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Consensus as mediation for two-person criminal dispute resolution



By Jolly Somasundram

“Philosophers have only interpreted the world. It is time to change it”

Karl Marx

There was growing disenchantment in the 1970’s- 80’s, about the equity of the prevailing Bentham based Utilitarian system of resolving minor, two-person criminal disputes. The system was implemented in Sri Lanka (then Ceylon), on the recommendations of Cameron- Britain’s Benthamite jurist- and implemented since 1832, by a newly established Court system. One consequence of implementation was giving birth to a new cadre of professional pleaders called lawyers.

The philosophical principle which underlay Bentham’s thought was to provide the greatest happiness to the greatest number. The concerns of the distraught losers were of no concern to the Court. It was hard luck for them. Cameronian dispute resolution was operated and outputs delivered through a lynchpin decision maker- a learned judge- who, after a trial, where a forensic inquiry on all aspects and issues was assayed and, after consulting precedents, laws and lawyers, delivers with reasons, a binding but appealable verdict. The verdict had a winner and a loser. It could be the Hammurabi code in action, so ancient were its putative origins.

The Hammurabi inspired code had its merits but also suffered a number of critical downsides, among them, it being expensive, time consuming and leaving behind an embittered loser. For the disputants, the need for presence in a majestic Court building was awesome by itself. The events enacted therein, appeared théàtre. First, there had been a live dispute in which the disputants were participant/actors. In the second round, in Court, the proceedings were called to order in a stentorian voice of the Court crier. The disputants were represented by two or more black-garbed individuals- called lawyers- arguing, not in search of the Socratic truth but how best to accomplish their brief, irrespective of veracity of the events presented. The truth was not a hard objective reality- like a diamond- but a fungible commodity. The bemused watching disputants, were prevented from instantly setting the record straight, under rules of contempt. These lawyers were arguing about a disembodied dispute to which they were not privy, one they had known only second hand when events were related in Chambers by the disputant who had retained him. The Cameronian Court drama ended as a zero- sum game, without the disputants having a say on how it was conducted nor on its outcome. The case concluded as another transaction, reconciliation not being given much attention. It was a bureaucratic, Correct justice fulfilling the rules, but not dealing with developmental justice, which covers what is Right, the one that would take into account human frailties like perception and visual agnosia. Kurosowa’s brilliant film, ‘Rashomon’, deals plausibly with the subject. Four eye-witnesses to the same incident, recounted it later in four different ways. Many, including Rawls- the pre-eminent philosopher of Law- questioned the ‘justice’ of this justice.

A fresh jurisprudence was called for, based on a Steve Jobs’ rethink, deriving out of insights from human psychology. Law is a life form which is all about managing social relations in a dexterous and acceptable manner. The Ministry of Justice (MoJ) of the 1970’s-80’s gave intense thought to the creation of a more equitable arrangement and amend the Cameronian bureaucratic model which decides- blindfolded and with a pair of weighing scales- on what is Correct. The new approach should also be about what law ought to be ie decide on what is Right. This is the developmental mode in the Rawlsian model.

The time was ripe to soft- revolution Cameronian modalities. It should be a fresh template, to ease access to justice at the grassroots and deliver it as fair justice, a win-win remedy. A greening of justice was called for, not reddening it with embarrassment. Justice should be dealt as a public good, like education or health, available to all, not only to those who could afford it. The focus of Justice should be to give attention to the most disadvantaged, the vulnerable, the poor, the marginalised, the shirtless ones- the descamisados.

The MoJ (Ministy of Justice)/ MBC (Mediation Boards Commission) new model is a version of alternate dispute resolution, authored by the MoJ and implemented by the MBC. It is an effort to give life to a foundling Pygmalion and offer it intellectual sustenance, in the light of new thinking and its requirements. The narration, now presented, is uncommissioned, pro-bono exercise. It has no authority.

The founder MoJ’s suggested recommendations would take the breath away, for its sheer swashbuckling thinking! Refreshed with a new view of the nature of Man, these recommendations were derived out of intuition and extraordinarily creative, out- of- the- box thinking. Founder MoJ’s recommendations placed every accepted Cameron jurisprudence on his head. There was no judge, the two disputants were their own judge. The disputants- at a dyadic level, (the lowest point of the polity)- and in intense, engaged, inclusive in camera discussions, by themselves, of themselves, for themselves, to themselves, among themselves, with themselves, will eventually emerge with a consensually derived resolution to their dispute, assisted– if approved by the two disputants- with a trained mediator. All three, the two disputants and the mediator will be from the same community, perhaps travelling to and from the mediation venue in the same bus, thus cementing community support for the result. No lawyers were permitted, no politicians were selected as mediators. It was a do- it- yourself (DIY) justice. A dissatisfied disputant could take recourse at the next higher level of the judiciary. If it were thought all this was a Mad Hatter’s party of Prepositions, nothing could be more wrong, as the whole initiative turned out a grand success. The co-founder MBC, starting with zero in 1988, had built about 350 units in thirty-five years, working every Sunday morning with about 8500 volunteers spread all over the island, the largest number of volunteers in the island. It was not a top-bottom Benthamite justice but a Rawlsian bottom-up one.

The disputants found their own justice! If there were a feeling that this were anarchy- a dream of a mentally tested- it would be wrong. The other co- founder, the MoJ persisted and, as mentioned, in thirty-five years of committed endeavour there are now about 350 functional dyadic mediation boards, meeting every Sunday, the country experiencing a throbbing democratic happening of give, take and compromise in 350 mediation centres.

The subject and function of mediation is vested with the Ministry of Justice (MoJ). To implement its proposal the MoJ got parliamentary approval to enact a dedicated Act of Parliament called Mediation Boards Commission Act No 72 of ’88 with a Minister and Secretary and a public enterprise with a Board of five, called the Mediation Boards Commission (MBC). Both MoJ and the MBC report to parliament through COPE. No outside agency- a NGO, private sector, international aid agency etc., could give directions to the MBC. The MBC is the trustee of the People on matters pertaining to two-person mediation. With power comes responsibility.

The Board is responsible for all acts of the mediation function, particularly to safeguard the hard won two-person, mediation function from being debauched. If it does not know what is happening, it is its job to find out ignotatio juris non excusat (ignorance is no excuse). A cardinal principle the board should follow uncompromisingly, is not to look the other way when it becomes aware of wrong doing, in order to safeguard its job. Don’t canvas a human sacrifice! But alas!

Sec 6 of mediation Act defined a mediation board as “Any person may make an application to the chairman of a panel of any mediation board for settlement by mediation of any dispute, arising wholly or partly within the mediation board area of any offence specified in the second schedule of the Act and alleged to be committed within the mediation board area.”

a) A mediation board comes into life for a specific purpose, when a disputant seeks mediation,

b) A mediation is a two-person activity. It is not a mass meeting,

c) Mediation deals with a dispute, an event that takes place in a time or place.

It is not a conflict.

Institution building requires a vision. A Vision is a leitmotif that unites all aspects of an activity. The operational arm of the MoJ-MBC’s initiative for building and operating mediation boards, was the Mediation Board Commission (MBC). The laying down of the Vision is the sole prerogative of the MBC, not to be questioned by non-entitled outsider bodies like an NGO, the private sector, international bodies etc. If there are aid agreements they have to be within the Vision laid by the MBC. The MBC laid the Vision of two-person mediation boards as,

“Arrive at a consensual resolution for a two-person conflict” It is said: therefore it is There are no mediation boards but two- person mediation boards

The recommendation of the MoJ was bizarre but worked. The taste of the pudding is savoured only in its eating. The, about 350 mediation boards- each one having about eight to ten panels, cover the entire island. This breakthrough variant of alternative dispute resolution produced by the MoJ/MBC initiative, has no lawyers- they are prohibited by law- and no politicians- they are vetoed by non-selection by the MBC board. Both decisions gave mediation boards substantial credibility. They meet in camera, assisted by trained volunteer mediators who are from the same community as the disputants, whose participation is approved by both disputants.

These two disputant, in intense democratic discussions, get evolved a consensual settlement. There is a 62% settlement rate.

Their beneficial reach goes deeper and is more comprehensive than Greek democracy which caps at the Polis. Women and slaves had no say in the polis. Mediation, coverage goes to the dyad (two person), the lowest point of the community.

A consensual mediation settlement has further upside benefits, going beyond the immediate dispute that was resolved. The settlement generates ripple benefits like personal reconciliation of the two estranged disputants, widening and strengthening the social and community fabric but most beneficial of all, it has set in train a building of an ideology of CONSENSUS, as an indispensable social virtue for resolving disputes of any kind. It is Consensual Armament. A thousand mile journey has a first step: building of consensus, as a value system has- so far taken about 350 independent dispersed steps.

Mediation’s character is baked into Mediation Boards Act No 72 of 1988. By Sect 6 (1) of the Act, “any person can make an application for settlement by mediation of a dispute.” It is an access to justice mechanism which greens justice at the lowest level of the polity, a two-person dyad. Simultaneously, it serves as a poverty alleviation device. It is cost-free since lawyers are prevented from being present.

The MBC drew a schematic diagram, drawing attention to the fundamental differences between adversarial dispute resolution- the Bentham model and its mediation form, the Rawls Model.

Every element on the right should be present in a consensually settled dispute.

The ambit of the of criminal disputes covered by mediation are as follows:

Voluntary hurt,

Grievous hurt on provocation,

Wrongfully restraining a person,

Assault or using criminal force,

Dishonest misappropriation of property,


Criminal trespass,

House trespass,


Painting defamatory material,

Insult to cause breach of peace,

Criminal intimidation.

The MoJ/ MBC initiative was undertaken entirely by locals with, perhaps, a foreigner trace element. In the natural sciences, discovery is about finding what is already there, eg Dirac’s anti-matter, penincillin, dna, emc2 .In the social sciences, discovery is in creating what is not there, building from zero. The Taj Mahal was built marble slice by marble slice, the Sistine chapel daub by daub, a MoJ/MBC jurisprudence in thirty five years and on-going. The new jurisprudence, created by MoJ/MBC, of two-person dispute resolution through Consensus and no judge, is an act of creation, a vindication of Steve Jobs’, Think Different.

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Corruption is the ultimate criminality. It is also a contagion that spreads both vertically and horizontally. It is clearly eating the heart and vitals of our Nation.Corruption is indisputably a dominant reason for our plight. A lot of sanctimonious scoundrels have promised, with monotonous frequency, to “eradicate” this rampant evil. Each event that unfolds in the all-pervasive political arena, serves to increase the public’s revulsion towards politics and its practitioners.

For instance, everything that emanates from the Diyawanna sewer increases the penetration of this diabolical menace. In our early life, parents and schools drilled in developing minds, a compulsion to adhere to the total rejection of lying and falsehood. No more.

The indelible example of this, we learnt, that in developed countries, the newsagent leaves a pile of newspapers in a stack on the front of the shop, with a little label indicating the price of each. A customer would pick his choice and leave the relevant price. Seldom, we were told was there a risk of a cheat betraying this trust. This kind of simple event, makes me an unashamed and unrepentant “Anglophile”!

It appalls me to witness how casually people who should know better, are chronically dishonest and do not deserve the genteel “economical with the truth” label. They should, in our lexicon be simply referred to as liars.

A distressing fact is that the closer one gets to top, the higher the intensity and scale. How then can one address such persons as “Honourable”? I am personally inclined to restrict this “honour” to those who genuinely deserve it. A colleague goes even better – when one such undesirable stands up to speak, he simply walks out. This may seem trivial, but it is symbolically powerful.

Financial impropriety is not all, but an important factor under the general rubric of “corruption”. Why does our Government fight shy of using the readily available listings of the “wealthy” on the Internet? Panama Papers, Pandora’s Box.

The information is shocking. Several are possibly not cheats, but many of their likes clearly are. When somebody with no substantial means of becoming rich, having neither talent nor worth, turns up with stashes of millions of dollars, cannot such be called to account? Is it a question of “He who has no guilt, may hurl the first stone?’ No stones, no guilt”. More likely, Is it a case of “You scratch my back, and I will scratch yours”. Lots of back-scratching is evident.

The most distressing feature is the lateral and vertical spread of financial corruption. Some seem to display remarkable ingenuity of changing crises to bonanzas. Nothing is beyond their reach. If that “talent” is employed towards the public good, Sri Lanka can become a brightly shining country, like our often mentioned Singapore.

“Horizontal spread” is where the dishonest in one Institution (say Assembly or Department”), spawns the practice in another. The vertical spread is within such a body, where subordinates are inspired to feel “If it is good for my boss, how can it be bad for me”?

To take a simple scenario. Say, someone is flicking his petrol coupons or fudging his traveling claim, a whole chain of persons participate in continuing the chain, down to the officer who writes the cheque.

This spreads of the contagion of corruption, corrodes and fouls all. When stashes of currency notes are unearthed, it strongly indicates that this is highly suggestive of dishonest acquisition. With such evidence being readily available, it is no mystery why is there no effective follow up action? Is it not strange why these products of crime cannot be confiscated and used to meet our nation’s needs. How so? It seems as though we are displaying the caution of one who is walking on eggs.

Everyone would know about the (James) Bond scam. There are strong suspicions, but again an inexplicable delicacy and neglect of follow-up. In relation to inexplicable and undeclared hoards in banks and safe havens abroad, why have these clearly corrupt treasure troves not been captured and restored to their rightful owners, in this case, the Sri Lankan State. Such action is morally and ethically proper. The usual excuse of “the Law does not provide” is a feeble and unacceptable stance.

I believe that even the famous “Numbers only” accounts held in Swiss Banks etc. have been made more transparent. This is action (endorsed by the UN?), that permitted the gold snatched from the Jews, and national wealth that has been robbed by persons of the likes of Marcos (Phillipines) and the Suhartos (Indonesia). There would be ample space for more.

One understands that such remedial measures, require the aggrieved nations to institute legal action within their jurisdictions. In our case, there are several cases of astronomical amounts held by persons who have engaged solely in “politics” with no inherited wealth or talent, to generate such astronomical wealth. If a dozen or so of such delinquents are showed into jail, there could be little need for future “Aragalayas”.

Dr Upatissa Pethiyagoda.

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Transformation of agro-food system:



A culture-based local solution for Sri Lanka

BY Prof Nimal Gunatilleke

The Thirty-seventh Session of the UN-FAO Regional Conference for Asia and the Pacific (APRC) is being held as a high-level Ministerial in-person event in Colombo, Sri Lanka from 19 – 22 February 2024. This was preceded by the Senior Officers Meeting (SOM) held virtually from 31 January to 2 February 2024.

This year’s conference, themed “Transformation of the Agro-Food System,” will delve into key areas such as promoting nutritious food production, ensuring food security, enhancing food production, safeguarding the environment, curbing greenhouse gas emissions, and mitigating climate change risks.

This regionally significant meeting of the Food and Agriculture Organization of the United Nations is being held in Colombo at a time when Sri Lanka is struggling to keep its head above water in the post-COVID era knocked down for the second time in quick succession by her economic crisis.

A government report and data from the health ministry quoted by Reuters indicates that the people in Sri Lanka are currently burdened with soaring prices, including food, largely caused by its worst economic crisis since it gained independence in 1948.

According to the Central Bank Report ‘rising malnutrition among children has become a forefront policy concern in Sri Lanka amidst heightened food insecurity of households caused by the host of economic and social issues that exacerbated during the economic crisis in 2022’.

The following human health statistics extracted almost verbatim from the Reuters report on Jan 18, 2023, are equally disturbing, to say the least.

The number of children grappling with various forms of undernutrition in Sri Lanka has increased for the first time in at least six years in 2022.

More than 43.4% of the country’s children under 5 years of age are suffering from nutrition problems, according to the report released in October, with 42.9% suffering from some form of undernutrition.

Data available on the website of the health ministry’s Family Health Bureau indicate that the percentage of children under five who are underweight, stunted (low height for age), or wasting (low-height for age) increased in 2022 after dropping steadily since at least 2016.

According to the World Health Organization (WHO), malnutrition refers to deficiencies or excesses in nutrient intake, imbalance of essential nutrients, or impaired nutrient utilis ation.


According to the World Bank statistics, Sri Lanka ranked the second worst affected country in the South Asian region in terms of wasting among children under five years. Further, underweight among the same group of children remained around 20.0 percent since 2000, while no significant advancement was reported in terms of children with stunted growth.

Meanwhile, the persistent disparities in malnutrition prevalence across regions and economic sectors in the country suggest that nutrition anomalies remain unresolved for a prolonged period. Across residential sectors, the estate sector has become the most vulnerable sector with the highest prevalence of stunting and underweight children under five years. According to the DHS-2016, around 31.7 percent of children in the estate sector are stunted, compared to 14.7 percent in urban areas and 17.0 percent in the rural sector. Particularly child malnutrition represents a deep concern that carries a generational burden.


A yet another alarming set of nutrition statistics has been published in the Asia and the Pacific Regional Overview of Food Security and Nutrition, in December 2023 in addressing the Sustainable Development Goal 2.1: UNDERNOURISHMENT AND FOOD INSECURITY.

The percentage of people unable to afford a healthy diet in Sri Lanka was 54% in 2020 and the figure has been increasing ever since.

Prevalence of undernourishment in Sri Lanka is 5.3% (cf. India 16.6%)

The prevalence of moderate or severe food insecurity during the period 2020–2022 in Sri Lanka has been 10.9% (cf. Bangladesh 31.1%)

Undernourishment is defined as the condition of an individual whose habitual food consumption is insufficient to provide, on average, the amount of dietary energy required to maintain a normal, active, and healthy life. The indicator is reported as a prevalence and is denominated as “prevalence of undernourishment”, which is an estimate of the percentage of individuals in the total population who are in a condition of undernourishment.

People affected by moderate food insecurity face uncertainties about their ability to obtain food and have been forced to reduce, at times during the year, the quality and/or quantity of food they consume due to a lack of money or other resources.



This section reports on four global nutrition indicators: stunting , wasting in children under 5 years of age, and anaemia in women aged 15 to 49 years.

The prevalence of stunting among children under 5 years of age in Sri Lanka in 2022 has been 15.9% (cf. India 31.7%).

The Prevalence of wasting among children under 5 years of age from 2015 to 2022 in Sri Lanka has been 15.1% (cf. India 18.7%)

The Prevalence of overweight among children under 5 years of age in Sri Lanka is 1.3% in 2022 (cf. 2.8% in India).



Prevalence of anaemia among women aged 15 to 49 years in Sri Lanka in 2019 has been 34.6 % (cf. India 53%).


In this regard, notable transformations in the country’s food system are essential to deliver a healthy diet for people at an affordable price. These include improving productivity in the agriculture sector along with more innovations and research and development, reducing post-harvest losses, more value addition in the agriculture sector, reducing import dependency on food systems, introducing climate-resilient food crops, promoting a wide range of nutrient-rich foods, particularly through the popularising integrated farming, rebalancing agriculture sector subsidies, and tax policies and improving agronomic practices as well as maintaining adequate food buffers to face food emergencies.

Among the solutions provided at the national level include the provisioning of school meals, provisioning of food/cash allowances for pregnant and lactating mothers, the Thriposha program, school water sanitation, and hygiene programs, and the salt iodization programme, among others. Reflecting the impact of these efforts and commitments spanning over several decades, malnutrition among children declined remarkably during the period from 1975 to 1995, with stunting among children below five years of age almost halved to 26.1 percent in 1995, compared to 49.9 percent in 1975, while the underweight child population declined to 29.3 percent in 1995 from 57.3 percent in 1975. However, these trends have reversed since the double whammy started in 2021 with COVID-19.

In addition, some of the small-scale community-level initiatives established under the supervision of the Department of Agriculture such as Hela Bojun Hal (Native Food Courts) are gaining popularity in several provinces in Sri Lanka. These food courts serve a variety of nutrient-rich native food preparations using rice flour, finger millet, local vegetables (leafy porridge), and many other sweetmeats prepared by local womenfolk and sold at an affordable price. Also, there are many beverages and local fruit drinks that are equally popular among the customers.

These food courts providing healthy and nutritious meals are making steady inroads into the food and beverage trade among the health-conscious public from all walks of life including schoolchildren, university students, and blue- and white-collar workers, alike which is indeed an encouraging trend.

If these types of Hela Bojun food courts could be promoted in rural as well as urban schools with the participation of the parents of the schoolchildren under the direction of the school administration and local health and agricultural authorities, it may help to address some of the issues under discussion at the on-going UNFAO-Asia Pacific Regional Conference such as undernourishment, food insecurity, and malnutrition. At the same time, it may give a shot in the arm for promoting nutritious food production while ensuring food security befitting the theme of this year’s UNFAO-Asia Pacific Regional Conference, which is “Transformation of the Agro-Food System”.

Sri Lanka as the host country’s special ministerial event for this conference has put forward her theme as ‘Agro-tourism in Asia and Pacific – accelerating rural development and enhancing livelihoods’ showcasing agrotourism most likely in the world-renown Kandyan Spice/Home Gardens and as a spin-off of this, the local food courts utilizing these home garden produce too, can be highlighted at the same time.

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Harin batting for India



The Minister of Tourism, Harin Fernando, has stated that the Sri Lankan Government will be handing over the operation of Mattala International, Ratmalana International and Colombo International Airports to India. He has added that Sri Lanka is a part of India! Has he lost his senses?

Separately, should it not be the role of the Minister of Ports, Shipping and Aviation Nimal Siripala de Silva to make such a far-reaching decision?

Mattala, Ratmalana and Colombo are the three main airports of entry to Sri Lanka. Giving their management over to Indian organisations is tantamount to putting the proverbial snake inside one’s sarong and complaining that it is stinging.

What then will be the future of Airports and Aviation Sri Lanka (AASL)? They are, in any case, a ‘service provider’.

It is the responsibility of the government of Sri Lanka through its regulator, the Civil Aviation Authority Sri Lanka (CAASL), to adhere to International Civil Aviation Organisation (ICAO) requirements and regulations. Will this be compromised?

The International Air Transport Association (IATA) guidelines for airport governance declare that the State (in this case Sri Lanka) must be accountable irrespective of national, legal or regulatory framework, or airport ownership and operating model. Could that be ensured under this recently announced arrangement?

Such accountability must be guaranteed by enactment of primary legislation in the aviation sector, mindful of the adage that a chain is only as strong as its weakest link. I believe that the Legal Draughtsman’s Office will take an inordinate amount of time to deliver this guarantee, amongst other things.

There is also the matter of establishing an effective regulatory framework with CAASL to monitor technical/safety and economic performance of the aviation sector, and compliance with International Civil Aviation Organisation (ICAO) obligations, Standard and Recommended Procedures (SARPs), and policy guidance.

In my opinion CAASL is not yet capable of that. In a combined operation such as this, IATA stipulates “Awareness and mitigation of potential conflicts of interest inherent in the regulatory framework or ownership and operating model through clear separation of powers, for example conflicts between economic oversight and shareholding arrangements, and separation of regulatory and operational functions”.

So, it is not an ‘open-and-shut case’, as Fernando believes. It is complex. His optimism is amazingly unrealistic, to say the least.

Remember, certification of aerodromes by the technical/safety regulator under ICAO requirements will continue to be carried out by CAASL as at present. According to the Organisation of Professional Associations (OPA), report Sri Lankan regulators tend to be more “obstructive” than “facilitative” when it comes to certification. CAASL needs to be revamped for greater efficiency.

Other refinements involve the independence of regulatory authority (CAASL) from government, and striving for separation of economic regulation from technical/safety regulation. CAASL was formed under the ‘Private Companies Ordinance’ but unfortunately it has drifted back to conducting its business as a regular government office, with political interference and all.

Besides, it is vital to establish an Aircraft Accident Investigation Authority, preferably independent of the CAA. Annex 13 to the ICAO convention says: “The State shall establish an accident authority that is independent of the aviation authorities and other entities that could interfere with the conduct or objectivity of an investigation.”

That, I believe, is what ‘checks and balances’ are about.

Meanwhile, the silence of the Aviation Minister is deafening.

The proposed ‘Indian involvement’ is a sad state of affairs when we have aviation experts in this country who have retired from careers in many parts of the world, and are now capable of sharing their knowledge and experience to good effect.

There is already an Indian-managed flying school at Ratmalana catering to Indian students. Maybe the camel has already put its head in the tent, and only money will talk.


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