by Dr Manique Cooray
Fires at sea continue to pose a significant risk to container shipping and often give rise to long-winded and complex claims between all affected parties. Space does not permit even a cursory examination of the large body of relevant international legal provisions available. Moreover, the rise of containerisation has exacerbated the problem of fire on board ships as we have seen with the MV Hansa Brandenburg, the Jolly Rubino, the Maersk Londrina and recently in February 2017, in the MV APL Austria case where a Liberian flagged container ship caught fire off the Eastern Cape of South Africa.
In the backdrop of the ongoing environmental catastrophe in one of Sri Lanka’s worst ever marine disasters, it is imperative to address two issues that seem to be of central importance pertaining to the cargo ship carrying tonnes of chemicals which now lie in the seabed off the west coast of the Island. The Singapore registered MV X-Press Pearl, Super Eco 2700-class container ship was built by Zhoushan Changhong International Shipyard Co. Ltd at Zhoushan, China, for Singapore based X-Press Feeders and its sister ship X-Press Mekong. The 37,000 dead weight tonne (DWT) container vessel could carry 2,743 twenty-foot equivalent units. The ship was delivered on February 10, 2021. It had a 25-member crew including Filipinos, Chinese, Indian and Russian nationals. It was carrying 1,486 containers, among them 81 carrying dangerous goods, which included 25 tonnes of nitric acid, along with other chemicals, cosmetics and low-density polyethylene (LDPE) pellets. Reports indicate the vessel was deployed in the Straits of Malacca to Middle East (SMX) service of X-Press Feeders, from Port Klang (Malaysia) via Singapore and Jebel Ali (UAE) to Hamad Port (Qatar). The return journey to Malaysia was to be via Hazira (India) and Colombo (Sri Lanka). It was reported that the ship’s crew had noticed the leakage of nitric acid from one of the containers when the vessel set sail to the Port of Colombo.
It is common knowledge that under the United Nations Convention on the Law of the Sea, no vessel can enter a country’s “territorial water” extending up to 12 miles from the nearest land without approval from the coastal state. Nevertheless, bearing in mind that Sri Lanka is a signatory to the Basel Convention, it is not the aim here to address basic questions on how, why and who authorized a vessel with a container leaking nitric acid to enter the territorial waters of the country carrying hazardous material. This entry into Sri Lankan waters could have been under “Port of Refuge”, a situation wherein a ship deviates to a port due to an emergency which renders the ship unsafe to continue on her voyage.
The ill-fated ship erupted in a fire while anchored about 9.5 nautical miles northwest of Colombo. The Sri Lankan navy believes the fire was caused by a chemical reaction from the leaking cargo loaded from the port of Hazira in India. As flaming containers laden with chemicals fell from the ship’s deck, seawater may have entered the hull that submerged the MV X-Press Pearl’s quarterdeck a day after firefighters extinguished the fire. With such a dramatic turn of events of an overseas registered ship, carrying crewmen of various nationalities and cargo belonging presumably to various parties, and with a vessel located within the territorial waters of Sri Lanka, presents itself a plethora of issues in conflict of laws determining principles of choice of law with recognition and enforcement of foreign judgments.
While the local authorities are moving to sue the owners of the vessel to claim damages from the insurer, the suitability of existing Penal Provisions and the Marine Pollution Prevention Act No 35 of 2008 of Sri Lanka raises the question of its adequacy as the principle legislation of the forum state to hear a case of such magnitude of which the main issue is to claim compensation. Insurers of cargo vessels generally require the owners and operators to adhere to internationally recognized guidance concerned with maximizing the overall safety of the vessel, the crew and the cargo. One part of the guidance is the International Maritime Organizations Dangerous Goods Code (IMDG Code), an internationally accepted guideline for the transportation or shipment of dangerous goods or materials by a vessel on water.
Even a cargo that might be quite innocuous in small quantities can display dangerous properties when transported in large quantities, especially if those large quantities of material are exposed to environmental conditions such as moisture or heat, during or prior to loading, or during a voyage. Under the Hague-Visby Rules, the liability regime for the carriage of most cargo, neither the carrier nor the shipowner is responsible for loss or damage arising or resulting from fire unless caused by the actual fault or privity of the shipowner or carrier. To successfully recover for damage to cargo from the shipowner or to defend a claim for general average, the cargo owner must show a lack of due diligence of the shipowner to make the ship seaworthy and safe to receive, carry and discharge the cargo. From a procedural perspective, “(i) the cargo owner must prove their loss; (ii) the carrier or shipowner must prove the cause of loss (i.e., that the fire caused the loss); (iii) the carrier or shipowner must prove due diligence to make the ship seaworthy prior to and at the commencement of the voyage; and (iv) the cargo owner must prove fault of the carrier or shipowner or knowledge of fault or another for whom the carrier or shipowner is responsible.”
The shipowner is not liable for an act or omission by the crew. If the negligence of the crew caused the fire, this is a complete defence for the shipowner unless the cargo owner can show that there was some lack of due diligence by the shipowner, which made the ship unseaworthy. In the case of fires at sea, this would include the shipowner failing to exercise due diligence insofar as the crew fighting the fire is concerned, a lack of adequate firefighting systems, lack of training, or lack of procedural guidance from owner or carriers to the crew. Cargo owners are also likely to be successful in claiming against a shipowner where it is shown that the shipowner or carrier failed to correctly stow dangerous or hazardous cargo (provided that such cargo was correctly declared) in accordance with IMDG guidelines. In the event a shipowner can rely on a “fire defence”, the cargo owner (or their insurers) may be left with a recovery action against the shipper of the miss declared cargo. However, this often involves expensive litigation in a foreign jurisdiction where the “guilty” shipper may be a brass plate company without any assets to satisfy millions of dollars worth of damages to the ship and her cargo and let alone the environmental aftermath. This means that the insurer may be liable, and the affected party could claim compensation from the shipowner.
From the brief facts at hand, it appears to be a total loss for the shipowner even if the vessel stays afloat with what appears to be, if not all, of the cargo, damaged. Although there is much uncertainty over the size of the loss, it is safe to assume that insurers will face cargo and liability claims and the value of the hull and machinery. The value of these claims have not yet been made known. It is highly possible for the fire and explosion losses to be covered under cargo insurance policies among various companies which are party to it. The London Steam Ship Owners Mutual Insurance Association Ltd and its subsidiary, the London P&I Insurance Company (Europe) Ltd, in a press statement on May 26, 2021, stated that as the “liability insurer, it would cover crew injuries and any environmental impact.” A study of previous cases of similar nature indicates that a vessel sinking in deep water perhaps is a better outcome for the insurer than saving it and bringing it back to port with the heavy cleanup costs incurred. Perhaps in this current scenario, the P&I insurer could end up covering the cargo and salvage costs.
The environmental impact of the fire could have a significant bearing on the size of the P&I claim leading to potentially hundreds of millions, as previous cases have shown us. It is well to keep in mind that while the owners of the ship are maybe accountable for bringing the ship to the territorial waters, the local authorities themselves may have a share in their contribution by their bad choice of actions. It is highly questionable whether adequate compensation could be secured given the larger environmental impact (an impact which may be seen beyond the limitation period for such claims to be brought) under the existing lacuna in the local law. Hence, the importance of the forum state to take on such a mammoth legal action against the parties possibly raises the issues of whether recourse should be made to an international maritime arbitration tribunal permitting contractual arrangements.
The second issue to be addressed is whether a special legal regime in the nature of strict liability is needed to cover the irreparable damage caused to the Sri Lankan Sea, marine lives, including the coral reefs and the fisheries industry. There is now an additional danger that fuel tanks of the stricken vessel containing thousands of tons of thick bunker oil could break up under the pressure of the seawater and discharge its deadly cargo into the ocean. The Wildlife Conservation Department of Sri Lanka states that apart from the fish species, the harm done to seagrasses and nesting habitats, sea mammals, and reptiles will also be substantial and that their “initial observations reveal the spill-over effect will last for more than 100 years.” The illustration of the Exxon Valdez’s incident in 1989 and the Deepwater Horizon accident in the Gulf of Mexico in 2010 indicates that the oil spill is a severe threat to the maritime environment. A review of this incident may be a good reference to seek a fair understanding of the circumstances and for proper estimation and preparation in encountering massive oil spills.
The harm caused by many environmental incidents are not only contained within the borders of the states, but pollution originating from one state may cause harm to another state. And pollution which damages the Oceans does not belong to one state alone. This type of harm raises a number of acute legal conundrums. Establishing causal connections between effects such as damage to marine life or extinction of species and a particular source of pollution, which could be targeted by a system of liability and compensation rules, may be extremely difficult. In the absence of intergovernmental compensation regimes or where individual states seek compensation for cross border pollution, claims must be made in domestic courts. In such situations, the importance of conflict of laws rules about jurisdiction, choice of law, and recognition of judgments matters. One could plausibly conclude that X-Press Pearl too may find its unfortunate place in legal history for the colossal task it has presented of assessing harm to the environment caused in a line of container ship losses in the maritime insurance industry.
(The writer is a Senior Lecturer at the Faculty of Law, Multimedia University. Malaysia and was the Dean of the Faculty of Law from 2014-2016 and 2018-2021.)
The battle against KNDU: Renewing our contract with the people
By Sivamohan Sumathy
The KNDU Bill is designed to single-handedly change the face of education in Sri Lanka. Since the ‘90s, successive governments have tried to roll back the gains of the Free Education Poliicy of 1945. The history of free education is not linear, nor is it without contradictions. It is implicated in the hierarchies of class, ethnicity, gender and the multiple vectors of violence of state and civil society. Despite and because of these very contradictions Free Education has come to represent and symbolise the often contradictory but powerful assemblage of social aspirations and social desires of the general body of citizenry, particularly the vast majority situated on the margins or near margins of society. Free education does not serve everybody equally, but over the years and across decades, it has come to represent the hope of a vast majority for a better place in society. For a populace that is increasingly disempowered, it opens up opportunities toward social mobility, limited as they are; and as or more importantly, becomes the ideological and political weapon of the vast majority in the struggle for justice, social justice and bid for a democratic pact with the state.
Privatisation, Corporatisation, Militarisation
The State university system is an integral part of the state apparatus. Successive governments, have attempted and, to some degree, succeeded in undermining its integrity from within, creating parallel systems of higher education that would be on par with it. Privatisation of higher education follows a two pronged plan; the creation of fee levying centres and bodies of education and the degradation of state universities through under funding and sub-standardization. The fortnightly Kuppi Talk column in The Island has consistently foregrounded the pressures exerted upon the state university compelling it to carry out multiple reforms that compromise on standards and force it to privatise itself. From the ‘90s onwards (if not before), spending on university education has steadily deteriorated and in the post war years spending on education has stayed under 2% of the GDP (Niyanthini Kadirgamar, “Funding Fallacies,” https://island.lk/funding-fallacies-in-education/). The Humanities and Social Sciences are the most affected as highlighted in the various contributions of the Kuppi Talk column. It is no accident that the most recent move toward privatisation from within and without takes place by fiat and through militarisation. Much has been written about the principles of militarised authority that the KNDU bill enshrines. I do not have to reinvent the wheel here, but want to note that by rolling back the gains of free education and its potential to empower people, the KNDU bill points toward a future of repressive technocratic governance and repressive exclusions of those who most desire education as the path to mobility.
While the ‘80s and ‘90s saw a few stuttering steps toward privatisation of education, at the turn of the new millennium one is witness to the onset of an aggressive campaign toward the the dismantling of the long cherished free education apparatus as we know it. I trace this historical trajectory in “SAITM: Continuities and Discontinuities” looking at the different impetuses behind the establishment of NCMC and SAITM, the ideological similarities notwithstanding (http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=161915
Certain forms of privatised tertiary education have existed for a long time and have expanded in recent years, but to this day, the establishment of a fully-fledged private university has run into problems. Popular will stood in its way. But it is also a fact that the country simply does not have the infrastructural, intellectual and investment-capacity for a viable private university to take off. Private sector in fact is weak in Sri Lanka. In the post war years, the then Mahinda Rajapaksa Government, with S. B. Dissanayake as Minister of Higher Education spear headed a move to formalise private universities through an umbrella organization that would act as an accreditation council, bringing private and state universities on par and under the same purview and placing this purview within the ambit of corporate interests. In their eyes, Sri Lanka is to become an education hub, attracting foreign investment (“Education and its discontents,” ). The Yahapalana government is no better and blindly follows through on the privatisation plans of the previous regime with its Private Public Partnership policies, SAITM, and the degrading of Arts Education to some vague notion of soft skills development. The KNDU Bill was gazetted in April 2018 and was opposed by the academic communities and members of civil society. As with most corruption ridden neo liberal moves that render all aspects of life commodified, in this instance too, the state becomes an investor in privatised education. We hear that Bank of Ceylon and NSB have been ordered to pledge 36.54 billion rupees to KDU. (https://www.sundaytimes.lk/210725/business-times/kotelawala-uni-gets-over-rs-36-bn-from-boc-nsb-449828.html) If the rationale for privatising education is to ease the burden on the state, why does the state continue to subsidize these institutions? The logic boggles the mind.
The Democracy Call
From 2011-2012 the Federation of University Teachers’ Association (FUTA) launched the greatest challenge that the teachers had ever made to an incumbent government and in the post war era brought together diverse disgruntled forces under its slogan of Save State Education and the 6% GDP campaign. It brought together different groups and a wide range of actors together to formulate a response to the neo liberal forces that were riding rough shod over the needs of an anxious working and professional class. Its call for action was framed by the call to save democracy. However, in the Yahapalana years and after, the struggle for education lost its momentum. FUTA itself was riven from within, preoccupied by its members’ narrower preoccupations, diverse aspirations, and loyalties. Other disparate groups took up the mantle to fight against privatisation, some of which may not have developed in desirable directions.
Today, the bill threatens to become a dangerous reality. It is not just Universities that are threatened by the KNDU. School teachers led by their unions have jumped into the fray. Beaten by the crippling conditions of COVID 19, teachers and students are facing the dire consequences of years of underfunding in education. FUTA is joining the protest as a key player, a mighty powerful player, but not as the only player. As Shamala Kumar eloquently put it at a press conference called against the KNDU bill on 24 July, 2021, the struggle against the authoritarian bill is a struggle against the PTA, a struggle for working people’s rights, guaranteeing safety of working conditions in the informal sector, particularly women, and a struggle for democracy within the university, including raising one’s voice against ragging. University teachers, rallying forces under FUTA, are once again on the cusp of a decisive moment of the history of education in the country. Let’s defeat the KNDU bill together!
Sivamohan Sumathy is attached to the Department of English at the Univ. of Peradeniya
Condolences, warnings and admonition never to forget
Two great Sri Lankans have died and we as a country are much the poorer, and mourn their deaths. Manouri de Silva Muttetuwegama has vacated her long held position as a wise, consistent, fearless combatant for women and particularly those underprivileged, discriminated against, and helpless against forces of war and ethnicity that caused them suffering. Another noteworthy trait of the woman and characteristic of her work-ethic was quiet efficiency in going about her remedying, healing work with no fanfare and never seeking of publicity and praise. She was a lovely friendly person, always with a sincere smile lighting her face. Manouri served the country well and her daughter carries the torch.
Business magnate and media moghul R Rajamahendran, who used his money, influence and power to help the country is mourned, more so as he could have served his company Capital Maharaja Organisation and Sri Lankan media longer. The appreciation of him by Rex Clementine in The Island, Monday July 26, detailed the great good he did for Sri Lankan cricket. Teaming up with Gamini Dissanayake he literally fought for test status for our country, amply justified by teams of yore, one of which won the World Cup and another nearly did.
(Note: Cass uses the verb ‘died’ and the noun ‘death’ in preference to the softer, gentler ‘passing’, ‘passing away’ et al as she prefers the more real though stark word to euphemisms. Death is death.)
Never forget crimes committed
This is the thought that came to mind when coincidentally Cassandra, on 22 July watched the movie 22 July, almost a documentary on the 32 year old Anders Behring Breivik, who parked his bomb-laden van outside the PM’s office in Oslo; it killed eight people and caused utter damage, and then crossed to a summer camp on an island where he shot, point blank, the manager who welcomed him as a police officer but then wanted to see his ID, and a woman in authority. He embarked on a killing spree, which left 69 Youth League workers dead and many more injured. When the police arrived he tamely surrendered. At his trial he said he wanted to save Norway and Europe itself from multiculturalism, particularly naming Muslims, and that the killing of innocents was a wakeup call. His defence attorney attempted pleading schizophrenia but on hearing the awfully heartrending testimony of some of the young campers who escaped death but were injured grievously, he was found guilty on all counts and jailed in solitary confinement for more than two decades.
We, most fortunately have had no single mass murderer like Breivik and American school killers but murder most foul continues and may surface any time.
Cass’ thought was never forget terrible crimes committed on persons who were innocent or who were doing their duty. Yes, we as a nation must never forget these grievous crimes. The death of Richard de Zoysa stands out stark, but the police person who took him away from his home and his mother ‘for questioning’, tortured and killed him and dropped him far out at sea died gruesomely along with Prez Premadasa on May 1. Richard’s body washed ashore though weighted and dropped far out at sea. The person who probably ordered his demise too was killed by the same LTTE bomb. Thus, they paid for their heinous crime.
Others who murdered or ordered murders seem to live on powerfully and mightily. The gruesome murder of Lasantha Wickrematunge is kept alive by his daughter, but to no avail. Never to be forgotten or forgiven is the killing of the young, harmless ruggerite whose only ‘crime’ was cocking a snook at those who thought they were superior. What the telling vine conveyed was that the rugger captaincy almost going to him had him tortured and killed. Again a coincidence or overconfidence brought to light the crime: Thajudeen’s body was placed next to the driving seat and his car pushed against a wall to fake an accident. It was all covered up. But people remember this murder, though no one shouts for justice for Thajudeen’s grieving parents.
When you question how come murderers and torturers seem to thrive, the answer is karma, Cass supposes. Maybe, the perpetrators suffer in the midst of utter luxury and in power. Maybe, even slightly, they are overcome with shivers of fright, but never remorse, we surmise.
Unanimously, we are all triumphant that the 15 year old Tamil girl’s death by immolation after prolonged rape in an ex-Minister’s home is being investigated. We hope it will move to correct, just conclusion.
Notes on news items
Highly commended is the article ‘Whither the Sangha and Buddha Sasana?’ by S M Sumanadasa in The Island of July 26. If you have not read it, and are a Buddhist, please retrieve the article and read it. It is spot on though gently written, very timely with so many protests going on, most headed by yellow robes. He starts by saying “As a keen observer …, I feel confident and justified in what I say…” Perfectly justified and every point made is valid. The majority of our Sangha strictly follow the 200 odd vinaya rules and render invaluable service to Buddhist lay people, to Buddhism, and the country, but the yellow robed bad eggs are truly rotten. The Sangha may only advise leaders and from a back seat. Sumanadasa queries why the Buddha Sasana Ministry and the Nayaka Theros do not stem the growing tide of indiscipline and reprehensible behaviour of men in Sangha robes. We ask the same. He states a truth that the death of Buddhism in Sri Lanka is really caused by the Buddhists themselves and some members of the Sangha.
An agreeing opinion by Piyasena Athukorale is in The Island, Wednesday July 29.
Proposed Plantation University and its economic benefits by Dr L M K Tillekeratne appears in the same newspaper. Cassandra retorts: Oh goodness! Enough universities! What benefit when sane advice by university dons and experts in agriculture and related subjects have been completely ignored by the President, the PM, the Cabinet and others in power. They have still not rescinded or withdrawn the overnight ban on import and use of inorganic fertilisers. When famine stares us in the face after the demise of the farmer (the country’s so called backbone) through suicide or utter disgusted exasperation and loss of livelihood, we Ordinaries will have to suffer hunger pangs and malnourishment while those who ordered the very ill-advised and too sudden ban, will live on happily. Maybe, exotic food from around the world will be helicoptered to them!
Professor Channa Jayasumana, I was told, has said that the long awaited and longed for Astra Zeneca vaccine was delayed in transport to our land by the Olympic Games. Cass really did not know that these Games blocked air routes or interfered with air travel. Maybe, the Prof meant that the vaccine gifted (we seem never able to buy this absolute requisite) by Japan was stymied by the Games in Tokyo. He should know as he is a professor.
Why Cass mentioned this tale is because thanks to Professor Jayasumana, she increased her life span by ten years, rolling around choking with laughter (bitter though) at the explanation of why the A-Z Vaccine is so delayed.
Enough is absolutely enough
Please, whoever the authority is, stop that telephone message that comes in the three languages exhorting us to act with care during this period. I have forgotten the terms used in
Sinhala and English as I don’t listen when the message comes through, but they are synonyms of urgencies, calamities, crises; which last short spells of time, not months and months as the telephone message has been. This is parallel to the Sri Lankan habit of hanging bunting, posting posters but never bothering to remove them.
It is better the government just calls up protesters for meetings (even though it intends doing nothing) so that spreader of the C19 will cease or at least decrease. We stay home – telephoners – so why have we to suffer a double whammy – eternal message and risk contracting C19. We completely disapprove of teachers protesting en masse all over the country for salary hikes. Not done, not done at all during a country’s economic crisis.
Will we ever learn to put the country’s good and people’s wellbeing before our acts of self-seeking and selfishness?
Doing the right thing the wrong way
By Jayasri Priyalal
Nurturing nature is the right thing to do when mother nature is struggling to adjust to the manufactured damages taking their toll and challenging the mutual cohabitation of all living beings on earth. Feeding seven billion people with depleted natural resources and a degraded environment is a mammoth task for humanity. During the past ten millennia, homo sapiens have evolved to adjust and move ahead with their advanced cognitive abilities. However, at the beginning of the twenty-first century, there is ample evidence and warning signs to suggest that human beings have crossed the line in harming nature. Maintaining balanced biodiversity is advised by experts to mitigate natural disasters triggered by climate change.
Research in 2020 by the World Economic Forum found that $44 trillion of economic value generation – more than half of the world’s total GDP – was moderately or highly dependent on nature and its services and is therefore exposed to ‘nature loss’, including tropical forests.
This article was prompted by the presentation delivered by Senior Professor Buddhi Marambe, Department of the Crop Science, University of Peradeniya, yesterday (24 July 2021). My special thanks go to the Peradeniya Engineering Faculty Alumni Association [PEFAA] for organising the timely event.
The learned Professor presented his arguments with facts and figures from authentic sources and clarified many myths about synthetic fertiliser and pesticides use in Sri Lanka. All Sri Lankans are truly indebted to all these professionals dedicated to improving our agricultural productivity in a scientifically sound manner, causing minimum impact on biodiversity. Sri Lanka’s ranking in the use of synthetic fertiliser and pesticides, and emergence above our competitors in the region on maintaining food security was an alarming highlight of the lecture.
The discussion heightened the public awareness of the proposed move by President Gotabaya Rajapaksa, to ban the import of synthetic fertiliser and agrochemicals and switch to organic fertiliser. Professor Marambe dealt with points and forewarned the dangers of these short sighted policy directives that appear to have been formulated without sufficient consultations with experts dealing with agriculture, instead relying on ill-advised opinion makers, based on assumptions instead of scientific facts.
Recent developments in the country, mainly various draft bills, attempting to militarise higher education, attempting to dispose of the country’s iconic properties to attract investment, indicate the quality of advisors to the President. Those who teamed up with him as Viyath Maga experts appear to have misled President Rajapaksa.
At the webinar, Prof. Marambe revealed that he and other agricultural experts had been appealing for an audience with the President to explain the dangers of this policy directive, which entails long-term adverse repercussions to an agricultural economy. President Rajapaksa has come out with strong convictions on the benefits of using organic fertiliser and sadly lacks scientific evidence to back the perceived benefits and advantages of the proposed policy directive.
I am making a humble appeal to President Gotabhaya Rajapaksa and his team of advisors to seek expertise from the experts and decide on the policy directives instead of counting on assumptions.
Fareed Zakaria devotes a chapter on why people should listen to experts and experts should listen to people, in his book ‘Ten Lessons for a Post-Pandemic World’. He refers to President Donald Trump being questioned about experts he consults, during the 2016 Republican nomination campaign. Trump responded, “I am speaking with myself, number one because I have an excellent brain; my primary consultant is myself.” His idea to inject a cleaning solution to treat COVID-19 patients could have surfaced through this process of self-consultation. Trump ridiculed the experts in 2016 thus: “Look at the mess we’re in with all these experts that we have.” The rest is history; the mess he created during his tenure as the US President. These are useful lessons for many other political leaders.
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