The Editor-in-Chief of The Anglo-American Lawyer Magazine, Srinath Fernando continues his interview with Dr Nihal Jayawickrama, former Ariel F. Sallows Professor of Human Rights at the University of Saskatchewan, Canada, and Professor of Law at the University of Hong Kong. A leading authority on Constitutional Law of Sri Lanka, he is the author of The Judicial Application of Human Rights Law published by the Cambridge University Press.
The AAL Magazine: Dr. Jayawickrama, the Singarasa v Attorney General of Sri Lanka is a classic case which had been referred to by experts and academics all over the world on the human rights discourse. Why do you think the Supreme Court of Sri Lanka failed to respect the decision of the Human Rights Committee and refusal by the Supreme Court of Sri Lanka to review the findings of the HRC in Geneva where there had been a patent injustice to the victim?
Dr. Jayawickrama: Singarasa was convicted by the High Court for terrorism-related offences and sentenced to a term of 50 years rigorous imprisonment. The only evidence against him was his own confession made to a police officer while he was under detention under the Prevention of Terrorism Act (PTA). On appeal, the Supreme Court affirmed the conviction, but reduced the term of imprisonment to 35 years. It took the view that Singarasa had failed to prove that the confession had been made involuntarily, that being the requirement under the PTA. (Under normal law, the burden is on the prosecution to prove that a confession was made voluntarily).
Singarasa thereafter availed himself of the right to communicate with the Human Rights Committee (the Government having ratified the Optional Protocol to the ICCPR in 1998 recognizing the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be a victim of a violation by the State of any of the rights set forth in the ICCPR). The Committee found several violations of the right to a fair trial (Article 14) and of the right to freedom from torture, cruel, inhuman or degrading treatment or punishment (Article 7). Accordingly, it advised release or retrial and compensation.
The Committee’s Views are communicated to the State party and to the petitioner. The State party is required to give the Views serious consideration in good faith. Accordingly, the Government should have either exercised the presidential power of pardon/remission of sentence, or requested the Attorney-General to consider whether a retrial was a viable option, and compensated the petitioner financially. Instead, the Government appears to have ill-advisedly informed the Human Rights Committee that it did not have the legal authority to execute the decision of the Committee to release the convict or grant retrial.
Singarasa’s legal advisers, in my view also ill-advisedly, applied to the Supreme Court to exercise its revisionary powers to give effect to the Views of the Human Rights Committee. That gave the opportunity for the Attorney-General to argue that the expression of Views by the Human Rights Committee amounted to “an interference with the judiciary” and “a violation of the sovereignty of the people”. Sir Nigel Rodley, the distinguished international jurist, described this submission as “Alice in Wonderland (or Alice Through the Looking Glass) reasoning”. In a critical study of this case published in a law journal, he added that “It took the powerful intellect of the Chief Justice of Sri Lanka to come to the unlitigated conclusion that Sri Lanka’s very ratification of the Protocol was ultra vires and invalid”. Sir Nigel Rodley described that decision as “an example of judicial waywardness”.
Subsequent events demonstrate that neither the Sri Lankan Government, nor the Human Rights Committee, have taken seriously the outcome of that revision application to the Supreme Court. I filed a communication at or about that time on behalf of S.B. Dissanayake MP who was sentenced to serve a period of two years rigorous imprisonment for contempt of court imposed by the same Chief Justice, and neither the Attorney-General nor the Government raised any issue of jurisdiction. Nor did the Government argue powerlessness when it received the Views of the Human Rights Committee.
The AAL Magazine: Do you find similar scenarios where conflict of dualism and monism had clashed if you may quote an instance in other countries.
Dr. Jayawickrama: Let me give just one example. India is also described as a “dualist” state. However, there are several instances when the Indian Supreme Court has given effect to provisions in international human rights multilateral treaties which the government of India had ratified but had not taken steps to incorporate in domestic law. Indian judges have taken the view that any international convention that is not inconsistent with the fundamental rights provisions in the Constitution must be read into those provisions to enlarge their meaning and content. Justice Michael Kirby also attempted to do so in the High Court of Australia, but I believe he did not receive much support from his brother judges.
The AAL Magazine: In the Constitution of Sri Lanka social and economic rights have not been expressly defined. Though there is a chapter on Directive Principles of State Policy, its observance is complimentary to fundamental rights but there is also an ouster clause in the Constitution of Sri Lanka Article 29 which says ‘’the provisions of this Chapter do not confer or impose legal rights or obligations and are not enforceable in any court or tribunal. No question of inconsistency with such provisions shall be raised in any court of tribunal.’’ How would you comment on this exclusion of what is given by one hand and taken away by the other hand. Would you find this a grotesque way of drafting constitutions?
Dr. Jayawickrama: Sri Lanka has been singularly unfortunate in this regard. Sir Ivor Jennings refused to include a Bill of Rights in the Minister’s Draft Constitution which Mr. D.S. Senanayake submitted to the Soulbury Commission, arguing that the United Kingdom has no Bill of Rights “and we think that we do the job better than those countries which do have one”. Mr. S.W.R.D. Bandaranaike proposed to the Select Committee on the Revision of the Constitution which he initiated in 1958 that it recommends the inclusion of a Bill of Rights, and in fact had a draft prepared by Mr. J.A.L. Cooray and Justice T.S. Fernando, but his assassination brought that effort to an abrupt end.
In 1970. Dr. Colvin R. De Silva was very reluctant to include an enforceable chapter on fundamental rights in the Republican Constitution, arguing that that would result in placing the Supreme Court above the National State Assembly, which was to be the “supreme instrument of state power”. When such a chapter was eventually included, it was to have no application to “existing law”; nor was any special mechanism established to enforce its provisions in respect of governmental action. The judicial review of laws was also not permitted. A chapter on “Directive Principles of State Policy” containing reference to certain social and economic rights, was not enforceable in any court.
The 1978 Constitution presented by Mr. J.R. Jayewardene selectively designated a few civil and political rights as fundamental rights and subjected even these to numerous restrictions. For example, the right to life is omitted. Others omitted include family rights, the right to privacy (a significant omission in the context of telephone tapping), the right to property, the freedom to leave the country, the right to seek, receive and impart information and ideas, the right to a fair hearing in respect of civil rights and obligations, and the rights of accused persons. “Birth or other status” is not a prohibited ground of discrimination, thereby enabling the perpetuation of the concept of illegitimate children. And, of course, none of the economic, social, or cultural rights are recognized. Finally, all existing law was declared to be valid and operative notwithstanding any inconsistency with the chapter on fundamental rights. That means that the entire body of law enacted over a period of 176 years, a veritable armoury of archaic powers and more recent intrusions into human dignity, remained in force notwithstanding any conflict with fundamental rights.
When the citizens agree to be governed, what they insist in return from the rulers is that their rights and freedoms be effectively guaranteed. The constitution should provide, as it does in many other countries, that an international treaty, when ratified, will have the force of law, superseding any inconsistent existing law. If the government is unwilling to do so, why ratify a treaty at all? Alternatively, it is imperative that, in a country in which, in recent decades, the human body has been brutalized and the human spirit degraded, at least the provisions of the two international human rights covenants should be incorporated in the constitution. The constitutional recognition of the universally accepted rights and freedoms of the individual is not only a matter of sound commonsense and prudent governance; it is also a solemn treaty obligation.
A minority is a group of individual human beings who share ethnic, linguistic, religious, or cultural bonds and possess a collective desire to live together. The tragedy of Sri Lanka is that many of our politicians still refuse to recognize the fact – the unalterable, immutable and enduring fact – that we are a multicultural country. In the contemporary multicultural state, minority communities have rights in common with, and no less than, everyone else. Indeed, because of the need to protect the distinctive character and identity of minority communities, which is what constitutes the cultural mosaic of the State, they even enjoy additional rights. For example, contemporary international law protects the physical existence of minority groups by criminalizing genocide, by recognizing the right to seek asylum, and by prohibiting discrimination.
International human rights law now provides guidance on the minimum acceptable standards for peaceful co-existence in a multicultural society. They include the right of minorities to use their own language, to profess and practice their own religion and the right to enjoy their own culture. International law also recognizes the right of a minority to determine its political status, and the right to participate effectively in decision-making, both at regional and national levels. The Supreme Court of Canada has held that if a minority is denied meaningful access to government, it has the right to decide to secede. The application of these principles is non-negotiable and cannot be made subject to the will of the electorate. They should form an integral part of a national constitution. We have so far failed to do so, and the consequent events, both tragic and destructive, are now a matter of history.
The AAL Magazine: Despite ouster clauses, can the Supreme Court of Sri Lanka still uphold the rights of people as fundamental rights trumps any other consideration.Dr. Jayawickrama: The Supreme Court of Ceylon of the 1960s, in the absence of any reference to fundamental rights in the Constitution, and indeed before the two international covenants came into force, asserted the Right to a Fair Trial, the Right to Liberty, and the Right to Freedom of Movement. That spirit of judicial activism has not been apparent thereafter.
The AAL Magazine: Dr. Jayawickrama, lastly what’s your view on the application of universal jurisdiction. Do you think not enough focus has been given to this area of prosecution? Do you know any known case where such prosecutions had been done successfully? Do you think prosecution under ‘universal jurisdiction’ is purely a political motivated exercise when it comes to international relations and diplomacy?
Dr. Jayawickrama: As early as 1980, the United States Federal Court of Appeals upheld the conviction for torture committed by a national of a Central American State in his own country, but who happened to be visiting the United States. That court held that “official torture is now prohibited by the law of nations”. More recently, there were two instances of the exercise of universal jurisdiction in, I believe, Germany and France, when a person of Syrian nationality and another of Iranian nationality were tried and sentenced. International human rights organizations, such as Human Rights Watch and Amnesty International, do, I believe, possess relevant evidence that could be placed before any judicial tribunal in any part of the world. In Geneva, the UN Human Rights Council has now been authorized to collect and process credible evidence of “crimes against humanity” allegedly committed by Sri Lankan military personnel, for the purpose of providing such evidence to States willing to exercise universal jurisdiction.
In the contemporary world, with several multilateral treaties that are designed to protect human beings, whether they be children, women, or men, it is, in my view, quite legitimate that territorial boundaries do not stand in the way of ensuring that protection. If a person has committed an act that is recognized as a crime under international law, it ought to be possible to bring such person to trial in whichever country he may be, especially if his own country has failed, or is unable, to do so. However, there are several countries that are competent to exercise universal jurisdiction by reason of their accession to relevant international treaties, but which may choose not to undertake that responsibility for political and other reasons. Such countries may avoid that responsibility by ensuring that the alleged criminals do not enter their territories by refusing them visas to do so.
Domestic Debt Restructuring – An Alternate View
by Romesh Bandaranaike, Ph.D.
There have been substantial and wide spread criticisms of the recently instituted Domestic Debt Restructuring (DDR) scheme carried out by Central Bank of Sri Lanka (CBSL), to reduce the Sri Lanka Government’s requirements for funding. In this article I argue that the scheme, as structured and carried out by CBSL, is appropriate, given the ground realities in the country, and that the critics have ignored a number of factors which forced CBSL to design the scheme as it did. I then suggest additional steps the Government could take to further improve its financial position in connection with past Bond issues.
The DDR Scheme
Faced with massive shortfalls in revenue, the Government recently carried out a “restructuring” of the debts it owed on Sri Lanka Rupee denominated Treasury Bills and Bonds in an effort to substantially improve Government finances, including the funds needed to service these Bills/Bonds. The two key elements of the DDR are a) Converting all Treasury Bills presently owned by CBSL to longer term Treasury Bonds, thereby substantially delaying the payment dates on these Bills; and b) Effectively “forcing” the Employees Provident Fund (EPF) and other superannuation funds to exchange most of the Bonds they hold for 12 year Bonds with somewhat lower interest payments.
They did this by threatening to increase the tax rates that EPF pays on its annual income to 30% from the present 14%, if they did not accept the Bond exchange. Since such an increase was financially worse for EPF compared with the Bond exchange, EPF opted for the latter.
CBSL estimates that the scheme would reduce the Gross Financing Needs (GFN) of the Government by 1.5%, 1% by the CBSL Bill-Bond exchange and 0.5% by the EPF Bond exchange.
The principal criticisms of the DDR, from the public, Trade Unions, Economic Think Tanks, and numerous “Experts,” is that the entire burden of the DDR is being placed on the backs of the retirement savings of “poor workers” who are the members of EPF.
CBSL has justified the proposed increase in the tax rates for EPF and other superannuation funds to 30% from the present 14% on the basis that the banks have to pay the higher tax rate of 30% plus VAT. Dr. Wijewardena, a former CBSL Deputy Governor, has written several articles criticizing CBSL for not presenting the correct picture in this regard and not disclosing full information on the impacts of the restructuring on EPF members’ returns. Dr. W’s main argument is that, in the case of the banks, the tax rate applies to “net interest”, whereas, in the case of the EPF, it applies to “gross interest.” For the banks, net interest is interest earnings on its loans less the interest it pays to depositors.
In the case of EPF, Dr. W points out that EPF is not allowed to subtract the interest it pays to EPF account holders to determine its income and tax liability, and that CBSL comparison of bank and EPF tax rates is therefore misleading. In a subsequent article by Dr. W, he criticizes CBSL/EPF for not fully disclosing the cost to EPF holders of accepting the proposed DDR compared with an increase in EPF’s tax rate to 30% and the justification for accepting the Bond exchange rather than the tax increase to 30%. He goes on to add that CBSL has a conflict of interest as both the developer of Government policy and as the administrator of EPF.
My Responses to the Criticisms
The criticism that the entire burden of the DDR is on the backs of workers is factually incorrect. As stated above, two-third of the 1.5% reduction in GFN (1%) is being achieved by exchanging the Treasury Bills held by CBSL for long term Bonds. Only 0.5% of the reduction is from the exchange of Bonds held by the EPF and other superannuation funds. In other words, 67% of the restructuring cost is borne by CBSL (in effect by all citizens), while only 33% is borne by EPF account holders. Furthermore, only workers in the formal private sector contribute to the EPF/ETF, while workers in the informal private sector (e.g. farmers, fishermen, small transporters, traders and construction workers) and Government employees do not.
As a result, only about 25-30% of the workers in the country have EPF accounts. Therefore, 70-75% of workers in the country will not suffer any burden due to the EPF bond restructuring. Finally, the workers with EPF accounts also include middle and senior management of companies who cannot be called “poor workers” as referred to in the various criticisms of the present DDR scheme. It is true that this category may only be a very small percentage of those holding EPF accounts. However, their account balances are likely to be very much higher than other EPF members and the impact of the restructuring on them will be proportional to these balances.
It would be ideal if the EPF could release statistics in this regard which will allow an assessment of this element. For example, the fraction of the total EPF funds held by those with EPF balances of over Rs 5 million (say), since such persons cannot be classified as “poor workers.” Workers who have balances in EPF/ETF, built up as a result of deductions from their salaries and additional higher contributions from their employers, at least have a retirement fund they can turn to, even if it is somewhat less because of the DDR. It could conceivably be argued that the 70-75% of workers who do not have such balances, mostly working in the informal sector, are worse off or poorer than those with EPF balances. This would be a justification for placing the burden of part of the DDR on EPF account holders rather than on other, even “poorer”, workers.
In response to Dr. W’s criticisms that EPF and bank tax rates are not comparable the way CBSL has done; each year, EPF determines a percentage it will pay/accrue to the account of each EPF account holder based on the earnings by the EPF that year. This percentage is not an interest similar to that paid by banks to its depositors and is not a cost that is deductible by EPF to calculate its tax liability each year. It is simply a percentage decided by the EPF administrators to allocate the profits after tax earned by the EPF during the year. Calling this percentage an “interest” is a misnomer. Account holders in EPF are akin to shareholders in banks and not depositors.
The amounts credited by EPF to a member’s account each year, based on EPF’s earnings during the year, is not a cost incurred by EPF in generating these earnings. It is something closer to a dividend paid by a bank to its shareholders in the form of additional shares. If EPF is allowed to determine its tax liabilities by subtracting these accrued amounts, banks should be able to deduct dividend costs in determining their tax liabilities. Dr. W’s criticism of the non-comparability of bank and EPF tax rates cannot be sustained.
Dr. W uses CBSL/EPF’s own numbers on the differences in returns under the two scenarios EPF has been offered and simply multiplies it by the total EPF Bond holding value to arrive at the cost to EPF of accepting the Bond exchange. This is something that could have readily been done by anyone and Dr. W’s implication that CBSL/EPF is hiding/not fully disclosing something in its statement cannot be sustained.
The CBSL/EPF analysis is simply to show that the return to EPF is better under the scenario where it accepts the DDR option, compared to rejecting the DDR option and being subject to a 30% tax rate. This information is more than sufficient for EPF to recommend to its Board that it should accept the DDR. Dr. W than goes into the past history of taxation rates applicable to the EPF and points out that as originally envisaged EPF earnings were to be tax exempt.
He shows calculations of the losses to EPF holders of the present DDR, compared with a situation if EPF earnings were tax exempt. This is a straw man put up by Dr. W to be knocked down as part of his criticism of CBSL/EPF. It is the tax rates that are applicable to EPF today, before the DDR, that are relevant and it would have been nonsensical for CBSL to show calculations based on what if the tax rates were those that existed many years ago.
With respect to the criticism that CBSL has a conflict of interest in both being the administrator of EPF and the policy advisor recommending the DDR, I do not see any conflict. CBSL, as advisor to the Government, has made the DDR proposal which allows EPF to choose between two options, accept the proposed DDR Bond exchange or reject it and be subject to a 30% tax rate. As the administrator of the EPF, CBSL has simply analysed these two options and clearly shown that the EPF is better off accepting the Bond exchange compared with rejecting it and being subject to a 30% tax rate.
Other Relevant Issues
It is telling that none of those criticizing the present process have offered any viable alternative DDR arrangement to achieve the same objectives as the present exercise. In saying this, I am ignoring the suggestions by some parties who say there would be no need for the exercise if “The money stolen by the Rajapaksa’s is recovered” or “The large corruption in Government is reduced,” and so on. Such actions, even if they were possible, are not alternatives, because they cannot be achieved in the short or medium term, which is one of the key objectives of the DDR. Verite Research did, some time ago before the announcement of the present DDR, present some analysis on a possible DDR which included sharing the cut across all Bond holders, but, for the reasons I refer to below, this is not a viable arrangement.
CBSL in its original presentation to the Cabinet, and subsequently to the public, argued that it would be prudent to exclude the Banks from the DDR exercise, because these institutions were already under stress as a result of COVID related business failures and because the banks would also be taking a hit from the future restructuring of USD Bonds, some of which are held by them.
CBSL was of the view that such an exclusion was essential to ensure financial system stability. None of those criticizing the present DDR arrangements have objected to this and I concur with that view. Even if the banks are able to bear the burden of some restructuring of the domestic bonds they hold, bank stability is also dependent on public perception, and excluding them from the DDR has certainly had a positive impact on such perception.
There are two unstated conditions applicable to the DDR exercise which have received no mention in the ongoing discussions. First, the DDR should be concluded in a short time frame since it will be a pre-condition to the restructuring of foreign currency debt. Second, it must be carried out in a legally valid manner. A Government Bond is a legal contract between the Government and the holder of the Bond.
The Government is legally obligated to pay the interest coupon and the principal of the Bond on specified dates according to this legal contract. The Government has no legal authority to change the conditions of this Bond. It could, of course, pass a new law in Parliament giving itself the authority to make changes to existing Bonds. In doing so, however, if all Bond holders are not treated equally (in particular, if the bank holdings of Bonds are excluded), there are bound to be legal challenges in the Courts to any such changes, and the changes may well be struck down by the Courts.
Even if such changes are not struck down, this process can take considerable time to be determined and would not be achievable in the time frame required for the DDR process to be concluded as discussed previously. The present DDR has finessed the issue of different treatments of Bond holders by making it “voluntary”, albeit by holding a gun to the head of the EPF and superannuation funds in the manner detailed earlier. This is draconian, but effective.
As per CBSL statistics presented in connection with the original DDR proposal, the total outstanding amount of Treasury Bonds at that time was Rs. 8,700 billion. Of this amount Rs 1,644 billion is held by “Others”, after excluding the banks and EPF and superannuation funds being subject to the DDR. Even if the banks are excluded from the DDR to ensure “financial system stability” reasons mentioned previously, it would have been ideal if the “Others” holding the Rs 1,644 billion in outstanding Bonds were subject to some “restructuring”, in the form of cuts in coupon rates and/or face value, or an extension of the tenor of these Bonds.
If this was done, the benefit of these cuts could have been passed on in the form of a reduction in the burden passed onto EPF and superannuation funds. However, such an unequal treatment where some Bond holders (the banks) are excluded, even if the necessary legislation is passed, would certainly have resulted in legal challenges which would, at the least, have delayed the process as I have pointed out earlier, or even been found unconstitutional by the Courts.
Further Actions in Respect of Bonds
Very high yield rate Bonds (over 20% yield) were issued by the Government during the period prior to the announcement of the DDR (April 8, 2022 to March 13, 2023) as a consequence of severe financial shortages faced by the Government. Bidders for these Bonds added a premium to the bid yield rates, expecting a future restructuring of these Bonds as part of the DDR they knew was coming. By being excluded from the DDR, these Bond holders have enjoyed a “windfall profit.” It is not possible to specifically target these Bonds for a cut in coupons or face value, because many of the original holders may have sold some of these Bonds and have already earned the windfall profits.
[The buyers of the Bonds would only receive a “normal” profit in the form of coupon payments and final redemption.] Furthermore, in the case of individual Bond holders, their windfall profit would be in the form of a capital gain, which only attracts a tax rate of 10%. Corporates/ banks in the same situation would be paying a tax of 30% on their capital gains. I propose that the Government should “claw back” some of these profits by imposing a special windfall tax rate of 50% applicable to all profits derived from these Bonds. If the original purchaser has not sold the Bonds, the coupon interest and the capital gains on final face value redemption should also be taxed at 50%.
There would be some complications in structuring this tax, since some high yield Bonds may have changed hands within the period that high yield Bonds were still being issued, which means that the initial purchaser would only have made a small capital gain and the next buyer would still be enjoying the high coupon rate or subsequently selling the Bond for a large capital gain. A proper structuring of the 50% windfall tax can ensure that the taxes fall on those making the windfall profits. A tax of the type proposed will clearly be borne by the wealthy, who would have been the purchasers of these Bonds, and go some way towards balancing the burden imposed on less wealthy parties as a result of the DDR.
To place this suggestion in perspective, between April 8, 2022 and March 13, 2023 all Bonds issued by CBSL had yield rates in excess of 20%. The total face value of such Bonds was Rs 1,233 billion. The weighted average yield on these Bonds was 27.89% and the weighted average coupons in these Bonds was 19.09%. The latest four-year Bond yield rate is approximately 15% and this is likely to drop further.
As a result, any seller today of an average high yield Bond would make a significant capital gain on the sale and would need to pay substantial taxes to the Government at the proposed 50% windfall tax rate. As per CBSL statistics in the original CBSL presentation to the Cabinet, approximately 63.5% of all Bonds at that time were held by the banks and the “Other” category. If this percentage is also applicable to the high yield Bonds referred to above, the banks and the “Other” category would be holding Rs 777 billion of these Bonds.
Advocata has recently analysed EPF’s Bond portfolio prior to the DDR Bond exchange and concluded that EPF’s share of high yield Bonds was proportionately much less than for other Bond holders. Therefore, banks and “Others” would probably be holding even more than the above mentioned Rs 777 billion in such high yield Bonds which, in turn, will mean that a 50% windfall tax on the profits from these Bonds will result in substantial tax revenues for the Government.
An aside at this point is that for some unclear reason there is no withholding tax (WHT) applied to the interest earnings on Bonds as in the case of interest earnings from deposits in banks and finance companies. I have made inquiries as to why this is so from several senior Government officials and have not received any explanation for the practice.
It may well be that some Bond holders do not even have income tax files and that they are evading all taxes payable on Bond interest. Since Bond holders are all likely to be at the highest tax bracket given the minimum sizes of Bond investments, I suggest that a WHT of 30% be applied to all Bond interest payments. Holders are free to file tax returns and seek a refund if they have been taxed in excess of their liability due to such a WHT. I have been told there is some complication in applying WHT to Bond interest held by foreigners. If that is indeed the case, foreign holdings of Bonds could be excluded.
The economy of the country is in dire straits as a result primarily of bad/foolish policies of recent past Governments (including those by CBSL under its previous two Governors and Monetary Boards at that time) coupled with the endemic corruption inherent in the system. The present Governor of CBSL and his professional colleagues are facing very difficult conditions and are striving to get the country’s finances back on track.
I can understand trade unions, workers and other similar entities objecting to the implementation of policies which directly impact them, irrespective of whether such policies are needed to solve the country’s issues. But, why is it that so called “experts” and think tanks do not recognize the ground realities of what is practically achievable and support the efforts of CBSL rather than criticizing these efforts in print and at discussion forums?
(The author is an economist with wide experience in policy formulation and implementation in the Ministry of Finance and has worked at CEO level in both public and private sectors.
A father’s gift to a very young daughter, now an acclaimed book
I was sent a downloaded copy of Christie’s catalogue which auctioned the book of nursery rhymes created and illustrated by George Keyt for his little daughter in 1938, which Diana Keyt entrusted to Christie’s for sale. The catalogue states “Untitled (Reasonable Rhymes); inscribed and dated: Diana Keyt/1938. Coloured pencils and ink on paper sketches with handwritten poems in a 23 paged sketchbook.
” Also on auction was a catalogue: “George Keyt: an exhibition of paintings – 1920s to 1990s – published in 1991 to felicitate the artist on his 90th birthday.” Inscribed in the catalogue ‘For darling Diana from George Keyt 7.6. 93.’ The Catalogue is “brought to you by Nishad Avari” Head of Dept at Christie’s with its main auction rooms in London and branches all over the world, including Mumbai.
I quote from the Lot Essay in Christie’s catalogue: “From western perspective, George Keyt’s work from the 1930s onward is described in the context of Cubism or Fauvism and compared with the oeuvres of Paul Gauguin, Georges Braque, Pablo Picasso or Henri Matisse. However, the sensuality and spirituality Keyt always imbibed in his drawing and paintings underscore their enduring connection with the classical artistic traditions of South Asia, from ancient frescoes and temple sculpture to Rajput court paintings and Kalighat patas. Grounded in these traditions, Keyt’s work rejected the limitations of Western academic art to embrace what we now term global modernism, paving the way for other artists in South Asia to forge new idioms of their own as well as a new artistic identity for the region.
“The present lot, an illustrated book of 23 poems … sheds light on a unique aspect of the artist’s early career, at the intersection of his expertise as an observer, artist and writer and his family life and role as a father. Filling the pages of his sketchbooks, these verses were, most likely, created to memorialize the stories of the varied cast of characters that Keyt painted on the walls of Diana’s nursery after she was born in 1935.
As she recalls “When I was born my father delighted in this new little person, playing and creating stories and pictures to amuse me. As I started to babble and then to talk, he put down these pictures and rhymes in a book.” (D Keyt, ‘Keyt’s sketches to a daughter’, The Sunday Times, Colombo November 10, 2013). The format of this book and its rhymes may be compared to the ‘nonsense rhymes’ of Edward Lear, and to the work of Ogden Nash and Roald Dahl, published later”
The couple of drawings and verses in the copy of Christie’s catalogue and the book now on sale at Vijita Yapa bookshops amazed me with their whimsical richness and the sure fire artistry in the sketched human and animal characters, family pets – Plato and Polly, heroes and villains, including actual characters like Auntie Suji (Sujatha Aluwihare – great friend of Diana’s Aunty Peggy) – and the dhoby. These real life and imagined human and animal characters were an important part of the three year old daughter’s life, and the father immortalized them for her and thus to posterity. “Keyt’s unique understanding of his child’s emotions and imagination, and his ability to represent them in his art and verse, is what brings this little book to life.”
The antics of the gombees are the most versified in the book; the gombee being the two year old’s name for the gombellas or golubellas who infested Kandy as I remember it of then.
“Whenever you see a gombee dance/You may safely say
That’s quite by chance / They seldom see themselves as others
For gombees never see their brothers.”
“The big trees cry/ The little trees hum
To see the gombees/ Come and come.
They bring their friends/ They come to the trees
They hang on the boughs/ And swing in the breeze.
Banda, Sumana, Sisily, Toby/ Went to the village to see the dhoby
To see the dhoby over the rocks/ And the little blue woman who darns the socks.”
In 2013, to celebrate the century of her father’s birth, Diana published a facsimile edition of this special book so as to share the now world famous artist’s early talent and wit with other children. Included also were family photographs and on the cover was a portrait her father painted of her with her first born son. She said she recollects the joy of her childhood and hearing the wind in the rain trees and the sound of evening music of flute and tom toms floating over the water from the Dalada Maligawa across the Kandy Lake.
George Pervicival Sproule Keyt MBE (1901-1993) would have been connected to Cox Sproule, well known lawyer of Kandy who introduced the weaving of humorous stories around persons of Kandy starting with George E de Silva (apé George) and his malapropisms. He was the owner, I believe, of Green Café at Castle Street (now Kotugodella Vidiya) close to Trincomalee Street in Kandy, which was such a popular restaurant midway between elite Elephant House (patronized by Brit planters’ and businessmen’s families) and Paivas (famous for its Chinese rolls) and Silverdale open to the hoi polloi.
George Keyt was educated at Trinity College Kandy (TCK) but was never studious. He married Gladys Ruth Jansz in 1930 and had two daughters; Diana, his first born, in 1935. He must have had a job or jobs but soon after marriage left bread winning for the family to his wife who was a teacher at Trinity College. He preferred spending his time in the Malwatte Vihara imbibing Buddhist philosophy and absorbing art depicted lavishly in temples in, and surrounding Kandy.
I remember Mrs Keyt – a lovely, so dignified Head of the TCK Kindergarten. I substituted for my sister who was Grade 3 teacher when she went on maternity leave. I was just out of school and experimentally in sari wearing my hair in a ponytail. The little boys of Grade 3 hated me and when I wished them Good Morning first thing in the morning, their response was “When is our Sir coming back?” (even female teachers were Sir to them. I was not addressed thus because I was nothing to them!!).
In contrast Mrs Keyt was so welcoming, understanding and simply sweet to me. She guessed I was scared of my students so she advised me to just take no notice. She even advised me to enter for a Miss Ceylon contest or Air Lanka as an air hostess, sure my Kandyan sari would score points. I was certainly no beauty, not even pretty. Mrs Keyt was being kind to me to compensate for my difficulty in controlling the Grade 3 miscreants. Life was very simple and very natural then, especially in Kandy, six/seven decades ago.
Another remembered incident is one April when I was Head Librarian of the Overseas Children’s School in Pelawatte with the two libraries designated each year to organize Avurudhu celebrations to introduce this SL cultural event to expat kids. We rounded up volunteer students and acted Tamil and Sinhala rituals and customs celebrating April 13/14. For the Sinhala rituals we needed a boy to role play the father in sarong. One year around seven Sinhala boys in the middle and senior schools were asked whether they would oblige. All said they never wore sarong. Diana Keyt’s son who was in the library hearing some refusals, volunteered to play the part. “I wear sarong all the time at home, especially at night.” That is a memory embedded in my mind with its deeper significances.
I looked through the large sized book of drawings and verses at Vijita Yapa bookshop. Priced at Rs 2,490 (I hope I am correct), the coffee table publication is a treasure to possess. Christie’s catalogue I quoted from carried this very revealing information:
Price estimate USD 8,000 – 12,000. Price realized USD 69,300.
A FICTIONAL HISTORY OF THE SRI LANKA FLAG
THE ORIGINAL FLAG BROUGHT BY VIJAYA
The short epilogue of a play of the imagination about the death of the Lion, of why Sinhabahu killed the animal father, why Prince Vijaya revolted and was expelled to Lanka, and the birth of the Lankan nation. The play is “Under The Ola Leaves”to be published shortly in Colombo.
(The lights come on, and the three characters are seen seated exactly as they were in the prologue. The scripts are in their hands, they have finished reading the play)
Philip: (The first to break the silence after the reading. ) I saw the whole thing visually. I saw the whole play. I think it will work on stage.
Sita: I don’t think it can be performed in this country, people are touchy. Especially the flag that Vijaya brought to Lanka. Politicians have conditioned people to accept a militaristic lion depicted in an art form of our times. In the ancient times of Vijaya a subject was depicted as seen in nature. Anyway, I didn’t think about staging, I wrote it for reading. After so many centuries of experiencing the theatre, the mind and feeling have been conditioned to imagine a performance.
Rasa: Why did you imagine it as a lion of peace ?
Sita: There was no reason to see Vijaya or Sinhabahu as militaristic. Sinhabahu later suffered from his seeing his father as beast only ,from the time Sinhabahu left the cave to rejoin humans till he killed his father. A mercy killing, however painful to the killer, administering mercy makes passage easier if the killed is seen as a beast.
The Sinhala people came from a human and a beast. The beast had to be removed from the story of the human Sjnhala people, for the story to continue, but the killing was an act of mercy, but made easier by mixture of feeling between father and animal.
Philip: It is a tragic lion and peaceful. How did it change to the flag we have today?
Sita: The history of Sri Lanka.The original peaceful Lion of Vijaya became a fierce animal, sword in hand threatening the minorities, the two stripes, in front of him.
Rasa: Do you think that was deliberate?
Sita: I don’t think so. It was just carelessness and a lack of imagination of those designers as to what they were unintentionally conveying.
Rasa:You got the idea and the feeling for this play by being at Sarachchandra’s Sinha Bahu in Peradeniya.
Sita: Yes, that was a tragic and sad lion with a very uncertain son when he killed his father, and I imagined a different ending in Sarachchandra’s play. Instead of the lights going down, when Sinhaya fell dead on stage, to end the play, I saw the lights lowered, and the son walking very slowly, standing over the body of his father, with head bent down. Then a slow blackout to end the first story . Mine is the second.
Philip: And it is also from old Peradeniya.
Sita : Yes, Sinhaya and Sinha Bahu are as much from Peradeniya as from the Mahavamsa.
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