Features
Preface summarizing Raj Rajaratnam’s tell-all book
In October 2009 I was arrested and charged with insider trading. I chose to fight the charges against me because I was innocent. The prosecutors alleged that 0.01% of my trades between 2005 and 2009 were illegal.
I understood that in the US there is a 97% conviction rate (similar to China and Russia) and a punitive trial penalty for those who dare to go to trial. Empirical studies have shown that the trial penalty is just about double that handed to those who plead guilty. If a defendant agrees to become a cooperating witness, helping the government with testimony — irrespective of the truth — to convict another defendant, the co-operating witness gets a much-reduced sentence and in many cases just parole.
I understood the stakes. I chose to go to trial. Why? It’s a question I’ve since been asked hundreds of times. Why. Why jeopardize everything. Because to my core I believed I would get a fair hearing. And with a fair hearing and a rational exposition of the facts, the truth would have prevailed. Until my arrest I had the highest regard for the Department of Justice (DOJ) and the Federal Bureau of Investigation (FBI). I believed that most Americans felt that way in 2009. Since then of course, the American public has become jaded about the sanctity of these institutions with multiple examples of overreach and excess.
Certain DOJ and FBI sections operate, each attempting to further its own agenda without regard for Constitutional checks and balances. The term “fake news,” the “Dark State” are now bandied about with almost wild abandon, humor, and satire. The public now assumes the existence of “fake news” alongside “authentic” news with little effort towards journalistic integrity. During the time of my arrest and trial, information from the media, DOJ, and FBI was absorbed as unquestioned Trust. While I still believe that the vast majority of those who work for the DOJ and the FBI are people of integrity, this book is an attempt to shed light on the corrupt few who act with impunity and destroy lives and families to further their career ambitions.
From the moment of my arrest, the narrative of my story was recast with a precise agenda, shaped to direct public attention away from the stark horror of the 2007-2008 financial crisis while promoting media idolatry of the publicity hungry and ambitious rookie US Attorney, Preet Bharara, who became a demi-God, the “Sheriff of Wall Street” riding into battle against myself, relentlessly personified as evil incarnate on the front pages of major newspapers around the world.
Wanton disregard for the law, recognized by the judge at my trial, allowed a corrupt element within the FBI, Agent Kang, to falsify documents leading to my arrest and falsify testimony leading to my conviction. I faced prosecutorial misconduct at its finest. The overzealous media, feasting on a human story they could sell every day, also profoundly prejudiced any hope of gathering an impartial jury by the time of the trial. These three institutions, ostensibly guardians of the public interest, charged with impartiality and integrity, bore down in a concerted campaign to make me the face of the financial crisis. My arrest and subsequent trial, a two-year process, deflected attention from a glaring fact: Not one major banker was held accountable for the 2008 global meltdown. No arrests. No searing prosecution. No jail time.
In the midst of a financial crisis which brought a multi-trillion-dollar world economy to its knees, these three institutions, independently and collectively, targeted a tiny slice of the US financial industry, hedge funds; honed in on a single hedge fund, Galleon; isolated only me, its CEO, who had recently become one of the few immigrants on Wall Street to be identified as a billionaire; and built a fabulous and intricate tale of “sex, drugs, and rock and roll” to entertain the public and build their own reputations. Their two-year reality series was successful beyond measure.
Preet Bharara, the then-US attorney for the Southern District of New York, used my prosecution to launch an unprecedented press campaign to promote himself. Bharara ran roughshod over the truth, standard Department of Justice protocols, and the office’s own dignity in his extraordinary zeal to convict me. Time Magazine put Bharara on its cover, their headline proclaiming “this man is busting Wall-Street.” It was Preet’s finest moment. Bharara did not touch the real perpetrators of the 2008 financial crisis – Wall Street’s top bankers. In a rare moment of public acknowledgement, both Preet and the influential New York Magazine observed in 2014 that Bharara was almost sheepish about the insider cases — “they made our careers, but they (didn’t) change the world.”
Bharara’s impotent and poisoned approach to the non-prosecution of criminal activity on Wall Street — ranging from the mortgage bankers who precipitated the financial crisis (Goldman Sachs, Lehman Brothers), the money-laundering of drug cartels (HSBC), and the encouraging of tax evasion by US citizens (UBS, CSFB) — would become the defining legacy of his tenure. Each of these firms settled civil charges by paying billions of dollars in fines using shareholder money, but no single person was criminally charged or individually fined. Every one of the insider trader prosecutions was criminal. The towering hypocrisy remains startling.
The prosecution under Bharara’s watch advanced a theory of trading to prosecute me and several others which the second circuit appeals court subsequently overruled, criticizing it for “doctrine novelty.” Soon after my trial in May 2011, the then-SEC commissioner Mary Shapiro gloated that “the beauty of insider trading laws is the flexibility in interpreting them.” The lead prosecutor in my case, Jonathan Streeter said in December 2012, “Insider Trading cases are confusing to investment professionals.” He went on to add, “There is incredible confusion on what is illegal and it’s a real problem. The law is very complicated and the lines are a bit murky.” A US Attorney, the prosecution in my trial, and the head of the SEC, all acknowledged their reservations about a “murky” set of laws but had no “murky” reservations using them liberally in my case and at my trial.
The FBI agent overseeing my case Special Agent BJ Kang lied on his sworn affidavit to obtain wiretap authorization of my phone. Recognizing there had been government misconduct, Judge Richard Holwell who presided over my trial case, issued a searing criticism of the wiretap application used by Agent Kang, reprimanding him for “reckless disregard for the truth with respect to both probable cause and necessity.” The Judge went on to add that “false and misleading statements and omissions pervaded the affidavit (submitted by Special Agent Kang) so extensively that it was impossible for the authorizing judge to have the constitutionally required determination for the issuance of the wiretap…rather than provide a full and complete statement as required by the law, the wiretap affidavit made full and complete omissions and included literally false information.
“Kang did not stop at blowing through truth on paper. He menaced and threatened my family and employees with prosecution, frightened away crucial defense witnesses, and routinely leaked false information to the media churning up an unabated feeding frenzy that shredded me in the court of public opinion. Kang took his cues from the playbook of the publicly reviled former FBI director, J. Edgar Hoover. I was tried, convicted, and sentenced in the press even before I fully understood the charges against me. The atmosphere was so toxic that my lead counsel, veteran defense lawyer John Dowd said “the prejudicial publicity orchestrated by the USA was so palpable in the courtroom…It was the most toxic atmosphere of any case I ever tried.”
My defense team led by John Dowd, along with expert testimony from a former SEC legal counsel, repeatedly highlighted that all the information discussed in the wiretaps was already in the public domain. Every bit of information was in the public domain. It did not matter. No amount of truth could overcome the false testimony trained into the co-operating witnesses by Streeter, his team of prosecutors, and Bharara, who sat on the sidelines, waiting in eager anticipation for any opportunity for a press conference.
Each of the cooperating witnesses had committed his own set of crimes, unrelated to Galleon. Yet each chose to testify against me as an opportunity to reduce their probable sentences. That they were perjuring themselves was irrelevant; the government coerced them into an immediate mandate to take me down. Even the government’s star witness, Anil Kumar, offered damning testimony under oath in my case only to recant the very same sworn testimony three years later during the trial of my brother. My brother was subsequently acquitted as a result of the revised and opposite version of Anil Kumar’s testimony. A few newspapers picked up on this gross disparity, but that was it. The fact of perjury had no consequence. The cycle was vicious. “Innocent until proven guilty,” the cornerstone philosophy of the American judicial system was proving to be a farce.
I was convicted by a jury, sentenced to 11 years in jail, and paid fines of over $150 million. The irony is that even in setting the fines, the prosecutors working in tandem with the media kept up the unceasing drumbeat of punishment for the financial crisis. Never mind that I did not personally make any money from the alleged trades. And never mind that not one single investor sued me. Galleon went through an orderly process of closing down the firm and returned all the funds with a gain of 22%. Not a single investor lost money. Most important to me, personally, was that not one single investor sued me.
In July 2019, I was released after serving 7.5 years of my 11-year sentence under the First Step Act.
I wrote this book entirely in prison and by hand. I began by writing about an hour a day. Soon that increased to two hours. Then three. I am choosing to publish the book for two specific reasons: First, I want my peers, professionals who understand the nuances of managing money, to hear the facts of my case. I want them to judge me. It is my assertion that I was entrapped, framed, unlawfully wiretapped, surveilled, and then made to endure a brutal and very public media lynching.
Secondly and more importantly, I want to begin a public discussion by creating awareness of how certain corrupt prosecutors and FBI agents are allowed to get away with criminal behavior. There are no checks and balances in our Justice system. Recently there has been a lot of discussion as to whether the President should be above the law. The President is so closely scrutinized that doing anything against the law would ring alarms bells the world over. Instead, my assertion is that the focus should be on the corruption within the American judicial system, on a handful of corrupt US attorneys who live their lives exempt from the law by which they control the lives of others and the rest of the country. In this book I will show how ambitious prosecutors actively take advantage of murky laws and coerce testimony from government witnesses to obtain wrongful convictions. Winning at all costs, regardless of the truth appears at every level to be an operative mantra. I realize there is only one book I can write to set the record straight. This is it.
My story is also about greed. In all its forms, greed boils down to avarice, hunger, power, money, ambition. All of these are readily available and identifiable in the financial industry, by definition. In fact, I would say that in the financial industry, greed is effectively a cliché with fear being on the flip side of a pair trade. Fear and greed are easy to communicate, and the media hones in on these aspects of Wall Street. But what I would like to do in this book is to hone in on the excess and greed in the judicial system. Ambition in the judicial system also translates to power and money, a far more insidious and dangerous consequence to society because it goes unchecked. After I was convicted, the press had a field day speculating whether the “new sheriff” of Wall Street, Preet Bharara, was actually in line to succeed Eric Holder as the next US Attorney General when Holder stepped down. While Bharara was at first coy about his intentions, he eventually made clear his goal to secure the job based on his work prosecuting Wall Street. He may have wanted the job but did not get it.
The same ambitions were true for the three government prosecutors in my case – all three left government shortly after closing out my case for higher paying jobs as partners in leading law firms. They and their new employers spent considerable effort drumming up business on the heels of the skills honed during their time as former prosecutors to future defendants accused of insider trading. They had no problem making the transition from denouncing apparent “greed” in the financial markets to defending that same greed, switching sides in an effective demonstration of greed. As partners at leading law firms they would be highly compensated. The “protectors from greed” sold themselves to the highest bidder, all under the trusting gaze of an unaware public. The door meant to separate and maintain a balance between the public and the private sectors revolves efficiently and profitably.
It is important to understand context of the time and the prevailing mood of the country in October 2009 when I was arrested. In 2008 we had seen the near collapse of the financial system and the wiping out of trillions of dollars of home equity and life savings of the American middle class. The government was forced to bail out the major banks. Mortgages that were bundled up or securitized and sold by banks had contributed to the crisis. Millions of American homes went into foreclosure. Institutions such as Lehman Brother, Bear Stearns, Fannie Mae, AIG and Freddie Mac either filed for bankruptcy or lost over 90% of their market value. An estimated $7 trillion in US household assets were wiped out. And to add to the catastrophe, in late 2008, Bernie Maddoff admitted to running the largest Ponzi scheme under the very eyes of the regulators. Politicians and the public placed the blame squarely on Wall Street. The pubic was clamoring for blood and there was no blood forthcoming. From anywhere.
I had nothing to do with the housing crisis. I was an easy target for politicians, for prosecutors, for pundits, and for Bharara who had just been handed leadership of the Southern District of NY including a mandate for bringing Wall Street under control. I was a successful and expendable hedge fund manager who employed just 250 people. We obtained an overwhelming amount of information on a daily basis and my trading was 100% consistent with the written recommendations of my analysts. In ALL cases, I had a pre-existing position in the stock before allegedly receiving the “tip.” In 2009 and even today, insider trading laws are murky at best and often (intentionally) misinterpreted by prosecutors. The government painted our systematic, well-researched investing as being criminal. Theirs was an overreach of enormous proportions to show that “Wall Street fat cats” were being brought to justice. If I am guilty, then the entire investment business should be declared illegal.
As the Wall Street Journal noted insightfully, “Under standard rhetoric, the public is somehow cheated by all this, but the standard rhetoric is nonsense. The public isn’t damaged because another party wants to sell or buy (and most hedge funds strive to make sure their trading doesn’t affect prices anyway). But a cynic might note one thing: insider-trading law provides a bottomless reservoir of (supposed) financial ‘crime’ for Washington to investigate whenever it needs a Wall Street prosecution to flounce in front of the press.” [Endnote 1]
As a child, having gone to boarding school in a foreign country at the age of 11, I learned quickly and early to be a fighter, a scrapper. This is a blessing and a curse. Over the years, I have learned that you don’t always have to fight. The kindness of many people has defanged and disarmed me to a large extent. However, when people try to take advantage of me, I have to respond. I don’t back down. And I am fortunate to have been blessed with the mental fortitude and financial resources to fight for my innocence. Too many people do not. They plead guilty to indictments they cannot challenge. In my experience about 10% of the inmates at the prison in which I spent seven-and-a-half years were innocent.
When I was researching the Justice Department while in prison, I came across a paragraph that struck a chord in me. Unfortunately, I did not write down the name of the author or the source. “Criminal punishment is the greatest power that governments use and wield against their own people. When employed justly and appropriately, it is vital to any safe and productive society. But when employed aggressively based on vague laws and personal agendas the criminal justice system unnecessarily destroys lives, livelihoods, and families.”
Oddly, my experience of the law has left me without rage or a sense of victimhood. While I would never say I am grateful for the experience, I can say with confidence that I like myself better because of it. When I finally broke through the wall of despair, I realized I had gained a sense of peace and awareness that had opened me up and cracked me free. I realized how incredibly strong the human mind is and that nothing can beat a person who refuses to be beaten.
Finally, I want to say that despite what happened to me as a result of a corrupt prosecutor, I love this country just as much as I did before I went to prison. I feel truly blessed to be one of the five percent of the world population who live in America. I do not see people lined up to emigrate to China, Russia, or Japan, for example.
As I reflect on my circumstances and my past, if God had arrived at my doorstep when I was 11 – with a crystal ball — and told me, “Raj, I will give you the wife and children you see here, these friends, and ensure that both your parents live long and happily and give you also the ability to help the less fortunate — But you need to sacrifice about seven years of your life,” I would have taken that deal in a New York second.
I feel very fortunate. I am very fortunate.
Raj Rajaratnam
Features
Trials-at-Bar in Sri Lanka: Use and abuse
It is reported that a Trial-at-Bar is being contemplated in respect of allegations against former President Ranil Wickremesinghe regarding misuse of state resources for a visit to a British university on his return from attending sessions of the United Nations in New York and an official visit to Cuba. If this is correct, it would make legal history in our country, because there has been no previous instance of the procedure of a Trial-at- Bar being invoked against a former Head of State.
In view of the constitutional importance of the issues involved, the attempt is opportune to consider the conceptual and statutory foundations of our law relating to Trials-at-Bar, the boundaries of its application in practice, and the nature of the responsibilities attributed to the principal functionaries with regard to the conduct of these proceedings.
I. The Statutory Framework
A Trial-at-Bar is an extraordinary procedure operating over and above proceedings in regular courts exercising criminal jurisdiction at first instance. Its form is that of three judges of the High Court, sitting usually without a jury, to try an indictable offence. The main provision is contained in Section 12 of the Judicature Act, No. 2 of 1978: “Notwithstanding anything to the contrary in this Act or any other written law, a Trial-at-Bar shall be held by the High Court in accordance with law for offences punishable under the Penal Code and other laws”.
The law of Sri Lanka makes provision for Trials-at-Bar in two different contexts.
(a) Mandatory
The trial of any person for the gravest offences against the State, constituted by Sections 114, 115, and 116 of the Penal Code, must in all circumstances be held before the High Court at Bar by three judges without a jury, despite any other law. This is the effect of Section 450 of the Code of Criminal Procedure, Act No. 15 of 1979.
The gist of offences to which this provision is applicable is conspiracy or preparation to overthrow, by unlawful means, the Government of Sri Lanka. This provision was applied in the case of 24 persons alleged to have attempted a coup d’état against the Government of Prime Minister Sirimavo Bandaranaike, a year after its election in July 1960 (R v. Liyanage).
(b) Discretionary
Outside this category, where recourse to a Trial-at-Bar is compulsory, there are other situations in which, as a matter of discretion, the Chief Justice may order use of this procedure. This course of action may be resorted to “in the interest of justice and based on the nature or circumstances of the offence”.
Trials-at-Bar, which may proceed either on indictment or on an information exhibited by the Attorney-General, are required to be held as speedily as possible, and generally in the manner of a High Court trial without a jury.
The power of appointment of High Court judges conducting a Trial-at-Bar is specifically vested in the Chief Justice. The Court, once appointed, has full authority regarding summoning, custody, and bail, subject to the restriction that bail may usually be granted only with the consent of the Attorney-General.
II. Appropriate Parameters
A useful point of departure, as a means of determining the proper limits of this judicial procedure, is to examine the character of offences which have led in our country throughout the post-Independence era to the constitution of Trials-at-Bar. A classification of the decided cases during this entire span of more than seven decades is attempted here for this purpose.
(1) Murder
Several Trials-at-Bar in Sri Lanka have been concerned with charges of murder, not per se, but invariably combined with circumstances which impart to the offence the added element of exceptional public importance, in terms of grave jeopardy to established institutions, public tranquillity, or seminal values underpinning governance.
The following are examples:
(a) the murder of a High Court judge engaged in the trial of five persons accused of capital offences pertaining to trafficking in drugs (Sarath Ambepitiya);
(b) the murder of a Member of Parliament in the midst of mob violence on a street, in the throes of widespread protests aimed at bringing down the incumbent government (Amarakeerthi Athukorala);
(c) the killing of two youth while in police custody (the Angulana case);
(d) the killing of villagers by Army personnel during a public demonstration (the Rathupaswala case);
(e) the disappearance of a social activist and human rights defender (Prageeth Ekneligoda).
(2) Offences involving State security and possible contravention of International law
* charges pertaining to firearms and ammunition and their use on the high seas (the Avant Garde case).
(3) Alleged gross dereliction of duty by senior government officials, including a former Secretary to the Ministry of Defence and a former Inspector-General of Police, leading to the death of a large number of persons by explosions in public places such as churches and hotels (Easter Sunday Bombing case).
(4) Grave corruption allegations in respect of procurement or other major misdemeanours
* two Trials-at-Bar were appointed to hear cases arising from the Central Bank bond scam in 2016, alleged to involve a former Minister of Finance, a former Governor of the Central Bank, his son-in-law and others (Central Bank bond case);
* charges against a previous Minister of Health, senior officials of the Ministry, and others in connection with the procurement of substandard immunoglobulin vials, leading to deaths and grievous bodily harm (Keheliya Rambukwella);
* charges filed by the Financial Crimes Investigation Division against the Chief of Staff of a former President and a former Chairman of the Sri Lanka Insurance Corporation for alleged large-scale misappropriation of public funds (Gamini Senerath, Priyadasa Kudabalage).
(5) Sedition involving communal overtones and potential disturbance of the public peace (S.J.V. Chelvanayakam and others).
(6) Allegations relating to extra-judicial executions
* the trial of a previous Army Commander for statements made by him regarding unlawful execution of surrendering LTTE cadres (Sarath Fonseka White Flag case).
(7) Criminal defamation in volatile contexts
In 1954, in the earliest of this series of cases, allegedly defamatory remarks were published by the defendant in a newspaper known as Trine. The gist of the allegations was that Sir Oliver Goonetilleke, who had just relinquished the position of Minister of Finance to accept appointment as Governor-General, had engaged in “swindles on an international scale” (R v. Thejawathie Gunawardena).
The heinous character of the offences alleged, and the scope of their potential ramifications in all these settings, are evident at a glance. The distinguishing feature is not merely the gravity of the offence, but imputation of a wider dimension to it, typically in the form of a serious affront to the public wellbeing.
In the Thejawathie Gunawardena case, for instance, where the propriety of recourse to a Trial-at-Bar was vigorously challenged, the Supreme Court held that there was no ground for complaint because of the predominant element of public mischief apparent from the circumstances. This was due to the inflammatory content of the statements published, which could foreseeably “disturb or endanger the government” by igniting public feeling. Gravity of the allegations, from this point of view, and their probable impact on public confidence in the integrity of basic institutions of governance, were the factors relied upon to take the case out of the regular category of defamation litigation and justify use of the Trial-at-Bar procedure.
This characteristic of a high threshold of public importance, accompanied by complexity and volatility of the surrounding circumstances, is the central thread which runs through the diverse situations in which Trials-at-Bar have been constituted in Sri Lanka.
III. The Roles of Pivotal Functionaries
The principal responsibility is that of the Chief Justice and the Attorney-General. The essential nexus between their statutory functions is a salient feature of the law.
(i) The Chief Justice
In Somaratna Rajapaksa v. Attorney-General, it was clearly recognised that the repository of power to constitute a Trial-at-Bar is the Chief Justice, but subject to the requirement that an indictment or information “furnished by the Attorney-General” operates as the material basis for exercise of the Chief Justice’s authority in this regard.
An explicit trajectory is established, linking the initiative by the Attorney-General with the Chief Justice’s decision.
(ii) The Attorney-General
Action by the Attorney-General is located within the overall ambit of prosecutorial discretion vested in him in respect of a wide range of matters, including assessment of the sufficiency and probative value of evidence to warrant institution of criminal proceedings, the decision to indict, and withdrawal of a prosecution by means of the entering of a nolle prosequi. The recommendation in respect of a Trial-at-Bar falls into place within the field of this broad authority.
The crucial attribute of the Attorney-General’s functions in this area is that he acts in a quasi-judicial capacity. A basic anomaly in the role of the Attorney-General in our constitutional system is that he combines, in his office, a variety of functions and responsibilities which entail some degree of conflict with one another. Despite this lack of institutional coherence and consistency, what is beyond doubt in the present condition of the law is that, throughout the whole gamut of prosecutorial decision making, the Attorney-General is required to eschew all political and other extraneous considerations and to arrive at his decisions in a spirit of total objectivity.
This is one of the cornerstones of our system of criminal justice. Although there is a statutory choice or discretion built into the Attorney-General’s responsibility, H.N.G. Fernando C.J. has aptly commented: “Our law has conferred on the Attorney-General powers which have been commonly described as quasi-judicial and traditionally formed an integral part of the system of criminal procedure” (Attorney-General v. Don Sirisena). In similar vein, the Supreme Court, in Victor Ivan v. Sarath N. Silva, Attorney-General, observed: “The Attorney-General’s power is a discretionary power similar to other powers vested in public functionaries, held in trust for the public, and not absolute or unfettered”.
While the purview of prosecutorial discretion residing in the Attorney-General, by virtue of enacted law as well as inveterate tradition, is strikingly extensive, it is not an untrammeled power: it is not beyond the reach of the courts. In a trilogy of progressive decisions by the Court of Appeal, Sobitha Rajakaruna J., (prior to his elevation to the Supreme Court), asserted the principle that the Attorney-General’s decisions, in appropriate circumstances, are amenable to judicial review: Sandresh Ravi Karunanayake v. Attorney -General (CA/Writ/ 441/2021), Duminda Lanka Liyanage v. Attorney-General (CA/Writ/323/2022), Nadun Chinthaka Wickremaratne v. Attorney-General (CA/Writ/523/2024).
In Attorney-General v. Karunanayake, Samayawardhana J ( with the concurrence of Thurairaja and Janak de Silva JJ.) declared: “Politically motivated indictments following regime change pose a serious threat to the rule of law and public confidence in the office of the Attorney-General and the entire justice system. Judicial oversight plays a vital role in ensuring that prosecutorial discretion is exercised independently, fairly, and in compliance with the law”.
The Supreme Court of our country has shown no inhibition in directly addressing the question whether the Attorney-General has properly exercised his discretion in laying the information which served as the basis of a Trial-at-Bar.
In Thejawathie Gunawardena’s case, in proceedings before the Supreme Court, it was strenuously contended on the defendant’s behalf that the Attorney-General had acted ultra vires for a collateral or improper purpose. The submission was that the person allegedly defamed was no longer holding public office, and invocation of the extraordinary procedure associated with a Trial-at-Bar was, therefore, unjustifiable. The Supreme Court, sitting in appeal, having considered the issue in depth, rejected the submission on the ground that his tenure had been very recent, and that the proximity of his connection with the incumbent government gave rise to the likelihood of intensifying public feeling because of the volatility and range of the allegations made against him.
These trends of judicial opinion have the effect that the principle of justiciability of the Attorney-General’s initiative in this regard is firmly embedded in our law.
IV. Conclusion
Trials-at-Bar serve a salutary purpose, but within stringently circumscribed limits. The decided cases in our country, spanning more than 75 years, indicate with exemplary clarity the confines within which this extraordinary procedure has legitimacy. The essential consideration is that there should not be room for the slightest doubt that immaterial factors may have come into play in the exercise of discretion.
This far transcends the entitlement of individuals to due process and impinges upon the health and vitality of procedures central to the administration of justice. My teacher, Professor Sir William Wade, pre-eminent among exponents of administrative law in our time, who had the distinction of holding Chairs of Law successively in the Universities of Oxford and Cambridge, told me that if he were asked to identify succinctly, in one sentence, the substance of the common law tradition, he would have no hesitation in replying that it consisted of robust hostility to unbridled discretion in public functionaries. Even the appearance of neglect of this rudimentary principle places in jeopardy the fulfilment of public aspirations about the quality of criminal justice.
By Professor G. L. Peiris ✍️
D. Phil. (Oxford), Ph. D. (Sri Lanka);
Former Minister of Justice, Constitutional Affairs and National Integration;
Quondam Visiting Fellow of the Universities of Oxford, Cambridge and London;
Former Vice-Chancellor and Emeritus Professor of Law of the University of Colombo
Features
Extended mind thesis:A Buddhist perspective
After listening to Prof. Charitha Herath deliver his lecture at the World Philosophy Day Conference at the University of Peradeniya and then reading his excellent article, “Buddhist insights into the extended mind thesis – some observations” published in The Island (14.01.2026) I was prompted to write this brief note to comment on the Buddhist concepts he says need to be delved into in this connection. The concepts he mentioned are prapañca, viññāṇasota and ālayaviññāṇa.
Let us look at the Extended Mind Thesis in brief. “The extended mind thesis claims that the cognitive processes that make up the human mind can reach beyond the boundaries of an individual to include as proper parts aspects of the individual’s physical and sociocultural environment” … “Such claims go far beyond the important, but less challenging, assertion that human cognition leans heavily on various forms of external scaffolding and support. Instead, they paint the mind itself (or better, the physical machinery that realises some of our cognitive processes and mental states) as, under humanly attainable conditions, extending beyond the bounds of skin and skull.
Extended cognition in its most general form occurs when internal and external resources become fluently tuned and deeply integrated in such a way as to enable a cognitive agent to solve problems and accomplish their projects, goals, and interests. Consider, for instance, how technological resources such as pens, paper, and personal computers are now so deeply integrated into our everyday lives that we couldn’t accomplish many of our cognitive goals and purposes without them (Kiverstein J, Farina M, Clark A, 2013).
It may be seen from the above that the Extended Mind Thesis is mainly concerned with human cognition. It seems that the tools that humans use to help them in the cognitive process are actually components of the extended mind. This is mentioned in Prof. Herath’s article as well. Though Buddhist theory of cognition does not imply such a relationship that involves the implements utilised in the process of acquiring knowledge, it proposes an inextricable relationship between the cogniser and the cognised. For instance, the eye-consciousness does not arise unless the object of cognition is present.
Reality of the world according to Buddhism is based on the relationship between the cogniser and the cognised. This theory is supported by the way in which Buddhism analyses the complex formed by the human personality and the world, which it does in three systems, expounding the bond between the two. First is the five aggregate analysis, second is the 12 bases (ayatana), and the third is the eighteen elements (dhatu). Whether this kind of entanglement is possible without some means of extending the mind is an interesting question.
According to Buddhism, the mind is not a substance but rather a function that depends on it. There are three terms that are used to refer to mind and possibly these may indicate different functions though they are very often used as near-synonyms. The terms are mano, citta and viññāṇa. The term mano is used to refer to the aspect of mind that functions as one of the six sense-faculties. Mano is responsible for feelings and it also coordinates the functions of the other sense-faculties. Citta generally means consciousness or combinations of consciousness and the other mental-factors, vedanā, saññā, sankāra as seen in the Abhidhamma analyses.
The term Viññāṇa means basic awareness of oneself and it is also used in relation to rebirth or rebecoming. It has a special responsibility in being the condition for the arising of nama-rupa, and reciprocally nama-rupa is the condition for consciousness in the paticcasamuppada formula. Further, the term “consciousness-element” is also used together with five other items; earth-element, water-element, fire-element, air-element and space-element which seem to refer to the most basic factors of the world of experience, indicating its ability to connect with the empirical world (Karunadasa, 2015). In these functions, consciousness may assume some relevance in the Extended Mind Thesis.
Further if we examine the role of consciousness in rebirth we find that a process called the patisandhi-viññāṇa has the ability to transmit an element, perhaps some karmic-force, from the previous birth to the subsequent birth. In these functions the enabling mechanism probably is the viññāṇasota, the stream of consciousness that Prof. Herath mentions, and which apparently has the ability to flow even out of the head and establish links with the external world.
It may be relevant at this juncture to look at the contribution made by Vasubandhu, the 4th Century Indian Buddhist philosopher. Vasubandhu’s interpretation of saṃskārapratyayaṃ vijñānam (consciousness conditioned by volitional actions) treats the stream of consciousness as the mechanism of continuity between lives. He emphasises that this stream continues without a permanent entity migrating from one life to the next. The “stream” manifests as the subject (ego) and object (external world), which are both considered projections of this underlying consciousness, rather than independently existing entities. Vasubandhu also had proposed a kshnavada (theory of moments) to explain the stream of consciousness as consisting of arising and disappearing of consciousness maintaining continuity. These propositions may lend support to the Extended Mind Thesis.
Prof. Herath has mentioned the term prapañca (Pali – papañca) which generally means concepts. In the context of the extended mind thesis it needs to be examined in relation to the Buddhist theory of perception, because the former mainly pertains to cognition. As mentioned by Prof Herath, Ven. Nanananda in his book “Concept and Reality” has discussed this subject emphasising the fact that in Buddhist literature the term papañca is used mainly in the context of sense-perception. He says that “Madhupindika Sutta” (Majjima Nikaya) points to the fact that papañca is essentially connected with the process of sense perception. According to the Buddhist theory of perception the final outcome or the final stage of the process is the formation of papañca. Following the formation of concept there is proliferation of the concept depending on the past experience the individual may have in relation to what is perceived.
This process of perception, as given inthe Madhupindika Sutta, leading to conceptual proliferation is at the beginning impersonal and in the later stages it becomes personal with the involvement of the human personality with its self-ego and craving and finally leading to total bondage. And this bondage is between the human mind and the external world. Whether this entails an extended mind needs to be researched as suggested by Prof. Herath.
The third concept that Prof. Herath referred to in his lecture is the Yogacara idea of ālayaviññāṇa. Yogacara in its analysis of consciousness has added two more types of consciousnesses to the six based on the six senses, which is the classification mentioned in Early Buddhism and the two additional ones are kleshaviññāṇa and ālayaviññāṇa. The latter is called the storehouse-consciousness as it carries the seeds of karma. It is also called the approximating consciousness as it approximates at two levels; in this birth by collection of defilements and in the next birth by carrying them across in rebirth. The latter function may be relevant to the Extended Mind Thesis as it has the ability of projection beyond the body of the present birth and transmit to the body of the next birth.
If one is interested in researching into the concept of ālayaviññāṇa one must be aware that the three masters of Yogacara, i.e. Maithreyanata, Asanga and Vasubhandhu did not agree with each other on the nature of ālayaviññāṇa. While Maithreyanata was loyal to the early Yogacara idea that appeared in Sandhinirmocana Suthra, Asanga modified it to suit his thesis of idealism. Vasubandhu, however, adhered to the views of Early Buddhism and according to Kalupahana (1992) what he in his Trimsathika describes is the transformation of the consciousness and not the eight consciousnesses in the order in which they appear in Yogākāra texts. Here one is tempted to suggest that Asang’s idealism which propounds that the external world is a creation of the mind may lend support to the extended mind thesis. Idealism in Yogacara Buddhism may be another subject that needs to be researched in the context of the extended mind thesis.
Turning to recent research there is theoretical and speculative support from quantum theory for the idea of extended consciousness, but it remains a controversial area of research within physics, neuroscience, and philosophy. Several frameworks suggest that consciousness is not confined to the brain but is a fundamental, non-local phenomenon rooted in quantum processes that may connect minds to each other or the universe at large. (Wagh, M. (2024). “Your Consciousness Can Connect with the Whole Universe, Groundbreaking New Research Suggests”. Popular Mechanics. Retrieved from https://www.popularmechanics.com/scienc)
Finally, while it may not be clear whether the Extended Mind Thesis, as proposed by A. Clark and others (2013), has anything to do with consciousness it may be worthwhile to research into this matter from a Buddhist perspective, which will have to strongly bring into contention the factor of consciousness, which perhaps may have the potential to develop into an Extended Consciousness Thesis.
by Prof. N. A. de S. Amaratunga ✍️
PhD, DSc, DLitt
Features
Why siloed thinking is undermining national problem-solving
The world today is marked by paradox. Never before has humanity possessed such extraordinary scientific knowledge, technological capability, and research capacity. Yet never before have we faced such a dense convergence of crises—climate change, biodiversity loss, pandemics, food insecurity, widening inequality, disaster vulnerability, and social fragmentation. These challenges are not isolated events; they are deeply interconnected, mutually reinforcing, and embedded within complex social, ecological, economic, and technological systems. Addressing them effectively demands more than incremental improvements or isolated expertise. It requires a fundamental shift in how we think, research, and act.
At the heart of this shift lies transdisciplinarity: an approach that moves beyond siloed disciplines and engages society itself in the co-creation of knowledge and solutions. As Albert Einstein famously observed, “We cannot solve our problems with the same thinking we used when we created them.” The persistence of today’s global challenges suggests that our prevailing modes of problem-solving—largely mono-disciplinary and compartmentalised—are no longer adequate.
The limits of siloed knowledge
Over the past few decades, global investment in research and development has grown dramatically. Global R&D expenditure exceeded USD 3 trillion in 2022, and the worldwide scientific workforce has expanded to more than 8.8 million researchers, producing millions of academic papers annually across tens of thousands of journals. Indeed, the number of scientists has grown several times faster than the global population itself. This extraordinary expansion reflects humanity’s faith in science as a driver of progress—but it also sharpens an uncomfortable question about returns on this investment. Millions of scientists across the world produce an ever-expanding body of academic literature, filling tens of thousands of specialised journals. This disciplinary research has undoubtedly driven remarkable advances in medicine, engineering, agriculture, and information technology. The positive contributions of science to human civilisation are beyond dispute. Yet its effectiveness in addressing complex, real-world challenges has often fallen short of expectations, with impacts appearing disproportionate to the vast resources committed. Yet the translation of this vast knowledge base into tangible, scalable solutions to real-world problems remains limited.
The reason lies not in a lack of intelligence or effort, but in the way knowledge is organised. Disciplines are, after all, social constructs, each shaped by its own conceptual, theoretical, philosophical, and methodological traditions. While these traditions enable depth and rigour, they also encourage intellectual compartmentalisation when treated as ends in themselves. Modern academia is structured around disciplines—biology, economics, engineering, sociology, medicine—each with its own language, methods, reward systems, and institutional boundaries. These disciplines are powerful tools for deep analysis, but they also act as intellectual blinders. By focusing narrowly on parts of a problem, they often miss the broader system in which that problem is embedded.
Climate change, for example, is not merely an environmental issue. It is simultaneously an economic, social, political, technological, and ethical challenge. Public health crises are shaped as much by social behaviour, governance, and inequality as by pathogens and medical interventions. Poverty is not simply a matter of income, but of education, health, gender relations, environmental degradation, and political inclusion. Approaching such issues from a single disciplinary lens inevitably leads to partial diagnoses and fragmented solutions.
The systems thinker Donella Meadows captured this dilemma succinctly when she noted, “The problems are not in the world; they are in our models of the world.” When our models are fragmented, our solutions will be fragmented as well.
Wicked problems in a hyper-connected world
Many of today’s challenges fall into what scholars describe as “wicked problems”—issues that are complex, non-linear, and resistant to definitive solutions. They have multiple causes, involve many stakeholders with competing values, and evolve over time. Actions taken to address one aspect of the problem often generate unintended consequences elsewhere.
In a hyper-connected world, these dynamics are amplified. A disruption in one part of the global system—whether a pandemic, a financial shock, or a geopolitical conflict—can cascade rapidly across borders, affecting food systems, energy markets, public health, and social stability. Recent crises have starkly demonstrated how local vulnerabilities are intertwined with global forces.
Despite decades of research aimed at tackling such problems, progress remains uneven and, in many cases, distressingly slow. In some instances, well-intentioned scientific interventions have even generated new problems or unintended consequences. The Green Revolution of the 1960s, for example, dramatically increased cereal yields and reduced hunger in many developing countries, but its heavy dependence on agrochemicals has since contributed to soil degradation, water pollution, and public health concerns. Similarly, plastics—once hailed as miracle materials for their affordability and versatility—have become a pervasive environmental menace, illustrating how narrowly framed solutions can create long-term systemic risks. This gap between knowledge production and societal impact raises a critical question: are we organising our research and institutions in ways that are fit for purpose in an interconnected world?
What is transdisciplinarity?
Transdisciplinarity offers a compelling response to this question. Unlike multidisciplinary approaches, which place disciplines side by side, or interdisciplinary approaches, which integrate methods across disciplines, transdisciplinarity goes a step further. It transcends academic boundaries altogether by bringing together researchers, policymakers, practitioners, industry actors, and communities to jointly define problems and co-create solutions.
At its core, transdisciplinarity is problem-driven rather than discipline-driven. It starts with real-world challenges and asks: what knowledge, perspectives, and forms of expertise are needed to address this issue in a meaningful way? Scientific knowledge remains essential, but it is complemented by experiential, local, and indigenous knowledge—forms of understanding that are often overlooked in conventional research but are crucial for context-sensitive and socially robust solutions.
As C. P. Snow warned in his influential reflections on “The Two Cultures,” divisions within knowledge systems can themselves become barriers to progress. Transdisciplinarity seeks to bridge not only disciplines, but also the persistent gap between knowledge and action.
Learning from nature and society
Nature itself provides a powerful metaphor for transdisciplinary thinking. Ecosystems do not operate in compartments. Soil, water, plants, animals, and climate interact continuously in dynamic, adaptive systems. When one element is disturbed, the effects ripple through the whole. Human societies are no different. Economic systems shape social relations; social norms influence environmental outcomes; technological choices affect governance and equity.
Yet our institutions often behave as if these connections do not exist. Universities are organised into departments with separate budgets and promotion criteria. Research funding is allocated along disciplinary lines. Success is measured through narrow metrics such as journal impact factors and citation counts, rather than societal relevance or long-term impact.
This mismatch between the complexity of real-world problems and the fragmentation of our knowledge systems lies at the heart of many policy failures. While societal challenges have grown exponentially in scale and interdependence, organisational structures and problem-solving approaches have not evolved at the same pace. Attempting to address borderless global issues using rigid, compartmentalised, and outdated frameworks is therefore increasingly counterproductive. As former UN Secretary-General Ban Ki-moon aptly stated, “We cannot address today’s problems with yesterday’s institutions and mindsets.”
Transdisciplinarity and sustainable development
The United Nations Sustainable Development Goals (SDGs) offer a vivid illustration of why transdisciplinary approaches are essential. The 17 goals—ranging from poverty eradication and health to climate action and biodiversity—are explicitly interconnected. Progress on one goal often depends on progress in others. Climate action affects food security, health, and livelihoods. Education influences gender equality, economic growth, and environmental stewardship.
Achieving the SDGs therefore requires more than sector-by-sector interventions. It demands integrated, cross-sectoral responses that align research, policy, and practice. Transdisciplinarity provides a framework for such integration by fostering collaboration across disciplines and sectors, and by grounding global goals in local realities.
For countries like Sri Lanka, with complex socio-ecological systems and rich cultural diversity, this approach is particularly relevant. In Sri Lanka, more than 6,000 individuals are engaged in research and development, with over 60 per cent based in universities and other higher education institutions. This places a particular responsibility on academic and institutional leaders to create environments that encourage collaboration across disciplines and with society. Policies, assessment schemes, funding mechanisms, and incentive structures within universities can either reinforce silos or actively nurture a transdisciplinary culture. Sustainable development challenges here are shaped by local contexts—coastal vulnerability, agricultural livelihoods, urbanisation patterns, and social inequalities—while also being influenced by global forces. Transdisciplinary engagement can help bridge this global–local divide, ensuring that policies and innovations are both scientifically sound and socially meaningful.
Why transdisciplinarity is hard?
Despite its promise, transdisciplinarity is not easy to practice or institutionalise. Deeply entrenched disciplinary identities often shape how researchers see themselves and their work. Many academics are trained to excel within narrow fields, and career advancement systems tend to reward disciplinary publications over collaborative, problem-oriented research.
Institutional structures can further reinforce these silos. Departments operate with separate budgets and governance arrangements, making cross-boundary collaboration administratively cumbersome. Funding mechanisms often lack categories for transdisciplinary projects, leaving such initiatives struggling to find support. Time pressures also matter: genuine engagement with communities and stakeholders requires sustained interaction, yet academic workloads rarely recognise this effort.
There are also cultural and ethical challenges. Different disciplines speak different “languages” and operate with distinct assumptions about what counts as valid knowledge. Power imbalances can emerge, with certain forms of expertise dominating others, including the voices of non-academic partners. Without careful attention to trust, equity, and mutual respect, collaboration can become superficial rather than transformative.
The way forward: from aspiration to practice
If transdisciplinarity is to move from rhetoric to reality, deliberate institutional change is required. Sri Lanka, in particular, would benefit from articulating a clear national vision that positions transdisciplinary research as a core mechanism for addressing challenges such as climate resilience, public health, disaster risk, and sustainable development. National research agencies and universities can play a catalytic role by creating dedicated funding streams, establishing transdisciplinary centres, and embedding systems thinking and stakeholder engagement within curricula and research agendas. First, awareness must be built. Universities, research institutes, and funding agencies need to invest in dialogue, training, and pilot projects that demonstrate the value of transdisciplinary approaches in addressing pressing societal challenges.
Second, leadership matters. Institutional leaders play a critical role in signalling that transdisciplinary engagement is not peripheral, but central to the mission of knowledge institutions. This can be done by embedding such approaches in strategic plans, allocating seed funding for collaborative initiatives, and recognising societal impact in promotion and evaluation systems.
Third, structures must evolve. Flexible research centres, shared infrastructure, and streamlined administrative processes can lower the barriers to collaboration. Education also has a role to play. Introducing systems thinking and problem-based learning early in undergraduate and postgraduate programmes can help cultivate a new generation of researchers comfortable working across boundaries.
Finally, ethics and inclusivity must be at the forefront. Transdisciplinarity is not merely a technical methodology; it is an ethical commitment to valuing diverse forms of knowledge and engaging communities as partners rather than passive beneficiaries. In doing so, it strengthens the legitimacy, relevance, and sustainability of solutions.
A collective learning challenge
Peter Senge once observed, “The only sustainable competitive advantage is an organization’s ability to learn faster than the competition.” This insight applies not only to organisations, but to societies as a whole. Our collective ability to learn, unlearn, and relearn—across disciplines and with society—will determine how effectively we navigate the challenges of our time.
The shift from siloed disciplines to transdisciplinary engagement is therefore not a luxury or an academic trend. It is a strategic necessity. In a world of complex, interconnected problems, fragmented knowledge will no longer suffice. What is needed is a new culture of collaboration—one that sees connections rather than compartments, embraces uncertainty, and places societal well-being at the centre of scientific endeavour.
Only by breaking down the walls between disciplines, institutions, and communities can we hope to transform knowledge into action, and action into lasting, equitable change.
A final word to Sri Lankan decision-makers
For Sri Lanka, the message is clear and urgent. Policymakers, university leaders, funding agencies, and development institutions must recognise that many of the country’s most pressing challenges—climate vulnerability, public health risks, food and water security, disaster resilience, and social inequality—cannot be solved within institutional silos. Creating space for transdisciplinary engagement is not a marginal reform; it is a strategic investment in national resilience. By aligning policies, incentives, and funding mechanisms to encourage collaboration across disciplines and with society, Sri Lanka can unlock the full value of its scientific and intellectual capital. The choice before us is stark: continue to manage complexity with fragmented tools, or deliberately build institutions capable of learning, integrating, and responding as a system. The future will favour the latter.
by Emeritus Professor Ranjith Senaratne ✍️
Former Vice-Chancellor, University of Ruhuna,
Former General President, Sri Lanka Association for the Advancement of Science
Former Chairman, National Science Foundation
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