Doctrine of immunity in Emperor’s Clothes
By I. P. C. MENDIS
Ranil Wickremesinghe has emerged as the chief “dramatis personae” in the current constitutional deadlock drama. Whether the stars had foretold the event is not known. He was never a man in a hurry. He was cool as a cucumber when he was sacked as Prime Minister by the latter and seeking the help of the apex Court regained the position. He has chosen to confront the Supreme Court in what appears to be a battle of wits as to who has the whip-hand – the Executive President or the Supreme Court. The SC ruling in respect of the release of funds for the local government (LG) elections has opened the door for many a fundamental issue, not the least being the question of immunity and that of effectiveness and priority for SC decisions. The presidential circular does not list election expenditure as an essential item. Indeed, a direct confrontation prima facie.
One does not need much grey matter to realise that as far as the government is concerned, it does not have an iota of interest in conducting the relevant election. The pointers came in very clear terms through the “machinations” of the Government Printer, the IGP and the Secretary to the Treasury. And in this time-consuming and futile exercise, the EC through its own volition reduced itself casting away its so-called independence to be nothing more than a pen-pusher – a far cry from the Deshapriya’s lion roar of yesteryear asking violators of election laws to be shot at the head. Fair enough for the EC to write to the Secretary to the Treasury (the custodian of state coffers) but when it was clear that there was a questionable delay, it had a duty and responsibility to bring the issue to the notice of court to which it is bound by ruling to hold the elections. The Secretary to the Treasury is bound by the Constitution to perform his duties under the direction and control of his Minister and has taken an oath to uphold the Constitution. He has no leeway to pass the buck or to treat a SC ruling as subordinate to any other source. Nothing of the sort has happened before. The Minister of Finance may hold the office of President substantively but that does not ‘ipso facto’ imply that he enjoys the immunity he enjoys in his substantive office while performing duties in areas other than those in Presidential office. If not anything else, this episode has the potential to become a dangerous precedent. It has to be immediately resolved once and for all.
Immunity of Parliamentary Proceedings
The question arises as to whether the immunity prescribed is limited to parliamentary proceedings. There is also the relevant issue of “absolute”and “qualified” immunity which has to be examined and argued with due reference to authorities such as Erskine May, the SL. Constitution and other such Constitutions. And who else is qualified to do it but the relevant professions, including the legal fraternity? The question arises whether the immunity is limited to parliamentary proceedings. If so, any action initiated or proceeded with by the Hon. Speaker in entertaining a motion of “Privilege” and any follow-up action thereon in tabling it, etc,. could be construed as “contempt of court” We have had the sad and unfortunate episode of Shirani Bandaranaike, which nobody wants to repeat and make SC judges the hunting ground of politicians of one hue or another. No-one wants our judiciary to be reduced to being a plaything of politicians. The judiciary expects unequivocally and requires no repetition of the treatment of Shirani B or Neville Samarakoon.
Legal Fraternity and the BASL
The BASL has proudly felicitated President Wickremasinghe on completion of 50 years at the Bar (yet not in practice). The country would not certainly seek to deny him the accolade. Yet, the BASL and the “Black-coated” gentry in particular, who thought it opportune to invade the courts of justice in their hundreds unsolicited to defend the Aragalaya demonstrators without a fee almost exercising undue influence vicariously in the course of justice, and the frenzy in which they took to the streets demanding the ouster of Mohan Pieris, was conspicuous by its absence in strength vocally and otherwise except through a tame letter.
Daring siege of the Cultural Ministry
The University of Colombo, Sri Lanka was established in 1979 in accordance with the provisions of the Universities Act No. 18 of 1978. The university was given all the land from the road joining Bauddhaloka Mawatha and Reid Avenue (later named Prof. Stanley Wijesundera Mawatha) right up to the Thummulla junction.
There were the court premises set up to try the insurgents of 1971, the Curriculum Development Centre (CDC), the Queen’s Club, an unauthorized temple which had everything else like car wash, canteen, night life, etc, except what should be found in a temple.
Of these the university was able to get rid of the bogus temple. The request to get the CDC premises did not materialize as the then Secretary of Education turned it down. Later these buildings were taken over to house the Ministry of Cultural Affairs.
One day in the early 1990s just prior to closing time the Senior Assistant Registrar in charge of Student Affairs came into my office and told me that the Students Union is planning to take over the Buildings of the Ministry of Cultural Affairs. Their plan was to wait till dusk and get in surreptitiously two by two. I told the Senior Assistant Registrar not to divulge this to anybody else and to wait till the following morning to see the outcome.
When we reported for work the following morning, I asked the Senior Assistant Registrar as to what had happened. He said the mission had been successfully accomplished and now the students were occupying the buildings. It seemed that what the university had been trying to get for a long time, the students had successfully achieved in one night!
On the second day the students who were occupying the buildings were a little agitated, telephoned me and asked whether the Special Task Force (STF) was planning to surround the building with a view to oust them as the STF personnel were occupying vantage points on buildings in the vicinity . I telephoned and inquired from the OIC of Cinnamon Gardens Police station, and he told me that there was no such plan and that they were only watching the situation. I conveyed this to the students and allayed their fears.
A meeting was convened at the Ministry of Higher Education to see how the problem could be sorted out. At the meeting a student showed a copy of a Cabinet decision where agreement had been reached to hand over the CDC buildings to the University of Colombo. The Minister of Cultural Affairs at that time, Mr. Lakshman Jayakody, was surprised and asked the student as to how he got the copy of the decision as even he had not seen it. The student stated that he did not want to divulge the source.
The Minister stated that his immediate need was to get the pay sheet and cheque book as the employees had to be paid their salaries. The students were adamant not to surrender, and they stated that this was done as they needed hostels. Hence the decision to lay siege to the buildings. Mr. Jayakody agreed to vacate the buildings so that the university could make use of them.
That ended the saga of the famous siege of a Ministry building by a few daring undergraduates. The buildings were used to house the newly established Faculty of Management and Finance. The undergraduates were accommodated in other buildings in Muttiah Road and Thelawala, which were handed over to the university to be used as hostels.
HM NISSANKA WARAKAULLE
Professor Dayantha Wijeyesekera
Professor Dayantha Wijeyesekera who passed away a few days ago was a dynamic personality who headed not one but two national universities in Sri Lanka. It was as the Vice-Chancellor of the Open University of Sri Lanka (OUSL) that I first encountered him, an encounter that highlighted Professor Wijeyesekera’s powers of perseverance and persuasion. During the late 1980s, I was happily ensconced at the University of Colombo when I started receiving messages from Professor Wijeyesekera to ask me to consider moving over to the OUSL. The proposition did not seem very viable to me at the time and I ignored his calls But for almost two years, he persisted until I finally gave in and shifted my academic career to Nawala- a move never regretted.
OUSL at that time was in the throes of changes and innovation, most of which were spearheaded by Professor Wijeyesekera who had taken over the leadership of OUSL in 1985 at a most controversial time. Perceptions of the OUSL were negative and the authorities were even considering closing it down. With his characteristic vigour, Dayantha Wijeyesekera set about putting things right bringing in changes, some of which were most controversial and even considered detrimental to OUSL.
In spite of opposition, he stuck to his vision and it is testimony to his persistence that a number of changes have lasted to this day – Faculties headed by Deans instead of Boards of Study headed by Directors, Departments of Study and not Units, a two-tier administrative system akin to the conventional university system of Council and Senate. To help support students who needed to come to Nawala for workshops and laboratory classes, he established student hostels-another move deemed by his critics as undermining the concept of Distance Education. The hostels still stand and have even been expanded.
Other changes were welcomed such as his indefatigable pursuit of state –of the art technology for OUSL. The OUSL’s centre for Educational Technology was a gift from Japan due to Professor Wijeyesekera’s efforts. And it was in his period of stewardship at OUSL that the first ever language laboratory to be established in a Sri Lankan university was set up in the Department of Language Studies – a gift from KOICA, the South Korean aid agency.
During Professor Wijeyesekera’s tenure as Vice Chancellor, the OUSL experienced growth and expansion in academic sectors too. During the 1980s, the university had only a handful of centres but under Dayantha Wijeyesekera the number rapidly grew- there were Regional Centres in major cities such as Colombo, Kandy and Jaffna. Study centres were set up in towns throughout the island and he was more than supportive when requested permission to establish teaching centres for English in smaller urban conglomerations such as Akkaraipattu .
Academic programmes blossomed. The Faculty of Humanities and Social Sciences for example had just one Bachelor’s degree, the LLB, during the 1980s. In Professor Wijeyesekera’s time this grew to include a Bachelor of Management Studies, a Bachelor’s degree in Social Sciences and the first ever Bachelor’s degree in English and English Language Teaching. The first degree programme for nurses in Sri Lanka, the BSc. In Nursing, was established at the Faculty of Science with support from Athabasca University in Canada. In addition there also sprang up a whole cohort of Certificate and Diploma programmes catering to the diverse needs of professionals all over the island.
The growth of the university was reflected in the expansion of facilities. New buildings sprang up on reclaimed land bordering the Narahenpita-Nawala Road – a new Senate House which offered space to all the administrative sections and had a spacious facility for Council and Senate meetings. A three-storey building was provided for the Faculty of Humanities and Social Sciences and a new Library building took shape near the Media Centre.
In addition Professor Wijeyesekera reached out to international centres of Distance Education and Open Universities across the world. In the early 1990s, he hosted with aplomb the Conference of the Association of Asian Open Universities (AAOU) and OUSL became a respected member of the AAOU as well as of the Commonwealth of Learning.
Dayantha Wijeyesekera began his career at OUSL in 1985 when the fate of the OUSL hung in the balance. Under his stewardship, the university burgeoned into a national university, a leader in Distance Education which others sought to emulate.. When he joined the OU, the student enrolment stood at 8,000. When he left, nine years later, there 20,000 students registered at the university. It was his hard work, his dedication, his commitment to academic progress that helped transform the OUSL.
May his soul rest in peace.
Open University of Sri Lanka
X-Press Pearl disaster
It will be a crying shame if we fail to get the much wanted and much spoken about compensation due to us for the monumental maritime disaster caused in around our shores when the X-Press went down.
Our government and all those departments and ministries responsible had ample time to make a water tight claim to make the compensation 1claim to the right place. The best available brains and talent to deal with this complex problem involving a host of subjects including the ecology, marine biology, shipwrecks, the law of the sea, maritime laws and whatever else should have been organized to fight our case.
The moment the disaster occurred, all concerned should have acted with single minded dedication to make a strong claim for compensation. Much video and other evidence of the damage done is available. All of us are aware of the shoals of fish, turtles and other sea creatures that died and were washed ashore and the plastic and oil pollution of our beaches. Some of those creatures that died live for over 100 years.
What we saw on our shore post-disaster was a heartbreaking sight. I don’t think it’s possible to assess the ecological damage done in monetary terms. The plastic nurdles the ship has been washed as far as Matara and it is said the acid pollution caused will be with us for a century. Fishermen have suffered great hardship by the loss of catch.
The case filed is being heard in Singapore. I hope the verdict will temper justice with mercy. The damage and misery suffered through no fault of ours is untold.
Padmini Nanayakkara, Colombo-3.
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