this as it may, I remain disappointed by the narrow political role he played in the difficult and often acrimonious days of Sri Lanka’s French-style co-habitation government. This was the period between December 2001 and April 2004, when Kadirgamar’s party leader, Chandrika Kumaratunga, despite her party being out of power, was yet the constitutional head of government whilst Ranil Wickremesinghe as prime minister was in effective control of Parliament. Kadirgamar now was assigned the role of advisor to the president on international affairs, with Tyronne Fernando occupying the portfolio of foreign affairs.
On becoming prime minister in February 2002, Ranil Wickremesinghe entered into a Ceasefire Agreement (CFA) with the Liberation Tigers of Tamil Eelam (LTTE). The CFA was brokered by the Norwegians, who were at the time involved in Sri Lanka’s peace process, and Wickremesinghe presented his cabinet and his president with a fait accompli. Although initially Kadirgamar’s statement in Parliament in 2002 in response to that of the prime minister reflected a refreshing degree of constructive cooperation, a little over a year later in a speech in Parliament on 8 May, 2003, doubtless on the authority of President Kumaratunga and the Parliamentary Group of the People’s Alliance, Kadirgamar attacked the CFA arguing that it was ‘a structurally flawed document’. Clearly Kadirgamar was here being sucked into petty politics as borne out by a subsequent observation of General Satish Nambiar, the well-known Indian strategic expert engaged by the government of Sri Lanka at that time. In a communication in January 2010 dealing with that fraught situation of 2003, Nambiar refers to a one-on-one lengthy meeting he had with Kadirgamar during his last visit to Sri Lanka in 2003. In the course of that meeting Nambiar had told Kadirgamar that he was hurt by the suggestions made by some of Kadirgamar’s party members that he [Nambiar] was manipulating his report. Nambiar comments:
[Kadirgamar’s]disarming response was typical of him: that I should allow for the politics of the situation where the parties will use any means to put the ruling dispensation on the defensive. [Roberts: p. 204]
When one reads Kadirgamar’s 8 May, 2003 speech in hindsight, one clearly recognizes that his arguments against the CFA are not without merit. But the key point that needs emphasis here is that by being a willing party to political manipulation of something as highly sensitive as the CFA, Kadirgamar had begun to slip somewhat from the lofty pedestal of statesmanship he had been on hitherto. In the process, Kadirgamar and his political companions failed to give any credit whatsoever or even the benefit of the doubt to Wickremesinghe.
We now know though that through the CFA the LTTE were led into a corner and to peace negotiations, with some even referring to it as ‘a peace trap’. Wickremesinghe’s CFA, for all of its ‘structural flaws’, was as much a ploy as was the Kumaratunga government’s 1998 decision to use the Norwegians as ‘facilitators’ in the unofficial conversations between the then government and the LTTE. And, yet, Kumaratunga and her paarty were now opposing, seemingly for the sake of opposition, the Norwegians (their ‘facilitators’) and Wickremesinghe, for the signing of the CFA with Kadirgamar lending his forensic debating skills for the cause in Parliament. A similar but less nationally harmful political misjudgement was Kadirgamar’s decision, despite sincere and pragmatic advice against the move from close associates, to contest the incumbent Secretary- General of the Commonwealth in 2003. He was roundly defeated by 40 to 11.
On balance, Kadirgamar’s overall achievement as politician and foreign minister, despite blemishes referred to above, is marvellous. Unlike the average gifted person who tends to rest on his laurels, Kadirgamar was exceedingly hard-working from beginning to end. Like a good lawyer, he always studied his brief well and, like a good sportsman, he was ever thorough in his preparation. It is this careful preparation in combination with his ability and flair that made Kadirgamar who he was. He was consistent and relentless in his opposition to political violence which he saw as a threat ‘to the stability within and between states throughout the world’.
Well before the cataclysmic ‘9/11’, he warned western governments of the dangers of terrorism and called for joint action to deal with the scourge. Among his several notable speeches on the problems of terrorism, perhaps the most influential was that he made at Chatham House, London, on 15 April, 1998 at a meeting held under the auspices of the Royal Institute of International Affairs and the International Foundation of Sri Lankans. ‘[A] terrorist act’,Kadirgamar asserted at Chatham House, ‘is seen as an attack on society as a whole, on democratic institutions, on the democratic way of life. A terrorist attack is an act of war against society’.
In similar vein was his lecture delivered on 13 September, 2010 at The Potomac Institute of Policy Studies in Washington D.C., approximately a year before ‘9/11’. Kadirgamar was thus resolute in his principled opposition to the use of violence as a means of seeking political gain, both at home and abroad. At the same time, he recognized our need to address the underlying causes that lead communities to acts of violence. Hence much as he decried the political violence of the LTTE, he did recognize the need for social and political justice to those marginalized citizens in our midst. In this context, the following remarks he made during an interview he gave to Business Today (Colombo, March 1997, p.20) are most salutary:
[T]he ultimate, permanent, durable solution to this problem will not come from force of arms alone. It will not come from conquest or our vanquishing the LTTE. It has to come by acceptance of the people in their entirety, by the Sinhala and the Tamil people. That is a political settlement. And, a political settlement that is perceived by the communities, by the majority and the minorities, to be fair and just. It must be a settlement that is enshrined in law, and it must be enshrined in the hearts of the people.
Thus Kadirgamar’s opposition to violence was both principled and pragmatic. However, he did not allow his justifiable antipathy to violence to ensnare Sri Lanka’s collective future. Lakshman Kadirgamar was no narrow nationalist. In pursuing a solution to the crisis of nation-building in Sri Lanka, he did not take a partisan stance. He was Sri Lankan to the core.
A tragedy in Lakshman Kadirgamar’s life and career is that neither the zealots among the Sinhalese who mourned his untimely death and cheered him on in life nor their counterparts within the Tamil community who rejoiced in his death and vilified him in life understood or yet understand the man. The Sinhala zealots mistook his opposition to the separatist extremism of the LTTE as a sign of his ‘pro-Sinhalaness’. The moral inadequacy of the zealots amongst the Tamils made it impossible for them to understand Kadirgamar’s heartfelt aversion to ethnic labels. It also led them to their erroneous conclusion that Kadirgamar’s championing of an overarching Sri Lankan identity was an act of political expediency at best and a manifestation of ‘anti-Tamilness’ at worst. The continuing tragedy of Sri Lanka is that there are too many amongst us who think and feel like these zealots referred to above. So long as Sri Lanka holds within it men and women of such a tribal mindset, so long will it remain a blighted country.
It is true that Lakshman Kadirgamar had high political ambitions and that he was keen on becoming prime minister on being approached to don that mantle. He would have, deservedly in my view, been our first Tamil prime minister had plans worked out. In fairness to him, the fact that he did not jockey for the post of prime minister bears repetition. I was then, and am now more so of the view, that the conferment of the prime ministership on Lakshman Kadirgamar, however interim an appointment it might have been, would have been good for Kadirgamar and for Sri Lanka.
I am also confident that had he yet been amongst us after the military defeat of the Tamil Tigers in May 2009, Kadirgamar would have played a cardinal role in recreating a feeling of Sri Lankanness in our society that transcends religion and ethnicity without endangering the multi-faceted personality of our country. His quiet but effective contribution in assisting the government in the restoration of the Jaffna public library is illustrative of the kind of effort he would have put in on behalf of national resuscitation and regeneration.
Lakshman Kadirgamar was ‘a scholar-statesman who was both a realist and idealist’. Despite the deleterious impact of politics on him, his years in our national legislature served to raise the level of political discourse, both at home and abroad, several notches higher. He will be remembered by future generations of Sri Lankans for the values and principles he lived and died for.
Features
Independence of the judiciary, democratic governance, and dismantling of the executive presidency:
the basis for drafting a new constitution
By Savitri Goonesekere
( This is an edited version of the transcript of a talk given at a public seminar titled ‘Why should we rally for a new people’s constitution?’, held at the National Library Auditorium on 11 September 2026 and organised by the Young Lawyers’ Association. )
Today there is so much confusion: what is Constitutionalism? What is a Constitution? Why do we need a Constitution? We must recognise that, it has been civil society, including professionals in this country, who have always articulated a voice on issues of public concern. If you remember the time of COVID, we had the medical professionals articulating a voice because this was a matter of public concern. So, the Bar Association, too, has expressed views on public concerns. We have with us this evening, President’s Counsel Mr. M. A. Sumanthiran, and Mr. Geoffrey Alagaratnam, and we will have President’s Counsel Mr. Saliya Pieris, who will join us later.
They and many other leading lawyers have always led from the front. And in that regard, in the case of the legal profession, inevitably there are areas of public concern that necessarily mean that they have to call the government to account. When that happens, the Bar Association is required to question government’s action or inaction including their policies
Now, in the past, I don’t think it was as bad as today, because today we have such adversarial, confrontational politics that if by any chance—and an unlucky chance—the Opposition’s stand on a matter happens to coincide with that of professionals, then there’s a delegitimisation of the professionals. That is wrong because professionals must have the courage to speak for their profession, even when they question the government. Constitutionalism and Constitution-making, to be functional, must have bipartisan consensus. When that is not there, even professionals who articulate a voice are seen as either anti-government, against government, or worse, lackeys of the government.
I think citizens should be aware of these realities, and therefore reflect on what it means to have a Constitution. What is a Constitution? A Constitution is, after all, the basic law of a country which will regulate the governance system. And to regulate a governance system, you have to have a framework for governance. The framework for governance also then will have to have institutions of governance. That would be what you call the system of governance. Now, those institutions of governance also have to be embedded and linked with some values, and a values framework.
In the 20th and 21st centuries, we have basically two forms or frameworks of governance. One is Democracy. The other is what we call centralised power with perhaps a single leader. That kind of governance does not focus in the way that Democracy does on the Sovereignty of the people, the rights and liberties of citizens of the country. Therefore, we need to understand in Constitution-making where we stand. Is it going to be for Democracy or is it going to be for another form of government? And I say this because today we’re constantly talking of the Democratic deficit, the failures of Democracy. Contrasted with that are countries which have strong leadership, single leadership, supposed to propel our counties into economic growth and a wonderful future.
In that context, therefore, we need to ask ourselves: what is the value in Democracy? Now Democracy, we must understand, was born of an evolutionary framework developed from a time when there was single leadership by a king, a monarch. Democracy didn’t come overnight. It had to dismantle monarchy and single leadership, and that’s what it did. Historically we know that basic ideas on Democracy as a form of governance can be traced to the Greek civilisation and time of what we call the Western Enlightenment. It was the Western Enlightenment that brought together these ideas of the Sovereignty of the People, a social contract between government and the People who are governed, and the central importance of the People of a country. That is Democracy. That did not come overnight. It took centuries. It took ideologies. It took thought. It required struggle born also of blood and tears.
Today we dismiss Democracy and this history and say, “Oh, it is elitist liberalism.” But we must not forget that Democracy was born as an evolution from monarchy and single leadership, replacing this with the concept of government that respected the rights of the Sovereign people. The central importance of the Sovereign Peoples rights to be protected from abuse of state power is the foundation of democracy as a form of governance. The European countries and the UK engaged with that system of governance.
By 1948, when the UN Charter and the International instruments were drafted, there were two different approaches to governance. One was the Western tradition born of their experience evolving from monarchy to People’s rights and People’s sovereignty that focused on civil liberties: freedom from torture, freedom of speech, freedom of expression, freedom to protest—those are civil liberties. But the weakness was that there was no recognition of social and economic rights as the rights of the people: that was absent in that tradition.
On the other hand, there were member states from the Communist countries, which had the centralized, authoritarian system of governance. They did not recognise civil liberties, but focused on meeting all their people’s social and economic needs as rights: health, education, shelter.
In 1948, we must remember that there were therefore two major international treaties or covenants: one, a Covenant on Civil and Political rights, and another one on Economic and Social rights. That was the Cold War period. But then subsequently through the years, there were changes. In the 1990s, there was the flowering of the human rights tradition. Member states of the UN came together at the Vienna World Conference in 1993, which then recognized that ALL these rights should be human rights of peoples across the globe
So, the Western liberal civil liberties tradition, linked with that of the countries of the Global South like Malaysia, China, and Russia—which recognized and gave importance to social and economic rights. And then a consensus developed that ALL these rights are important; they are “indivisible.” We witnessed this in the 1990s, and the early years of this millennium in the development of many international Conventions which declared human rights on the basis of both civil liberties and social and economic rights.
One would have thought that we would achieve a global consensus on the broadening of the meaning of democracy and a movement away from this concept of strong leadership without civil liberties. But we have not had that. In place of that, we have had a decline in multilateralism in the UN system, giving way to bilateralism, once again back to this focus on two systems: Democracy or strong single leadership.
In this global context, let us compare the situation in countries like ours, which experienced decolonization: countries which knew the impact of colonialism. What happened in those countries? These civil liberties, the legacy of the colonial powers, were used in freedom struggles. They were used to dismantle colonialism. That is why the idea that this liberal tradition of civil rights is a colonial white man’s sudda-law should be challenged. Because this is not so. These countries of South Asia and Africa internalised the values of Democracy, the systems of governance known as Democracy, and built for their nations Constitutions which recognized the importance of civil liberties and control of state power And you see this in India, you see this in Nepal, you see this in Sri Lanka: we had the same concepts of the importance of civil liberties in Constitutionalism. But we focussed on civil liberties. Social and economic rights in the Vienna Convention were considered only as social policies, following the Western tradition on people’s rights.
And what is the meaning of Constitutionalism? The Sovereign people have given their consent to the rulers to rule subject to protection of THEIR rights. And that means that Constitutionalism must prevent the abuse of State and Government power. . Today sometimes we talk of authoritarian Constitutionalism, we talk of abusive Constitutionalism. That’s a contradiction. If Constitutionalism is to prevent abuse of state, government power, you can’t have authoritarian constitutionalism or abusive constitutionalism. What you can say is you can abuse of constitution making process to embed an authoritarian system of governance.
So, we must now, therefore, recognise that even today, if we say there’s a Democratic deficit, this system of governance has been used in our countries to give a better quality of life to our people. There have been failures; there are dysfunctional areas, but that does not mean you have to reject something which has been a powerful force for recognising the importance of the citizens of a country.
I think today when we are challenged with all this talk on the deficit of democracy, the importance of single leadership and authoritarian governance to deliver development, we must stay the course and say: “No, for Sri Lanka, from 1948 we have had Democratic governance.” Governments have not delivered in many areas—true—so the challenge is to focus on Constitutionalism in a new Constitution. Priority must be given to help the government to deliver on the gaps that we have, and ensure the well-being of our people. Constitutionalism must be the basis for drafting a new constitution.
I think we have to also challenge this often-repeated statement that we have a “78-year curse” in governance. We have had deficiencies, but we have had Democratic governance. Central to that has been regular elections and the resilience of the People. Also, the contribution of the courts of this country, the lawyers of this country in ensuring that there has been some accountability in governance.
Some of you may not remember, but I have lived through dark times. I have witnessed the horror of the murder of a dear student, a politician whose head was cut off by the JVP—the Deshapremi at that time—and stuck on his gate. He had young children. I have gone with my husband in dark curfew streets to help clear a body for burial, where the first person who opened the poll, a relative, was killed at the General Election the JVP prohibited.
So, we in this country have lived through dark times. But we also have moved from that dark past to a point where those involved in an armed struggle the JVP entered into the democratic political process. They did so in 1994. Having come into that political process, the Democratic process, it is a commitment made to the people. We must hold this government with its JVP partner to deliver on Democracy, and not any other system of governance.
Let us look at our history of Constitutionalism and Constitution making. What is our history? 1948: we had the parliamentary system. We had, particularly in relation to the minorities, decisions of the appeal courts which have been criticised, which did not take into account minority rights. So, there were deficiencies. But we had a written constitution, we had courts, we had public administration and law enforcement systems that functioned. That was the dividend of post-independence freedom and political autonomy in Sri Lanka.
Then in 1972: with a massive mandate, we had a government which again brought in the 1972 “autochthonous” or home grown constitution. But what did it do? In fact, it interpreted the Sovereignty of the People as the Sovereignty of Parliament and parliamentarians. And that made Democracy dysfunctional. There is a recorded history of the abuse of power that took place at the time, including the conflict with the courts.
Now change was promised in 1978 Constitution. The people gave a massive mandate for a Dharmishta anduwa. And then what happened ? Again, we put in place all the democratic institutions as we know them, the system of democracy familiar in the liberal tradition. But a huge gap was the aggrandizement of power in the strong Executive Presidency, which has led to decades of problems in the governance of this country.
The Executive Presidency of 1978 has destabilised what were good public institutions. It has contributed to an ethos where, in institutions, the person who is considered the boss is supposed to lead, and everybody else does not question him/her. That happens in the public sector today in many institutions, and I’m told (and it looks like it does) that sometimes this also happens in the private sector. So, we have developed what you call a boss-man culture which seeps down to society, not just public institutions and governance. The Executive Presidency, therefore, has contributed to the weakening of many public institutions and also, to a large extent, a culture of corruption, and abuse of power.
This decline has been understood, and because it has been understood, since the year 2000 we have been asking for a new Constitution that will eliminate the Executive Presidency. Successive political leaders including the current President and their political parties have pledged in election manifestos to do this. At least the Chandrika Bandaranaike government fulfilled that promise and brought such a constitution in 2000 to abolish the Executive Presidency and strengthen the democratic institutions to achieve accountable governance to the People. Unfortunately, a subsequent and recent executive President and his party tore that Constitution to shreds in Parliament. That was 2000.
(To be continued)
Features
Coercive laws recipe for future misrule
by Jehan Perera
The NPP government is going after powerful figures from the past and present who have engaged in corruption, fraud and criminal activity in a way that no previous government in Sri Lanka has done. Former ministers, politicians and senior state officials are among those facing investigations and legal proceedings. The government has placed before Parliament a document listing 50 cases involving corruption, fraud and other crimes. These include not only financial offences but also cases relating to the Easter Sunday attacks, the killings of Lasantha Wickrematunge and Wasim Thajudeen, the disappearance of Prageeth Ekneligoda and attacks on journalists Keith Noyahr and Upali Tennakoon.
The significance of this effort is that it can demonstrate that nobody is above the law, regardless of political connections or social standing, which will help restore public confidence in institutions that have long been distrusted. It could also recover public resources, improve the investment climate and strengthen the foundations for a more prosperous and just Sri Lanka. When criticised for focusing on the past and not the present, the government position is that these investigations were initiated under earlier governments, particularly between 2015 and 2019, and that it is now allowing investigators to proceed to deal with the backlog without political interference.
But there is an aspect of the government’s approach that is less justifiable. While pursuing past wrongdoing by powerful individuals, it is also advancing a triumvirate of draft laws that could give the state sweeping powers over citizens, organisations and dissent in the present and future. The draft Prevention of Terrorism legislation, the Prevention of Organised Crimes Bill and the NGO Registration and Supervision Bill raise serious questions about the over-centralisation of power. Each of these laws strengthens the powers of the state while weakening the rights and safeguards that protect people from their misuse and thus questions the basic rights of people in democracy where ‘the power of the people is vested in the government’. This is a recipe for future misrule rather than the rule of law. As the well-known saying goes, power corrupts and absolute power corrupts absolutely.
Proposed Laws
The real test of system change, for which the government obtained an overwhelming mandate, requires not only a government willing to hold others accountable, but one prepared to subject itself to the same principles of legality, transparency and restraint. The three proposed laws that are particularly important in this regard are the Protection of the State from Terrorism Bill, the Prevention of Organised Crimes Bill and the NGO Registration and Supervision Bill. Each of these draft laws has been presented as serving a legitimate purpose. Preventing terrorism, combating organised crime and ensuring that NGOs do not facilitate money laundering or terrorist financing are proper responsibilities of the state. Sri Lanka has international obligations in these areas, and no responsible government can disregard them. However, the existence of a legitimate objective does not justify every means adopted to achieve it.
The proposed Protection of the State from Terrorism Bill illustrates the problem. Although its definition of terrorism draws on a model developed by a former United Nations Special Rapporteur, the Human Rights Commission of Sri Lanka has warned that the definition of terrorism extends beyond the model and could bring legitimate political protest, trade union action and civil disobedience within the scope of counter-terrorism legislation. Its concerns also include prolonged detention, inadequate judicial oversight and restrictions on access to legal counsel. These are objections that go to the heart of the relationship between the citizen and the state. The government cannot credibly promise to protect democratic freedoms while creating powers that could be used to restrict them. It is necessary for the government to reassess the draft through transparent consultation and revise provisions that could criminalise legitimate dissent.
The Prevention of Organised Crimes Bill raises similar concerns. It is presented as giving effect to the United Nations Convention against Transnational Organised Crime, which Sri Lanka ratified in 2006. The Centre for Policy Alternatives (CPA) has argued that the convention does not require many of the bill’s provisions. The proposed law extends to a broad range of offences, permits detention orders lasting up to a year, makes confessions to police admissible for purposes of legal evidence, and introduces extensive surveillance powers. A law intended to dismantle criminal networks should not create a parallel system of exceptional powers that could be applied far beyond organised crime. Nor should safeguards developed through years of experience with abuses under the Prevention of Terrorism Act be weakened through legislation bearing a different name. The government should review whether or not existing laws could be used effectively to control these crimes or whether each exceptional power is necessary.
Civil Society
The proposed NGO Registration and Supervision Bill presents another test of the government’s intentions. The government may reasonably seek transparency in the finances of organisations receiving public or foreign funds, including measures to prevent money laundering and terrorist financing. It seeks to justify its overreach on the grounds of meeting the internationally mandated requirements of the Financial Action Task Force (FATF) for the Asia-Pacific region. But these objectives do not justify placing civil society and NGOs under excessive administrative control when even the FATF ranks them as low to medium risks. The draft bill would require registration and renewal, impose extensive obligations on organisations and empower authorities to suspend or deregister them on broadly framed grounds. It is important to redraft provisions that confer excessive discretion over registration, renewal, suspension and deregistration of NGOs.
Among the concerns raised by United Nations human rights special rapporteurs with regard to the draft NGO law are provisions requiring organisations to align with government policies and restrictions that could affect advocacy, dissent and freedom of association. The implications extend well beyond organisations that engage directly with the government. Community groups, human rights organisations, independent researchers and organisations working on reconciliation or accountability could find their activities constrained by uncertainty over how these provisions might be interpreted. Organisations that criticise government policies are not thereby working against the country. Their freedom to do so is part of what distinguishes a democracy from a system in which the government determines which opinions and activities are acceptable.
The government has generated considerable public goodwill through its pursuit of corruption and criminality. It should not assume that this goodwill gives it an unlimited mandate to strengthen the coercive powers of the state. The NPP knows from its own history that governments can treat dissent as a threat and use the machinery of the state against their opponents. There is still time to correct the drafts through transparent public consultation, narrow definitions of offences, meaningful judicial control over detention and surveillance, and effective remedies against arbitrary decisions. A government that pursues corruption while weakening safeguards against state abuse risks undermining its own achievements. Besides bringing to light the abuse of power by previous governments, the NPP government needs to build a system in which no future government can abuse power in the belief they can get away with it.
Features
Quality assurance without quality enhancement: The irony of university QA
By Ramya Kumar
According to the Quality Assurance Council (QAC) of the University Grants Commission (UGC), quality assurance (QA) refers to “the means (i.e. the policies, attitudes, actions, procedures, etc.), by which an institution can guarantee with confidence and certainty, that the standards and quality of its educational provision are being maintained and enhanced”.
An expansive structure has been in place since 2005 to govern and implement QA processes within the state university system. The QAC is the focal point at the UGC that implements external reviews of state universities and institutes. Each university has its own Centre for Quality Assurance (CQA) tasked with performing QA in line with QAC directives. Faculties, in turn, have Internal Quality Assurance Cells (IQAC) performing their own QA; they are answerable to the CQA.
The big question is whether this all-encompassing top-down QA system, that in many ways undermines the internal dynamics of university governance, actually supports universities to enhance the quality of education. This article highlights some concerns.
Top-down check-box activities
The QAC conducts external reviews of universities and degree programmes. A review team appointed by the UGC (who may or may not have experience in the institution/programme in question) examines the self-evaluation report submitted by the said institution/programme. The team then conducts a site visit to verify the claims made in the university’s self-evaluation report, clarify issues identified during the desk review, and examine how QA procedures operate in practice. The team holds meetings with the university administration, members of the Council and Senate, Deans, Heads of Departments, academic and non-academic staff, students, and others. Following the visit, a draft report is submitted to the relevant institution/programme for comment before final publication. The reviewed institution/programme then prepares and publishes an action plan addressing the recommendations, with subsequent monitoring of progress.
There are some worthy QA initiatives under implementation, such as improving facilities for students with disabilities and strengthening mechanisms to address sexual- and gender-based violence. However, for the most part, QA activities have little to do with improving the quality of education. They are mostly preoccupied with monitoring faculty and department websites, digital transformation, student feedback, subject evaluation, course evaluation, peer evaluation, and, more recently, staff appraisal. These activities, which consume an inordinate amount of time—so precious at understaffed universities—have become check-box activities completed to generate evidence for the next review. Below is an excerpt of a conversation between two academics (1 and 2) that conveys how QA plays out at universities (reproduced with permission).
1: … .it’s like social media you know, like posting things on Facebook or twitter or Instagram. When people do a lot of social media, everything they do, they do thinking, “okay I’m going to post it in this way… this I have to put on my Instagram.” QA is a little like that… everything is considered in light of, “ah we can use this for the review, as evidence… for example very recently we were encouraged to have all the things that we do in our department in the faculty newsletter so then they can put in the review. Every little thing has to be noted down….
2: And with pictures and all…
1: At the very least it has to be written so that you have written evidence .. you can’t be doing something for the sake of doing something or because it is good for the department … and sometimes people tell me “oh yea that’s a good idea we can fit that under this x, y section of the review..”
2: Yea, and nobody really thinks about the actual outcome… whether it’s actually helping anyone..
1: I also find that a lot of the words that we used in different ways have now been co-opted to the QA discourse ..including quality.. I can’t actually say what I want as an “outcome”, for example, that the outcome of this workshop is that my students “think about” … then I am told “ah but no that’s not one of the Bloom’s taxonomy words, “think about”.…
2: And the worst part is these medical and agriculture people, these types of people go around spreading it like some kind of gospel!
1: Yea, this cookie cutter way of doing things, they think is the height of innovativeness or creativity, when actually it is so mundane … for me the most awful thing about it is like some fungus of mundanity has taken over through QA reviews.
2: yea, when you say QA, my mind closes off immediately and I stop listening…
Auditing everything but power
QA leaves out crucial aspects of university governance. For instance, there is no review or assessment of the “quality” of university administrations under Criterion 1 or the integrity of procedures governing the promotion of academic staff under Criterion 6 of the institutional reviews.
The majority in the Council—the university’s executive and governing body, which is responsible for selecting the Vice-Chancellor (VC)—are appointed in ad hoc fashion. Apart from the Ex-Officio members in the Council (VC, Deans, etc.), and the two members elected by the Senate, the remainder are appointed by the UGC with no formal consultation or vetting procedure. The VC appointment process described in UGC Circular No. 03/2023 exemplifies how an ostensibly technical process can become entangled in political sycophancy. The Registrar invites applications for the position of VC through advertisement. Applicants must submit a curriculum vitae, a statement of vision for the university and supporting documents. The University Council appoints a three-member Search Committee of senior academics to encourage “eminent persons” to apply, while the UGC appoints a former VC from another university to “observe” the selection process.
A Special Meeting of the University Council is convened. Candidates are interviewed and must make a presentation to the Council Members, followed by questions. Each Council member “gives marks” for seven prescribed criteria: strategic focus (20%), effective leadership (20%), holistic thinking/conceptual skills (10%), academic and research excellence (15%), personal integrity (10%), professional communication (10%) and managerial competence (15%). Marks are averaged, and the Council recommends three candidates to the UGC in rank order. The UGC-appointed observer separately submits a confidential report on the selection process.
This procedure is expected to guarantee quality, but does it? Applications are submitted to the Council Members, who have been appointed on questionable bases, and who are expected to review the applications and give scores, based on objective assessments. But, in reality, most Council Members are manipulated by VC candidates, who often have personal ties with them. The UGC-appointed observer usually has no genuine interest in the outcome. And there is no way for anyone to actually question the Council’s decision once it is made. Although the highest-ranked candidate may ultimately be appointed, the selection remains a political decision made by the President, who retains the discretion to appoint any one of the three.
External reviews also do not look into the promotions of academic staff, except to scrutinise whether there are policies and procedures in place to govern promotion. Academic staff may apply for promotion to Professor once they satisfy the prescribed eligibility requirements, which typically include the period of service, academic qualifications, research and publication achievements, teaching experience, and contributions to the university and wider community. Applications are evaluated against specified criteria, with research output and academic contributions assessed through documentary evidence and expert evaluation. Under the UGC’s scheme for Professors, two experts from outside the applicant’s institution assess specified aspects of research and knowledge dissemination. Again, beneath this technical process, which is externally evaluated, lies a problematic points-based scheme that can be manipulated and abused with impunity.
Rethinking university QA
Like the VC election process and the schemes of promotion for academic staff, QA reviews are open to manipulation. Before a review, there is a chaotic rush to complete evidence gathering and reporting. Academics leave all other work aside, including at times their teaching, to focus on completing documentation and preparing reports. The standardised criteria in the review manuals and scoring sheets often do not reflect differences in disciplines and institutional contexts. But this does not really matter because any serious problems experienced by institutions or programmes are hastily brushed under the carpet to conceal any evidence that could taint the review. The goal is to obtain an A or at least a B grade at whatever cost.
QA may result in positive change if it moves beyond top-down check-box activities towards internally designed and owned processes encompassing all aspects of university governance, led by departments and faculties, and supported by adequate resources. The current QA system needs to be dismantled and replaced by procedures that are accountable, not to the UGC, but to our students and the communities we serve.
(Ramya Kumar is attached to the Department of Community and Family Medicine, Faculty of Medicine, University of Jaffna)
. Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.
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