Features
How smart is it to litigate to be proven right?

By Dhara Wijayatilake1
A disputant goes into court against another because he thinks he is right and the other is wrong and wants a court pronouncement to cement his position. After many years, huge expense, many consultations with Lawyers, many trips to the court house, postponed hearings, and even perhaps much emotional turmoil, a Judge delivers a judgment. One party is proven right and the other wrong, or the case may even be decided on a procedural matter with no determination as to who is right and who is wrong. Even the winner, if there is one is a loser. Today, there are options to litigation such as Mediation where the focus is not on being right, but on what each disputant needs and on reaching a settlement to satisfy those needs. It’s a process that is fast and cost effective. So, it’s a call to be smart – spend time and money to be right (litigation – where you may even end up being wrong) or spend much less time and much less money to satisfy needs (Mediation).
Delays in courts have reached ridiculous levels. Many Ministers of Justice over many years have attempted to reduce delays by “reforming” laws. The outcomes have not made a significant difference and the challenge to find solutions continue. One of the most comprehensive studies on Laws Delays in Sri Lanka was perhaps the one done by the “Laws Delays and Legal Culture Committee” headed by Justice R. S. Wanasundera, Judge of the Supreme Court. In its Report of October 1985 the Committee identified several causes for delays and submitted proposals to remedy them. The Report included a poignant observation that remains valid even today, ie. that in an adversarial system of justice such as ours, delays destroy justice, deterrence is lost, costs are increased, court resources are wasted and severe emotional hardship is inflicted upon litigants. In combination, these factors undermine the efficacy of the whole legal system, sapping its strength, vitality and even its integrity, and making the majority of litigants lose confidence. This observation remains valid even today. While substantive and procedural laws can be reformed in an attempt to eliminate delaying features, the legal culture which is a significant contributor can only be reformed through good practices that then constitute our legal culture. Here’s where we fail.
Laws delays is not a phenomenon that’s peculiar to Sri Lanka. It’s a problem confronting many jurisdictions across the globe. It’s this disillusionment with litigation which is rooted in the adversarial system, that has motivated a diversion to alternative methods of resolving disputes. The most popular Alternative Dispute Resolution (ADR) methods are Arbitration, Mediation and Negotiation. This article discusses Mediation which is accepted globally as an alternative that offers benefits that have proved to be meaningful.
Features of Mediation
There are many models of Mediation including Facilitative and Evaluative which are the most popular. In the 1960s, Facilitative Mediation flourished because of its marked difference in approach to conflict resolution and the resulting successes. Evaluative mediation is used by Mediators who are subject experts and offers an opinion on the strengths and weaknesses of the legal positions of the disputants leading to informed decision making by the disputants. This method is often used by judges in jurisdictions that provide for a settlement conference. This article discusses Facilitative Mediation which offers a process that’s unique in its features and is in complete contrast to litigation or Arbitration. Mediation evokes excitement because it’s speedy and cost effective, These virtues alone make a good case for opting for Mediation. There are others.
=It provides for party autonomy. Parties decide on the Mediators, the venue, the language of the mediation, the rules, and importantly, controls the outcome. No outside party sits in judgment over the dispute or how it should be settled.
=It’s informal but inspires trust. Parties sit with the Mediator and the other parties in an informal setting and engage in the process directly. They are provided ample space to speak of their concerns and participate fully while maintaining their dignity. Although there are no formalities as in a court of law, parties are required to conduct themselves in a disciplined manner. Parties are guided to move away from positions and focus on interests and needs instead.
=The procedural rules are simple and user friendly and are designed only to ensure responsible conduct. The process is not bogged down with procedural imperatives. There’s never a risk as prevails in litigation, that some flaw in complying with a procedural rule will get primacy over the core issues in the dispute, in determining the fate of the parties.
=It’s voluntary. The disputants use the option of mediation by choice and are free to walk out of a mediation at any time and are not obligated at any stage to stay in the process. This is so, even if reference to mediation is mandatory by law, based on the category of dispute and its monetary value. What is mandatory is to attempt a mediated settlement prior to proceeding to file action in a court of law.
= There’s no judgment of right vs wrong. It’s a process that seeks to find common ground to agree on a settlement that addresses the interests of both parties, and is not a process that evaluates legal entitlements although those can also be taken into account by parties when agreeing to a settlement.
=It adopts a completely non adversarial approach and therefore affords the opportunity for parties to repair fractured feelings, thus enabling an ongoing relationship.
=It’s confidential. This is an important feature of Mediation. Parties are required to sign agreement to maintain confidentiality with regard to all matters discussed. Parties agree not to divulge the substance of discussions at any other dispute resolution forum.
= The process is skillfully facilitated by a third party neutral, the Mediator. The Mediator controls the process using special skills and techniques and facilitates the disputants to reach an outcome that’s acceptable to them. The Mediator ensures that ground rules are followed to control emotions and avoid aggression during the sessions.
Neutrality of the Mediator is an important feature. The Mediator must at all times maintain independence and neutrality. If at any time, a disputant feels that this principle is breached, a mediation can be terminated.
Sri Lanka’s Mediation statutes
Mediation was first institutionalized with the enactment of the Mediation Boards Act, No. 72 of 1988 which incorporated all of the key features of Mediation. Mediation Boards now function in every Divisional Secretary’s area across the country. These have come to be known as “community Mediation Boards.” Subsequently, the Mediation (Special Categories of Disputes) Act, No. 21 of 2003 was enacted2 to provide for more specialized mediation services for certain identified categories of disputes.
The 1988 Act stipulates that certain categories of disputes must be mandatorily referred to Mediation, and also that certain disputes cannot be entertained by Community Mediation Boards.
Where reference to Mediation is mandatory, no action in respect of such a dispute can be instituted in or be entertained by a court of law unless Mediation has been unsuccessful and a certificate of non settlement from the Mediation Board is produced.
Disputes that must mandatorily be referred to Mediation are-
a) where the value of the dispute is below the monetary threshold set out in the Act, unless it’s one which gives rise to a cause of action set out in the Third Schedule to the Act.
In 1988 the monetary threshold was stipulated as Rs. 25,000/=. This has been amended from time to time and the current threshold introduced in 2016 is Rs, 500,000/=1.
The Third Schedule to the Act sets out fifteen categories of actions. These are actions in relation to disputes that were not considered suitable for settlement through community Mediation Boards.
b) where the dispute is in relation to an offence which is set out in the Second Schedule.
The Second Schedule sets out eighteen offences punishable under twenty six (26) sections of the Penal Code.
While mandatory reference to Mediation is not required in the case of disputes above Rs. 500,000/=, it is possible for the parties to submit the dispute for Mediation voluntarily, unless the dispute is one in respect of which an application for settlement cannot be entertained by a Mediation Board.
The categories of disputes that cannot be entertained by a Mediation Board, even if the value of the dispute is below Rs. 500,000/=, are the following –
where one party is the State; or
where one party is a public officer and the dispute relates to the recovery of property, money or other dues ; or
where the Attorney General has initiated proceedings in respect of an offence.
The Mediation (Special Categories of Disputes) Act, No. 21 of 2003-
The rationale for this Act was motivated by the reality that Mediation is the more appropriate method to resolve certain categories of disputes where positions based on strict legal rights and technicalities must give way to accord primacy to the needs of parties to address the underlying concerns. The challenge to reduce the litigation load in courts was also becoming a very serious one. The Act provides for the Minister to establish Mediation Boards to provide mediation services in respect of defined categories of disputes, in identified areas of the country. The category of dispute, the areas to which it will apply and the monetary threshold below which these disputes must mandatorily be referred to Mediation, are required to be set out in Orders made by the Minister1. An important statutory guideline that the Minister is required to consider to determine the categories of disputes is, “the need to provide for the meaningful resolution of disputes relating to social and economic issues.“1 It’s an important policy decision to be taken based on real needs of the people.
While the community Mediation Boards are manned by volunteers who are not required to have any specific educational qualifications, the distinguishing feature of the 2003 Act is that the Minister is required to prescribe by Regulation, the qualifications that a Mediator must possess having regard to the expertise required of Members, considering the nature of the categories of disputes that must be mediated. Different qualifications may be prescribed for different categories of disputes. The appointments are made by the same Mediation Boards Commission referred to in the 1988 Act.
Mediation Boards were established under this Act in 2005 after the Tsunami of 2004 for the resolution of tsunami related disputes and in 2015 to resolve land disputes in the Administrative Districts in the North and East. It was accepted that Mediation was the more meaningful method to address land disputes that arose after the North East ethnic conflict. The Orders currently in force as at February 2022, provide for the following1 :
It is absolutely important that the persons who will function as Mediators are trained in the techniques and skills of mediation. Without proper, adequate and focussed training, the results will be disastrous and will negate the intentions of the Act since the success of mediation in conflict resolution is totally dependent on the intrinsic value of the techniques adopted. Mediation is not a process that can succeed if you simply have the ear of a patient listener.
The UN Convention on Mediation
Mediation has increased in acceptance over the years because of its benefits. It is this popularity and its increasing use in international commercial dispute resolution that inspired UNCITRAL’s Working Group on Dispute Settlement to address the need for a harmonious regime that will set standards for the cross-border enforcement of international settlement agreements resulting from mediation. As a result of its work, the Convention on International Settlement Agreements Resulting from Mediation was adopted by the UN General Assembly (UNGA) on December 20, 2018,
The Preamble to the Convention recites that the Parties –
“recognize the value for international trade, of mediation as a method for settling commercial disputes in which the parties in dispute request a third person or persons to assist them in their attempt to settle the dispute amicably;
note that mediation is increasingly used in international and domestic commercial practice as an alternative to litigation;
considers that the use of mediation results in significant benefits, such as reducing the instances where a dispute leads to the termination of a commercial relationship, facilitating the administration of international transactions by commercial parties and producing savings in the administration of justice by States; and
are convinced that the establishment of a framework for international settlement agreements resulting from mediation that is acceptable to States with different legal, social and economic systems would contribute to the development of harmonious international economic relations “
The Convention opened for signature on August 7, 2019 in Singapore and Forty Six (46) countries including Sri Lanka became signatories on that same day. Popularly knows as the “Singapore Convention on Mediation”, it came into force on September 12, 2020. As at February, 2022 it has been signed by 55 countries and ratified by 9. Sri Lanka is now obligated to enact domestic legislation to give effect to the provisions of the Convention. UNCITRAL’s work on the Convention and its adoption by the UNGA, is evidence of the the global acceptance of Mediation to resolve commercial disputes.
The CCC- ICLP International ADR Center of Sri Lanka (IADRC)
In 2018, the Ceylon Chamber of Commerce (CCC) and the Institute for the Development of Commercial Law and Practice (ICLP) in a joint venture, incorporated a not for profit company and established a new Center, the CCC-ICLP International ADR Center (IADRC) to provide ADR services. It was a response to the need of the business community for more efficient dispute resolution. The novelty of the new Center is that it offers mediation services in addition to arbitration.
Both Institutions were aware of the global trends that favored ADR and the successes of Regional Centers. The Hong Kong International Arbitration Center (HKIAC) established in 1985, the Singapore Mediation Center (SMC) launched in 1997, the Indian Institute of Arbitration and Mediation (IIAM) established in 2001, the International ADR Center of the Indian Merchants Chamber (IIMC) established in 2015 and the Malaysian Mediation Center (MMC) established in 1999 under the auspices of the Bar Council of Malaysia, offered inspiration. These centers offered services that included Arbitration and Mediation. The Singapore Mediation Center states that, as at Feb 2022, it has mediated 5,200 matters worth over $10 billion since its launch. The rate of successful mediations is stated to be 70% with 90% of those having been settled in one day! The high rate of success can be attributed to the skill and competence and the professionalism of the Mediators. Compliance with the mediation process and using the special skills and techniques are key to achieving good outcomes and hence the absolute need for training.
The IADRC launched its Arbitration and Mediation Rules in April 2021 and has trained Mediators and Arbitrators who are available to provide services. The Arbitration Rules of the Center seek to eliminate some of the common causes for delay. It’s the only Center that offers institutionalized Mediation for commercial dispute resolution. Arbitration and Mediation services can be administered in compliance with these Rules of the Center, or the UNCITRAL Rules, or any others that may be adopted on an ad hoc basis.
The Mediation Rules of the IADRC
The CCC-ICLP Mediation Rules incorporate all the internationally recognized standards that are known to define the Mediation process. The Rules provide for the following-
To commence the Mediation, an application (a “Request for Mediation”) must be made to the Center either by one party or jointly by all disputing parties, requesting Mediation services for the settlement of the dispute.
After completing preliminary administrative steps such as obtaining, where appropriate, the consent of all parties to pursue Mediation, the parties are required to sign the “Agreement to Mediate”. This Agreement includes an obligation to “abide by and comply with the Mediation Rules of the Center or other Rules that have been agreed to.”
The language of the Mediation will be as agreed to, by the parties.
The next step is to appoint a Mediator or a panel of Mediators. The disputing parties have the discretion to nominate a Mediator from among those accredited by the Center or from outside of that list. Usually, a Mediation will be handled by a single Mediator. However, a panel could be appointed if so desired, where there are complex issues in a dispute.
Importantly, the Mediator has to be independent, impartial and neutral throughout the process. Several safeguards are included to ensure compliance with this principle.
The Mediation sessions then commence. The Mediator manages the process and will, for this purpose convene sessions on dates and times agreed to by the parties, at a neutral venue.
The process will commence with a joint session where all parties are present. The Mediator will explain the principles that apply and explain the process. Thereafter the Mediator will decide when to have joint sessions with all parties, and individual sessions (called a “caucus”) with each party.
At these sessions, the parties have the opportunity to discuss the matters in dispute from their own perspective. The statements, disclosures and proposals made at a Mediation are maintained in absolute confidence and are made without prejudice. This principle provides the confidence to disputing parties that nothing said can be used in any other dispute resolution process or other forum. The Mediator and the parties cannot be compelled to give evidence as to any matters disclosed at the Mediation in a court of law.
The Rules set out the obligations of the parties – attendance at the sessions in person and in the case of corporate entities attendance through a representative who is given full authority to sign off on a Settlement Agreement; compliance with the rule on confidentiality; full and honest disclosure of matters material to the dispute.
Parties are not entitled to legal representation at the sessions but may call in a Lawyer for the sole purpose of obtaining advice. However, a Lawyer who is a full time employee of a corporate is not excluded from participating at the sessions on behalf of a corporate entity.
During these sessions, a Mediator will not give directions or instructions on how to settle the dispute. The Mediator will however question the parties in a non coercive manner to help them reach a new understanding of the issues in dispute and of the concerns of the other party.
A Mediation is terminated either with an agreement to settle or with an agreement that no settlement is possible.
Where there is an agreement to settle, the Mediator is required to explain to the parties the terms and conditions of the settlement and the obligations that each party is assuming under the agreement. A settlement Agreement will be set in writing and signed by the parties and the Mediator. This is an agreement that binds the parties as any other agreement, and each party has a legal obligation to honour its terms and conditions.
Where the Mediator determines that continuing the Mediation is futile since it’s unlikely to result in a settlement considering the progress of the Mediation, or where a party informs that it wishes to withdraw from a Mediation, the Mediation will be terminated.
In either event, all the documents submitted to the Center by each party will be returned.
In normal circumstances a mediated agreement should stand the test of time since many steps have been taken to ensure it’s sustainability. However, the Rules provide for an application to be made to revise or revoke an Agreement on very limited grounds, ie. On the grounds that a) the terms were agreed to, without a proper appreciation of the obligations; or b) circumstances have arisen that prevent a party honoring the obligations; or c) that there was bias on the part of the Mediator. The last ground is most unlikely given the several steps that are required to be taken to ensure impartiality. However, this ground is included as a principle of good governance since it’s a vital feature of Mediation. An application to revise or revoke will be inquired into by the Center and a settlement will be attempted in compliance with the same principles that apply to a Mediation.
Mediation is not an expensive process. However there are fees to be paid. The Fees for a Mediation include Administration fees as well as fees for the Mediator/s. The fees are prescribed by the Center in a Fee Schedule and will be a predetermined sum which will be made known to the parties prior to the commencement of the Mediation. There will be no surprises.
Conclusion
Mediation is not the most appropriate method of dispute resolution for all categories of disputes. That’s accepted. Even with the twin evils of delay and expense certain causes of action need to be determined by a court of law. Mediation however, has gained global recognition as the better method for many kinds of disputes ranging from family and workplace disputes to construction and commercial disputes.
Given the potential to be speedy and cost effective, and the high level of user satisfaction, the services provided by the CCC-ICLP IADR Center will no doubt improve the commercial dispute resolution landscape in Sri Lanka. It will also contribute to improve Sri Lanka’s performance in the contract enforcement indicator in the Doing Business rankings. The enactment of domestic legislation to enable the enforcement of international mediated settlement agreements in line with the Singapore Convention will also certainly enhance Sri Lanka’s efforts to attract foreign investors. The slogan “Mediate, don’t litigate” is gaining in popularity given the reality that it’s not always smart to litigate to be right.
Features
‘Reflections on the Continuing Crises of Post-War Sri Lanka’

The Institute of International Studies(IIS) recently published a volume, ‘Reflections on The Continuing Crises of Post-War Sr Lanka’ edited by Professors Amal Jayawardena and Gamini Keerwella. Delivering the keynote address, at its launch on 24 April, at the BMICH, former Foreign Secretary, H. M. G. S. Palihakkara reflected on the context and substance of the publication with particular reference to the challenge before the NPP government to convert the voter support it received into a public policy consensus essential to addressing multiple issues of statecraft at hand.
Excerpts:
We are at a juncture of profound change happening nationally as well as internationally – changes that seem to engender a mixed bag of imponderables and great worry, even danger. While many contend that these changes upend globalised advancement, portend uncertainty and unpredictability, some good is seen by others in that certain disruptions could lead to pathways for course corrections. While this obviously divisive and controversial discourse goes on, what is clear and present is that it’s a world where affairs within and between states are in flux. Some of our neighbourhood commentators put it as a ‘world adrift’ or a world ‘getting unhinged’. The description of this volatility and prescriptions for handling the vortex of churning issues may defy objective analysis but the stark reality is that it represents an unprecedented and defining challenge to the post World War international system or the so-called ‘rules -based order’.
Head winds and tail winds of this flux have begun to manifest with different intensity in different countries constraining their space and capacity to grow sustainably and live securely. For some, the situation may morph into existential issues. Sri Lanka’s case lies somewhere in between it looks, but there is no denying that all will be profoundly affected-especially so for countries like us that are struggling to transit from crisis-recovery stability to a sustainable growth scenario. They are obliged to do this while juggling as prudently as possible, attendant geopolitical conundrums thrown up by the competing interests of power players, leading to difficult and often futile attempt to balance the unbalanceable!
At the national level, a new government of former ‘armed struggle fame’ has assumed office promising constructive change, clean and accountable governance based on the idea of reconciliation and equal citizenship for all. This was a hitherto unseen national common ground crafted by the voters(north-south-east-west) – voters fatigued with corrupt stereo-types. They did so, asking the new government to deliver on this attractive and perhaps the most inclusive post conflict mandate yet.
But the government seems to remain somewhat overwhelmed with this exciting but daunting agenda of public policy making and governance. Challenges include dovetailing the currently apparent economic stability into a growth conducive one; preventing a double jeopardy of economic crisis pain morphing into reform pain; doing all that without falling prey to grinding strategic matrixes of our ‘geopolitical friends’; dealing with some of our closest friends who come bearing gifts like distress money and un-solicited power play advice; how to negotiate with them without simply signing onto their wish lists that seek to requisition our sovereign assets thus leaving little or no room to negotiate even as unequals, let alone as sovereign equals!
To add to these woes of the new government, the incumbency factor seems to be setting in as evidenced by some ham-handed handling of delicate issues both domestic and international.
In this fraught setting, the government has boldly, and one must say correctly, decided to go for local polls. This is obviously not a regime change election but it certainly is a regime test one. The losers at the last elections both big and small, seem to have found common cause in firing the first salvos of the government ‘toppling game’ even as they know very well there is no constitutional way to do regime change for the next five years. The Government, on its part has not done itself any favours by scoring rather heavy in clumsiness index. Waffling continues uncomfortably on several fronts critical to public policy issues of national and international significance.
So this is a daunting inventory of domestic things to do in an international system that has turned volatile- a system in which an oxymoronic situation had long persisted because the alleged ‘ rules-based order‘ continued to be confronted by the reality of power-based practice. As we all know, when in contention, power usually trumps the rules. It happens so often it has become quite a ‘convenient truth’! The crudest and what could even be the most dangerous form of this contradiction is peaking now thanks to the phenomenon known as the Trump Two.
The book ‘Reflections on the Continuing Crises of Post-War Sri Lanka.’, helps us introspect in a context where the country is striving -in fact struggling- to recover from multiple self-made crises and become a self-caring nation under a new but un-tested Government-obviously, a timely thing to do.
Well researched and well sourced work in this volume explore an array of considerations both in empirical and conceptual terms as to how and why , after ending the armed conflict, conflicts by other means have continued spawning multiple crises- occurring in almost regular succession-and in diverse domains e.g. governance, socio-economic, ethnic and religious harmony, political, security, foreign policy and so on.
The purpose here is a comment in the form of my take on what this volume presents to the policy community-both political and bureaucratic:
First, it gives out a yet another alarming read-out of the cost of successive leadership failures in this country- failure to ensure constitutional governance, sustainable and equitable economic growth, reconciliation, accountability, the rule of law and so on. It reminds me of a meeting thirteen years ago, which I had the honour to chair in this very Hall at the BCIS, remembering the late legal legend, HL de Silva.
There my observation was that:
” The diminishing respect for the rule of law diminishes us all. Such erosion will allow impunity to raise its ugly head. Usually, impunity signals the onset of decay. It impairs civilised life and democracy. And it undermines the investment climate. Conversely, the upholding of the rule of law manifestly strengthens sovereignty, pre-empts external calls for intrusive accountability, deters threats to territorial integrity of the nation and facilitates the enjoyment of fruits of citizenship and democracy by all’. http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=52289)
It is ironic but highly appropriate that the authors felt compelled to flag these same ‘reflections’ more than a decade later signifying the extent of the ‘unfinished business’ before us.
Secondly, it brings into sharp relief, the absence in this country of a culture of consensus or common ground in the business of public policy making. This contrast has remained conspicuous because the conscientious voters of this land have repeatedly braved political violence, insurgent violence and terrorist violence to grant that mandate to the elected government to do consensual work towards preventing crises and deterring conflict.
That did not happen of course. The consensual culture wished for by the voters died of political asphyxiation. This was due to the kind of parochialism our rulers have been obsessed with. There was decay in multiple fields – the economy, accountability, rule of law, national security, human security, foreign policy and so on. What is more, the contrary took root and polarisation rolled on fuelled both by those elected to power as well as by those thrown out of power. The former did so to remain in power and the latter to topple and recapture. The economy suffered. Investors ran away. The voters found they have nowhere to run.
This continues to date, even after the voters have once again shown that consensus is possible in this country. There was a country-wide consensual momentum to vote into power the current govt. who promised change to bring about accountability, the rule of law, transparent and corruption free governance and equal citizenship for all plus economic reforms. Rejecting the most, if not all corrupt stereo types and ignoring the usual ethnic and religious divides, voters rallied round a high octane call for that change. But the Govt. seems to be going about exploiting that momentum, if they are going about it at all, in the clumsiest way possible thus losing traction in turning that voter’s consensus into a public policy consensus. And not to be out-done, the losers- big and small- have got back on the usual track to begin the govt toppling game. So, the fact that the responsibility of building common ground lies not only with the government but also with the Opposition has become an inconvenient truth.
A ray of hope emerged when there was an all-party initiative to handle the unfolding ‘Tariff war’. But it looked more like a proforma reaction to a tariff drama by a bull-dozing President of a misfiring superpower, than a genuine domestic compulsion to initiate a consensual process enabling us to negotiate with our foreign interlocutors from a position of policy cohesion and bargaining strength.
This is in contrast to other countries including in South Asia that had the vision and wisdom to go consensual on critical national issues while not ruling out the option of politicians to go parochial on non-critical issues so that they can still mis-lead voters to win elections!
Faced with a looming economic crisis, the Congress – BJP agreement on economic reforms in India under PM Manmohan Singh’s watch in the 1990s paved the way for the robust growth of the Indian economic and geopolitical power today; In Bangladesh, an unprecedented bipartisan understanding on energy esp. its policy on exploiting newly discovered LNG deposits as well as a degree of self-rule to their hill tribe rebels and agreement in Nepal on mainstreaming their rebels are such contrasting examples of public policy consensus in our own sub-region.
They understood that weaponizing national issues for electoral gain can gravely undermine the welfare of the succeeding generation.
So besides these contrasting and rewarding examples and experiences in our own sub region, what is so magical about common ground and why do we have to do it?
We need a consensual economic reform programme that cannot and should not be weaponised for the purpose of regime change undermining stability and predictability , even going beyond the important gauntlet of 2028, when Sri Lanka has to resume the enormous burden of debt repayment,
Going by the Govt’s track record so far, the opposition can count on the Govt. to provide enough vulnerabilities on the non-critical list to exploit and attempt regime change! So it is irrational and irresponsible for the opposition to use imaginary or real faults so early in the game to upend the hard earned macro-economic and social stability as we prepare for the 2028 threshold.
On the geopolitical , foreign relations and governance front, one can do without the disruptive, destabilising and even dangerous contentions like the on-going one advocating that Sri Lanka should formally ‘align and economically integrate’ with its giant neighbour. That country is clearly a party to the principal geo-strategic rivalry in the Indo Pacific that is growing in complexity and intensity. Such a huge change of course for Sri Lanka could invite dangerous target practice by other power players. It would also be naïve to believe that the only way forward for Sri Lanka is a piggy back with India for a ride to economic prosperity on a trickle down basis..
It is a cogent point that it could amount to a ‘strategic capture in connectivity clothing’; that no such template has worked elsewhere in the world and Sri Lanka could thus become a non-self-governing territory where our sovereign assets may be parcelled out to strategic players jostling for power.
Both sides of this contention have overlooked the middle path imperative available for Sri Lanka. That is assiduously working to allay ill-founded or well-founded Indian security fears in a verifiable way using many bilateral tools available including the so called ‘national technical means’ while pressing ahead with equal vigour to deepen and widen ‘negotiated’ economic cooperation in identified areas – not structural integration- with our friendly neighbour. This is the way for Sri Lanka to exploit the competitive and comparative advantage it has with a robustly growing India that can benefit both countries. This is the must do thing. Any asymmetry dictated aligning or integration by momentum or wish list signing without negotiating is ‘the must avoid thing. There are many reasons for this avoidance but the latest and the most explosive one comes from Bangladesh. As a blow back to an asymmetry driven integration and autocratisation of the Hasina regime, Indo-Bangla relations exploded while Bangladesh itself imploded.
There are varying degrees of indo centric trouble in all South Asian countries except may be in Bhutan so much so that some Indian analysts themselves have characterised India’s ‘neighbourhood first policy’ as a ‘neighbourhood lost policy’.
We of course cannot afford such polemical luxury but we do need a domestic consensus to do two things:
‘Assure India about their security fears through bilateral technical means and ‘negotiate’ with India on deep-going economic cooperation. This middle path imperative backed by a bipartisan or consensual common ground will demonstrate our policy consistency and predictability towards India while providing benefits achieved by negotiated mutuality – not solely dictated by asymmetry. To be successful, this needs a domestic consensus here- across the isles of quarrelling members of the legislature- the kind of common ground the late Minister Kadirgamar strenuously worked for- the kind of acts of contrition and consensus that LLRC proposed some decades ago in order to advance post-conflict peace building.
Whether this already is a foregone conclusion or still an open question available to negotiate will become clearer when two crops of indo Lanka MOUs concluded by the former Government as well as the present one, cease to be unseen documents.
Such common understanding is needed not only to pilot our relations with our close and distant friends like India and China but also to deal with a host of other governance and foreign relations issues like accountability and reconciliation which remain externalised because the lack of a domestic understanding to deal with them has made them migrate abroad and morph into diplomatic issues entailing multiple challenges. Some past Govts unsuccessfully tried to address these challenges by actively encouraging international consensus on some of these. They did so, while being unable or unwilling to develop a national consensus on these sensitive matters despite the voters here providing robust mandates to do so. Without a national common ground, external prescriptions by themselves cannot deliver justice to victims. Every unpunished crime has an economic cost in both national and international terms. Most, if not all these failures are principally due to the paucity of a shared understanding here.
Consensus is not something you find in a cupboard! It has to be nurtured. Consensus happens not when you make everybody absolutely happy. It happens when you equitably distribute managed unhappiness among everybody. To some it is a fine art. To others it is a hard-nosed science. Perhaps it is a hybrid . Whatever it is, our voters have done it and found it. The NPP’s resounding election victory was the result. So the winner Government must mould that voters’ consensus into a public policy consensus. They can lose sometime but not too much time as windows may start closing. Policy makers – or ‘pain makers’ as some call them- must make haste slowly. If not, down the road, our succeeding generations may be compelled to launch another valuable book of reflections like this .
My friend Professor Jayadeva Uyangoda in his probing scrutiny about the causes and effects of our crises aptly refers to what he calls ‘a crucial political point’ about the “relationship between the state and society becoming violent and the capacity of the liberal parliamentary democracy to restore peace between the State and society becoming severely limited”. If our policy people don’t get the hybrid our voters have found, it is most likely that the next ‘reflection book’ might say ’peace restoration’ is still work in progress. Hopefully, it will not say restoration has regressed!
On that note of mild happiness, I would like to thank you for your patience.
Features
Expensive to die; worship fervour eclipses piety

Death and dying were in the forefront this last week because of Pope Francis’ end to life. Even while dying he seemed to think of others and with compassion be considerate. He knew of the masses that would gather at St Peter’s Basilica in the Vatican City with concern for him. He was surely weak and ill but wanted to be wheel chaired to the balcony to be seen by those gathered below on East Sunday. He lived through the Easter days and then died on Monday, having left details of how his funeral should be conducted: simple to the utmost. The most obvious of austerity and elimination of ostentation was the coffin the Pope desired he be buried in – a simple stark rectangular wooden box. Usually a pope is buried with personal items and documents in a three nested coffin of cypress, lead and oak. Cypress symbolises humility; the middle coffin of lead preserves the body and secures documents; and elm or oak of the outermost coffin ensures durability and symbolises humility. Pope Francis wanted none of this.
Funeral; expenses locally
This stark simplicity and great wisdom of choice posed itself against how burials and cremations are conducted in this land of ours. They are often lavish displays, with food and drink flowing and people gathering as if it were a merry social gathering. Coffins are ornate and of course costly. They are satin lined and frilled, with tassels galore and shiny metal handles. People get into debt to make a show of a funeral. Mercifully, to stall such and also help in a need, village and town folk set up funeral committees. Annual contributions with membership, guarantees that the payee or his close relatives receive a decent funeral, the committee meeting expenses.
Cassandra has long wondered why trees have to be brought down and coffins made of its wood, polished to mirror appearance. Why not coffins of artificial wood, hardboard or even reinforced cardboard, more so for cremations. Long ago when at A F Raymond’s funeral parlour to pay in advance for Cass’ funeral, the desk person, answering her question, gave the excuse that people want to spend and insist on wood. Hence the huge cost of a funeral, even the cheapest running to a lakh and more.
Heard over BBC on Wednesday, April 30, that the UK might insist on payment of goods bought, in cash. This move for fear the country may go cashless, only plastic cards in use. Likewise, our government could decree that trees cannot be cut for making coffins. But first of all, of course, seeing that an alternative is freely available, tested and proved up to the job of holding a dead body for a couple of days
Worship fervour
The exposition of the Sacred Tooth Relic in the Dalada Maligawa, Kandy, is over. However, we do not know whether the consequences of the huge gathering of people in that already crowded and hemmed-in-by-mountains city are felt now. Maybe the authorities in Kandy did not expect such a pouring in of humanity to the Hill Capital. Maybe when President Dissanayaka voiced his opinion that an exposition would be good, he did not envisage such an influx of people to the city.
A friend said that the JVP Leader as Prez voiced his wish as a political gimmick. He said the JVP had hired buses and brought people to Kandy in droves, ignoring the fact it was bursting at the seams from day one onwards. Cass mentions these suppositions not believing them herself. But one fact emerged: an exposition of the Relic as was done recently cannot be repeated. Cass feels a solution would be to allocate days for the Provinces at the next exposition, province by province coming to Kandy, probably combining the Northern and Eastern. Provinces, where Buddhists are fewer in number.
Expositions at the Dalada Maligawa were much more frequent long ago, say up until the 1970s or so. Cass was born and bred in Kandy. Many were the expositions she recalls in the 1940s and 50s. Crowds were much less of course but the single queues that formed were perhaps the first she had seen. The Diyawadana Nilame then was always from a radala (aristocratic) family and was voted in by Kandyan Divisional Revenue Officers (DRO). Mother boasting two in the family got double passes to go straight into the inner chamber and watch the entire process of removal of jewellery and caskets until the final glass casket is revealed. I had to accompany her to the Maligawa but refused entrance to the inner sanctum. Much preferred by me was walking in a queue. Mother’s comment was that I lacked labeema. True!
The crowds, the adoration, the surely felt feeling that more the suffering, the greater the merit earned – pina, goes to show that for very many zeal exceeds piety. Yes, it’s good to venerate the Tooth Relic but the Buddha never wanted any veneration of himself or his remains after his death. He was a human being but with superior wisdom. insight, intelligence. He never wanted the fact that he was a human being to be forgotten since his teaching was to follow the Path he showed to end all suffering of repeated births and deaths. Cass admits she giggled, yes wickedly derisive, when women said they would now surely attain Nibbana having worshipped the Sacred Tooth. Zealousness outpacing sincere devotion; diminishing true sila or piety.
Hundred days of Trump’s reign
One may even term these past three months ‘Trump’s tumultuous dictatorship’.
He did his slow-motion dance before a huge celebrating crowd to announce that never in the history of the US of America has there been such a successful presidency; that he, Donald Trump, has shown most pluses and successes in his first 100 days than any other president in American history. Cass just muttered ‘Tell that to the Chinaman’ with double innuendo now. She cannot fathom how conceited, egotistic and self- believing this man is. And he is not merely boasting; Cass is sure he believes he is the greatest, while in his first quarter he has plunged international trade to the dumps; made life worse for most Americans, and almost caused an American and world recession.
Features
The truth will set us free – II

Lesson 2: Renewal begins with children
Timothy Snyder (55) maintained interaction with his two children (ten-year-old son and the younger daughter) while he was in a Florida hospital at the beginning of 2020. No doubt, his wife Marci Shore (53), also teaching history at Yale University then, helped this loving interaction between the father and his children. The children told him about their school work and inquired about his progress towards recovery. Snyder remembers how he kept thinking about his children even in his sickest moments. and finds fault with America for falling short of the standards reached by countries like Austria in infant and child health.
Of course, in fairness to America today (2025), it must be said that children, parents, and their health and welfare, and the family institution are receiving the highest recognition in the country, irrespective of untenable extremes of neoliberalism ideologies like wokeism and related lgbtqa+ and transgender sex change surgery issues, etc., as evident at least in the American domestic political domain. Elon Musk (53), Senior Advisor to US President Donald Trump (78), is often seen with his youngest son having a piggyback ride on his busy father’s shoulders even on state occasions; President Trump sometimes proudly shows off his nineteen-year-old son Barron accompanying him on the stage, the fresh young man stealing the show at his old father’s expense, especially among young voters. The youngish US Vice President J.D. Vance (40) and Usha Vance (39), his wife of Indian origin, were on a four-day visit (beginning April 21) to resurgent India recently with their three little children who, innocently unaware of and unconcerned about what was going on around them, endeared Americans to Indians, thereby greatly enhancing the efficacy of their parents’ diplomatic endeavour to strengthen bilateral bonds and economic and security cooperation between the two powerful nations. Musk and Trump are businessmen turned politicians, while the Vances have been lawyers. But all four are normal parents. Cynics might cavil at such ‘childish displays’ as advertising gimmicks for promoting the pro binary sex ideology perspective, where children are insensitively exploited as mascots for their propaganda. But a more sober judgement would be to view such high-profile demonstrations as indicating an emergent trend in America towards a return to healthy normalcy in its sex culture where parents with their own children form close knit stable family units that coalesce into a vibrant society.
Snyder recounts how well he and his wife Marci were treated as first-time parents in a public hospital in Vienna in Austria, where their son was born in 2009. They had to pay hardly anything by way of hospital fees. The Snyders ‘experienced a sense of what good health care felt like from inside: intimate and inexpensive’. Marci was given a ‘mother-child passport’, which was recognised at health facilities throughout Austria. When she entered any hospital or doctor’s office, she was asked to show the ‘passport’. The doctor or the nurse didn’t look at a screen to identify the mother and her child.
In Austria, according to Snyder, pregnant mothers close to delivery time are asked to come to the maternity hospital at water breaking (i.e., when the amniotic sac covering the foetus breaks) or when contractions occur at 20-minute intervals. In America, they are asked to wait longer until the contractions are only three or four minutes apart. So, in America, deliveries sometimes happen in the back seat of a car, putting both the babies and the mothers in danger. In Austria, again, the mother and the baby have to stay in hospital for 96 hours (4 days) after delivery, allowing time for the baby to have a good start, and for the mother to learn to breastfeed. The difference between America and Austria in this respect, Snyder says, is one between a logic of profit and a logic of life.
Even the general public in Austria are helpful towards parents with children. The institutions that helped the Snyders (as first-time parents) ‘from the public hospital to the public kindergarten to the public transport were an infrastructure of solidarity that helped people together, making them feel that at the end of the day they were not alone’, whereas in America, ‘birth is where our story about freedom dies. We never talk about how bringing new life into the world makes heroic individualism impossible’. (That is, doing everything alone, with little outside help, preserving one’s autonomy, is not possible in the real world)
This applies to children in their formative years, as well. A piece of wisdom Snyder offers is that ‘to be free involves having a sense of one’s own interests and of what one needs to fulfill them. Thinking about the constraints of life under pressure requires an ability to experience, name and regulate emotions’. But this freedom cannot be gained without help. That is the paradox of freedom as Snyder calls it; no one is free without help
Snyder distils into his critique of the unsatisfactoriness of the American healthcare system an important insight in respect of early childhood care: it is that ‘how children are treated when they are very young profoundly affects how they will live the rest of their lives. That is perhaps the most important thing that scientists have to teach us about health and freedom today’. Speech, thought and will emerge as infants and toddlers interact with other people. ‘We learn as very small children, if we ever learn, to recover from disappointment and to delay pleasure. …what allows these capacities to develop are relationships, play and choices’.
Snyder points out that providing good healthcare facilities for children leads eventually to a lower crime rate, functional democracy, and efficiency in decision making. He feels that emotional regulation is overlooked in America. There is no sufficient focus on the relationship between parents and children. The regrettable lapses in American health care affects children more negatively than for adults. Parents need to relate to their children in ways that promote their optimal physical, mental and ethical development is part of a good healthcare system. Healthy interaction between parents and children is of vital importance for the education of children. Probably, the situation in Sri Lanka may not be better than in America in view of, among other things, the economic hardships that parents inevitably have to face.
Children and young adults, particularly in suburban and rural areas, are a threatened species. Apart from the economic difficulties that their parents experience, restricting their ability to meet the cost of augmenting the education that the state provides free of charge, non-urban Sri Lankan children often suffer due to a lack of basic infrastructure facilities like good transport, proper school buildings, modern libraries and adequately equipped labs, internet facilities and easy accessibility to local and foreign online sources of learning and research.
Lesson 3: The truth will set us free
After a procedure done on his liver in the emergency room of an American hospital on December 29, 2019, Timothy Snyder was admitted to a room, where he spent the last days of the year and the first days of the next ‘raging and contemplating’. He had to share that room with a Chinese man with a number of afflictions. The Chinese didn’t know any English. So, a lot of ‘personal and medical information was communicated loudly, slowly and repeatedly’. The Chinese was senior to Snyder by fourteen years; he was in withdrawal from nicotine smoking and alcohol drinking after five decades of daily consumption of the two intoxicants. The two became mutually accommodating friends.
But Snyder suffered a lung infection due to close contact with the Chinese, who had himself succumbed to illness caused by a parasite ingested while eating raw fish on a previous visit to China, but got well later. However, Snyder recovered and left the hospital, after exchanging farewell messages with the friendly Chinese, who had to stay on further in hospital.
The latter, Snyder says, is an example of two ways that medicine can get to the truth: thinking along with the patient, focusing on their story, and searching for information through tests. His conclusion is that in early 2020, the federal government failed Americans in both ways. There was no sensible discussion of the history of pandemics, and no procedure to test for the new coronavirus. The sections of the National Security Council and the Department of Homeland Security meant to deal with epidemics, as well as a special unit in the Agency for International Development meant to predict epidemics had been disbanded. American health experts had been called back from the rest of the world. The last officer of the Centers for Disease Control and Prevention assigned to China had been recalled to the US in July 2019, a few months before the epidemic broke out.
President Trump had overseen budget cuts for institutions looking after public health. The US surgeon general sang in a tweet on February 1, 2020: ‘Roses are red/Violets are blue/Risk is low for #coronavirus/But high for the flu’. Nero was fiddling while Rome was burning! As the year began, Americans were denied the basic knowledge necessary for making independent decisions of their own. President showed little anxiety about the steadily growing threat of the coronavirus. ‘It is going to disappear…like a miracle’. In effect they were creating a ‘news desert’. The media kept silent about the spreading pollution. Google and FB don’t carry news. They only raked in advertising revenues as usual.
But the disease was transmitted rapidly across the counties. The Covid death toll rose in leaps and bounds. ‘The seven American counties with the most Covid deaths would now rank among the top twenty countries. These are simple facts’. Snyder observes: ‘Since the truth sets you free, the people who oppress you resist the truth’. Historian Snyder refers to why British people have unkind memories of prime minister Neville Chamberlain because he tried to please the public in 1938 by falsely asserting that there was no need to go to war against Hitler. Winston Churchill earned their love and honour for having told them the unpleasant truth that they had to make war on the Nazi leader to stop him.
Snyder remembers reading (J.R.R. Tolkien’s) The Lord of the Rings to his son and daughter before he became ill. In that story Gandalf the wizard is a noble character with great power. He tells truths that people don’t want to hear. He is usually disliked as a bearer of bad news, and his advice is ignored. Although Gandalf is powerful, he cannot save the world by himself. He needs to build up a coalition by convincing others of the reality of a threat; but they won’t listen to him. Instead, out of ignorance, they look for an excuse for submission.That is human nature, but no way to be free. In frustration, Gandalf finally retorts that without knowledge, freedom has no chance.
Lesson 4: Doctors should be in charge
Snyder’s unexpected midnight admission to a hospital in Florida and two days stay there coincided with his mother’s birthday that year. So, he was unable to be with her on the occasion. The attention he got from the doctors was hurried and seemingly perfunctory, and it was hardly face-to-face. The longest time of fifteen minutes he saw a doctor was over Skype with a neurologist. Snyder thinks that the problem is not that doctors do not want to work with patients. They do work really hard, as people saw during the pandemic, risking their own health and even their lives in order to save others’ lives. The problem, according to Snyder, is that they have no say in what happens around them, but waste their time and energy pacifying greater powers. In America, doctors no longer have the authority that patients expect and need from them.
Readers, please remember that this was five years ago. The situation in America may have improved since, especially after the coronavirus pandemic took its toll and departed. The alleged mercenary bias of the American healthcare system largely caused by the profiteering Big Pharma, the insensitivity of the colluding political authorities, and the misinformation peddled by the media (particularly digital) that Snyder sharply criticizes in this book may have eased, too.
However, a little reflection will convince the intelligent readers that Timothy Snyder’s Four Lessons have great relevance to certain aspects of the deplorable situation in Sri Lanka today. This ad hoc review of mine of Snyder’s book, if read with a ‘comparative research’ oriented mind, will make the book look like a mirror held up to the prevailing reality there. (I have used a paperback edition of the book in my possession, issued by The Bodley Head, London, in 2020, in which year Snyder’s book containing his cogent case and powerful appeal for redress was first published.)
Concluded
by Rohana R. Wasala
(Continued from April 25, 2025)
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