Nation Special


In defence of unpopular virtues

Abolition of school admissions based on hereditary rights

By Nuwan Peiris
“We are not afraid to follow the truth wherever it may lead, or to tolerate any error so long as reason is left free to combat it,” said Thomas Jefferson in 1820.
These high ideals, embodied in a letter to William Roscoe by one of the founding fathers of the American Constitution echoed in the Sri Lankan Supreme Court when it boldly held that the school admissions circular to grade one violates Article 12 of the Constitution, which guarantees equality before law and equal protection of the law.
Accordingly, Chief Justice S. N. Silva and Justices Dissanayake and Somawansa further held that the circular relating to grade one admissions is of no force in law (see SCFR 10/11/12/13 of 2007; March 29, 2007).

This judgment also stated that grade one admissions are based on wholly extraneous considerations which are geographic-specific or whether a parent is a past pupil of the school, or whether a child’s brother or sister is already in that school, etc. None of these criteria establishes the suitability or merit of the child who seeks entry to a school.

Especially commenting on the Old Boys (OB) and Old Girls (OG) category, the Supreme Court noted by upholding President’s Counsel Wijedasa Rajapakse’s submission that “…when one peruses the scheme, it appears as if though the scheme is designed to ascertain the suitability of the parents for re-admission to the school and not that of the child whose suitability is totally ignored.” The preceding analysis was used with regard to the other category of “brothers and sisters.”

The objective of this paper is not to put down an academic analysis of the Supreme Court judgment, but to drive home the argument of the correctness of the abolition of OG/OB system which has so deeply penetrated into our socio-cultural fabric.

The feedbacks from many OGs and OBs have been pessimistic, if not vicious, in this regard. They are, of course, not happy with the entire scheme of things, including the new proposals by National Education Commission (NEC) Chairman, Prof. A. V. Suraweera. It is intended that this paper would initiate a healthy discussion on this aspect. It is not intended to hurt the OB/OG or to come into conflict with them.

Rationality of OB/OG system
The central question in OB/OG is whether the ‘hereditary rights’ are legitimate within the contours of equality concluded in Article 12. Conversely, could we identify a justifiable ground to place a group of parents (OB/OG) in a superior position to exclude others for a preferential claim over state schools?
Quite a number of OGs and OBs island-wide have made special contributions to many state schools. Some are genuine contributions to their alma mater, while others are made with the expectations of admitting their children to the school.

In Sri Lanka, such moral duplicity has over the years gradually gained legitimacy by being incorporated into the school admissions circular.
This manner of admission based on the ‘old school tie’ is so ingrained into our system that no one criticises the underlying morality of the scheme of taking children to schools based on their ‘parents’ deeds.’ If the OG/OB’s argument is that their contribution to the schools creates a ‘special right,’ then this ‘special right’ is being enjoyed by unborn children of the OGs and OBs over others.

Such ‘special rights’ take the form of having a ‘hereditary claim’ in the form of a ‘heredity right.’ Hereditary rights have an ‘exclusionary effect,’ such of those who are unable to get admission to schools due to poverty or other extraneous reason, thus negating the civilised concept of ‘equal access to public education.’
On the above analysis, let us take an extreme. Even if a parent were to construct a school and donate it to the state, such parent would still have no preferential right whatsoever over other citizens in the usage of that state property. Once a gift is made to the state, it is state property, the state is the absolute owner, and ‘obligatory strings’ cannot be attached in the form of rights or otherwise.

Irrespective of who the parents are, all children are born equal, and because a child’s parents are not in a position to be an OG or OB, a child should not suffer any legal disabilities, and the state should not enforce such disabilities through the state schools. To presume reverse is to accept that all children are born unequal may be due to caste, dignity, clan, race or religion. This runs contrary to the fundamental concepts of justice.

If a child asks his mother “… why could not I go to that school like my friend next door?” and the mother answers that she is not an OG of that school, then it is not difficult to conceive the rational justification that the child was born in the wrong place to wrong parents.

Consequently, having preferential OG/OB category means that the state follows the policy of penalising the children of ‘ordinary people’ by not granting equal access to state education just for ‘being born to wrong parents.’
If we are to believe, as set out in our constitution, that all, including children, are born equal, a denial to admit that is to fold ourselves back in time to the past where children were disbarred due to caste, creed or other set backs from admissions to prestigious state schools.

Analogously, the same goes with the religious quota. If, say, a Buddhist child denied were admission to a school on the ground that the state school was ‘Christian’ or a Christian child were denied admission to a state school because it was a Buddhist school, then the state admission policy presupposes that ‘the child has the wrong religion and belongs to wrong parents with the wrong religion,’ and should find another school that fits him which presumes that ‘he has the right kind of religion, born to right parents with the right religion.’

As US Supreme Court said in Weber v. Aetna Casualty & Surety Co., (1972) “...condemnation… of an infant is illogical and unjust. Moreover, imposing disabilities on the… child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth and penalising the…child is an ineffectual – as well as unjust – way of deterring the parent.” (406 U.S. 164, 175)

If discrimination is inheritable by birth, religion or parents’ status, then imputation of such a status to an infant in his first entry to a public school may impose a lifetime hardship or remorse on a specific class of children not accountable to their disabling status. It is common ground that schools with religious denominations view ‘religious aliens’ as a disruptive force in their well-settled schools or at least as a ‘non-accommodating force.’

This ‘abstract socialisation’ at birth may create stigma that would last for the rest of their lives. Such discriminatory pre-birth rights – if properly so called – would deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they would contribute in even the smallest way to national and social reconciliation.

In determining whether there is any rationality in maintaining OG/OB, we may appropriately take into account its costs to the nation and the innocent children who are victims. In the light of this countervailing cost, this discrimination could hardly be considered rational.

Legislative and executive policy guidelines
The guidelines for a national policy, as Chief Justice S. N. Silva noted, in a fine judicial exposition, the term ‘national policy’ “should be interpreted… with… [the] provisions in the Chapter VI of the Constitution which contains the ‘Directive Principles of the State Policy.’”

Such “immutable republican principles” always highlight the principle of equality in national policy as enunciated in Article 27(2)(h) which assures the ‘right to universal and equal access to education at all levels.’
One must realise that human rights are not just a ‘bundle of rights’ in our constitution. Human rights and equality are now considered a ‘heritage’ in our country, not just a by-product of Western society. Our ‘tangible’ heritage could be seen from our ancient archeological cities like Anuradhapura or Polonnaruwa.
Similarly our ‘intangible heritage’ is embodied in the preamble of our constitution. The rudiments of our ‘intangible heritage’ are five-fold. They are (1) freedom (2) equality (3) justice (4) human rights (5) independence of the judiciary.

The preamble further states that “…the intangible heritage that guarantees the dignity and the wellbeing of the succeeding generations of the people of Sri Lanka…” Another feature of this articulation is that our ‘intangible heritage’ is not mono-generational like many Western legal rights.
After all, it is the preamble that makes a constitution a constitution and sets it going, and therefore this ‘intangible heritage’ forms the ‘foundation’ of our constitution. It is on this ‘foundation’ that our national policies should be founded.

The above mentioned hereditary rights are inconsistent with the norms and rights of ‘intangible heritage,’ if anything is inheritable by birth – as birth right or otherwise – such must fall within the fivefold norms of ‘intangible heritage’ – freedom, equality, justice, human rights, etc. Therefore, suffice to say that, since everyone – irrespective of their status – is entitled to these ‘heritage rights,’ the ‘hereditary rights’ on school admission runs contrary to these rights.

Last but not least, the state, moreover, takes steps to retain the OB/OG system due to political pressure. This drastic step, in my opinion, may result in considerable ramifications. Laws or regulations driven by national policies that operate on the basis of social clan or race require proper definitions of social clan and race. Resultantly, our statute books or regulation manuals would once again have to contain laws that reflect the ugly practice of delineating the qualities which makes one person an ‘old boy’ or an ‘old girl.’

In this regard our Supreme Court judgment noted the inherent problems of institutionalising discrimination for the sake of accommodation, “…where a parent had gained admission to school pursuant to the year five scholarship examination, only two marks are assigned. A clear instance of discrimination in respect of parents, long-stayers preferred as against scholars. Whereas when parent had entered at grade 1 and continued, 13 marks are assigned.”
The lesson from this judicial wisdom is that discrimination, even in ‘good faith,’ inevitably and incessantly rakes into causing deep discriminatory divisions even within the special stratum created. Discrimination, once justified at threshold point, opens gates to reinforce that reasoning within their special stratum, and to justify ‘equality’ within the stratum they conceived with the contrary becomes an impossibility, and at best a contradiction.

As elucidated by the Chief Justice in the said judgment, “…from the perspective of the application of the equal protection of the law guaranteed by Article 12(1) and from the perspective of national policy, the objective of any binding process of regulation applicable to admission of students to schools should be that it assures to all students equal access to education.”

It is important that the legislature and the executive follow the judicial insights instead of reintroducing the past chaos. So far even the NGOs who fight for children’s rights have – quite surprisingly – kept quiet, especially in an issue of gargantuan importance to the nation and her future generations.
Lastly, to sum up, no child in this country should be born knowing that if born to a selected lot of papas and mamas, they would enjoy special hereditary rights on state schools. If education prepares persons to be independent and skilled contributors in society, then a child should not be born with an enduring legal disability.

- The writer is an Attorney-at-Law of the Supreme Court of Sri Lanka, and represented the 19th and 30th respondents in the case of SCFR 10/11/12/13 of 2007. The views expressed in this article are of the writer and do not necessarily represent any of the institutions that the writer is presently affiliated to.


Vasu takes JKH to courts

- CBK, Ranil, Karu, P.B respondents

Weeks after court action was filed, requesting the annulment of the controversial Sri Lanka Insurance Corporation (SLIC) privatisation deal, another fundamental rights case was filed this week by leftist firebrand Vasudeva Nanayakkara at the Supreme Court, this time requesting the nullification of the LMS transaction. Lanka Marine Services (LMS), which was a government owned enterprise with a monopoly to supply marine fuel – or bunkering, as it is called, was sold to John Keells Holding (JKH) under controversial circumstances in 2002.
Both SLIC and LMS privatisation scandals have made headlines in the recent past due to the billions of rupees that the government lost in revenue, as well as, the sheer incompetence of the public officials involved in the dealings. The Committee on Public Enterprises (COPE) in a damning report in January cited these two cases as the most blatant instances of malpractice in recent privatisation deals. The investigations also brought out the names of a wide galaxy of political and public figures, in addition to leading figures in the private sector. COPE also appointed a subcommittee – to particularly look into these two transactions, while the report from this committee has been delayed for several months due to various pressures from certain quarters. However, The Nation reliably learns that the main COPE body is to recommend a cancellation of both SLIC and LMS deals in a report to be presented in Parliament soon. COPE Chairman Wijedasa Rajapakse in his report to Parliament in January 2007, described the LMS deal as a questionable ‘fix’ and ab-initio, bad in law, null and void.
Vasudeva Nanayakkara made a startling disclosure in his petition to the Supreme Court stating that over eight acres of prime land adjoining the Colombo port had been transferred to JKH, free of charge. The land had been transferred in the guise of grant of government land, while it was in fact land that belonged to the Sri Lanka Ports Authority (SLPA), which could not be transferred to a private party in such a manner. The petition states that this transfer is a fraud.
JHK Chairman Susantha Ratnayake and former Power and Energy Ministry Secretary P. Weerahendi had, in a questionable manner, hastily cautioned the Land Commissioner to execute an Instrument of Grant, signed by former President Chandrika Bandaranaike Kumaratunga in January 2005, long after the privatisation of LMS in August 2002. The Petitioner states that the land belonged to SLPA, and that CBK and Land Commissioner had no right to transfer SLPA land. When such acts are conducted by private parties, it is deemed to be a serious fraud, resulting in criminal prosecution.
The Instrument of grant signed by CBK and the Land Commissioner, executed in January 2005, had stated LMS had paid Rs. 1.2 billion to the Treasury. During the probe by COPE, Treasury officials have admitted, after a lapse of five months that no such payment had been received from LMS. LMS accounts also do not disclose that such payment had been made to the government. COPE Chairman Wijedasa Rajapakse reported this to Parliament as fraudulent document and a fiction, and that there could not be a legal transfer of this land. Vasudeva Nanayakkara’s startling disclosure to the Supreme Court that the land belonged to the SLPA, and not the government, gives a new dimension of fraud, where one party, without ownership and title, purports to transfer land of a another party. Adding to the controversy, there had been no Cabinet approval for the sale and transfer of this valuable 8 ½ acre land in the Colombo port.
The petition to the Supreme Court discloses a series of dubious acts in the entire process of privatisation of LMS, where LMS shares were sold to JKH on August 20, 2002. Even before the Cabinet approval had been confirmed on August 21, 2002 to call for competitive bids on the Colombo Stock Exchange for the sale of LMS Shares, former Public Enterprises Reform Commission (PERC) Chairman P.B. Jayasundera had awarded the sale to JKH on July 12, 2002, with other parties crying foul for the floor price payment of Rs. 1200 million. The profits of LMS for four years, to 2006 alone, had amounted to over Rs. 2400 million.
Also, before confirmation of Cabinet Approval on August 21, 2002, Susantha Ratnayake of JKH had persuaded former PERC Chairman P.B. Jayasundera to grant a monopoly status to LMS on August 2, 2002. That clause was added after value of the entity was assessed by the valuers. DFCC, which carried out the valuation of LMS before privatisation, stated before COPE that they would have valued LMS at a minimum of Rs 2.2 billion instead of the Rs 1.2 billion that they did, had they been informed that the privatised entity was going to be granted a monopoly in the bunkering services at the Colombo port.
This monopoly status that was gleefully granted by P.B Jayasundera, was revoked by the Court of Appeal citing that it was in violation of the Petroleum Products (Special Provisions) Act of 2002. Making matters worse, it is disclosed that another party had been disqualified by the Technical Evaluation Committee on the grounds for asking for a limited monopoly in bunkering for eight years.
At the COPE probe, DFCC, who that had given a floor price on the basis of a business valuation for LMS, on being confronted with the monopoly and the other concessions, indicated a minimum floor price of Rs. 2400 million. DFCC had admitted to COPE that they had not carried out a valuation of the 8 ½ acre land in the Colombo port, when making their valuation.
The selection of DFCC as the valuers is also shrouded in mystery. P.B Jayasundera had selected DFCC, without a competitive process. Interestingly, this lucrative valuation job had been granted to DFCC by Jayasundera, while the government’s Chief Valuer was in the process of doing the same on request of Jayasundera.
The privatisation process of LMS had been initiated by then Power and Energy Minister Karu Jayasuriya, and the implementation has been in total violation of the Cabinet Memorandum of Minister Jayasuriya. The petition further discloses that Minister Jayasuriya had put the entire blame and responsibility for this debacle on the former Prime Minister Ranil Wickremesinghe, who had chaired the Economic Sub-Committee of Cabinet, and that it was Minister Milinda Moragoda, as Minister in charge of PERC, who had carried out this transaction. All are now respondents before the Supreme Court to answer along with Chandrika Kumaratunga and UNP legal luminary K.N. Choksy.
Another significant issue disclosed to the Supreme Court is that a Tender Board, which was not appointed by the Cabinet, had been appointed to evaluate the bids. Instead, a three member Technical Committee, chaired by former Petroleum Corporation Chairman Daham Wimalasena was appointed without Cabinet approval had evaluated both the expression of interests and final bids, which is not the normal government procedure.
Vasudeva Nanayakkara had prayed to the Supreme Court to annul and make void the sale of the shares of LMS to JHK and also to cancel the purported transfer of 8 ½ acres land to LMS. Further, he has requested the courts to declare the transaction to be fraudulent. Nanayakkara’s application is expected to be supported in the Supreme Court in mid July.