By Capt Elmo Jayawardena
elmojay1@gmail.com

There is a little school, very old in years, nestling at the foot of Piduruthalagala, the tallest mountain in Sri Lanka. This is in Nuwara- Eliya; Little England as it was fondly known in colonial times. When the clock strikes at 8.00 in the morning, the school bell tolls to begin the day’s work and at 2 pm the bell rings again to signal the end of a school day. I do not know how many students are currently enrolled in the school. Maybe around 700, all boys, all day-scholars. I have already said the school is old, but the correct adjective may be ‘ancient’.

The school started in 1859 as the records go; 33 students and a single teacher made up the total. Such was its humble beginning. From then to the present day it has been an unbroken line of service given by St Xavier’s College, which has done its best to survive and cater to the needs of the community. It has rendered yeoman service in the field of education, irrespective of the winds that blew to shake its foundations, be them political, religious, or racial monsoons that periodically battered the walls of St Xavier’s College.

The school withstood the calamities. It may have dents and cracks, but still stands tall. The credit must go to the staunch minority of faithful Xaverians, both young and old, who did their very best to keep the school flag aloft.

The structure at the beginning was almost like a shed, a ramshackle roof for shelter attached to one side of the small St Xavier’s church. This was common for most church schools born at that time. Maybe, they had desks and chairs, but I doubt very much. Probably, there may have had some wooden benches, or more likely, the kids may even have sat on reed mats. What was important in this makeshift equation was the fact that the school admitted all and sundry. With almost equal numbers of Tamil and Sinhalese students, perhaps a Muslim and a Burgher or two may have made up the 33. Today, we have accurate numbers. The Tamil students are the majority at 78% and their Sinhala counterparts are a 20% with a minor representation of Muslims and perhaps a mixed Burgher. The cocktail of races in a classroom could be the best possible catalyst for future racial harmony. Yes, we have a cold peace now; it only needs a cinder to ignite the fire of hatred. Schools such as St Xaviers are the best-known remedy, home-grown deterrents, teaching young minds to respect and understand racial differences.

Historically, the institute was started as a Parish School by Catholic priests, Fr Adrian Bertrand Duffo and Fr John Peter Perreard. Many a cassocked leader took the reins to guide the school as the years rolled by. Student numbers increased, a roof or two were added, and in 1920 it was registered as an English School under the leadership of Rev. Fr Alexander Siriwardena. It was also Fr Siriwardena who initiated the construction of a proper school building in 1920; the school clebrates its 100 years of existence and service to the school this year.

The Siriwardena Block has seen better days. It is time the authorities, either the school or the Education Ministry, made a decision to renovate the building, and gave it a ‘born again’ look to celebrate its 100^th birthday. The state it is in now is sad; the Siriwardena Block deserves better.

The Catholic priests bade their farewells and the De La Salle Brothers took over. Their reign came to an end in the year 1961, when schools were taken over by the state. St. Xaviers too was acquired by the state through a gazette notification. That is the simple and fundamental story of St Xavier’s College, Nuwara-Eliya.

I do not think the school has sent anyone to play cricket for the national team. Of course, I know they played football and basketball reasonably well and had talented athletes who took part in all-island competitions. Though St Xaviers had no connection to golf, it was Xeverian-bred golfer K. Prabaharan who outshone them all when in 2003 he won the National Golf Championship and went on to win the All India Championship in 2007. Maybe there are some old boys who completed their tertiary education. All that can be ascertained from the records if anyone is interested. Yes, it is good to have such details, but could we measure the most important factor? The basic education given to Nadarajan, Munidasa, Barthelot and Hameed, and the hundreds who came from different racial backgrounds to sit in one classroom and forge friendships that could last a lifetime? That will always be the invisible silver thread that bound Old Xaverians. Isn’t that worth more than a century scored at Kettarama or a PhD from Texas?

Yes, yardsticks could be different, but there is incalculable value that the little school at the foot of the Mountain poured into those who grew up in its shade.

Perhaps, Piduruthalagala from its vantage view saw the whole story, maybe shed a tear or two for some of the governing absurdities, and yet silently cheered the goodness that existed within the walls of this sesquicentennial institution of education.

Building a future and forgetting the past

Continued from Sunday Island (20)

by Professor Savitri Goonesekere

The Judiciary

The judiciary is an important organ of government in a system of Parliamentary democracy, often expressed in the concept that institutions engaged in the administration of justice must be “independent” or free of political interference. Certain measures are incorporated in Constitutions, in a Parliamentary democracy, to ensure that there is no political interference in the matter of appointment and dismissals of judges.

The long history of political interference and the experience with the impeachment of Chief Justices after 1978 led to pressures for a system of appointment that would prevent such interference. The 19th Amendment failed to incorporate changes in regard to dismissal of judges of the Supreme Court and the Court of Appeal. However it went back to the norms of the 17th Amendment and created a Constitutional Council that was responsible for oversight on appointments to the Appeal Courts, and also in regard to the two judges (apart from the ex officio Chairman, the Chief Justice), who serve on the Judicial Services Commission. This is the body entrusted with the appointment dismissal and disciplinary control of other judicial officers.

The 20th Amendment has repealed the provisions on the Constitutional Council. The President is required to obtain the “observations” of the Parliamentary Council that has replaced the Constitutional Council,  but he is not required to consider their views  in making  appointments to the Supreme Court and Court of Appeal. Appointments are at his complete discretion. He can also (as in the 1978 Constitution) dismiss the two judges who serve on the Judicial Services Commission at his discretion. Both the 19th and 20th Amendment have retained the procedures of impeachment in the 1978 Constitution for  dismissals of  judges of the highest Appeal Courts.

The Attorney General is the chief prosecutor and plays an important role in the administration of justice. The 20th Amendment provides for this appointment to be made  at the complete discretion of the President. The oversight of the Constitutional Council that functioned under the 19th Amendment has been removed.  The views obtained by the Parliamentary Council that replaced this body are only “observations” and can be ignored by the President. This Council  has no oversight responsibility .

However the Attorney General’s  removal  from office will be, as under the 1978 Constitution and the 19th Amendment, according to a specific law that covers this matter- the Removal of Officers Act 2002. This Act provides for a Parliamentary system of investigation and decision making for removal of the Attorney General.                            

High Posts and Public Office

The 20th Amendment has repealed the provisions on appointments to designated high posts with the oversight of the Constitutional Council. Appointments to the posts of Commanders of the Armed Forces have been a Presidential prerogative under  the 1978 Constitution and the 19th Amendment, and this position has been retained in the 20th Amendment. However the post of Inspector General of Police has been omitted from the high posts coming within the purview of the new Parliamentary Council that has replaced the Constitutional Council. It is not clear how the Inspector General of Police will be appointed, though the Removal of Office Act 2002 determines the procedure for removal and, as in the  case of the Attorney General, involves  a Parliamentary procedure.

The Auditor General’s post is retained as a high post in the Constitution by the 20th Amendment.  But he is appointed by the President, and can be removed by him at his discretion, holding office during “good behaviour.” The oversight of the Constitutional Council on his appointment and removal, mandated  by  the 19th Amendment, has now been removed. This in a context where both the Audit Services Commission and the Procurements Commission established by the 19th Amendment have been abolished by the 20th Amendment. The serious negative implications of these changes for auditing key public institutions have been placed in the public domain by professional associations of auditors.     

“Independent ” Public Commissions and the 20th Amendment

When the 19th Amendment was passed by consensus, it was agreed within and outside Parliament that important public Commissions recognised in the Constitution should be independent of Presidential control. This principle, clearly recognised  in the 17th Amendment   had been repealed by the 18th Amendment, but  was  incorporated once again  in the 19th Amendment.

Consequently the system of appointment and removal was by the President, but subject to the oversight of the Constitutional Council. The 19th Amendment also had detailed provisions aimed at strengthening the work of the Commissions.  It  established an Auditing  Services and Procurement Commission to facilitate oversight, in use of public funds,  and  financial and management accountability, of important public institutions and offices.

It is now stated by those who demonise the 19th Amendment that the Commissions were packed with “NGO Karayas”, because the Constitutional Council was dominated by the same people. This point of view has also been expressed by Prof GL Pieris in public fora and the media (see The Island 13. 9. 2020), and by the Minister of Justice. They should know that this assessment is based on fiction rather than  facts.

The Constitutional Council had a very strong majority of Parliamentarians, and was chaired by the Speaker. There were only three persons representing “civil society.” At no time were all of them from NGOs. Several had an established national and international reputation, as required by the 19th Amendment, and none of these appointments were objected to in Parliament. The previous Human Rights Commission of Sri Lanka was delisted from regional and international bodies of National Human Rights Commissions, for non-conformity with the Paris Principles that set standards on the method of appointment. Professor GL Pieris and the Minister of Justice must be aware that the Human Rights Commission appointed under the 19th Amendment has received national, regional and international recognition for its work.

The 20th Amendment has abolished the Auditing Services Commission and the Procurement Commission. It has also repealed the detailed provisions in the 19th Amendment relating to other Commissions. There are new provisions relating to the Public Service Commission and the National Police Commission. The provisions on the Elections Commission limit their powers to monitor and set guidelines for the conduct of elections. A new provision provides for public complaints   against the Police and for redress “according to law”. It is not clear how this procedure will be implemented.

The 19th Amendment provided for Presidential appointments and removal of members of the Commissions, but subject to oversight by the Constitutional Council. This procedure has been abolished. The President has full powers in regard to appointments and removal of members of the Commissions referred to in the 20th Amendment.

The transitional provisions on the continuity of Commissions and High Post appointments under the 19th Amendment, give the power of removal to the President. This would include removal of   members of the current Human Rights Commission referred to above, at the discretion of the President. The drafters of the 20th Amendment have disregarded the standards set by the Paris Principles on National Human Rights Commissions, once again.

A Post 20th Amendment Future  on   Governance

The 19th Amendment was to be a temporary initiative for reducing the powers of the Executive Presidency and re-establishing governance with an elected Prime Minister, Cabinet and Parliament, pending the adoption of a new Constitution. The 19th Amendment therefore changed what can be described as “the grund norm” or the foundational principles of the 1978 Constitution. This significant modification to the system of governance was not challenged from within  or outside  Parliament, or by litigation in the  Supreme Court, because there was consensus that the change was good for the governance of the country.

 The 20th Amendment is a dramatic turn around and has changed the “grund norm” again. The 20th Amendment  that was  in the public domain in  2019 as a strategy to eliminate the Presidential system of governance, has now emerged as a Constitutional change that will create an even stronger executive Presidency. This time there is no consensus within or outside Parliament. We do not know whether in this context, a 2/3 majority in Parliament and a referendum will be required for the 20th Amendment to become the Constitutional bench mark for the governance of the country in the years to come.

We speak of the possibility of drafting a new Constitution to replace the 1978 Constitution, and it is said that the 20th Amendment is an interim measure. But what has been our experience on Constitution making? When the Constitution of South Africa was adopted after a fully participatory drafting process, Nelson Mandela said that “a Constitution is a law that embodies a nation’s aspirations.” Our nation’s aspirations for a new Constitution have never been realised because of adversarial politics, and a failure by politicians to recognise  that a Constitution is for the People and not for them.

 The 19th Amendment could have contributed to good and accountable governance, pending  a new Constitution to achieve the   agreed  objective of  dismantling  the Presidential system of governance. The two centres “of power” in the executive, created as an interim measure, could have functioned effectively in the nation’s interest, if the President and the Prime Minister had not torn each other apart by their narrow and partisan political agenda. Excellent position papers on key areas of governance were prepared in 2015- 2017, in a consultative manner, and another report was prepared on the basis of public consultations. The Parliamentary drafting process collapsed because our political leadership  became enmeshed in adversarial politics.

Political interests have once again dominated the drafting of the 20th Amendment. The lack of consensus even within the government is manifested in the fact that no one is taking ownership for drafting the document. The drafting of the 20th Amendment reminds us of the words of a great justice who suggested   that it is in the public interest that  “laws are not conceived in secrecy and brought forth in obscurity”.

Why is there such lack of transparency in regard to the drafting of the 20th Amendment? The public was informed that a Cabinet Sub Committee chaired by Prof GL Pieris, and consisting of the Minister of Justice and others were authorised by the President to draft the 20th Amendment. We are now informed through media that the Justice Minister does not know who prepared the 20 Amendment Bill that has been gazetted to go before Parliament. Another Committee appointed by the Prime Minister also chaired by Professor GL Pieris with the participation of the Minister of Justice and others, will now  “report ” on the 20 A. This hardly inspires public confidence in Professor Pieris public statement that Constitutions are not authored by any one, but represents the thinking of the whole government.

The adversarial approach by politicians to Constitution drafting is because of the failure to appreciate that democratic governance which is accountable to the People  demands  accommodation of both majority and minority points of view in the country, on governance. Giving priority to “sweeping election mandates” and confusing that kind of populism with democracy, denies the responsibility to respect the views of all citizens, on their aspirations for peace and progress. Election majorities are at best temporary phenomenon. The long term interests of the People in accountable governance go beyond electoral politics.

We are at a point in history where a large majority of citizens are tired of democracy and want governance to be the sole responsibility of a single popular leader, who commands confidence. They sincerely believe that handing over the country on a “bulath hurulla” to a strong and popular leader will lead Sri Lanka into a glorious  future of “kiri and pani”. They are not aware of or have forgotten the lessons of history, and the manner in which a government elected by the people through  the Franchise, (the “heart and soul of democracy” as eloquently described by Professor  GL Pieris) transforms itself into a totalitarian dictatorship.

This is a point of view that is understandable, even if one may disagree with it. What is more difficult to understand is  how professionals and academics who should lead the nation towards good governance  can   describe authoritarian dictatorial exercise of executive power by a single individual,  without any checks and balances by other institutions as  the quintessential  form of “democratic ” governance. 

This country has experienced and witnessed abuse of political power, in the last few decades. They have seen how governance and the administration of justice has been impacted by abuse of power. Need they be reminded that we have an international record of installing three different Chief Justices in three days- one was “disappeared” from office because of politics,  another impeached because of politics, and brought back to office by the successor government for one day, and a third appointed to hold the  vacant post. The People have witnessed serious violence and intimidation at elections because of confrontational politics, prosecution or non prosecution of offenders in emblematic cases because of political imperatives , and a person in remand for murder nominated as a candidate for Parliament. Can they be convinced again  by  Constitutional lawyers speaking eloquently on electronic media, that we have a perfect system of governance and administration of justice, which will be strengthened by going back to a more  powerful executive Presidency.?

At this critical time it is wise to reflect on what his Lordship HNJ Perera, the last Chief Justice of this country said in the unanimous decision of all the judges of  Supreme Court (a Full Bench) in the Dissolution of Parliament case 2018. Citing earlier precedents, and the changes in governance in the 19th Amendment, His Lordship said that ” since 1972 ( when we broke the link to a British sovereign)this country has known no monarch, and the President has not inherited that mantle”. The 20th Amendment is seeking to clothe the President with that mantle. The President and the People must reflect on our national experience on governance, and ask whether a ” monarchy” created by a 20th Amendment to our Constitution, is in the long term interest of the People and the President.

Perhaps the then Mahinda Rajapaksea and Professor GL Pieris can reflect on the wise words of their former leader, in 1948 and bring back into governance the values of the 2000 draft Constitution’s system of governance based on parliamentary democracy. They should, with their long experience in governance, give leadership, and save this nation from the crisis and risks inherent in a “single powerful leader” form of governance.   

by Capt. G A Fernando, MBA

gafplane@sltnet.lk

RCyAF, Air Ceylon, AirLanka, Singapore Airlines and SriLankan Airlines
President Aircraft Owners and Operators Association, Sri Lanka

Former Chief Pilot Boeing 737
Former Deputy Chief Pilot Lockheed L 1011, Tri Star

Former Member Accident Investigation Team CAASL.
Former Crew Resource Management Facilitator SIA

On the night of 1st June 1999, an American Airlines Flight 1420, a MD 82 aircraft, was approaching Little Rock Airport, Arkansas, USA, carrying 139 passengers, with thunderstorms in the vicinity. They were over two hours late and the pilots were trying to beat the onset of weather ,which was already moving in creating intense precipitation (rain), reducing visibility and causing strong cross winds at speeds well beyond the limits imposed by the Company Operations Manual which the pilots had to follow. Little Rock is subjected to frontal weather. In the USA, cold air masses moves in from the north, literally ploughing under warm moist air from the south (Gulf of Mexico) and pushing upwards to create violent thunderstorms.

The resulting rain brings about down draughts of air which manifest themselves as wind after hitting the ground and spreading out. (Microbursts) causing a phenomenon known as low level ‘Wind Shear’ that can be extremely dangerous to aircraft approaching to land. It manifests itself as a sudden change of wind speed at low level which may make the aircraft fall out of the sky with insufficient height to recover!

Microburst

The pilots of American Airlines Flight 1420, had been awake for a long time and they were at the tail end of their fight duty period, after a long day. They were attempting to fly, looking for visual clues outside the aircraft, (they could see the lights of the airport occasionally), when it was really instrument flight conditions. Basically, there are two rules to fly by. Visual Flight Rules (VFR) or Instrument Flight Rules (IFR). After a mid-air collision over the Grand Canyon, USA, in 1956, where both aircraft involved were flying visually, it was required that all commercial airlines will file their Flight Plans in accordance to IFR until such time the pilots declare that they have the destination airport in sight. At this time, their flight is automatically considered a flight operating, in accordance with VFR. Trying to ‘eyeball’ known traffic even today is worse than looking for a needle in a haystack.

The two pilots of flight AA1420 had been aware of the forecast weather for Little Rock, before they departed on their short flight from Dallas-Fort Worth, Texas. Taking into consideration the speed of the moving weather fronts, it is relatively easier to forecast, accurately, expected weather at the time of arrival, in that part of the world, than in the weather in the Tropics. From the Cockpit Voice Recorder (CVR) the Crew were observed by the accident investigators, to be calm and collected till the actual weather at the airport was communicated to them by the Air Traffic Controller at Little Rock. They were fully expecting to get to their destination before the weather moved in. It looked as if the weather was closing in fast.

Then the ‘human condition’ kicked in and things happened fast. Through the years, while aviation technology improved and aircraft were more and more reliable, the human has remained basically in the Stone Age, fallible, unimproved and unreliable. (Essentially not supermen but of muscle, blood, skin and bone) and subject to fear and emotion. In reality, no flight is error free. Some observers, on safety audits, have detected over 300 errors made by a single crew on routine flights even in the best of airlines. Most individual crew errors are detected or are inconsequential. The few that filter through, gets picked up by the second crew member. If a serious error that gets through undetected, and results in an undesirable situation, that, too, could be corrected, even at the last moment. Thus saving the day. “To err was human” as said by Cicero. Through intense training and continuous evaluation, It is the role of the crew to avoid and trap errors, manage threats to air safety and mitigate their effects when necessary. Pilots don’t have control over threats, such as weather. That is how the system should work. As the aircraft gets closer and closer to the destination, the tolerance limits also narrows down. For instance, airlines fly along airways that are 10 miles wide at 30,000 feet and are expected to land on a Runway strip 150 feet wide, demanding greater flying accuracy from the crew resulting in greater stress. Greater the stress, greater the chances of making errors which are classified by the behavioural scientists as ‘Slips, Lapses, Mistakes and Violations’.

To illustrate the point, using the analogy of driving a car, if one is expected to drive at 100 kph in a freeway and the speed slowly creeps up to 110 kph, before one recognises the error it is considered to be a ‘slip’. If one forgets to wear one’s seat belt, the error is considered to be a ‘lapse’. If one attempts to overtake on a dual lane road, based on one’s judgement and then realises that there is a car coming in the opposite direction and one is forced not to overtake, that type of error is called a ‘mistake’. If one is aware that one is breaking the law and one continues to do so regardless, that becomes a ‘violation’. (Like crossing double white lines, when overtaking.)

With AA1420 the presence of thunderstorms in the immediate vicinity and associated lightning, turbulence, air speed fluctuations of the aircraft, provided distractions, there is a possibility of self-induced stress. This is exactly what happened. While attempting to align the aircraft on the runway, in strong cross wind condition, they landed a bit deep. Being too busy (task overloaded) on the final approach, both crew members forgot to arm the automatic Ground Spoilers, resulting in an overrun of the wet runway. The Ground Spoilers are the devices on the top surface of the wing that pop out and literally spoils the lift of the wings a few seconds after touch down. The spoilers operate automatically when armed, pressing the wheels to the ground to improve braking action. If that didn’t happen either crew member could, reach across and physically pull a handle that can deploy the spoilers manually.

There was another human consideration known in the industry as ‘Intra Cockpit Authority Level’, between the Captain and the First Officer. The Captain, in this case, was a 10,000-hour, former US Air Force Veteran and Management Pilot, while the First Officer was a new hire with low experience, who may not have wanted to suggest that the Captain aborts the landing approach and goes around or interfere with the controls, as it would be misconstrued as ‘mutiny’. The million dollar question is, why he keep quiet when it also involved preservation of his own life?

Usually, it is left for the Captain (the team leader), at the initial briefing, to set the tone, by saying something like “if you see me do something unacceptable or dangerous, please sing it out loud even at the risk of being embarrassed”, because the Captain may sometimes give a logical explanation for his actions afterwards. Unfortunately, from what we could gather from the Cockpit Voice Recorder (CVR) that didn’t happen. There wasn’t time for even a proper briefing which should have been done before the top of descent, covering all options including a possible diversion to an alternate airport with better weather, or to their departure airport, which was Dallas-Fort Worth where the weather was good. That could have been a far safer option than landing on a wet runway with high cross winds. While continuing the landing in high winds was a ‘violation’, in certain countries, the Captain and Crew are allowed to proceed down to a minimum altitude and ‘take a look’ and abort (go around) the landing, if the situation is deemed to be unsafe. To some airports, like London, England, it is illegal for the crew to even commence an approach if the landing conditions are unacceptable. This regulation was imposed after an Ariana Afghan Airlines approached in bad weather, with 62 people on board, to London Gatwick, England, 51 years ago, and crashed.

Anyway the final result with flight AA 1420 was that the aircraft couldn’t stop, skidded sideways, overran the runway and hit a man-made obstacle that was not frangible (Breaking on impact), destroying the aircraft, killing the Captain instantly and 10 other passengers. The wreck caught fire. The crash was avoidable if the pilots delayed their approach to land or diverted to another airport and if that killer obstacle had been removed by the airport authorities. After the accident, the Captain’s wife took the Airport Authorities to court and was awarded damages of 2 million US Dollars, against the authorities, for not having frangible obstacles in the Runway End Safety Area (RESA). A long day, Pilot fatigue and a behavioural phenomenon called ‘get -there-a–ritis’ (also known as get-home-a-titis) where the pilots were intent at landing at any cost, under self-imposed pressure may have been contributing factors. In the opinion of the Accident Investigating team, the thunderstorms were far too close to the airport and recommended that aircraft should not commence an approach for landing, if the thunderstorms were closer than five miles from the airport. It was also recommended that arming of the Ground Spoilers be included in the ‘Before Landing Checklist’ The Accident Investigation team took over two years (in the comfort of quiet, air conditioned command centre) to analyse the case of American Airlines 1420 and quite rightly stated that it would be unfair to solely blame the crew who had less than two minutes, in demanding conditions, to make crucial decisions between life and death. Their objective was to find the cause behind the cause

As a standard practice, the aviation industry learns from crashes that occur in any part of the world. Pilots in our part of the world are as human as anywhere else. It is very easy to imagine that a similar scenario could happen in Sri Lanka, where similar weather patterns are encountered during the Inter-monsoon seasons (evening thunder showers). I am sure we have all seen the mighty power and devastating effects of the wind just before the onset of a storm. They blow down trees and damage roofs. Doppler Radar, capable of spotting wind shear is still a dream. Obstacles at the end of the runway should be identified and removed because aircraft can be at the wrong place at the wrong time. It is a case of evaluating the risks, by the operating crew.

That is what Safety Management is about. According to the International Civil Aviation Organisation (ICAO), being proactive, predictive and preventive is the name of the game. Unfortunately, many want to be in the spotlight as ‘movers and shakers’ of the a Aviation Industry but wouldn’t give two hoots to make the system safer. We have seen in the past that It is difficult to hold anyone accountable after an accident. The easy way out is to blame the pilots.

Perhaps. as Anton Jones in his popular ‘Baila’ about the Martinair crash at Maskeliya, says “Kageda warada notherai” (We don’t know whose fault it is).

That is the stark reality.