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THE ONE LAW FOR SRI LANKA

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by M Sornarajah

Emeritus Professor of Law

National University of Singapore

The consideration of a one law for Sri Lanka by a commission headed by a divisive figure was emblematic of an administration driven by ethno-nationalist animosities. Now that the young in particular have arisen against such tendencies, it is necessary to consider the one law that has guided and should guide the future of Sri Lanka.

The Supreme Court of Sri Lanka, in a long course of decisions, has held that customary international law, particularly the law on human rights, forms part of the law of Sri Lanka. It is the customary international law so declared by the Supreme Court that truly constitutes the one law of Sri Lanka. In that course of precedents are cases that captured the public imagination. In one, the court ordered that a foreign investment for the mining of phosphate in Eppawala, which would have caused the depletion of natural resources and harmed the foundations of the sacred sites in the area, should be discontinued. In another case, the Supreme Court protected the right of a young politician, Mahinda Rajapakse, in his earlier avatar as a human rights activist, to travel to Geneva to present the case before the Human Rights Committee on the rights of JVP detainees. Many of these cases were argued successfully by my distinguished teacher at the University of Ceylon, the late Mr RKW Goonesekere. A long-time Principal of the Law College, he was a teacher to many lawyers of Sri Lanka. He was committed to the cause of human rights in this country.

A later case, he argued, Sinnarasa v AG in which a politically inclined chief justice held that customary international law on torture is not incorporated in Sri Lankan law, unless expressed through statute, is an aberration widely condemned both in and outside Sri Lanka. It rests on the diminished authority of that particular chief justice. It does not reflect the law in any other common law jurisdiction. The judgment has been condemned by academics both in Sri Lanka and abroad. It, in no way, affects the established rule in Sri Lankan law that customary international law forms a part of the law of Sri Lanka.

The acceptance of customary international law as the only law that is common to Sri Lanka, besides of course, the law contained in legislation and the residual Roman Dutch law, is crucial to Sri Lanka at the current political stage. The consideration of any other “one law” would be divisive and inopportune at a time when the country is going through much hardship. Its pressing problems are reconciliation after the protracted civil war, the release of people kept in custody for inordinately long periods without trial on the allegation that they are terrorists under the draconian Prevention of Terrorism Act, the problem of missing persons and the elimination of rampant corruption that denudes the people of their wealth. For each of these issues, the answer lies in the adherence to the standards mandated by customary international law. The gradual moving away from the standards of the rule of law incorporated in customary international law is a prime reason for the political and economic conditions in our country. Some incidents of this are the lack of an independent judiciary, the absence of equal protection under the law of all citizens of the state, the principle of meritrocracy in public appointments, rampant corruption and the failure of the state to protect the lives of its citizens while having knowledge of threats to their lives.

There are more pressing issues than the stoking of communal and religious passions on the basis of an inquiry to institute one law for Sri Lanka presided over by a convicted Buddhist priest who has a history for promoting racial and religious hatred. There is already one law for Sri Lanka from which rules necessary for our political life can be quarried. Three important areas for which international law points to solutions relate to the need to bring about solutions to the ethnic dispute, the abolition of the Prevention of Terrorism Act and the rampant corruption that has induced an economic crisis in the country.

The 74-year curse of Sri Lanka has been the ethnic problem. It lies at the root of the present calamities. Every politician of the major political parties has jumped on the bandwagon of Sinhala Buddhist extremism to achieve power and then, engaged in corruption, without bringing any benefit to the people. While the children of these Sinhala Buddhist chauvinists were educated overseas or in international schools in English, the children of the poor have been taught in swabasha and are denied access to education in the sciences and technology. They are the political fodder for the future. It is necessary to put an end to this pernicious cycle. International law recognizes the equality of all human beings, as the organizing principle of life. International law recognizes the right to self-determination of the minorities as a means to a solution of ethnic problems. The lesser form of it permits solution within a unitary state. Internal self-determination speaks of devolution and other forms of constitutional settlement. The Supreme Court of Sri Lanka has held that such a solution is in keeping with the Constitution. Such ideas must be explored in putting this particular problem to rest for progress to be achieved. If they do not succeed, the rights of the minorities to be protected by external self-determination revive. The state must rapidly put in place a system that ensures maximum devolution of powers and equality to all minorities to avoid such a result.

The Prevention of Terrorism Act is an outcome of the ethnic problem. Its draconian provisions have resulted in several persons taken into custody going missing. Several still languish in jails without trial. Spurious convictions have occurred through forced confessions. The situation has provoked universal condemnation. Seven United Nations Rapporteurs have, in a joint report, identified what needs to be corrected in the PTA. They identified the following five “necessary prerequisites”: (i) a precise definition of terrorism in line with international norms (ii) legal certainty, especially where the Act impacts on freedoms relating to expression, association, opinion, religion or belief; (iii) prevention of arbitrary deprivation of liberty; (iv) prevention of torture and enforced disappearance; (v) provision of due process and fair trial guarantees.

The government has recently made cosmetic changes to the legislation that are woefully inadequate to meet these requirements. It would be best to abolish the Act and draft new legislation afresh making it measure up to international law standards. The abolition would mean that those who languish in the jails will be released. It is necessary to account for those gone missing after they had been taken into custody or had surrendered to the agents of the government. It is necessary to end the shameful episodes in our law through accountability and make a fresh beginning. The police, the armed forces and the state show scant regard to the value of the lives of citizens as there have been deaths at their hands which have not been inquired into. There has been no attributability of responsibility for these deaths.

The third factor is the extent of corruption that attends our public life. The politicians and the religious leaders who support them have earned public contempt. In that context, it is necessary to follow the prescriptions contained in the United Nations Convention on Corruption, the principles of which are widely considered customary international law. Sri Lanka has signed and ratified the Convention but has, characteristically, not made it part of domestic law. 186 countries (including Uganda) are parties to the Convention. The Convention creates procedure for money stashed away in foreign countries by corrupt politicians to be brought back to Sri Lanka. It will enable the repatriation of proceeds of corruption by successive administrations in Sri Lanka. Money stolen from the people can defray the debts that the country has incurred by successive corrupt administrations. The proceeds of corruption, defined as gained through abuse of “the power entrusted by the people for private gain” must be returned to the people.

Corruption is a violation of fundamental rights of the citizen as it leads to misallocation of public funds. It offends the right to equality by giving access to unexplainable wealth accumulation in the corrupt. There must be fundamental rights cases brought against the politicians requiring that they pay damages personally for the violations of these rights. BASL should take a lead in this. That is possible under existing law. Tracing the corrupt funds in foreign banks will be facilitated if new legislation incorporating the UN Convention on Corruption is made part of our law. True it is that the procedures for the recovery of the proceeds of corruption will take time but sooner they are instituted and the proceeds secured for eventual recovery the better.

Rather than pursue hate-mongering through the search for one law, the Government should pursue the rules of the one law that the Supreme Court has recognized as binding in Sri Lanka in finding solutions to the pressing problems of our country.

Germany had Hitler, a dictator who killed over 12 million Jewish people and took the country to war. After the Second World War, the German People, in the hope of avoiding repetition of such a calamity, enacted a constitution which makes human dignity and international law its centre-pieces. Article 1 reads :

Article 1[Human dignity – Human rights – Legally binding force of basic rights]

1. (1)  Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

2. (2)  The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.

The Basic Law of Germany has a provision, Basic Law 25 which reads:

Article 25[Primacy of international law]The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the in-habitants of the federal territory.

It is imperative that a new beginning is made in Sri Lanka after the present chaos. When it comes about, human dignity, human rights and the duty of the state to protect human lives must be prioritized and provision must be made in the constitution to secure the primacy of international law.



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The US, Israel, Palestine, and Mahmoud Khalil

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Protestors rally in support of Mahmoud Khalil outside of the Thurgood Marshall Courthouse, during a hearing regarding Khalil's arrest, in New York City, Mar. 12, 2025.

By Uditha Devapriya

If last year proved anything, it was that given a choice between international law and domestic pressures, the US political establishment will give way to the latter. Hence the Democrats, led by Kamala Harris, articulated the need for a two-state solution for Palestine and Israel – Harris spoke vaguely of the Palestinians’ right to their own future and land – yet belied it all by promoting Israel’s right to self-defence.

One can argue that Joe Biden, easily the most pro-Israel of recent Democratic US presidents, set the stage for this situation. But it was taken to its logical conclusion by Harris and her campaign. Barring a few exceptions like Ilhan Omar and Rashida Tlaib, who were badmouthed by Democrats and demonised by Republicans, there was very little condemnation of Israel’s violations of international law in Gaza and the West Bank – violations which continue today and have accelerated because of the sense of impunity that Jerusalem was bound to receive under a hardcore, right-wing Republican administration.

The situation has worsened since then. But in trying to make sense of what has happened, I think we are trying to fit a square peg in a round hole.

The Trump administration operates on a logic of its own, and any attempt to make sense of it or rationalise it, to justify it or counter it, would be rather fruitless. For instance, it came to power on a platform of “absolute” free speech. Those who contend that this contradicts the government’s crackdown on pro-Palestinian students and intellectuals should realise that Trump and his supporters have reserved for themselves the power to define and set limits on such abstractions.

When Vice-President Vance, in his remarks in Munich last month, implied to his European audience that the region should be more tolerant of free speech, we need to understand that Vance’s, Trump’s, and the modern-day Republican Party’s framing of free speech differs from the ideals of the Enlightenment. This free speech is unquestionably right-wing and politically incorrect. Thus Trump, speaking to reporters during a meeting with the Irish Prime Minister, stated that Chuck Schumer, one of the most pro-Israel Senators and the highest-ranking elected US Jewish official, had “become a Palestinian.”

On the face of it, this was a slur, and Democrats and Jewish advocacy groups – including the Anti-Defamation League – were quick to point it out. Yet to try holding Trump to account over such remarks would be to hold him up to standards neither he nor his administration feel are applicable to them. When the White House, namely the President’s press secretary, speaks of USD 50 million of US foreign aid being diverted to “fund condoms in Gaza”, one is either outraged or intrigued enough to know more, particularly when someone like Elon Musk amplifies it on his platform. Yet when, weeks later, at a White House briefing attended by Elon Musk and his son, Musk backs away and admits that “some of the things that I say will be incorrect”, they are both investing themselves with a sense of invincibility and passing the onus of proving them wrong to the journalists and media that they themselves accuse of being biased against them.

In other words, the Trump administration is having the cake and eating it too – rather apt, considering how it prides itself on its disruptiveness, its sense of chaos. As far as Israel and Palestine is concerned, of course, there is no ambiguity: this is without a doubt the most pro-Israel administration in recent US history, and there is hardly any US official who would beg to differ with Israel’s actions.

While right-wing commentators like Tucker Carlson and Candace Owens have spoken sympathetically about Palestinians – with Carlson decrying Israel’s activities and Owens questioning why US policy is kowtowing to Israel and Zionism – they are the golden exception to the dismal rule. Even Ann Coulter, the grande dame of US conservative politics, who infamously told Vivek Ramasamy to his face that she would not vote for him because he was Indian, questioned whether arresting student activists without proof of crime would infringe on First Amendment rights.

That sentiment has been echoed elsewhere. The arrest in question, of Mahmoud Khalil, has provoked much disgust and revulsion. Set against the backdrop of its gutting of foreign aid, scholarship, and exchange programmes, the Trump administration is now framing citizenship in the US as a privilege, not right. One can counter this by stating that immigration to the US, and gaining citizenship there, was never easy. But beyond any other administration in recent memory, Trump and his fellow-travellers have succeeded in both accusing previous governments of relaxing immigration rules and letting criminal elements in and weaponizing immigration law to achieve its domestic and foreign policy agenda.

To their credit, the Democrats while in power never went beyond arresting protestors – though that in itself raised eyebrows and had implications for civil liberties and freedoms. Perhaps because they saw themselves as the “party of rights”, they were careful, even within the restricted space they were operating in, not to invoke every other law and interpretation of it in the way the Trump administration is doing now.

It is becoming clear that Donald Trump is aligning his foreign policy with his domestic agenda – and that Israel, which has since at least the 1970s become a crucial part of that agenda, has taken centre-stage in a way Ukraine and Russia have not. For better or worse, this will define the course of US domestic politics and foreign relations for the next five years, and it will meet with the resistance of US courts and judges, every time the administration invokes laws and legal provisions to achieve its America First agenda.

Uditha Devapriya is a regular commentator on history, art and culture, politics, and foreign policy who can be reached at udakdev1@gmail.com. Together with Uthpala Wijesuriya, he heads U & U, an informal art and culture research collective.

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Cutbacks in two countries

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Yes, you have guessed right. One of the two countries is the United States of America where cutbacks or reduction in spending and increase in tariffs is the order of the day promulgated by President Donald Trump who appears to consider himself king; his porohithaya Elon Musk dictating terms to him. His aim is to make America great again (MAGA) but his maga or path is actually making the rich in the US richer and making life more difficult for the ordinary US citizen with housing and food increasing in prices.

I feel I must explain what cut backs and cutbacks mean. The two word phrase is used as a verb while the one word is a noun.

Among several cutbacks “President Trump has signaled that next set of agencies on the chopping block, as his administration looks to cut down the size of the federal government agencies that serve wide ranging roles in the government, from addressing homelessness to funding libraries. One of these is the Institute of Museums and Library Services (IMLS) that funds grants to libraries and museums across the country. The group EveryLibrary – a nonprofit that has advocated for public library funding and fought against book bans – decried the looming cuts to the agency, arguing that IMLS is statutorily required to send federal funds to state libraries based on an Act passed by Congress.”

The present president is so very different to previous presidents like Jimmy Carter who initiated the first White House Conference on Library and Information Services (WHCLIS)

which took place in Washington DC in November1979. It was such a boost to libraries and spread of information and improvement of education all round as noted by a delegate to the 1979 and 1991 conferences in the White House: “a strengthened and increasingly dynamic role for citizen-trustees in guiding library development; the emergence of citizen leadership across the nation, spearheading a new synergy within the library profession: the concept of partnership –building as a means to advance the library agenda; and the use of information as the power to promote increased productivity, economic growth and enhanced quality of life for all citizens.”

The National Commission on Libraries and Information Science (NCLS) was an agency in the US government between 1970 and 2008. The activities of the NCLS were consolidated into the Institute of Museum and Library Services (IMLS) as an independent agency of the US federal government established in 1996. It is the main source of federal support for libraries and museums within the US to advance, support and empower them. Now they are to be stymied by law. “It marks the next step of the administration eliminating government entities Trump deems ‘unnecessary’ and it follows weeks of the Department of Government Efficiency, helmed by Elon Musk, slashing entire agencies, cutting off funds and instituting mass layoffs of federal workers.”

A Sri Lankan woman with a doctorate in Library and Info Science, living in Singapore, co-heads a unit in the American Library Association (ALA). She comments the IMLS was doing great work in disbursing grants to libraries and librarians to explore uncharted territories such as the use of AI. Trump clipping its wings to decrease federal expenses is a disaster, she opines.

Another agency on the chopping list of Trump and Musk is the US Agency for Global Media, which supervises US government funded media outlets globally including the Voice of America (VOA). Trump being a big critic of this agency is well known.

On Wednesday 19th, I heard a video clip with Fareed Zakaria speaking on cuts on research in universities which he termed Trump’s “fury on academia” which is making drastic cuts on research funding and other funding to State universities in a bid to stop federal spending. Zakaria said that the US had 72% of the world’s best 25 universities. Also quoted was J D Vance who said: “We have to attack universities. University professors are our worst enemies.” (When the VEEP says such, an echo to Donald Musk, I wonder how his wife, an Indian intellectual reacts.)

Proved without doubt is what Sashi Tharoor said while on a visit to the US. He had met and spoken with the Presidents Bush; Clinton and Obama who showed personal mannerisms that distinguished American Presidents. They had statesmanlike gravitas “which I find totally lacking in this gentleman.” Referring to Trump with apologies for an Indian MP commenting thus. Personal not politics, he added.

All this is the bad news of this article. Considering Sri Lanka, we are so fortunate to have sensible persons as head of government and most ministers. You can bet your last thousand rupee note on our government not stinting on essentials like educational institutions and education; bankrupt though we be.

Vetoing excessive use of IT Now for the good news, at least to traditionalists and those averse to, or afraid of too rapid advancement of Information and Communication Technology (ICT). We of the Baby Boomer Generation 1946 – 64, even Silent Gen 1928-45, Generation X 1965 -80 are somewhat aghast at how readily, almost frantically, all ICT is grasped and incorporated in business, commerce, even education.

In Sweden they are cutting back drastically on use of electronic devises in schools: “Teachers all across the country are placing new emphasis on printed books, quiet reading time, handwriting practice and devoting less time to tablets, independent online research and keyboarding skills. The return to more traditional ways of learning is a response to politicians and experts questioning whether Sweden’s hyper-digitalized approach to education, including the introduction of tablets in nursery schools, had led to a decline in basic skills. Sweden’s minister for schools, Lotta Edholm, who took office 11 months ago as part of a centre-right coalition government, was one of the biggest critics of the all-out embrace of technology. “Sweden’s students need more textbooks. Physical books are important for student learning.”

So very true, I echo. Not just theoretically but from experience.

We of the school generation of more than half century ago learned in the pirivena style of teaching and learning, where teaching was all important and learning left much to the child’s inclination. Competition was less then and parents left their kids to study at their own pace. By ‘pirivena style’ I mean the teacher teaches (or lectures) and students absorb the imparted knowledge or often fritter their school time away. But from that generation emerged experts in various fields, some of whom made their name overseas too: doctors, astronomers, economists et al.

Education is of course much better and will certainly bring better results if there is insistence on student learning undertaken by each student. Guidance is necessary hence the need for good teachers. The project method of teaching and learning (names of teaching systems would have changed with time) was an excellent way of getting knowledge across to the child. The teacher outlines a subject area, say countries of the world, and gives detailed outlines of what is needed to be found. Students, singly or in groups, work in the library with reference books and write out reports on the country he/she/they were assigned. Submitted reports are edited by the teacher, rewritten, read out by the leader of each group or individual student, and kept available in class. Thus students engage in self-learning and share their knowledge so the entire class knows about the assigned countries. Of course now it would be internet etc that is consulted by the students, but following Sweden’s example, insistence on consulting printed books too needs to be done; and writing.

I heard a British educationist who said she was of the opinion that going back to traditional methods of education in schools is a must since research has proved that IT learning fell short of what education should be. So two of the three traditional Rs should be brought back to importance and incorporated in school education. This is particularly advisable in poor countries like Sri Lanka. We know how some students – less financially able, living in remote areas – were drastically affected during Covid times when teaching was on-line.

I left teaching long ago. Sure the Education Department of Sri Lanka has incorporated new methods of teaching. Good to hear more on this subject.

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FUNNY THINGS HAPPENED AT GUY’S HOSPITAL, LONDON

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The General Elections were drawing near. There was concurrently a disturbing trend manifesting itself. A vociferous group were demanding that the elections be postponed for a further period, because the government was unable to complete its “progressive” social and economic programme, due to reasons beyond its control such as the insurgency of 1971. the oil price hike, the food crisis and so on. These arguments were patently absurd. The government had already extended its term of office by two years consequent to the introduction of the new constitution.

Now, a group of people were orchestrating a campaign for a further extension. At various public meetings where the Prime Minister attended, members of this group raised their voices and demanded a further extension of time. It appeared to take the form of a popular agitation exerting pressure on the government. No doubt, various persons holding similar views would have been speaking to the Prime Minister personally about the same issue. The whole thing seemed well orchestrated.

It was in this context that one day, she asked my opinion about the matter. I replied that I had always spoken absolutely frankly to her on any and all matters, and in the same spirit all I could say was that any attempt to extend the life of the government would be a total disaster, both for herself and the country. I went on to speak about her considerable achievements, as the world’s first woman Prime Minister; probably also as the first woman to be leader of the opposition in a parliamentary democracy, Head of the Non-Aligned Movement; honouredby the ILO, by their invitation to her, to deliver the keynote address at one of their inaugural sessions; honoured by the FAO by the award of the CERES medal in recognition of her personal and successful leadership of the food production drive consequent to the difficulties of 1974/75; honoured by the United Nations by their invitation to her to deliver the keynote address, at the first UN Conference on Women and Development and other achievements. \

Then I told her that if elections were not held at the proper time, the position in the country could get unmanageable, and she would face the charge of destroying democracy in Sri Lanka. I had to be hard, because it was evident that many people had created for her, some kind of fantasy world, and she was getting confused. As was customary, she listened to what I had to say with grace and thanked me for being candid. Then she said, “l have asked WT also, and he said the same thing.”

That was the Prime Minister. She was always prepared to listen to different views, after which, she made up her mind. The dose of reality administered by WT Jayasinghe and myself, two public servants who had nothing to do with politics, would no doubt have helped her to take the final decision of holding elections.

Dealing with political personalities

Before I get to the election itself, I wish to refer to one or two other matters. One of the more important of these relates to some of the political personalities I had to work with, other than the Prime Minister. These included the Minister of Trade, Mr. TB Illangaratne; Mr. Hector Kobbekaduwa, Minister of Agriculture and Dr. Colvin R. de Silva, Minister of Plantation Industries, among others. My dealings with Mr. Maithripala Senanayake, I will refer to separately.

The fact was, that at some time or other one had to deal with practically all members of the Cabinet, since all of them had some business to transact with the Prime Minister’s Office at various times. Some of the ministers I have mentioned had more to do with us, both because of their seniority and the sensitive and important nature of their portfolios. My policy was equal attention and equal treatment for everyone. The internal politics between them did not concern me; neither did the state of relations between the parties in the coalition.

These were political issues that had to be resolved at other fora. I saw my job as attending fairly and diligently to any request or advice sought. There was a creative element in this, because, knowing the prime minister’s mind on many matters I was at times able to steer ministers and others away from courses of action which could have negative consequences. Therefore, many ministers dropped in to discuss some sensitive matter or sometimes to seek advice how best to handle a given situation with the prime minister.

They knew that they could repose trust in the confidentiality of such conversations. At the same time, when I thought that the prime minister had to be briefed on some developing situation, I always said openly that I would have to do so. In some circumstances, the relevant minister and I. only discussed a suitable approach. I did not view my duty to the prime minister as one entailing the carrying of tales or the retailing of gossip and rumours.

However, whenever relevant, gossip and rumours were checked out, because beneath them could lie some real problems. Occasionally, when something was beyond our competence to check, and if it looked important enough the prime minister was briefed. This approach begot a great deal of trust and confidence, so much so that on one occasion, Dr. Colvin R. de Silva told me that he as well as others in the LSSP were extremely sorry that I would not be available for appointment, when a vacancy occurred in the post of Secretary, in the Ministry of Communications, a ministry then held by Mr. Leslie Goonewardena, a senior LSSP minister. In his booming voice, he paid me the compliment of saying that they were not only looking for a secretary but also “a man.”

Besides dealing with ministers and government personalities, the secretary to the prime minister had also to deal with many opposition personalities. They received the same treatment as anybody else. If a request was valid, one worked to grant it. If in a particular instance, politics were proving to be an irrelevant and extraneous factor, one proceeded to remove it. Sometimes, this necessitated talking to the prime minister, and if she too were inclined to see only the politics, one analyzed the issue and pointed out that politics had no relevance to the issue, and that in her position she had to do the right thing. All this meant extra work and effort, but I considered it as part of a duty that had to be performed.

In this context, I was able at times to resolve genuine problems faced by opposition MP’s and personalities such as Mr. R. Premadasa, Mr. Gamini Dissanayake, Mr. Lalith Athulathmudali and others. My belief was that the prime minister’s office of a country should act fairly and justly on all matters referred to it subject to overall government policy. When the occasion so demanded, my endeavour was to point out that irrelevant or extraneous considerations could not be the foundation of good policy. They could be petty revengeful acts, harassment or abuse of power, but never policy, and it was my firm belief that those at the helm of affairs of a country should always distinguish between these.

All these meant an addition to an already nearly crippling workload. There were even times when one continued to work when one had fever, in order to meet impending deadlines. Indeed, there were a few occasions during the seven years I held this post, that when I eventually reached home in the night my temperature had risen to over 104°F.

(Excerpted from In Pursuit of Governance,
autobiography of Dharmasiri Peiris,
Secretary to the Prime Minister)

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