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Drafting of new Constitution

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By Neville Ladduwahetty

The Expert Committee, appointed to draft a new constitution, has invited the public to “submit their ideas and views” relating to the topics listed by them. This approach was confirmed by the Minister of Justice Ali Sabry in a media report that stated: “A new constitution is to be drafted to replace the Second Republican Constitution of Sri Lanka, and we are inviting the general public to submit their ideas, or views, under the topics of; nature of state, fundamental rights, language, directive of principles of state policy, the executive (President/Cabinet of Ministers/public service), the legislature, franchise and elections including referenda, decentralisation/devolution of power/power sharing, the judiciary, public finance, public security, and any other area of interest, not specified in the notice,”

The question that begs to be asked is; under what system of government, namely Parliamentary as in the U.K where Parliament is Supreme, or Presidential, under provisions of Separation of Powers, as in the USA, are the “topics” to be addressed by the public? Since these are the two broad systems of government that Democracies function with or without variations to accommodate particularities of each country, it is absolutely vital that these broad parameters are established prior to calling for views from the public.

Since such fundamental choices impact on the processes of governance, the choice as to the system of government should not be based on the views of the public, but on a determination made by the elected representatives of the People – the Parliament. Such a proposal was incorporated in an article titled “Constitutions and amendments” (The Island, September 19, 2020).

The relevant paragraph stated: “The few examples cited above amply demonstrate that while the framework of the 1978 Constitution is essentially Presidential, it has sufficient elements of a Parliamentary Democracy to warrant the Judiciary from giving contrasting opinions, depending on which Article it interprets. This ambiguity requires Sri Lanka to adopt either a Presidential or a Parliamentary system, but not a mix of both systems. Despite the fact that such contradictions have been brought to the attention of the public, confusion has reigned uninterrupted. Therefore, the need is for Parliament to vote on which system of government is best suited to govern Sri Lanka”.

It is only after such a clear and unambiguous determination by Parliament that the Expert Committee, set up to draft a new Constitution, would have a clear mandate for them to function. However, this was my view in September. My present view is that Parliament should go even further, and in addition to determining the system of governance, Parliament, should as a first step, determine the core principles under which the Nation and the State should function. Such principles should define who and what we are as a Nation and State, and it is only after establishing the core principles that define the Nation and State that the system of government is selected which would best make the core principles deliverable.

 

PREAMBLE and CORE PRINCIPLES of a CONSTITUTION

Constitutions do not as a practice list the core principles that guide the functioning of Nations and States. The practice normally adopted by most drafters of Constitutions is to incorporate the core principles of the nation concerned in the Preamble to its Constitution. Thus, Preambles become the platform to convey the core principles of a Nation and State. According to an article, cited below, the increasing importance attached to Preambles is reflected in the fact that some Judiciaries rely on the core principles stated in a Preamble when there are ambiguities in the texts in a Constitution. However, despite its importance, the contents of Preambles are often ignored.

The Preamble to the US Constitution states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America”. Having established these broad parameters, the framers of the US Constitution decided that a government, based on separation of power, would serve their interests best.

On the other hand, the Preamble to the 1972 Constitution of Sri Lanka states that the People resolved to exercise their freedom and independence and declare Sri Lanka to be a “free sovereign and independent Republic”, and how such a nation proposes to realize the objectives of a Socialist Democracy.

The Preamble to the 1972 Constitution of Sri Lanka states: “We the People of Sri Lanka resolved in the exercise of our freedom and independence as a nation to give ourselves a constitution which will declare Sri Lanka a free sovereign and independent Republic pledged to realize the objectives of a Socialist Democracy including the Fundamental Rights and Freedoms of all citizens and which will become the fundamental law of Sri Lanka deriving its power and authority solely from the People…through a Constituent Assembly”. Having established the broad parameters, the then government decided that a Parliamentary system, where Parliament would be Supreme, would best enable them to realize their objectives.

Judging from the Preamble of the 1978 Constitution, its core principles are different from the 1972 Constitution other than to state that it is “a new Republican Constitution. The key elements of the Preamble to the 1978 Constitution are:

“The People of Sri Lanka having by their mandate freely expressed and granted…their representatives…to draft, adopt and operate a new Republican Constitution in order to achieve the goals of a Democratic Socialist Republic… whilst ratifying the immutable republican principles of Representative Democracy and assuring to all peoples Freedoms, Equality, Justice, Fundamental Human Rights and the Independence of the Judiciary as the intangible heritage that guarantees the dignity and well-being of succeeding generations…”.

Having thus established the core principles cited above, the then government determined that the best system of government to realize its objectives was under provisions of a Presidential system that functions under provisions of Separation of Power.

 

THE NEW CONSTITUTION

The approach of the Expert Committee is to seek views and ideas from the public under topics listed by them. Judging from the nature of the topics listed it is highly improbable that the Committee would be able to develop a set of core principles that would be sufficiently broad in scope as in the two previous constitutions. However, whether the new constitution is drafted, based on the views expressed by the public or any other, there is a procedural issue that would determine the final shape and form of the new constitution.

Although the 1972 constitution was the product of a Constituent Assembly, it was not subjected to a Referendum. On the other hand, the 1978 constitution was not formulated by a Constituent Assembly. It was drafted for the Parliament that had existed under the 1972 constitution.

 

This constitution too had not been subjected to a Referendum. The justification in both instances was that the People empowered the elected representatives to draft the respective constitutions based on mandates sought and given. In keeping with past practices there is a strong possibility that the new constitution too would not be subjected to a Referendum either, because of the mandate asked and given. If that be the case, the new constitution would have to comply with the provisions of the 1978 constitution. Furthermore, since the new constitution is not an amendment but one intended to repeal and replace the 1978 constitution, it would have to comply with provisions of Article 120 of that constitution which gives the authority to repeal and replace the constitution subject to certain conditions.

Article 120 (a) states: “In the case of a Bill described in its long title being for the amendment of any provision of the constitution, or for the repeal and replacement of the constitution, the only question which the Supreme Court may determine is whether such Bill requires approval by the People at a Referendum by virtue of the provisions of Article 83”.

Article 83 (a) states: “a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Articles 1,2,3,6,7,8,9,10 and 11 of this Article…shall become law’ if approved with a two-third majority of Parliament and by the People at a referendum. Similar procedures are required if the durations relating to Articles 30 and 62 are extended.

Since these Articles embody the name of the State, its unitary character, that sovereignty is in the People and is inalienable, its National Flag, National Anthem, National Day, foremost place for Buddhism, freedom of thought, conscious and religion and no person shall be subjected to torture or cruel and inhuman treatment, and the fact that they cannot be amended, repealed or replaced without the consent of the People at a Referendum, they become the entrenched core principles of the Sri Lankan People. Therefore, whatever approach the Expert Committee adopts the core principles on which the new constitution would be founded would be predetermined.

CONCLUSION

An article titled “The preamble in constitutional interpretation” in an International Journal of Constitutional Law refers to the increasing importance of Preambles attached to Constitutions. For instance, the Preamble to the US Constitution “highlights the legal and social functions of preambles”. The article cited in the Journal “discusses the growing use of preambles in constitutional interpretation. In many countries, the preamble has been used, increasingly, to constitutionalize unenumerated rights. A global survey of the function of preambles shows a growing trend toward its having greater binding force—either independently, as a substantive source of rights, or combined with other constitutional provisions, or as a guide for constitutional interpretation. The courts rely more and more on preambles as sources of law. While in some countries this development is not new, and dates back several decades, in others, it is a recent development. From a global perspective, the U.S. preamble, which generally does not enjoy binding legal status, remains the exception rather than the rule” ( International Journal of Constitutional Law, Volume 8, Issue 4, October 2010, Pages 714–738, https://doi.org/10.1093/icon/mor010)

In the Sri Lanka context little or no attention is paid to Preambles in our constitutions despite the primacy given them when drafting or interpreting constitutions by other countries. Therefore, those engaged in drafting constitutions should pay attention to the content in the Preamble, because it is recognized as a statement that embodies the core principles as to who and what Sri Lanka is as a Nation and State.

What is evident from the material presented above is that any attempt by any government to draft a new constitution would be compelled to incorporate the entrenched Articles listed in Article 83 of the 1978 constitution if it intends to avoid having to face a Referendum. On the other hand, if any government is prepared to face a Referendum, the Parliament concerned would have to reconstitute itself into a Constituent Assembly in order to be free of any constraints imposed by the existing constitution. However, since this would amount to a totally fresh exercise, the process should start by first establishing its core principles on which to base the constitution, and having done so, determine which of the two primary systems of government, namely Presidential based on separation of power, or Parliamentary wherein Parliament is supreme in order to realize its objectives.



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Pernicious, ubiquitous strikes

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Railway strike

Local news on most TV channels is almost wholly about on-going strikes and preparations plus controversy on the to-be-held presidential election come October.

Political news is centered on this election. Chief protagonist, the present Prez, has said the election will be held at the correct time this year. UNP side-kicks and a maverick have countered this by saying it need not be held since at the present juncture it is best to postpone change by two years. The present incumbent has a further one year to serve according to the Constitution said the bright spark, who filed an application in the Supreme Court was roundly dismissed by it, with an implied but unsaid upbraiding for wasting the time of the Apex Court.

People surmised filing a case was with the approval of the Prez or his Secretariat if not actual promotion, but RW dismissed that suspicion; “I firmly believe that the President’s term is five years, and I support the Election Commission’s steps to hold the Presidential Election in 2024.”  So there! Three cheers! The Prez is on the side of the people who want an election. It is correct constitutionally too.

Political platforms are raucous with praise of their chosen candidates, with photographs of VIPs who have recently changed loyalties in the forefront, some giving shocks to viewers. They seem to have turned 180 degrees or even 360, now championing a candidate they tore into with sharp barbs of ridicule and criticism. To serve themselves to continue in the most lucrative job in the island, they will turn cartwheels and leapfrog from one party to another. Such are most visible in the meetings held to promote Ranil W, as our next president.

Karadara kara strikes

Strikes of varied nature and kinds are rampant so much so that half the time news is telecast we see crowds marching or standing around with police facing them. These strikers are three quarter responsible for the chaos the country is in at this juncture when all should be contributing their might to pull the country out of the morass it was pushed into by its leaders. Cass has so many epithets to express her revulsion at these spectacles that are a shame to the country at large. Don’t those sick note presenters, continuously striking non academics, utterly disgraceful and unethical, nay immoral, teachers know the country is still in the economic doldrums and unless everyone pulls his/her weight we will remain down in the sludge of bankruptcy, notwithstanding IMF assistance and nations having shown leniency in our debt restricting process.

The trade unions demand monthly increases of Rs 25,000 and even more. Don’t they have an iota of sensibility in them to know this is no time for strikes whose demands cannot be met and the strikes making worse the parlous state of the country with lost man hours? Many a striker deliberately loses man hours of work when  supposedly working in their jobs: teachers sit chatting in staff rooms, tea breaks are more than an hour long; leave is taken at their whim and fancy, never mind completion of syllabuses or school exams; least of all consideration of the students in their hands.

Cass heard of students who had completed their university degrees not being able to get their certificates due to the prolonged strike of non-academic staff. Thus, employment and even accepting scholarships from overseas universities have been thwarted.

Train strikes came unannounced. Wednesday morning Cass received a call from weekly domestic help: “No trains running and so I cannot come.” She was expecting very urgent financial help. She wakes up on these days of work at 4.00 am; cooks for her family; walks a mile; boards the train and is in my flat at 7.30 am sharp. Now she is never sure whether she will have to turn back with no trains running. When health sector workers strike, and even doctors of the recent past have resorted to this deplorable ruse, it is a matter of life or death to some. A person called Mudalige was seen smilingly distributing leaflets while protest marching, the cause of which Cass could not catch nor fathom. He thinks himself a saviour; he is a destroyer.

A silver lining appeared. Cass watched on TV news Prez Ranil chairing a meeting with financial secretaries. They expressed their opinion strongly and clearly that salary increases were impossible to give and money printing was now taboo with the IMF overseeing matters financially. And the Prez concluded that it was not possible to give in to strikers. That gladdened the heart immensely. We hope he will be of the same opinion regarding MPs’ demand for tax free luxury limos and life-long insurance for them and theirs in addition to the pensions they now receive after just five years of warming comfortable chairs in the Chamber.

The Editor of The Island of Wednesday July 10, has in his style of sharp and spot-on comment, criticism, blame laying and solutions to be taken dealt with this common bane of Sri Lankan existence. (We don’t ‘live’ now, the word connoting security, justified happiness and fairness to all; rather do we merely exist). He writes under the title Strikes, demand and harsh reality and points out the fact that there are about 1.5 million public employees, working out to about one state worker for every 14 citizens. Preposterous! Only possible in SL, a land like no other where politicians and their chits are to be mostly blamed for this imbalance. Culling or weaning of public servants should be started. Then strikers will not go by instigators of strikes who plan to destabilize the country, but cling to their paying jobs.

How the Iron Lady broke the back of strikes

Cass recollected how newly appointed Conservative PM, Margaret Thatcher, manoeuvered to stop strikes of coal miners and earned the hypocoristic of ‘Iron Lady’.

Cass surfed the Internet to refresh her memory. In 1884 –85, UK coal miners’ strike was a major industrial action in an attempt to stop closure of pits that the government deemed uneconomic; the coal industry having been nationalised in 1947. Arthur Scargill was a name remembered as instigator and leader of strike action. Some minors worked and so, starting in Yorkshire and Midland, the back of the year long strike was shaken and the Conservative government went to work and allowed closure of most British collieries.  Margaret Thatcher was credited with breaking up the ‘most bitter industrial dispute in British history.’ The National Union of Mineworkers (NUM) strategy was to cause a severe energy shortage that had won victory in the 1972 strike. Thatcher’s strategy was to build ample stocks of coal; to retain as many minors as possible; and to get the police to break up strikes, which were ruled illegal in September 1984; they ended a year later. Miners suffered but the country gained.

It was heartening to hear that the railway has been made an essential service. Station masters said they would go on striking. Drastic measures have to be adopted to stop such anti-national activities.

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Why human capital development is essential for Sri Lanka

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by S. D. Gamini Jayasooriya
Wayamba University
gaminij2025@gmail.com


The development of human capital is of immense importance for the economic development of Sri Lanka. Thus, investing in education and skills training raises the overall productivity and effectiveness of personnel, spurring innovation and economic growth. Analysing the current situation in Sri Lanka, human capital development can be seen to be of particular importance for creating a competitive economy.

Levels of Human Capital Development

Human capital development in Sri Lanka can be categorised into three main levels: school-leaving level, higher education, and tertiary levels.

School Level: The primary and secondary level of education are indispensable at the basic level. Promoting quality education for children creates a pool of educated human capital in society. Special attention should be paid to raising the level of education, revising curricula, and integrating the use of new technologies in education processes.

Higher Education: In particular, specific skills and knowledge are cultivated at universities and colleges. Improving funding, research and industry linkages in higher education institutions help to produce ready-made graduates to suit the global market demand.

Tertiary Level: Vocational training and technical education are crucial in preparation of people for the job market with relevant skills. Thus, increasing and enhancing vocational training centers would provide solutions for skill deficiencies in different sectors, making the population fit for the actual needs of the economy.

Sri Lankan Labor Market Overview 2023

The Sri Lankan labor market in 2023 has strengths and weaknesses as discussed below. Currently, unemployment trends are still elevated, especially within the youth bracket, while skills supply does not match the skills demand in the market. There is a lack of qualified workers in a number of fields including the IT, healthcare, and manufacturing industries.

A major part of the population is engaged in the informal economy and most of them may be in the low wage employment. This state of affairs requires proper human capital development policies and the enhancement of skill and formalization of the labor market.

Importance of a Skilled Workforce in Economic Development

Skilled workforce is one of the prerequisites for developing the economy of a particular country. Employment of specialized personnel leads to increased output, creativity, and effectiveness in many sectors. They can respond better to innovations in technology and fluctuations in the market thus promoting more economic growth and competition.

Human capital is also an element that enriches the stream of foreign investment. They are likely to be established in places where human capital is readily available to them in terms of skills. This can lead to the generation of employment, technology distribution and enhancement of the economy on a whole.

Recommendations

To enhance human capital development in Sri Lanka, several strategies should be implemented:

1. Improve Educational Infrastructure: Make sure that there is infrastructure development in schools, adequate provision for the needy student, and teachers are in a position to teach.

2. Strengthen Higher Education: Encourage partnerships between universities and industries to ensure the delivered curricula align with the market needs. Contribute towards the improvement of research and development.

3. Expand Vocational Training: Increase the number of vocational training centers and adjust the offered programs to suit the current employment market. Promote the actualization of vocational education as a worthwhile career.

4. Promote Lifelong Learning: Encourage continued learning through offered adult education and online classes.

5. Government and Private Sector Collaboration: Encourage government and private sector to work together and identify the areas that require skills and come up with relevant training needs.

Conclusion

That is why human capital investment must become a priority in Sri Lanka. Investing in education and skills training of the people at all levels will enable the development of a competent and versatile human resource pool. This will help spur economic development, encourage foreign direct investment, and build a stronger and more competitive economy. It is for this reason that the management of human capital should be done strategically to foster the future growth and stability of Sri Lanka.

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Sixty-five years after entry to university of Ceylon, Peradeniya

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University of Peradeniya

by HM NISSANKA WARAKAULLE

It was sixty five years ago, and that is very long time ago, on 29 June 1959 that a batch of 378 students from all parts of Sri Lanka (then Ceylon) entered the portals of the most beautiful university at that time, the University of Ceylon, situated in the salubrious surroundings in Peradeniya, just four miles from the historic city of Kandy, after having successfully passed the then University Entrance examination conducted by the university itself, to read for our varied degrees in Arts, Oriental Languages, Law, etc.

The atmosphere was filled with excitement and sometimes with dismal and gloomy feelings, varied feelings produced from a sense of uncertainty and new-found freedom. The drive through the campus from the Galaha Road junction through the picturesque setting, well maintained lawns and well-laid out flower beds (Sir Ivor Jennings and Mr. Shirley De Alwis together had done the selection of the trees and shrubs very meticulously to bring out the blending of colours), the imposing architectural marvels of Jayathilaka and Arunachalam Halls, the Arts Theatre, the Senate building, and Hilda Obeysekera Hall and the tree sheltered kissing bend and up the winding road to Marcus Fernando Hall( Mr. Shirley De Alwis had planned out the general scheme, landscaping which was his favourite and all other details), brought thoughts to one’s mind which were mixed with perplexity, bewilderment and abandonment. One was entering a make-believe land, very artificial but, at the same time, very fascinating.

There were two significant things in respect of our batch of 1959. Ours was the last all- English medium batch to enter the university. The second important thing is our batch was the first batch where all the students were admitted directly without a viva voce, as up to the previous batch the students were selected both directly and some after facing a viva voce.

Though sixty-five years have gone by, we have not forgotten the best experience we had during the three or four years we spent in the beautiful campus. It is sad that many of our batch mates are not with us now having left us and moved into another world and not being with us to reminisce the glorious time we spent as residential undergraduates.

To all those who entered the Peradeniya campus before us and to our batch, that university will remain in our minds as the one and only university in then Ceylon as the University of Ceylon, which had been established by the Ordinance No. 20 of 1942 and situated in Colombo. It was in the early nineteen fifties that the campus of the University of Ceylon was established in Peradeniya.

The single university continued until 1959. It was only in 1959 that two other universities were created, namely the Vidyodaya University (now known as the University of Sri Jayewardenepura) and the Vidyalankara University (now known as the University of Kelaniya) which were established by the Vidyodaya University and Vidyalankara University Act No. 45 of 1958.These two universities were created by upgrading the two famous Pirivenas (Vidyodaya and Vidyalanakara) that were functioning at that time.

That period we spent at Peradeniya was one of the most unforgettable periods of our lives. The friendships that we cultivated while in Peradeniya remain and will not be erased from our minds.

It would be of interest to those who followed us much later to read for their degrees how the undergraduates were selected in our time. We sat the University Entrance examination conducted by the University of Ceylon in four centres, namely, Colombo, Kandy, Jaffna and Galle with the Department of Examinations having nothing to do with it. Thank God! However, if any candidate wanted to obtain the Higher School Certificate (HSC) such candidate had to sit the extra paper at the same examination and if successful received the HSC certificate from the Department of Education.

The results of the examination were not sent either to the schools or the candidates’ homes. The results were published in the daily newspapers. As such, the results of our batch were published in the The Ceylon Daily News of Wednesday March 11, 1959. Thereafter, after a lapse of a certain period of time, the successful candidates received letters from the university informing of the date of commencement of sessions of the academic year, the Hall of residence allotted and the date to report at the allotted Hall.

There was also a document indicating what we had to take, such as a raincoat and cape, etc. and the things that should not be done in which there was one item which stated that ceiling walking was prohibited. This was a little puzzling to us, but we understood what it meant later when we were on the campus. All undergraduates who were privileged to be in Peradeniya at the commencement of the campus and may be about four batches after ours had the best of time in a university in Sri Lanka.

During that time all undergraduates resided in the halls of residence throughout their undergraduate carrier, even if a person’s residence was abutting the campus premises. All those who entered from schools in and around Kandy could have easily travelled from home. But the university rules and regulations did not permit us to do so. Anyway, when reminiscing, we think that it was good that all had to be resident within the campus as we would never have got that experience otherwise.

On the occasion of the EFC Ludowyke Centenary at Peradeniya in 2006, Prof. Yasmin Gooneratne, a distinguished alumnus stated thus:

“Of the terms most frequently heard in connection with the life that we experienced there, one is “A Golden Age”’ another is “Arcadia”. 2It was a magical time” says one classmate.” It was idyllic” says another. Our companions-some of them husbands, wives, or children who did not share the Peradeniya experience, and who now have to hear us talk about it ad infinitum, look skeptical. They don’t believe us.”

“Peradeniya? Three years in Paradise” a classmate said once. “And at the end of it, they even gave us a degree”

“It was as if all the intellectual brilliance in our country had been concentrated in one spot. If the university had been a stage, we students would have been witnesses to the performances of a stellar cast”

During our time in Peradeniya the halls of residence for males were Arunachalam, Jayathilaka, Marrs, Ramanathan and Marcus Fernando. The female undergraduates had as their halls, James Peiris, Sangamitta and Hilda Obeysekera (with Mrs. Cooke, Dr. (Mrs.) Ram Aluvihare and Miss Mathiaparanam as the respective Wardens). During our final year in 1961-62(third year in the case of those who had opted to do a special degree course), a new hall was opened, which had been named after D.R. Wijewardena close to the Kandy-Colombo railway line. With this building being opened, there was a change in respect of occupants of some halls. Ramanathan was converted into a women’s hall and James Peris was made a hall for male undergraduates. The newly opened Wijewardena Hall became a men’s hall. With this change, the male undergraduates who were in Ramanathan Hall were transferred to James Peiris and Wijewardena Halls. (To be continued)

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