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One Country, One Law’: Leave it to the judicial process

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By Dr Jayampathy Wickramaratne,
President’s Counsel

‘One country, one law’ was one of the central planks of Gotabaya Rajapaksa’s election platform. The slogan was initially crafted and marketed by the Viyathmaga professionals’ group and found expression in Rajapaksa’s Presidential election manifesto ‘Vistas of Prosperity and Splendour’.

Although not explicitly so stated in the manifesto, some Viyathmaga members claimed during the campaign that all personal laws would be abolished and one general law would apply to all communities. There is no doubt that this was aimed at the Muslims and the Tamils and the slogan did appeal to Sinhala voters. No reference was made to Kandyan Law, also a personal law. Thesavalamai Law is a customary law that has both a personal and territorial character and applies to Tamils of the Northern Province. The Muslim Law applies to adherents of Islam.

Another aspect of the ‘one country, one law’ slogan that no doubt appealed to many was that the law would be applied equally to all. People are naturally frustrated that the law has not been applied across the board under successive governments. That the trend continues under the present government led by President Gotabaya Rajapaksa is for all to see.

 

Laws inconsistent with fundamental rights

Article 168 (1) of the Constitution provides that all existing law would be read subject to the new Constitution. However, Article 16 (1) provides that all existing law shall be valid and operative, notwithstanding any inconsistency with the chapter on fundamental rights. The 1972 Constitution provided similarly.

Not only personal laws but many other pre-1978 laws also have provisions that are inconsistent with fundamental rights, especially provisions discriminatory of women. For example, women Divisional Secretaries cannot vote at the election of the Diyawadana Nilame of the Dalada Maligawa.

 

Existing law and ICCPR

A rare opportunity arose for the Supreme Court to identify pre-1978 legislation violative of fundamental rights when, by a reference dated 04 March 2008 made under Article 129 (1) of the Constitution, President Mahinda Rajapakse wished to receive the opinion of the Court on whether the Sri Lankan body of law was consistent with the International Covenant on Civil and Political Rights (ICCPR).

The matter, Centre for Policy Alternatives (Re Presidential Reference on the ICCPR), reported at [2009] 2 Sri LR 389, was taken up by a five-member Bench comprising S.N. Silva CJ and Amaratunga, Marsoof, Somawansa and Balapatabendi JJ on 17 March 2008 and the hearing concluded the same day. Parties were required to file written submissions the following day. The opinion of the Court was transmitted to the President on 28 March 2008.

Several intervenient petitioners submitted that one effect of Article 16 (1) is that a person whose fundamental rights comparable with the ICCPR are violated by existing law has no remedy. Article 16 (1) ensures the continued validity of specific provisions of personal as well as other laws that discriminate, especially against women. A note setting out several such laws as examples was annexed to the written submissions that the writer submitted as counsel for petitioner Lal Wijenayake. The laws referred to were the Land Development Ordinance, Land Grants (Special Provisions) Act, Kandyan Law Declaration and Amendment Ordinance and Muslim Intestate Succession Ordinance.

The Court stated that customary and special laws are deeply seated in the social milieu of the country. Article 27 of the ICCPR makes a specific reservation that ‘in states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with other members of their group to enjoy their own culture, to profess and practice their own religion or to use their own language.’ Article 16 (1) cannot be considered to be inconsistent with the Covenant only on the ground that certain aspects of personal laws may discriminate against women. The matter of personal laws is one of great sensitivity. The Covenant should not be considered as an instrument which warrants the amendment of such laws. Any request for amendment should emerge from the sector governed by the particular personal law.

The contentions of the petitioners were not merely narrowly restricted to personal laws. It was on the broader question of whether Article 16 (1), which permitted laws inconsistent with fundamental rights, one manner of the exercise of sovereignty, was inconsistent with the ICCPR. That question was not answered.

 

An opportunity missed

Personal laws, of course, are a sensitive issue. The issue of personal laws discriminatory of women has been raised by many, including activists of the respective communities, but continues to be swept under the carpet by politicians as well as conservative groups within the communities. Considering the importance of the issue, the Court could have recommended that the government set up a suitable mechanism to address it.

The Supreme Court concluded that provisions of the Constitution and of other law, including decisions of the superior courts of Sri Lanka, give adequate recognition to ICCPR rights which are justiciable through the medium of the legal and constitutional process prevailing in Sri Lanka.

In the writer’s view, the Presidential Reference was an excellent opportunity to review the body of Sri Lankan law in light of the ICCPR as well as fundamental rights, an opportunity that went astray. The period within which the President required the Supreme Court to report its opinion is not known. But the fact that the opinion was given within four weeks of the reference and that the hearing was limited to one day indicates that the period was probably about a month. It is impossible for any court to wade through such a wide array of laws in a few weeks. Perhaps, the Court should have requested more time and appointed several eminent lawyers to assist it as amici curiae.

 

Judicial process preferable to the political process

The sub-committee on fundamental rights of the Constitutional Assembly of the previous Parliament was divided on whether existing law should be read subject to fundamental rights in a new Constitution.

Three members of the sub-committee (Mahinda Samarasinghe, who chaired the committee, (Dr) Thusitha Wijemanne and the writer), proposed that all written and unwritten laws in force at the time of coming into force of a new Constitution shall be read subject to the Constitution including the chapter on fundamental rights and in the event of a court declaring that any such law is inconsistent with any such provision, such law shall be deemed to be void to the extent of such inconsistency. M.H.M. Salman took the view that personal laws should be exempted from being so read. Vasudeva Nanayakkara was of the view that Article 16 (1) should be retained and a Presidential Commission appointed to review personal laws and make proposals as to how they could be harmonised with fundamental rights provisions. The other six members, Pavithra Wanniarchchi, Vijtha Herath, Rev. Athureliye Rathana, Aravinda Kumar, Anuradha Jayaratne, S. Sritharan, did not take up a position.

The writer submits that attempts to abolish personal laws would only exacerbate the already worsened relations between ethnic groups. All the provisions in the Kandyan Law, Thesavalamai and Muslim Law are not necessarily inconsistent with fundamental rights. The general laws to which proponents of the ‘one country, one law’ claim all personal laws should be made subject were mostly given to us by our colonial masters. Some of them are based on archaic Western values which the West itself has since discarded.

The best way out is to delete Article 16 (1) and permit judicial review of all legislation. Thereafter, the decision as to what provisions of our body of law should be struck down as being inconsistent with the Constitution would be a matter for the Supreme Court. The judicial process, rather than the political process, would be acceptable to the people, including those to whom the respective personal laws apply. What is needed is a single legal standard of minimum protection necessary for the preservation of human dignity under all cultures and not the subjection of all cultures to a single cultural standard which is invariably the cultural standard of the majority.



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Sri Lanka’s new govt.: Early promise, growing concerns

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President Anura Kumara Dissanayake’s demeanour, body language, and speaking style appear to have changed noticeably in recent weeks, a visible sign of embarrassment. The most likely reason is a stark contradiction between what he once publicly criticised and analysed so forcefully, and what his government is actually doing today. His own recent speeches seem to reflect that contradiction, sometimes coming across as confused and inconsistent. This is becoming widely known, not just through social media, YouTube, and television discussions, but also through speeches on the floor of Parliament itself.

Doing exactly what the previous government did

What is now becoming clear is that instead of doing things the way the President promised, his government is simply carrying on with what the previous administration, particularly Ranil Wickremesinghe’s government, was already doing. Critically, some of the most senior positions in the state, positions that demand the most experienced and capable officers, are being filled by people who are loyal to the JVP/NPP party but lack the relevant qualifications and track record.

Such politically motivated appointments have already taken place across various government ministries, some state corporations, the Central Bank, the Treasury, and at multiple levels of the public service. There have also been forced resignations, bans on resignations, and transfers of officials.

What makes this particularly serious is that President Dissanayake has had to come to Parliament repeatedly to defend and “clean up” the reputations of officials he himself appointed. This looks, at times, like a painful and almost theatrical exercise.

The coal procurement scandal, and a laughable inquiry

The controversy around the country’s coal power supply has now clearly exposed a massive disaster: shady tenders, damage to the Norochcholai power plant, rising electricity bills due to increased diesel use to compensate, a shortage of diesel, higher diesel prices, and serious environmental damage. This is a wide and well-documented catastrophe.

Yet, when a commission was appointed to investigate, the government announced it would look into events going back to 2009, which many have called an absurd joke, clearly designed to deflect blame rather than find answers.

The Treasury scandal, 10 suspicious transactions

At the Treasury, what was initially presented as a single transaction, is alleged to involve 10 transactions, and it is plainly a case of fraud. A genuine mistake might happen once or twice. As one commentator said sarcastically, “If a mistake can happen 10 times, it must be a very talented hand.” These explanations are being treated as pure comedy.

Attempts to justify all of this have sometimes turned threatening. A speech made on May 1st by Tilvin Silva is a case in point, crude and menacing in tone.

Is the government losing its grip?

Former Minister Patali Champika has said the government is now suffering from a phobia of loss of power, meaning it is struggling to govern effectively. Other commentators have noted that the NPP/JVP may have taken on a burden too heavy to carry. Political cartoons have depicted the NPP’s crown loaded with coal, financial irregularities, and political appointments, bending under the weight.

The problem with appointing loyalists over qualified professionals

Appointing own supporters to senior positions is not itself unusual in politics. But it becomes a betrayal of public trust when those appointed lack the basic qualifications or relevant experience for the roles they are given.

A clear example is the appointment of the Treasury Secretary, someone who was visible at virtually every NPP election campaign event, but whose qualifications and exposure/experiences may not match the demands of such a critical position. Even if someone has a doctorate or professorship, the key question is whether those qualifications are relevant to the role, and whether that person has the experience/exposure to lead a team of seasoned professionals.

By contrast, even someone without formal academic credentials can succeed if they have the right skills and surround themselves with advisors with relevant exposure. The real failure is when loyalty to a political party overrides all other considerations, that is a fundamental betrayal of responsibility.

The problem is not unique to this government. In 2015, the appointment of Arjuna Mahendran as Central Bank Governor was a similar blunder. His tenure ended in scandal involving insider dealing and bond market manipulation. However, in that case, the funds involved were frozen and later confiscated by the following government, however legally questionable that process was.

The current Treasury losses, by contrast, may be unrecoverable. Critics say getting that money back would be next to impossible.

The broader damage: Demoralisation of capable officials

When loyalists are placed above competent career officials in key positions, it demoralises the best public servants. Some begin to comply in fear; others lose motivation entirely. The professional hierarchy breaks down. Junior officials start looking over their shoulders instead of doing their jobs. This collective dysfunction is ultimately what destroys governments.

Sri Lanka’s pattern: every government falls

This pattern is deeply familiar in Sri Lankan history. The SWRD Bandaranaike government, which swept to power in 1956 on a wave of popular support, had declined badly by 1959. The coalition government, which came to power reducing the opposition to eight seats, lost in 1977, and, in turn, the UNP, which came in on a landslide, in 1977, crushing the SLFP to just eight seats, suffered a similar fate by 1994.

Mahinda Rajapaksa came to power in 2005 by the narrowest of margins, in part because the LTTE manipulated the Northern vote against Ranil Wickremesinghe. But he was re-elected in 2010 on the strength of ending the war against the LTTE. Still, by 2015, he was voted out, because the benefits of winning the war were never truly delivered to ordinary people, and because large-scale corruption had taken root in the meantime. Gotabaya Rajapaksa didn’t even last long enough to see his term end.

Now, this government, too, is showing early signs of the same decline.

The ideological contradiction at the heart of the NPP

There is another challenge: though the JVP presents itself as a left-wing, Marxist-socialist party, many of those who joined the broader NPP coalition, businesspeople, academics, professionals, do not hold such ideological views. Balancing a left-leaning party with a centre-right coalition is extremely difficult. The inevitable tension between the two pulls the government in opposite directions.

The silver lining, however, is that this has produced a growing class of “floating voters”, people not permanently tied to any party, and that is actually healthy for democracy. It keeps governments accountable. Independent election commissions and civil society organisations have a major role to play in informing these voters objectively.

In more developed democracies, voters receive detailed candidate profiles and well-researched information alongside their ballot papers, including, for example, independent expert analyses of referendum questions like drug legalisation. Sri Lanka is still far from that standard. Here, many people vote the same way as their parents. In other countries, five family members might each vote differently without it being a scandal.

Three key ministries, under the President himself, all in trouble

President Dissanayake currently holds three of the most powerful portfolios himself: Defence, Digital Technology, and Finance. All three are now widely seen as performing poorly. Many commentators say the President has “failed” visibly in all three areas. The justifications offered for these failures have themselves become confused, contradictory, and, at times, just plain pitiable.

The overall picture is one of a government that looks helpless, reduced to making excuses and whining from the podium.

A cautious hope for recovery

There are still nearly three years left in this government’s term. There is time to course-correct, if they act quickly. We sincerely hope the government manages to shed this sense of helplessness and confusion, and finds a way to truly serve the country.

(The writer, a senior Chartered Accountant and professional banker, is Professor at SLIIT, Malabe. The views and opinions expressed in this article are personal.)

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Cricket and the National Interest

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The appointment of former minister Eran Wickremaratne to chair the Sri Lanka Cricket Transformation Committee is significant for more than the future of cricket. It signals a possible shift in the culture of governance even as it offers Sri Lankan cricket a fighting possibility to get out of the doldrums of failure. There have been glorious patches for the national cricket team since the epochal 1996 World Cup triumph. But these patches of brightness have been few and far between and virtually non-existent over the past decade. At the centre of this disaster has been the failures of governance within Sri Lanka Cricket which are not unlike the larger failures of governance within the country itself. The appointment of a new reform oriented committee therefore carries significance beyond cricket. It reflects the wider challenge facing the country which is to restore trust in public institutions for better management.

The appointment of Eran Wickremaratne brings a professional administrator with a proven track record into the cricket arena. He has several strengths that many of his immediate predecessors lacked. Before the ascent of the present government leadership to positions of power, Eran Wickremaratne was among the handful of government ministers who did not have allegations of corruption attached to their names. His reputation for financial professionalism and integrity has remained intact over many years in public life. With him in the Cricket Transformation Committee are also respected former cricketers Kumar Sangakkara, Roshan Mahanama and Sidath Wettimuny together with professionals from legal and business backgrounds. They have been tasked with introducing structural reforms and improving transparency and accountability within cricket administration.

A second reason for this appointment to be significant is that this is possibly the first occasion on which the NPP government has reached out to someone associated with the opposition to obtain assistance in an area of national importance. The commitment to bipartisanship has been a constant demand from politically non-partisan civic groups and political analysts. They have voiced the opinion that the government needs to be more inclusive in its choice of appointments to decision making authorities. The NPP government’s practice so far has largely been to limit appointments to those within the ruling party or those considered loyalists even at the cost of proven expertise. The government’s decision in this case therefore marks a potentially important departure.

National Interest

There are areas of public life where national interest should transcend party divisions and cricket, beloved of the people, is one of them. Sri Lanka cannot afford to continue treating every institution as an arena for political competition when institutions themselves are in crisis and public confidence has become fragile. It is therefore unfortunate that when the government has moved positively in the direction of drawing on expertise from outside its own ranks there should be a negative response from sections of the opposition. This is indicative of the absence of a culture of bipartisanship even on issues that concern the national interest. The SJB, of which the newly appointed cricket committee chairman was a member objected on the grounds that politicians should not hold positions in sports administration and asked him to resign from the party. There is a need to recognise the distinction between partisan political control and the temporary use of experienced administrators to carry out reform and institutional restructuring. In other countries those in politics often join academia and civil society on a temporary basis and vice versa.

More disturbing has been the insidious campaign carried out against the new cricket committee and its chairman on the grounds of religious affiliation. This is an unacceptable denial of the reality that Sri Lanka is a plural, multi ethnic and multi religious society. The interim committee reflects this diversity to a reasonable extent. The country’s long history of ethnic conflict should have taught all political actors the dangers of mobilising communal prejudice for short term political gain. Sri Lanka paid a very heavy price for decades of mistrust and division. It would be tragic if even cricket administration became another arena for communal suspicion and hostility. The present government represents an important departure from the sectarian rhetoric that was employed by previous governments. They have repeatedly pledged to protect the equal rights of all citizens and not permit discrimination or extremism in any form.

The recent international peace march in Sri Lanka led by the Venerable Bhikkhu Thich Paññākāra from Vietnam with its message of loving kindness and mindfulness to all resonated strongly with the masses of people as seen by the crowds who thronged the roadsides to obtain blessings and show respect. This message stands in contrast to the sectarian resentment manifested by those who seek to use the cricket appointments as a weapon to attack the government at the present time. The challenges before the Sri Lanka Cricket Transformation Committee parallel the larger challenges before the government in developing the national economy and respecting ethnic and religious diversity. Plugging the leaks and restoring systems will take time and effort. It cannot be done overnight and it cannot succeed without public patience and support.

New Recognition

There is also a need for realism. The appointment of Eran Wickremaratne and the new committee does not guarantee success. Reforming deeply flawed institutions is always difficult. Besides, Sri Lanka is a small country with a relatively small population compared to many other cricket playing nations. It is also a country still recovering from the economic breakdown of 2022 which pushed the majority of people into hardship and severely weakened public institutions. The country continues to face unprecedented challenges including the damage caused by Cyclone Ditwah and the wider global economic uncertainties linked to conflict in the Middle East. Under these difficult circumstances Sri Lanka has fewer resources than many larger countries to devote to both cricket and economic development.

When resources are scarce they cannot be wasted through corruption or incompetence. Drawing upon the strengths of all those who are competent for the tasks at hand regardless of party affiliation or ethnic or religious identity is necessary if improvement is to come sooner rather than later. The burden of rebuilding the country cannot rest only on the government. The crisis facing the country is too deep for any single party or government to solve alone. National recovery requires capable individuals from across society and from different sectors such as business and civil society to work together in areas where the national interest transcends party politics. There is also a responsibility on opposition political parties to support initiatives that are politically neutral and genuinely in the national interest. Not every issue needs to become a partisan battle.

Sri Lanka cricket occupies a special place in the national consciousness. At its best it once united the country and gave Sri Lankans a sense of pride and international recognition. Restoring integrity and professionalism to cricket administration can therefore become part of the larger task of national renewal. The appointment of Eran Wickremaratne and the new committee, while it does not guarantee success, is a sign that the political leadership and people of the country may be beginning to mature in their approach to governance. In recognising the need for competence, integrity and bipartisan cooperation and extending it beyond cricket into other areas of national life, Sri Lanka may find the way towards more stable and successful governance..

by Jehan Perera

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From Dhaka to Sri Lanka, three wheels that drive our economies

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Court vacation this year came with an unexpected lesson, not from a courtroom but from the streets of Dhaka — a city that moves, quite literally, on three wheels.

Above the traffic, a modern metro line glides past concrete pillars and crowded rooftops. It is efficient, clean and frequently cited as a symbol of progress in Bangladesh. For a visitor from Sri Lanka, it inevitably brings to mind our own abandoned light rail plans — a project debated, politicised and ultimately set aside.

But Dhaka’s real story is not in the air. It is on the ground.

Beneath the elevated tracks, the streets belong to three-wheelers. Known locally as CNGs, they cluster at junctions, line the edges of markets and pour into narrow roads that larger vehicles avoid. Even with a functioning rail system, these three-wheelers remain the city’s most dependable form of everyday transport.

Within hours of arriving, their importance becomes obvious. The train may take you across the city, but the journey does not end there. The last mile — often the most complicated part — belongs entirely to the three-wheeler. It is the vehicle that gets you home, to a meeting or simply through streets that no bus route properly serves.

There is a rhythm to using them. A destination is mentioned, a price is suggested and a brief negotiation follows. Then the ride begins, edging into traffic that feels permanently compressed. Drivers move with instinct, adjusting routes and squeezing through gaps with a confidence built over years.

It is not polished. But it works.

And that is where the comparison with Sri Lanka becomes less about what we lack and more about what we already have.

Back home, the three-wheeler has long been part of daily life — so familiar that it is often discussed only in terms of its problems. There are frequent complaints about fares, refusals or the absence of meters. More recently, the industry itself has become entangled in politics — from fuel subsidies to regulatory debates, from election-time promises to periodic crackdowns.

In that process, the conversation has shifted. The three-wheeler is often treated as a problem to be managed, rather than a service to be strengthened.

Yet, seen through the experience of Dhaka, Sri Lanka’s system begins to look far more settled — and, in many ways, ahead.

There is a growing structure in place. Meters, while not perfect, are widely recognised. Ride-hailing apps have added transparency and reduced uncertainty for passengers. There are clearer expectations on both sides — driver and commuter alike. Even small details, such as designated parking areas in parts of Colombo or the increasing standard of vehicles, point to an industry slowly moving towards professionalism.

Just as importantly, there is a human element that remains intact.

In Sri Lanka, a three-wheeler ride is rarely just a transaction. Drivers talk. They offer directions, comment on the day’s news, or share local knowledge. The ride becomes part of the social fabric, not just a means of getting from one point to another.

In Dhaka, the scale of the city leaves less room for that. The interaction is quicker, more direct, shaped by urgency. The service is essential, but it is under constant pressure.

What stands out, across both countries, is that the three-wheeler is not a temporary or outdated mode of transport. It is a necessity in dense, fast-growing Asian cities — one that fills gaps no rail or bus system can fully address.

Large infrastructure projects, like light rail, are important. They bring efficiency and long-term capacity. But they cannot replace the flexibility of a three-wheeler. They cannot reach into narrow streets, respond instantly to demand or provide that crucial last-mile connection.

That is why, even in a city that has invested heavily in modern rail, Dhaka still runs on three wheels.

For Sri Lanka, the lesson is not simply about what could have been built, but about what should be better managed and valued.

The three-wheeler industry does not need to be politicised at every turn. It needs steady regulation — clear fare systems, proper licensing, safety standards — alongside encouragement and recognition. It needs to be seen as part of the solution to urban transport, not as a side issue.

Because for thousands of drivers, it is a livelihood. And for millions of passengers, it is the most immediate and reliable form of mobility.

The tuk-tuk may not feature in grand policy speeches or infrastructure blueprints. It does not run on elevated tracks or attract international attention. But on the ground, where daily life unfolds, it continues to do what larger systems often struggle to do — show up, adapt and keep moving.

And after watching Dhaka’s streets — crowded, relentless, yet functioning — that small, three-wheeled vehicle feels less like something to argue over and more like something to get right.

(The writer is an Attorney-at-Law with over a decade of experience specialising in civil law, a former Board Member of the Office of Missing Persons and a former Legal Director of the Central Cultural Fund. He holds an LLM in International Business Law)

 

by Sampath Perera recently in Dhaka, Bangladesh 

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