by Kalyananda Tiranagama

Executive Director
Lawyers for Human Rights and Development

(Continued from yesterday (03 Oct.)

President Wickremesinghe’s solution

From the statements made by President Ranil Wickremesinghe before Parliament and at public fora at different times it appears that he believes that the most urgent task before him is providing a solution to the ethnic Issue acceptable to the Tamil political parties in the North-East. Soon after assuming duties as the Prime Minister in Gotabaya Rajapaksa government in May 2022, he declared in Parliament that he would take steps to address the grievances of the People in the North and the East for meaningful devolution of power through Constitutional amendments with the consensus of other political parties. Addressing the Convocation of Kotelawala National Defence College in September 2022, he declared that he would provide a final solution to the Tamil People’s problem within the next few months and that he had already commenced discussions with Tamil MPs. In his discussions in London with the leaders of the Tamil Diaspora Groups he had told them that he would provide a solution to the Tamil People’s problem acceptable to them and sought their support for economic development in Sri Lanka. Winding up the Budget Debate in Parliament on November 22, 2022, President Wickremesinghe said that he believed that he would be able to provide a solution to the Tamil national problem satisfactory to the Tamil People, with the support of all the political parties, before the 31st of December 2022 and that it was his wish to celebrate the 75th Anniversary of National Independence on February 4, 2023 with the participation of people belonging to all nationalities in a country free from ethnic problems.

On August 9, 2023, addressing the All Party Conference in Parliament, President Wickremesinghe said that the 13th Amendment is part of the Constitution, they all are bound to give effect to all the provisions in the Constitution, and that he is ready to fully implement the 13th Amendment, granting all powers, except Police powers, to the Provincial Councils.

However, when we carefully go through his speech, we can see that he is not only standing for the implementation of the 13th Amendment fully, but is taking steps to grant powers going far beyond the 13th Amendment, and in the guise of addressing issues faced by the Provincial Councils in the implementation of their powers, is planning to enact new laws for implementation of several key proposals in the Reports of the Steering Committee and the Sub-committee on Centre – Periphery Relations of the 2016 Constitutional Assembly.

Let us examine President Wickremesinghe’s Address to All Party Conference on August 9, 2023:

‘‘The devolution of power within provincial councils is governed by the 13th Constitutional Amendment, which holds the status of the highest law of our nation. We cannot afford to disregard it. Both the executive and the legislature are obligated to execute its provisions…

‘‘Numerous issues surround the implementation of the 13th Amendment, as well as the functioning of provincial councils. … If our nation is to progress, these issues must be addressed. The 13th Amendment needs to be implemented in a manner that aligns with our country’s development and future. This can only be achieved if all parliament members come to a consensus after a thorough and open-minded discussion.

‘‘The division of power and authority between provincial councils, central government and local governing bodies lacks clarity. Consequently, subjects overlap between provincial councils and the central government, resulting in duplication of efforts and delayed actions. Instead of resolving people’s issues, problems are escalating due to these inefficiencies.

‘‘Today, I present my proposals and forthcoming actions concerning the 13th Amendment and devolution of powers to this House.

‘‘In recent years, numerous Committees associated with the Parliament have produced several documents that thoroughly examine the subject of provincial councils and their prospective trajectory. Among these documents is the interim report released on September 21, 2017 by the Steering Committee of the Constitutional Council of SL under my leadership. Importantly, all parties represented in Parliament endorsed the recommendations outlined in this interim report.

· This statement is far from the truth. Many parties represented in Parliament had their reservations on the recommendations in the Interim Report.

‘‘The Interim Report offers recommendations concerning amendments to Articles 3, 4 and 5 of the Constitution. We now bring forward these proposed constitutional amendments for consideration by the Parliament….

· Here the President speaks of recommendations in the Interim Report for amendment of Articles 3, 4 and 5 of the Constitution. Articles 3 and 5 being entrenched clauses, they cannot be amended without the approval of the people at a Referendum. Article 4, not being an entrenched clause, can be amended by two thirds majority in Parliament, without a Referendum.

· Article 4, though it is not entrenched, is a most important and vital Article in the Constitution describing in detail how the sovereignty of the people, powers of government are exercised by different organs of government – the Legislature, the Executive and the Judiciary – and enjoyed by the people.

· In many Judgements our Supreme Court has held that Articles 3 and 4 must be read and considered together in determining the constitutionality of Bills of Parliament.

· The formulation of Article 4 proposed in the Interim Report is as follows: ‘The legislative, executive and judicial power of the people shall be exercised as provided for by the Constitution.’

· At a glance this formulation appears to be innocuous. This is a crafty formulation drafted by cunning politicians enabling them to achieve their sinister motives detrimental to the people and the country to enact laws without touching Article 3.

· There is nothing in this proposed formulation of Article 4 that needs to be considered together with Article 3 in the Constitution and all the said Supreme Court Judgements will become irrelevant and the Govt would be able to pass Bills which it could not hitherto pass without being declared inconsistent with the Constitution.

The President is planning to give effect to the recommendations in the report of the Sub-committee on Centre – Periphery Relations. The following are among the main Recommendations in the Report of the Sub-committee on Centre – Periphery Relations:

(1) This Report recommends to do away with Item 1 in the Reserved List of the present Constitution ‘National Policy on all Subjects and Functions’ and make provision to ensure a consultative mechanism, involving the participation of the provincial representatives in the formulation of national policy.’

The President says: ‘‘In formulating National Policy on matters contained in the Provincial List the Central Government shall adopt a participatory process with the Provincial Council. No transfer of decentralized powers to the Central Government through the creation of national policies related to the topics within the Provincial List nor any impact on the executive and administrative powers under the jurisdiction of the Provincial Council. The executive and administrative powers required to enact the decentralised subject will remain under the jurisdiction of the Provincial Councils. The Province will retain the executive and administrative powers (implementation powers) with regard to the said power.’’

The President had stated that he would present the above proposals to Parliament as Constitutional amendments so the House could take it forward for necessary action.

· When this is done, the Provincial Council will get all the powers- legislative, executive and administrative – in respect of the devolved subject. He has craftily used the phrase – to enact the decentralised subject – instead of openly saying powers to enact legislation on the devolved subject, to cover up the real intention and the effect. Now the subject is fully devolved, the Provincial Council can pass any statute required for its implementation. The Parliament has no power to pass any legislation on the subject as it is no longer a subject in the National List.

· The Governor’s power to withhold statutes for consideration by the President also automatically disappears as there is no need for that.

In his speech the President states: ‘‘Furthermore, attention should be directed towards the report of the committee established to examine the relationship between the Parliament and the Provincial Councils, as well as the report from the Sub-committee on Centre – Periphery Relations.

‘‘Through these documents, the provincial council system is affirmed as an institutional framework that cannot be excluded from our governance system. Even parties like the JVP and JHU, which do not view provincial councils as a solution to ethnic conflicts as units of decentralization have acknowledged the need for specific amendments within the provincial council system and its unchanged aspects.

‘‘This reinforces the notion that the provincial council has become an enduring component that cannot be excised from Sri Lanka’s governmental structure or political landscape. ‘‘It is important to note that provincial councils were established not exclusively in the Northern and Eastern Provinces but across all nine provinces.’’

However, other than saying that the Provincial Councils were established and governed under the 13th Amendment to the Constitution and that they have become an enduring component that cannot be excised from Sri Lanka’s governmental structure, in his speech, the President has not given any reason as to why they should be continued or any example as to what benefit the people have received from the Provincial Councils. Nor has he pointed out how they would bring about national unity and national reconciliation through the proposed amendments.

In his own words, Provincial Councils have resulted in a colossal wastage of public funds that could have been used for the benefit of the people. This is what the President says:

‘‘Our annual expenditure on provincial councils amounts around Rs. 550 billion. Have these councils justified this investment? Has this substantial funding truly benefited the populace? This is an aspect that deserves attention. We spend Rs. 22,000 for each person every year. We are spending Rs. 22,000 that could be spent on our students for provincial councils. That is Rs. 88,000 that can be spent on a family of four. Are we getting benefits from it?’’

Provincial Councils are functioning without elected representatives and Board of Ministers since 2017. In the 9 Provincial Councils there are 9 Chief Ministers, 36 PC Ministers and 408 PC Members. The Chief Minister is entitled to the salary, perks and other benefits of a Cabinet Minister, a PC Minister entitled to the salary, perks and other benefits of a State Minister and a PC Member is entitled to half the salary, perks and other benefits of a Member of Parliament. Most probably, the above amount of Rs. 500 billion may have been calculated without calculating this expenditure. This would almost amount to the same cost required for the maintenance of the Diyawannawa lot. If this cost is also added to Rs. 500 billion one can imagine the amount of loss caused to the country.

(To be continued)

Statistics are undoubtedly valuable for revealing patterns, relationships, and comparisons, within a given situation between groups and variables, and they operate within a realm of probabilities at various levels of significance. However, it’s important to note that statistical analysis can only expose the symptoms or manifestations of a phenomenon; it cannot delve into the underlying root causes.

The phrase “Lies, damned lies, and statistics” is often used to highlight the potential for manipulation or misrepresentation of data through statistics. It doesn’t necessarily mean that statistics are worse than outright lies; rather, it underscores how statistics can be presented in a way that is intentionally deceptive or misleading.

The context in which this statement is commonly attributed is in discussions about the use of statistics in persuasive or political discourse. While the origin of the phrase is somewhat unclear, it gained popularity through the writings and speeches of various individuals, including Mark Twain and Benjamin Disraeli. Its purpose is to caution against blindly accepting statistical data without critical evaluation, as statistics can be shaped or presented in a manner that serves a particular agenda or biases.

Reality, of course, is often not as clear as numbers lead us to believe. Winston Churchill once reportedly said that “the only statistics you can trust are the ones you have falsified yourself”.

If they were living today, Churchill and Disraeli would probably say as much about Greece’s membership in the Euro zone. People are upset because the leadership in Athens submitted forged statistics with the goal of joining Europe’s monetary union. But their European colleagues are to blame, too. They did not review the application strictly. Greek Euro membership was politically welcome.

The example of the Euro shows all too clearly that statistics are not just rhetorical instruments. When used correctly, they are a means of control. They help us gain insights. Without sound statistics, structural imbalances in the global economy cannot be understood, much less remedied. Such imbalances are among the causes of the current global financial crisis. It is still far too early to tell whether the leaders of the G20, the 20 largest national economies, are up to the task. Nor do we know whether the EU will manage its own crisis well. It is also rooted in imbalances. Global macroeconomics is not the only field where policymakers need sound data, of course.

Without reliable statistics, it is impossible to run national education or health systems efficiently. Even public transport management for a midsized town depends on correct figures. Private sector leaders are number crunchers, too. To understand market trends, they need macroeconomic data (inflation and growth rates, for instance) and microeconomic information. What is the purchasing power of a specific segment of consumers? Companies conduct scientific market research to avoid risks and grasp opportunities.

Basic statistics are part of the social infrastructure governments must provide. Censuses matter a lot. In order to extrapolate accurately from samples, one needs to know the exact size of the total population. Social-science students learn in their first semesters that a census should be held every ten years. That is especially important wherever state authorities do not keep other kinds of systematic records, of course.

Statistics are undoubtedly valuable for revealing patterns, relationships, and comparisons within a given situation between groups and variables, and they operate within a realm of probabilities at various levels of significance. However, it’s important to note that statistical analysis can only expose the symptoms or manifestations of a phenomenon; it cannot delve into the underlying root causes.

Nonetheless, many scholars across the globe prefer to conduct their research studies using quantitative methods, which often involve statistical analysis. There are several reasons for this preference. Firstly, quantitative research allows for relatively straightforward conclusions and robust findings. These findings are generally less subjective and reproducible, meaning that if different researchers employ the same dataset and methods, they are likely to arrive at similar results. This objectivity and reproducibility make it easier to defend research findings, a crucial aspect when aiming to publish in international indexed journals.

So, what’s the significance of publishing in these so-called international academic journals and achieving indexing? Until recent times, university staff might not have placed a strong emphasis on publishing their research in such journals. All our universities in Sri Lanka have been ranked

How do you know what you know?

The question, “How do you know what you know?”, is raised by Norman K. Denzin and Yvonna S. Lincoln to delve into the field of epistemology, which explores the science and art of acquiring knowledge. This inquiry highlights the methodology employed in the process of uncovering knowledge, ultimately aiming to persuade the audience regarding the credibility and validity of the research findings. Norman K. Denzin and Yvonna S. Lincoln are influential figures in the field of qualitative research methodology.

However, to truly uncover the root causes behind these statistical findings, researchers often need to complement quantitative research with qualitative research methods. Qualitative research involves asking “why” and “how” questions repeatedly and in-depth, probing as deeply as possible until a thorough understanding is reached, even if it means hitting a point where further insights seem elusive.

In summary, while statistics provide valuable insights and facilitate publication in international academic journals, they primarily deal with observable patterns and relationships. To unearth the underlying root causes, researchers often turn to qualitative research methods, which allow for a more comprehensive exploration of the “why” and “how” aspects of the phenomena under investigation.

University rankings

It’s quite astonishing to discover that, based on the Webometrics ranking system, all universities, with the exception of the University of Colombo, are positioned below 2000 in the rankings. (See table)

The process of knowledge discovery and research plays a crucial role in the context of university rankings. University rankings are often influenced by the quality and impact of the research conducted by universities. Here’s how they are connected:

Research Output: One of the key factors considered in university rankings is the volume and impact of research output. Universities that produce high-quality research, publish in reputable journals, and contribute to advancements in various fields, tend to rank higher.

Academic Reputation: The reputation of a university is closely tied to its research contributions. Universities with a strong track record of groundbreaking research tend to have a better academic reputation, which can positively affect their ranking.

Funding and Resources: Universities with robust research programmes often receive more funding and resources. These resources can be used to attract top faculty and researchers, further enhancing the institution’s research capabilities and overall standing in rankings.

International Collaboration: Collaboration with international researchers and institutions is common in the world of research. Such collaborations can boost a university’s global presence and, consequently, its ranking on the international stage.

Student Attraction: High-ranking universities are often more attractive to prospective students. Students seek institutions that offer cutting-edge research opportunities, which can lead to an increase in applications and enrollment.

Innovation and Impact: Research can lead to innovations that benefit society and the economy. Universities contributing to innovation and societal impact tend to be recognized in rankings for their contributions to the broader community.

Therefore, it is clear that research and knowledge discovery are intertwined with university rankings. The quality, quantity, and impact of a university’s research output significantly influence its position in global and national university rankings, making research a fundamental component of a university’s reputation and standing in the academic world.

by Kalyananda Tiranagama
Executive Director
Lawyers for Human Rights and Development

(Part V of this article appeared in The Island of 02 Oct. 2023)

Six months later, in July 1986, further talks were held between the Sri Lankan government and an Indian delegation led by P Chidambaram, Minister of State, a person from Tamil Nadu. Based on those talks, a detailed Note prepared containing observations of the Indian government on the proposals of the Sri Lanka government as the Framework was sent to the Indian Government.

The following three paragraphs from this Note were cited in the Judgement of Wanasundara J in the 13th Amendment Case as relevant for its determination:

1. A Provincial Council shall be established in each Province. Law-making and Executive (including Financial) powers shall be devolved upon the Provincial Councils by suitable constitutional amendments, without resort to a referendum. After further discussions subjects broadly corresponding to the proposals contained in Annexe 1 to the Draft Framework of Accord and Undertaking and the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils.

It is strange that this paragraph suggests to bring constitutional amendments to devolve Law-making and Executive (including Financial) powers on the Provincial Councils, without resort to a referendum. It is not clear on whose suggestion this phrase – without resort to a referendum – was included, Sri Lanka or India? But it is most likely that it was India, feeling the sentiments of the vast majority of the people in the South and knowing the most probable outcome of a referendum.

Inclusion of this phrase – without resort to a referendum – may have had some impact on the minds of the Judges in arriving at a determination on the Bills.

There can be no doubt that the phrase – the entries in List ll and List III of the Seventh Schedule of the Indian Constitution shall be devolved upon Provincial Councils – included on the suggestion of Indian side.

2. In the Northern Province and in the Eastern Province the Provincial Councils shall be deemed to be constituted immediately after the constitutional amendments come into force……..

What does this mean? Can they come into being even before the Provincial Councils Bill and the Provincial Councils Elections Bill are passed and the Elections held? Where is People’s sovereignty? This also appears to be an Indian demand.

3. ‘‘In a preamble to this Note, it was agreed that suitable constitutional and legal arrangements would be made for those two Provinces to act in co-ordination. In consequence of these talks a constitutional amendment took shape and form and three lists – (1) The Reserved List (List II), (2) The Provincial List (List I); and (3) The Concurrent List (List Ill) too were formulated.’’

‘Suitable constitutional and legal arrangements to be made for those two Provinces to act in co-ordination’. This is another subtle and mild formulation used to convey the idea that the Northern and Eastern Provinces would be merged into one unit.

Mr. Chidambaram may have seen to it that the aspirations of the TULF are incorporated into the agreement to a certain extent.

‘‘The Bangalore discussions held between President J. R. Jayewardene and Indian Prime Minister Rajiv Gandhi in November 1986 were the next stage of the discussions. At the Bangalore discussions Sri Lanka had to agree to all the Cardinal Principles of the TULF and other Tamil militant groups, which Sri Lanka had totally refused even to discuss at Thimphu talks and not included in the Draft Terms of Accord and Understanding reached in New Delhi in September 1985.

The Sri Lanka government’s observations on the Working Paper on Bangalore Discussion dated 26th November 1986 show that the following suggestions made by the Indian Government were substantially adopted:

Recognition that the Northern and Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples who have at all times hitherto lived together in the territory with other ethnic groups;

Northern and Eastern Provinces should form one administrative unit for an interim period and that its continuance should depend on a Referendum;

The Governor shall have the same powers as the Governor of a State in India.

India had also proposed to the Sri Lankan government that

the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers;

provision be made on the lines of Article 249 of the Indian Constitution on the question of Parliament’s power to legislate on matters in the Provincial list;

Article 254 of the Indian Constitution be adopted in regard to the Provincial Council’s power to make a law before or after a parliamentary law in respect of a matter in the Concurrent List.

To ensure that the Government of Sri Lanka would comply with these suggestions in enacting laws for the implementation of these suggestions, the two most crucial suggestions were included in the Indo Lanka Accord signed by President J. R. Jayewardene and Prime Minister Rajiv Gandhi on the 29th July 1987 in Colombo.

The First part of the Indo-Lanka Accord reaffirmed what was agreed at Bangalore that (a) the Northern and Eastern Provinces have been areas of historical habitation of Sri Lanka Tamil Speaking people who at all times hitherto lived together in the territory with other ethnic groups. It also provided for (b) these two Provinces to form one administrative unit for an interim period and (c) for elections to the Provincial Council to be held before 31st December 1987.

From the above material, it clearly appears beyond any doubt that the 13th Amendment and the Provincial Councils are not a solution reached through consensus between two independent states following free negotiations, but something forcibly imposed on Sri Lanka by India, with a view to placating the demands of the TULF and the other Tamil groups, contrary to the wishes of the Govt of Sri Lanka.

This explains why Indian political leaders and high officials of the Indian Govt frequently visit Sri Lanka and meet our political leaders demanding the full implementation of the 13th Amendment. That is why leaders of our Tamil Political Parties frequently rush to the Indian High Commission complaining of their grievances and requesting the Indian High Commissioner to bring pressure on our Govt to grant their demands.

As shown above, due to India’s pressure, Sri Lanka had to adopt the three main proposals made by India at the Bangalore discussions. If Sri Lanka had adopted all the proposals as suggested by India and implemented them it would have been the end of the Unitary State of Sri Lanka and created a fully Federal State. However, President Jayewardene, as a shrewd and far-sighting politician, has taken care not to give effect to some of the proposals at the implementation stage.

President Jayewardene has not adopted the Indian proposal that ‘the Governor should only act on the advice of the Board of Ministers and should explore the possibility of further curtailing the Governor’s discretionary powers’. Under the 13th Amendment the Governor, as the representative of the President, is vested with undiminished power of exercising his discretion, not on the advice of the Board of Ministers of the Provincial Council, but as directed by the President. It is this Governor’s unfettered discretion that has prevented Sri Lanka from becoming a full Federal State, with Provincial Councils as federal units.

The majority Judgement in the 13th Amendment case explains how this Governor’s discretion has prevented Sri Lanka from becoming a fully federal state, thus:

‘‘With respect to executive powers an examination of the relevant provisions of the Bill underscores the fact that in exercising their executive power, the Provincial Councils are subject to the control of the Centre and are not sovereign bodies.

‘‘Article 154C provides that the executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province either directly or through Ministers of the Board of Ministers or through officers subordinate to him, in accordance with Article 154F.

‘‘Article 154F states that the Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.

‘‘The Governor is appointed by the President and holds office in accordance with Article 4(b) which provides that the executive power of the People shall be exercised by the President of the Republic, during the pleasure of the President (Article 154B (2)). The Governor derived his authority from the President and exercises the executive power vested in him as a delegate of the President. It is open to the President therefore by virtue of Article 4(b) of the Constitution to give directions and monitor the Governor’s exercise of this executive power vested in him.

‘‘ Although he is required by Article 154F(1) to exercise his functions in accordance with the advice of the Board of Ministers, this is subject to the qualification “except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.” Under the Constitution the Governor as a representative of the President is required to act in his discretion in accordance with the instructions and directions of the President.

‘‘ Article 154F(2) mandates that the Governor’s discretion shall be on the President’s directions and that the decision of the Governor as to what is in his discretion shall be final and not be called in question in any court on the ground that he ought or ought not to have acted on his discretion.

‘‘ So long as the President retains, the power to give directions to the Governor regarding the exercise of his executive functions, and the Governor is bound by such directions superseding the advice of the Board of Ministers and where the failure of the Governor or Provincial Council to comply with or give effect to any directions given to the Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situation has arisen in which the administration of the Province cannot be carried on in accordance with the provisions of the Constitution and take over the functions and powers of the Provincial Council (Article 154K and 154L), there can be no gainsaying the fact that the President remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to him.’’ (Pp. 322 – 323)

That is why the Tamil political parties stand for the abolition of Executive Presidency.

(To be continued)