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Constitution making:

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A layman’s view

by ROHANA R. WASALA

‘At least since Rousseau’s Social Contract and the end of the divine right of kings, the state has been seen as party to a contract with the people – a contract to guarantee or supply the necessary order in society. Without the state’s soldiers, police and the apparatus of control, we are told, gangs or brigands would take over our streets. Extortion, rape, robbery and murder would rip away the last threads of the “thin veneer of civilization.”’ – Alvin Toffler, Powershift, 1990.

The late Alvin Toffler (American writer, journalist, educator, and businessman) says this while reflecting on the nature of power as one of the most basic social phenomena. ‘Power……implies a world that combines both chance, necessity, chaos and order.’ According to him, we humans ‘share an irrepressible, biologically rooted craving for a modicum of order in our daily lives, along with a hunger for novelty. It is the need for order that provides the main justification for the very existence of government’.

Sri Lankans are currently experiencing, in the raw, a taste of the evils that Toffler says the absence of order would breed, which makes constitution making interesting for them. But what is a constitution? Google offers a simple definition of the term: ‘a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed’.

Now, Professor Jayadeva Uyangoda (‘A very wrong approach to Constitution-making’/The Island/September 29, 2020) opines that the proposed 20A has ‘several major defects’. One key fault, according to him, is that the approach adopted for drafting the amendment is ‘very wrong’. JU offers a number of reasons to explain this alleged wrongness of the ‘approach’: the ‘sponsors and framers’ (I suppose the phrase means the politicians and the legal experts behind the drafting of 20A) refuse to learn ‘constructive lessons from past constitutional reform experiments’, but they have learned some ‘partisan, narrow-minded, politically short-sighted ones’. What he probably means by this becomes clear (not clear enough though) in the rest of his article, but it is doubtful whether his sense of right and wrong in the context is shared by many outside the now diminished anti-nationalist coterie, who occupied the parliament for four and a half years and hexed it with the controversial 19A.

It is not necessary to read further into JU’s article to be able to infer where his own inexcusable biases lie. He is obviously in favour of 13A and 19A forced on the nation from outside, and is against the present government’s sincere effort to remove the obstacles placed on its path by the departing yahapalanaya through its ill-conceived constitutional mixed bag that is 19A, where what is bad is by choice, and what is good is by chance. This is not to argue that the new 20A is perfect in comparison. I share many objections raised in different quarters against the proposed 20A, but I believe that the moot points will be satisfactorily sorted out by the present leaders before they manage to get it through parliament.

The Opposition critics of 20A quite well know that it is, after all, only a stopgap measure to clear the way for the unhindered implementation of the government’s development plans. The government will introduce a completely new Constitution within a year or two. JU’s advice as a political scientist will come in handy then.

The proposed 20A is not an arbitrary piece of legislation that the government is introducing behind the back of the people. There is considerable opposition to some of its articles even within the government ranks. Unlike in the case of 19A, the passage of 20A will be a democratic, above-board affair. The Minister of Justice on behalf of the government issued it as a draft bill for public view and review in all three languages on September 2, 2020. The document clearly specifies what is to be amended, repealed, or replaced. The yahapalana constitutional fraud in the form of 19A is not being repeated. Over this four-week period, some thirty-nine petitions have been filed challenging 20A’s constitutionality before the Supreme Court and they were being heard for the third day (October 2) by a bench of five judges, at the time of writing. The government has already declared that it will abide by the court decision by duly adjusting its response to it. JU’s alarms and warnings are uncalled for.

By the phrase ‘past constitutional reform experiments’, JU must be referring to the making of the first and second republican Constitutions (of 1972 and 1978 respectively) and the substantial number of opportune as well as ad hoc amendments introduced by successive governments since, some of them questionable and controversial, where 19A stands in a class by itself as the best example of the worst type of constitutional reform introduced in Sri Lanka to date. What prompts him to describe them as experiments is probably the fact that he is a political scientist with his indispensable toolkit of academic analysis. My interest as a lay citizen, modestly informed of the original construction and subsequent reform of a constitution, is concerned with how good it is going to be for the largest number of the people of the country, as its supreme law, in the context of the more or less stable social and political realities that are prevailing.

As a Constitution is not holy writ, it is open to appropriate amendments from time to time, in compliance with the will of the people, as and when these realities change; a constitution specifies the legal way to reform or replace it as the case may be. The current 1978 republican constitution as amended up to 2015 (Chapter XII/Articles 82-84) specifies the procedure for amending or repealing the constitution. The people whose memory of the yahapalana misadventure is still fresh are anxiously aware of the necessity of passing the 20A.

Contrary to what JU asserts, the political leaders and the legal luminaries responsible for drafting the proposed 20A, have not forgotten the constructive lessons left by their respective predecessors in the form of Sirimavo Bandaranaike and Colvin R. de Silva (1972), and J.R. Jayewardene and J.A. Wilson (1978). Both Bandaranaike and Jayewardene cared about the country, the people, and the culture. Both displayed firm leadership in governing, and a high level of intellect in statecraft. Sirimavo Bandaranaike had her native wit, and Jayewardene possessed a good education. In April 1971, Bandaranaike nipped the JVP terrorism in the bud, not without some violence, though, that she never intended. Opposition leader Jayewardene approved of her actions, saying, ‘yes, a government must rule’. For her courage, firmness, and composure, she was described then as the only male in her cabinet. The contribution of the inspiration provided by Bandaranaike’s political leadership to the making of the first Republican Constitution, the principal architect of which was de Silva, must have been immense and indispensable. Later, hadn’t Jayewardene got Wilson to write the powerful institution of executive presidency into the second republican constitution (1978) as the main anchor to the unitary state, the sovereign Sri Lankan republic that Bandaranaike and de Silva created for the people would have disintegrated and drifted into wilderness and oblivion by now.

Back to the point.

The second alleged defect that JU asserts, without any evidence to support his opinion, is that ‘the framers of the 20A are not motivated by the broader democratic interests of all Sri Lankan people, but the ‘political self-interest’ (of someone or group that JU avoids mentioning). A third defect, JU identifies the Amendment’s supposed lack of ‘a democratic formative framework relevant to our society and its own progressive-modernist legacies of constitutionalism .. (together with the fact that).. it builds itself on one or two dreadful and destructive experiments of constitution-making in the recent past’. This is as close to clear as I can get in interpreting JU here. To illustrate the ‘one or two dreadful and destructive experiments of constitution-making in the recent past’, I think, he draws upon what he, assuming a kind of arbitrary academic license, calls the ‘relatively long history of unmaking, making, and amending constitutions’ that includes the 1972 and 1978 exercises on the one hand, and the 1978C and 18A on the other. JU’s adjectives ‘dreadful and destructive’ could be justifiably applied to the passage of 19A and other such ‘experiments’ in constitutional reform, as contained, for example, in Chapter IV of the Constitution of the Democratic Socialist Republic of Sri Lanka (As amended up to 15th May 2015) (Revised Edition – 2015) issued by the Parliamentary Secretariat. Chapter IV – Language covers Articles 18-25. One is bewildered by what the crafty, ill-meaning, ‘sponsors and framers’ have from time to time done to degrade Sinhala in its official status with the uncomprehending concurrence of some self-seeking Sinhala MPs in the House. This, of course, would be an iconic piece of constitution-making for a theorist with one’s head in the clouds.

The practical reality is that the operative meaning of any Article (whether this is legally contested or not) is implicitly embodied in the English text (though, according to the present constitution Sinhala and Tamil are both official languages, while English is the link language.). So, it is vitally important to translate the draft document that is the Constitution into precise, unambiguous, formal and legally acceptable and uncontestable Sinhala and Tamil. I detected a couple of stark discrepancies between the original English draft and the Sinhala translation (not relating to the particular context – Chapter IV – mentioned above) when I made a very random comparison between the two versions while researching an article at the time, but I don’t remember whether I dwelt on the subject long enough for it to be taken notice of by the reader as something important, though beyond the central scope of that article. Apart from this, those sufficiently informed did not fail to see how some Tamil lawmakers wanted to openly hoodwink the Sinhalas with the word ‘akeeya’ stripped of its intended original meaning of unitary, but falsely insisting that the English term ‘unitary’ was not its equivalent and was not suitable as a translation, and started talking about an ‘Orumiththa Nadu’, reminiscent of Tamil Nadu. How the question which version should prevail in case of an incongruence between the Sinhala and Tamil texts should be resolved, I can’t remember having been discussed. But the last item (58) of the published draft of 20A runs: ‘In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.’

Having outlined the lessons to be learnt from constitution-making, -unmaking, and -reforming exercises up to 18A, JU moves on to the many lessons that he thinks may be drawn from the ‘much maligned’ 19A. He identifies four key lessons. The first lesson he mentions is that wide public consultation is useful, and helps ‘improve the level of democratic health in the polity’. I cannot agree with him that this was true about the drafting of 19A. It was claimed that the constitutional experts including Jayampathy Wickremaratne, presumably its principal drafter, toured the country meeting with individuals and representatives of many minority civil groups during a short period of two or three months. They had to rush the job, they said, as they were in a hurry to finish it within a stipulated time frame. About two thousand people were consulted nevertheless, they claimed. It was obvious that they roamed the country making it their main aim to pay more attention to the minorities that they had decided were discriminated against by the majority Sinhalese, as they wanted the meddling foreign powers to believe in order to justify their interventionist excesses in the internal and external politics of the country. Meanwhile they paid only symbolic attention to the Sinhalese majority. Wickremaratne, the chief architect of the fraudulent document, is now rumoured/reported to have found or is seeking political asylum in Australia or somewhere (though there is absolutely no possibility of his being targeted for persecution in Sri Lanka). He has reportedly admitted that 19A is problematic.

The second lesson that JU asserts he can learn from the making of 19A is that it is ‘better to build consensus across all political parties in Parliament for a major amendment or a new Constitution’. If he means that 19A set a negative example of that principle, then he has a case. But in actuality, 19A destroyed the burgeoning interparty consensus in Parliament and the growing intercommunal goodwill in the broader society that the MR government achieved in the wake of victory over terrorism. It was because of this that ‘for partisan political reasons, some might later withdraw from the consensus’ as JU laments.

I agree with JU on the third lesson he derives from his seemingly iconic amendment, which is that ‘If the consultation and consensus-building in constitution-making is not politically managed with clarity of purpose, the overall goals of the constitutional compromise may run the risk of producing a constitutional scheme with potentially harmful internal anomalies and contradictions’. Yes, in other words, 19A is a very good illustration of a very bad constitutional amendment.

The fourth lesson that 19A offers, according to JU, is that ‘a democratic constitution-making exercise today needs, more than ever, an unwavering political leadership to champion it through to the end by innovative and imaginative democratic means’. In my opinion, this is what the pre-2015 government achieved. 19A, by dismantling it, demonstrated how ill the nation fared in the absence of such unwavering, innovative, and democratic leadership. Then, JU starts chewing his own tail, by suggesting a ‘paradoxical’ reason: ‘Alternatives to democracy are also competing with democracy, with enormous material resources, to gain popular support and loyalty through democratic means. In this age of right-wing populism, media-manufactured popular consent and manipulation of public perceptions through information pollution, post-democratic alternatives tend to gain easy currency and public legitimacy’. Frankly, I can’t make head or tail of this, but it makes me wonder whether JU is trying to make light of the very real persecution of the majority community that is hardly recognized by most mainstream politicians, who feel obliged to find refuge behind political correctness.



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Opinion

Disciplined society: Bridge too far?

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By Dr. Upul Wijayawardhana

Discipline, by definition, is the practice of training people to obey rules and orders and punishing them if they do not. But there is more to it. The government of the day can lay down the rules as well as the mechanisms for punishment if they are broken, but society has even a greater part to play, as disciplined behaviour is mutually beneficial. The behaviour of the majority of the public, rather the misbehaviour, contributing to the difficulty of controlling the present COVID-19 pandemic, is a case in point.

True, the Pohottuwa government has distinguished itself by scoring many own goals, but it has to be appreciated that the President and the government have done much to control the pandemic, under very difficult circumstances. For an under-resourced country, facing a severe foreign exchange crisis, due to the pandemic, to have vaccinated more than half of the adult population, in a relatively short period, is a remarkable achievement, as it surpasses some developed countries. True, mistakes were made but no country got things correct as this was an unprecedented situation. Had there been more cooperation from the public, including the Opposition, things could have been even better. Having seen how Britain, which was hit very much harder, controlled the pandemic, I wrote an article ‘Learning to live with Covid-19’ (The Island, 26 August) wherein I stated:

“Limitations in force in Sri Lanka, before the imposition of the curfew, were similar to the strictest lockdown measures in countries like the UK. Why is that Sri Lanka needs to go a step further and introduce a curfew? The simple answer is discipline; whereas in the UK the majority show disciplined behaviour, unfortunately, the opposite is true in Sri Lanka.”

Though many appreciated my article written in good faith, to offer scientific facts to convince the public that they have a greater part to play than the government, to overcome the epidemic and learn to live with it, most unexpectedly, the only rebuff I got was from a former colleague of mine. He lambasted:

“I was quite amazed and disappointed about your comments about the vaccination programme here. Every medical professional here, except the ever-diminishing number of those slavishly loyal to the Rajapksas, are extremely critical of the way it is done. This vaccination programme has totally ruined the reputation we had as a country with an exemplary immunisation programme for a long time. When the Army, politicians and other businessmen make decisions, overriding medical opinion, the outcome is obvious.

The vaccination queues are the latest super-spreaders. Many have got the infection few days after attending a mass vaccination site. The latter have become carnivals with the army band providing music and the President making a supervisory visit every now and then.

“You have suddenly found Sri Lankans to be very undisciplined. With such a set of power-wielding uneducated, undisciplined set of leaders, what did you expect the people to be? Living thousands of miles away, your extreme ignorance about the ground situation here, coloured by your unwavering loyalty to some politicians, is not surprising.”

I was shocked that a member of my profession sought to politicise a serious public health issue. Whilst pointing out that routine vaccination programmes are not comparable to a programme conducted during an extreme emergency and that many, including Dr. N.S. Jayasinghe, a much-respected physician, has written to newspapers praising the programme, I addressed the issue of indiscipline with the following response:

“I know from personal experience how undisciplined Sri Lankans are and it is not a new discovery! I left the GMOA because I was against strikes, a sign of lack of discipline among the members of the so-called noble profession. If you think Sri Lankans are disciplined, you are living in cloud-cuckoo land! Your statement that the vaccination programme acted as a spreader proves my point. If it did occur, it is because people do not know how to queue. They think if you push, things would be done quicker! If the Army had stood outside ordering people to queue properly, the Opposition would have claimed Gota was using the Army to tame the public!”

The last thing I wish to do is to criticize my brethren unfairly, from a distant land, but I am not left with much choice. It is pretty obvious that indiscipline has grown, as much as each successive government in Sri Lanka, since independence, becoming more corrupt than the previous.

We are supposed to be a Buddhist country and we expect the disciples of the Buddha to be the most disciplined. A Buddhist priest trying to assault a vaccinator, because the stock of vaccines runs out, may be interpreted as an isolated incident, but it is not. Utterances by some Buddhist priests in public are cringeworthy. A Buddhist priest leads a nurse’s trade union; much against the code of conduct laid down by the Buddha and adds insult to injury by getting them to take trade union action during a grave medical emergency, endangering lives. Buddhist priests are seen joining the teacher’s strike, too.

What about the noble profession of mine and my friend’s? Even before the pandemic, their trade union did not care two hoots about patients’ lives; going on strike being their first response to any problem! Unashamedly, they risked innocent patients’ lives during a pandemic to get their demands.

Not that there are no disciplined professionals. Much was made, in the media, of Dr. Ananda Wijewickrema’s resignation and a few others from the expert committee. One of their colleagues has written to this newspaper that they owe it to the public to declare why they resigned. The resignation itself says it all and that is the way decent professionals protest.

Now teachers have joined the strike bandwagon to settle a dispute that had been lingering on for over two decades. They do not care a tuppence about the future of our youth and in the process have lost all the esteem the public held them in. My friend, very conveniently, has failed to notice that the virus spread due to demonstrations held by teachers breaching COVID-19 regulations, despite it resulting in the unfortunate deaths of some teachers.

Leaving politicians aside, most of whom are undisciplined, irrespective of their complexions, when respected segments of the society, like the clergy, medical professionals and teachers, display gross indiscipline during an unprecedented period like this, can there be any hope? I wonder! I do hope the next generation ‘rebels’ against these, as generations do, so that a disciplined society may not be a bridge too far; I can only hope!

Coming back to the political accusations my colleague made, my reply was:

“I am not ashamed to admit that, any day, I would prefer Mahinda, Gota and Basil to Ranil or Sajith.”

Just a few days after my comment, Sajith made his declaration that there should be a snap-election. My assessment was confirmed by the leader of the JVP who responded by saying that Sajith should have his head examined!

Perhaps, there is more to it than that. Considering the number of protests and trade union actions that have taken place in spite of the continuing national emergency, one cannot be blamed for suspecting that there is a hidden hand behind all this. Maybe, Sajith let the cat out of the bag by his unguarded comment.

On top of the inherent tendency, it looks as if there is planned indiscipline too!

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Opinion

When Susanthika did Lanka proud

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As in certain offices, in banks too there are restricted areas for outsiders and staff members who are not attached to the relevant divisions. The Treasury Department of any bank consists of three different sections; the front office, middle office and back office. The front office is commonly known as the Dealing (Trading) Room, with strict limitations to those present. It can also be used as a television viewing place, with the availability of all channels, both local and foreign.

The day, September 28, 2000, was an exceptional day as a few breathtaking moments were witnessed within our dealing room at HNB, as history was made by a courageous and determined, petite Lankan damsel in a faraway country. That was the day our Athletic Heroin, Susanthika Jayasinghe, competed in the Sydney Olympics in the 200 meters finals. Knowing the enthusiasm and fervour, that other staff members too share, to witness the event live, with the consent of my boss, Senior DGM Treasury, Gamini Karunaratne, I kept the doors of the Dealing Room wide open for others too to watch the event. As the ‘auspicious’ time approached the dealing room started getting packed. Finally, it was not only ‘house full’ but ‘overflowing’.

Maintaining the tradition, the ‘visitors’ were silent except for a slight murmur. Gradually, the murmuring diminished as the time approached. The track was quite visible to all of us. For the women’s 200 meters sprint event, there were eight competitors with Marion Jones of the USA as the hot favourite, and Cathy Freeman of Australia, the two athletes many of us knew.

As the much-anticipated event commenced, there was dead silence for about 20+ seconds and then the uproar of ecstasy erupted, along with tears of joy in all gathered, as our Golden Girl became the bronze medal winner, just a mere 0.01 seconds behind the second-placed Pauline Davis of Bahamas.

That was a monumental day for all sports loving Sri Lankans, after Duncan White’s 400 meters silver medal in the 1948 London Olympics, M. J. M. Lafir becoming the World Amateur Billiards Champion in 1973, and Arjuna’s golden boys bringing home the Cricket World Cup in 1996, beating the much-fancied Aussies.

As treasury dealers, while at work, we have witnessed all-important local and world events as and when they happened, thanks to the advanced media paraphernalia in dealing rooms of the banks.

Coming back to Olympics, for seven years everything was rosy for Marian Jones (MJ), but when she pleaded guilty to using steroids, she received international opprobrium and was stripped of all five Olympic medals she won in Sydney, Australia. After the belated disqualification of MJ, our heroine Susanthika was adjudged the Olympic silver medallist of the 200 meters event in the 2000 Sydney Olympics, with Pauline Davis as the gold medallist.

So it is after 52 years that Sri Lanka was lucky enough to have won another Olympic medal. Thanks to the sheer determination of our golden girl Susanthika and her numerous supporters, she was able to achieve this spectacular honour, amidst many obstacles. She was the first Asian to have won an Olympic or a world championship medal in a sprint event. The 21st anniversary of her tremendous feat falls on September 28.

Thank you, Madam Susie, for bringing honour to the country, and being an inspiration to the younger generations of budding athletes.

LALITH FERNANDO

Panadura

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Opinion

Give teachers and principals their due

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Why didn’t the Education Minister and the Secretary pay due attention to the fair voices of the most vulnerable and largest service sector of this country, at the initial stage, making the alliance of teacher-principal trade unions proceed to street protests, which started in the absence of any positive gesture from the Ministry of Education? That is how the present state of chaos originated.

The prolonged online teaching strike has kept the younger generation of all school-going children in darkness, and their right to learn has been deprived of. Blaming the teachers is not the solution. What is required is the right solution at the time of need. The unions are demanding the implementation of the Subodhini Committee report, plus the Cabinet subcommittee proposals, in a gazette notification. It is more sensible for the government to respond to this final flexible stance of the unions, rather than prolonging the issue with temporary solutions.

The strikers of the teacher-principal unions are not ready to give in to the temporary sugar candy sachet which is a pretty ridiculous joke, a consolation allowance to dodge the crux of the problem. Plastering or patching up the situation by offering an allowance of Rs. 5000 for three months is a shame to the teacher community. Such an allowance should be allocated for COVID-19 affected people of low-income or refugees in flood-affected regions.

What could have been broken with the nail was allowed to grow to the extent that it couldn’t be crushed even with an axe. Successive governments disregarded the demands of teachers and principals, treating them as nonentities; although the ungrateful present-day politicians rose to their present high positions because their bright lives were designed, brain powers sharpened and heads enlightened by teachers.

Although all teachers are not saints, the majority of our teachers are worthy of veneration. They are the architects of nation-building. They must have sufficient pay for a decent living, commensurate with the commitments and their toil. With an ungratified mentality, they may be unenthusiastic to discharge duties. Under such circumstances, the process of nation-building will collapse. So far, they have been doing yeoman’s service but they can’t continue to do so amidst the rising cost of living and unfavourable living conditions. When the salaries of all other employee categories have been brought to a satisfactory level, why does the government not heed to their demand?

In response to the mounting pressure from the teacher-principal trade union strike, the government appointed a cabinet subcommittee to produce another report to solve the problem; but it turned out to be a futile attempt, akin to changing the pillow as a treatment to the headache, wasting the valuable time of both parties. Such a committee should comprise experts from the education field, not from the lobby with the loquacious MPs who are in the habit of suspending and postponing everything until the next budget. On the other hand, what is the need for piling up further committee reports, when there is already a much-quoted and assumed fairly balanced Subodhini Committee report, which has been formulated by a panel of members comprising a former minister, four additional secretaries, and the accountant of the Ministry of Education.

True that the government is in dire straits with financial difficulties, but that is not a sound reason to postpone this issue. If so, why should the government introduce new megaprojects, such as 200 city beautification programmes, import of luxury vehicles for MPs and walking tracks, which are not critical requirements. The problem of teacher salary anomalies could be solved by holding such long term, not so urgent schemes.

The proposed four-phased payment of the salary increments is a nice way of circumventing serious demands of trade unions and yet another fairy tale. It is a way of escaping the main responsibility.

To illustrate this point, let us take the case of the state employees who retired between January 2016 and December 2020. All government employees including judges, ministry secretaries, directors, doctors, nurses, police and armed forces personnel, and mind you, a former director-general of the Pensions Department, was entitled to a revised salary increment system in five stages starting in 2016, and final amalgamation of all increments, due to be paid with effect from January 2020. The salary increment rates are clearly stated in the pension award letter issued by the Director-General of the Department of Pensions, which is a legal document to confirm the claim.

The present government unreasonably cancelled the (2016-2019) pensioners amalgamated salary increment of five stages, by the circular 35/2019(1) dated 20.01.2020 following a cabinet decision. More than 100,000 pensioners have been victimised and deprived of their fundamental right of the salary and sad to say, nearly 1819 pensioners have already died without getting their increments. But the government so adamantly refused to pay up and adopted a slippery policy with various cock and bull stories.

The basis for the development of a country is the education system, spearheaded by the formidable workforce of teachers hailing from Aristotle and Disapamok. All of the so-called thriving politicians; garrulous speakers who look down upon teacher communities; professionals, academics, philosophers, entrepreneurs, scholars, scientists, inventors, artists, all of these are the intellectual outputs of the dedicated energies of humble teachers who never gave priority to building highrise palaces for their self-indulgence and luxurious lives. Not to let it happen again and again, they deserve to be freed from this muddle of salary anomalies at this critical moment.

Finally, a word about the mediation of the Prelates of Malwatta and Asgiriya Chapters, who are urging the alliance of the teacher-principal trade unions to give the strike up , and restart online teaching. May I appeal to the venerable prelates to be fair to all. Could you, in your respected designations, kindly convey the same message to the government, asking why it is not taking an initiative to resolve this burning issue, by issuing a circular or gazette notification, without postponing it off further, for the sake of the innocent school children?

M.B. NAVARATHNE

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