Features

On powers of courts to review domestic debt restructuring

Published

3 years ago

2023/08/18

By Dr. Jayampathy Wickramaratne

President Ranil Wickremesinghe’s statement that the government would not heed orders or advice from any other party except Parliament with regard to the debt optimisation measures or domestic debt restructuring (DDR) has been condemned by Opposition parties, civil society groups, and lawyers’ groups as an attempt to undermine the judiciary. Lawyers for Democracy stated that “for one arm of government, which has considerable power in the form of an executive presidency, to make public statements that deny the power of the courts to review any complaint in relation to executive or administrative action is an abuse of power.”

The Cabinet of Ministers decided on the DDR measures on 28 June 2023, clearly a decision of the executive. Legislation would be needed to give effect to some of the measures. Already, a Bill for the amendment of the Inland Revenue Act has been presented to Parliament on 08 August 2023. It proposes changes to the tax rate for employees’ trust funds, provident, pension or gratuity funds and termination funds. Citizens would have the right to challenge the constitutionality of the Bill, including its impact on fundamental rights, within two weeks of its presentation.

On 01 July 2023, Parliament resolved to “grant all requisite approvals to implement this arrangement of domestic public debt optimisation”. The resolution was only an endorsement of the decision without any legal consequences.

The Cabinet decision itself is open to challenge under the fundamental rights jurisdiction of the Supreme Court. Several cases have been filed. Leave to proceed was refused in two cases.

On 09 August 2023, upon a matter of privilege being raised by Minister Harin Fernando, Speaker Mahinda Yapa Abeywardena made an order that no court is empowered to issue orders or judgments of any nature against the resolution passed by Parliament. Any such order or judgment of courts would amount to a violation of item 1 of Part B of the Parliament (Powers & Privileges) Act. Item 1 reads: ‘The wilful failure or refusal to obey any order or resolution of Parliament under this Act, or any order of the President or Speaker or any member which is duly made under this Act.’

It might straightaway be said that a judicial ruling on whether a Cabinet decision is constitutional or not is not a failure or refusal to obey any order or resolution of Parliament. In any event, the resolution passed on 01 July 2023 was only an endorsement of the Cabinet decision and superfluous.

The Speaker relied on Article 148 of the Constitution, which says, “Parliament shall have full control over public finance”, but did not elaborate. How does Parliament exercise such control? The same Article states that “no tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament or of any existing law.” This provision has no application to the instant issue as Parliament has not yet made any law on DDR. By Article 149(1), the funds of the Republic not allocated by law to specific purposes shall form one Consolidated Fund into which shall be paid the produce of all taxes, imposts, rates and duties and all other revenues and receipts of the Republic not allocated to specific purposes.

Article 150 provides that no sum may be withdrawn from the Consolidated Fund except under a warrant issued by the Minister of Finance. No such warrant shall be issued unless the sum has by resolution of Parliament or by any law been granted for specified public services for the financial year during which the withdrawal is to take place or is otherwise lawfully charged on the Consolidated Fund. There are special provisions for the President to authorise expenditure if Parliament has been dissolved before the Budget has been passed and when expenditure is necessary to conduct a Parliamentary general election. Where expenditure has not been provided for in the Budget or any other law, such expenditure is authorised by Parliament by a supplementary estimate. Clearly, the resolution passed on 01 July 2023 does not come with any of the above constitutional provisions.

In any event, a Parliamentary resolution does not have the protection that Article 80(3) offers to a law passed by Parliament, namely that “where a Bill becomes law upon the certificate of the President or the Speaker, as the case may be being endorsed thereon, no court or tribunal shall inquire into, pronounce upon or in any manner call in question, the validity of such Act on any ground whatsoever.” If a Parliamentary resolution cannot be challenged on the ground that it violates the Constitution, citizens would be left without a remedy. What, then, of the supremacy of the Constitution?

For example, Article 68(1) provides that the salaries of Ministers and Members of Parliament be determined by Parliament by law or resolution. If a law is to be passed, citizens could challenge it at the Bill stage. Could a resolution arbitrarily increasing the salaries of Members of Parliament be challenged?

This issue arose in Lanka Railway Trade Union v. Wickramanayake (SC FR 29/2007, SC Minutes 30.01.2007), a fundamental rights application challenging a more than 100% salary increase to Members of Parliament. The case was reported in the Daily Mirror on 31 January 2007 and referred to by Justice Mark Fernando in ‘Defeating the Dragon: Weapons for Fighting Corruption’, a paper he wrote while in retirement. A preliminary objection was taken on behalf of the Attorney-General that ‘although the increase did shock the conscience of everybody, the question was one of law and not of morality’, and the Supreme Court had no jurisdiction to review the resolution passed by Parliament. Leave to proceed was refused, but with the presiding lady Judge dissenting as she was of the view that there was an arguable point.

Justice Fernando pointed out that had Parliament attempted to fix remuneration by law, a Bill for that purpose would have to be published in the Gazette, citizens would have the right to challenge the Bill, and the Supreme Court would have to make a determination with reasons given. The Bill would have to be passed in accordance with the determination, and once passed, the Act could not be challenged. “A resolution fixing remuneration does not have any of those safeguards, and correspondingly does not enjoy the immunity from challenge which an Act of Parliament enjoys.

A resolution under Article 68 is therefore a form of Parliamentary action inferior to legislation, and enjoys no immunity from legislative scrutiny,” Justice Fernando opined. He also emphasised the necessity for the Supreme Court to give reasons for refusing leave to proceed with a fundamental rights application, as “refusing leave is a final decision – an unequivocal decision that there is no merit at all in the petitioner’s case; that he has failed to make out even an arguable case.”

Courts in Sri Lanka have struck down actions of Parliament not amounting to legislation when such actions were violative of the law. The Industrial Disputes Act, as originally enacted, did not prescribe a time limit for a workman to file an application in the Labour Tribunal. The Minister of Labour, purporting to act under the rule-making powers conferred on him by certain sections of the Industrial Disputes Act, made a regulation fixing the time limit at three months of the date of termination of the services of a workman. The regulation was approved by Parliament.

The validity of the regulation was challenged in the 1968 case of Ram Banda v. River Valley Development Board (71 NLR 25). It was submitted on behalf of the respondent that the requirement of approval by Parliament rendered the regulations so approved was tantamount to an Act of Parliament itself, the validity of which is not justiciable by the courts.

It was further submitted that such regulations are law because Parliament says they are law and that they draw their validity not from the law-making power of the authority which made them but from the fact of Parliamentary approval. Justice Weeramantry held that section 39(2) of the Industrial Disputes Act, which provides that every regulation made by the Ministerm should be placed before Parliament for approval and that, on such approval and publication in the Gazette, it shall be “as valid and effectual as though it were herein enacted” did not confer validity on a regulation which is outside the scope of the enabling powers. “The mere passage of such regulation through Parliament does not give it the imprimatur in such a way as to remove it, through the operation of section 39 (2), from the purview of the courts.”

In 1971, Ram Banda v. River Valley Development Board was overruled by the majority of a three-member Bench of the Supreme Court in River Valleys Development Board v. Sheriff (74 NLR 505). The latter decision was, in turn, overruled in 1973 by the then Court of Appeal, which was the highest court of the land at that time after appeals to the Privy Council were abolished, in Ceylon Workers’ Congress v. Superintendent, Beragala Estate (76 NLR 1).

Restoring the decision in Ram Banda, the Court of Appeal held that the provision in section 39(2) that every regulation made by the Minister and approved by Parliament shall be valid and effectual as though it was enacted in the principal Act cannot preclude the courts from examining the validity of such a regulation.

If, as our courts have held, Parliamentary approval of a regulation does not prevent the validity of a regulation from being reviewed, it is not necessary to labour the point that the resolution passed by Parliament on 01 July 2023 merely endorsing the Cabinet decision on DDR cannot prevent the courts from reviewing the validity of the Cabinet decision in a fundamental rights application.

Speaker Abeywardena also relied on a ruling given by former Speaker Anura Bandaranaike in the context of the Supreme Court’s interim order restraining the Speaker from appointing a select committee to inquire into allegations against the then Chief Justice, Sarath N. Silva. Relying heavily on the provisions of the Parliament (Powers and Privileges) Act, Speaker Bandaranaike stated that the Supreme Court had, in several decisions, laid down the principle that it had no jurisdiction to entertain an application under Article 126 if the alleged infringement is not by executive or administrative action.

The issue of whether appointing such a select committee amounted to executive or administrative action was later decided by a five-member Bench of the Supreme Court in Chandraguptha Thenuwara v. Chamal Rajapakse (SC FR 665–7, 672/2012, SCM 24 March 2014) a case on the impeachment of Chief Justice Shirani Bandaranayake. Marsoof J, with Ekanayake, Hettige, Eva Wanasundera, and Marasinghe JJ agreeing, stated that all organs of government, including the courts and other tribunals or institutions administering justice, must always bear in mind Article 4(d) of the Constitution, which expressly provides that “the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided.

” The learned Judge came to the following finding: “It is the solemn duty of this Court to honour the trust placed on it to respect, secure and advance the fundamental rights enshrined in the Constitution, and in doing so, I have examined very carefully all the provisions of the Constitution and principles of law referred to by learned Counsel in the course of submissions. Having done so, I am inclined to the view that the impugned act of the Speaker of the House of Parliament to appoint a Parliamentary Select Committee was indeed ‘executive or administrative action’ within the meaning of Article 126 of the Constitution.”

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Features

Recruiting academics to state universities – beset by archaic selection processes?

Published

12 hours ago

2026/03/3

Thilina Walpola

by Kaushalya Perera

Time has, by and large, stood still in the business of academic staff recruitment to state universities. Qualifications have proliferated and evolved to be more interdisciplinary, but our selection processes and evaluation criteria are unchanged since at least the late 1990s. But before I delve into the problems, I will describe the existing processes and schemes of recruitment. The discussion is limited to UGC-governed state universities (and does not include recruitment to medical and engineering sectors) though the problems may be relevant to other higher education institutions (HEIs).

How recruitment happens currently in SL state universities

Academic ranks in Sri Lankan state universities can be divided into three tiers (subdivisions are not discussed).

* Lecturer (Probationary)

– recruited with a four-year undergraduate degree. A tiny step higher is the Lecturer (Unconfirmed), recruited with a postgraduate degree but no teaching experience.

* A Senior Lecturer can be recruited with certain postgraduate qualifications and some number of years of teaching and research.

* Above this is the professor (of four types), which can be left out of this discussion since only one of those (Chair Professor) is by application.

State universities cannot hire permanent academic staff as and when they wish. Prior to advertising a vacancy, approval to recruit is obtained through a mind-numbing and time-consuming process (months!) ending at the Department of Management Services. The call for applications must list all ranks up to Senior Lecturer. All eligible candidates for Probationary to Senior Lecturer are interviewed, e.g., if a Department wants someone with a doctoral degree, they must still advertise for and interview candidates for all ranks, not only candidates with a doctoral degree. In the evaluation criteria, the first degree is more important than the doctoral degree (more on this strange phenomenon later). All of this is only possible when universities are not under a ‘hiring freeze’, which governments declare regularly and generally lasts several years.

Problem type 1

– Archaic processes and evaluation criteria

Twenty-five years ago, as a probationary lecturer with a first degree, I was a typical hire. We would be recruited, work some years and obtain postgraduate degrees (ideally using the privilege of paid study leave to attend a reputed university in the first world). State universities are primarily undergraduate teaching spaces, and when doctoral degrees were scarce, hiring probationary lecturers may have been a practical solution. The path to a higher degree was through the academic job. Now, due to availability of candidates with postgraduate qualifications and the problems of retaining academics who find foreign postgraduate opportunities, preference for candidates applying with a postgraduate qualification is growing. The evaluation scheme, however, prioritises the first degree over the candidate’s postgraduate education. Were I to apply to a Faculty of Education, despite a PhD on language teaching and research in education, I may not even be interviewed since my undergraduate degree is not in education. The ‘first degree first’ phenomenon shows that universities essentially ignore the intellectual development of a person beyond their early twenties. It also ignores the breadth of disciplines and their overlap with other fields.

This can be helped (not solved) by a simple fix, which can also reduce brain drain: give precedence to the doctoral degree in the required field, regardless of the candidate’s first degree, effected by a UGC circular. The suggestion is not fool-proof. It is a first step, and offered with the understanding that any selection process, however well the evaluation criteria are articulated, will be beset by multiple issues, including that of bias. Like other Sri Lankan institutions, universities, too, have tribal tendencies, surfacing in the form of a preference for one’s own alumni. Nevertheless, there are other problems that are, arguably, more pressing as I discuss next. In relation to the evaluation criteria, a problem is the narrow interpretation of any regulation, e.g., deciding the degree’s suitability based on the title rather than considering courses in the transcript. Despite rhetoric promoting internationalising and inter-disciplinarity, decision-making administrative and academic bodies have very literal expectations of candidates’ qualifications, e.g., a candidate with knowledge of digital literacy should show this through the title of the degree!

Problem type 2 – The mess of badly regulated higher education

A direct consequence of the contemporary expansion of higher education is a large number of applicants with myriad qualifications. The diversity of degree programmes cited makes the responsibility of selecting a suitable candidate for the job a challenging but very important one. After all, the job is for life – it is very difficult to fire a permanent employer in the state sector.

Widely varying undergraduate degree programmes.

At present, Sri Lankan undergraduates bring qualifications (at times more than one) from multiple types of higher education institutions: a degree from a UGC-affiliated state university, a state university external to the UGC, a state institution that is not a university, a foreign university, or a private HEI aka ‘private university’. It could be a degree received by attending on-site, in Sri Lanka or abroad. It could be from a private HEI’s affiliated foreign university or an external degree from a state university or an online only degree from a private HEI that is ‘UGC-approved’ or ‘Ministry of Education approved’, i.e., never studied in a university setting. Needless to say, the diversity (and their differences in quality) are dizzying. Unfortunately, under the evaluation scheme all degrees ‘recognised’ by the UGC are assigned the same marks. The same goes for the candidates’ merits or distinctions, first classes, etc., regardless of how difficult or easy the degree programme may be and even when capabilities, exposure, input, etc are obviously different.

Similar issues are faced when we consider postgraduate qualifications, though to a lesser degree. In my discipline(s), at least, a postgraduate degree obtained on-site from a first-world university is preferable to one from a local university (which usually have weekend or evening classes similar to part-time study) or online from a foreign university. Elitist this may be, but even the best local postgraduate degrees cannot provide the experience and intellectual growth gained by being in a university that gives you access to six million books and teaching and supervision by internationally-recognised scholars. Unfortunately, in the evaluation schemes for recruitment, the worst postgraduate qualification you know of will receive the same marks as one from NUS, Harvard or Leiden.

The problem is clear but what about a solution?

Recruitment to state universities needs to change to meet contemporary needs. We need evaluation criteria that allows us to get rid of the dross as well as a more sophisticated institutional understanding of using them. Recruitment is key if we want our institutions (and our country) to progress. I reiterate here the recommendations proposed in ‘Considerations for Higher Education Reform’ circulated previously by Kuppi Collective:

* Change bond regulations to be more just, in order to retain better qualified academics.

* Update the schemes of recruitment to reflect present-day realities of inter-disciplinary and multi-disciplinary training in order to recruit suitably qualified candidates.

* Ensure recruitment processes are made transparent by university administrations.

Kaushalya Perera is a senior lecturer at the University of Colombo.

(Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.)

Features

Talento … oozing with talent

Published

13 hours ago

2026/03/3

Thilina Walpola

Talento: Gained recognition as a leading wedding and dance band

This week, too, the spotlight is on an outfit that has gained popularity, mainly through social media.

Last week we had MISTER Band in our scene, and on 10th February, Yellow Beatz – both social media favourites.

Talento is a seven-piece band that plays all types of music, from the ‘60s to the modern tracks of today.

The band has reached many heights, since its inception in 2012, and has gained recognition as a leading wedding and dance band in the scene here.

The members that makeup the outfit have a solid musical background, which comes through years of hard work and dedication

Their portfolio of music contains a mix of both western and eastern songs and are carefully selected, they say, to match the requirements of the intended audience, occasion, or event.

Although the baila is a specialty, which is inherent to this group, that originates from Moratuwa, their repertoire is made up of a vast collection of love, classic, oldies and modern-day hits.

The musicians, who make up Talento, are:

Prabuddha Geetharuchi:

Geilee Fonseka: Dynamic and charismatic vocalist

Prabuddha Geetharuchi: The main man behind the band Talento

(Vocalist/ Frontman). He is an avid music enthusiast and was mentored by a lot of famous musicians, and trainers, since he was a child. Growing up with them influenced him to take on western songs, as well as other music styles. A Peterite, he is the main man behind the band Talento and is a versatile singer/entertainer who never fails to get the crowd going.

Geilee Fonseka (Vocals):

A dynamic and charismatic vocalist whose vibrant stage presence, and powerful voice, bring a fresh spark to every performance. Young, energetic, and musically refined, she is an artiste who effortlessly blends passion with precision – captivating audiences from the very first note. Blessed with an immense vocal range, Geilee is a truly versatile singer, confidently delivering Western and Eastern music across multiple languages and genres.

Chandana Perera (Drummer):

His expertise and exceptional skills have earned him recognition as one of the finest acoustic drummers in Sri Lanka. With over 40 tours under his belt, Chandana has demonstrated his dedication and passion for music, embodying the essential role of a drummer as the heartbeat of any band.

Harsha Soysa:

(Bassist/Vocalist). He a chorister of the western choir of St. Sebastian’s College, Moratuwa, who began his musical education under famous voice trainers, as well as bass guitar trainers in Sri Lanka. He has also performed at events overseas. He acts as the second singer of the band

Udara Jayakody:

(Keyboardist). He is also a qualified pianist, adding technical flavour to Talento’s music. His singing and harmonising skills are an extra asset to the band. From his childhood he has been a part of a number of orchestras as a pianist. He has also previously performed with several famous western bands.

Aruna Madushanka:

(Saxophonist). His proficiciency in playing various instruments, including the saxophone, soprano saxophone, and western flute, showcases his versatility as a musician, and his musical repertoire is further enhanced by his remarkable singing ability.

Prashan Pramuditha:

(Lead guitar). He has the ability to play different styles, both oriental and western music, and he also creates unique tones and patterns with the guitar..

Features

Special milestone for JJ Twins

Published

13 hours ago

2026/03/3

Thilina Walpola

Twin brothers Julian and Jason Prins

The JJ Twins, the Sri Lankan musical duo, performing in the Maldives, and known for blending R&B, Hip Hop, and Sri Lankan rhythms, thereby creating a unique sound, have come out with a brand-new single ‘Me Mawathe.’

In fact, it’s a very special milestone for the twin brothers, Julian and Jason Prins, as ‘Me Mawathe’ is their first ever Sinhala song!

‘Me Mawathe’ showcases a fresh new sound, while staying true to the signature harmony and emotion that their fans love.

This heartfelt track captures the beauty of love, journey, and connection, brought to life through powerful vocals and captivating melodies.

It marks an exciting new chapter for the JJ Twins as they expand their musical journey and connect with audiences in a whole new way.

Their recent album, ‘CONCLUDED,’ explores themes of love, heartbreak, and healing, and include hits like ‘Can’t Get You Off My Mind’ and ‘You Left Me Here to Die’ which showcase their emotional intensity.

Readers could stay connected and follow JJ Twins on social media for exclusive updates, behind-the-scenes moments, and upcoming releases:

Instagram: http://instagram.com/jjtwinsofficial

TikTok: http://tiktok.com/@jjtwinsmusic

Facebook: http://facebook.com/jjtwinssingers

YouTube: http://youtube.com/jjtwins