Columns

Friday (July 16th) was an eventful day for Sri Lanka. Just as President Gotabaya Rajapaksa was holding forth to obediently head-nodding members of the Maha Sangha comprising the Government’s Buddhist Advisory Council gathered at the Presidential Secretariat, on his firm intent to proceed with enactment of the Kotelawala Defence University (KDU) Bill before Parliament, students of the Buddhist and Pali University of Sri Lanka intensified their protests against the KDU Bill.

A Bill militarising higher education

The students joined the growing numbers of demonstrators against the Bill, following the recent  unwise police detention of prominent trade unionists under cover of covid-19 quarantine regulations, who were released also on Friday, hence this day being eventful in more ways than one. Their grievance was common. At a time when the education of the country’s university and school students had been brutally crippled due to the covid pandemic and the inability of the Government to propose effective solutions, why was a Bill blatantly militarising higher education being pushed through, they asked?

Probably they may have been unaware that, in the rarified spaces of the Presidential Secretariat several kilometres away from student protests, the President was, in fact, using the example of the Pali University in favour of his argument. His contention was that the Universities Act (1978) establishing the University Grants Commission (UGC) itself must be amended to ‘do away’ with ‘obstacles’ and bring higher educational institutions such as the Pali University and KDU within the remit of the UGC. That, he said, would be the solution, the Advisory Council was told.

This is an artful rendering of the problem no doubt. But it is not the solution, contrary to what the President appears to believe. UGC control is not a magic wand that will cure all the ills of the KDU Bill which has united a wide range of dissenters including members of the Government Medical Officers Association (GMOA) generally slavishly in support of the ruling regime. Indeed, the very grouping of the Pali University and the KDU in one breath is manifestly absurd. The issue regarding the KDU Bill, which seeks to replace the generally innocuous Sir John Kotelawala Defence University Act, No 58 of 1981, is in the very structure and form of the ‘University’ that it proposes to establish.

Violating the very ethos of civilian university learning

In spirit and in (proposed) law, its contents are fundamentally anathema to the guiding values of academic freedom that underlines Sri Lanka’s historically evolved Universities Act. In short, the KDU Bill, proposed earlier by the ‘yahapalanaya’ regime (2015-2019) and then withdrawn as saner counsel dawned, directly violates the principles of critical thought in higher education that, despite manifest travails, our Universities have protected for decades. It proposes a military structure of governance with its Board of Governors appointed by the Ministry of Defence with token representation of the UGC. Its reach goes beyond the military and encompasses civilian students. The Bill makes this unequivocally clear by stating in its preamble that the KDU is established to educate the military and ‘others.’

Extraordinary powers are given to the Minister in terms of the proposed law. Thus, ‘where the Minister is of the view that any situation prevailing in the University is likely to endanger national security or is detrimental or prejudicial to national policy or is likely to disrupt the smooth functioning of the University; he may direct the Board to ‘take all steps as he may deem necessary, to bring such situation under control’ (clause 7). Certainly these are not powers that may tolerably be exercised in respect of Universities qualified as such to be established and governed under and in terms of the Universities Act.

Indeed, the President’s explanation on Friday raises more questions than it answers. Are we then (outrageously) to see a similar proposal regarding Ministerial powers interpolated into the Universities Act as well, to operate across the board? What exactly are these ‘obstacles’ that are sought to be done away with in the Universities Act? There are key cautions here. First, the Sri Lanka Supreme Court has categorically laid down applicable standards to be followed. The Court’s response to a proposed amendment to the Universities Act in 1999 which sought to politicise appointments and removal of Vice Chancellors is the clearest example to date.

Academic freedom and the right to conscience

The amendments had, inter alia, proposed to give the Minister greater sway than the Council to  select Vice Chancellors,  to remove a Vice Chancellor without any valid reason with the Council of University not having any authority and to empower the Minister to appoint Members of Parliament to the Council. Taking immediate issue with its contents, senior academics brought the Bill before the Court in several fundamental rights challenges in which this columnist appeared as part of a public interest legal team. The primary argument was that the Bill violated university autonomy, adversely affected the functioning of University Councils and the constitutional rights of its members.

In its ruling, the Court decided that all impugned clauses of the Bill were unconstitutional, variously of the right to equality, freedom of speech as well as of thought and conscience. Accordingly, the Bill needed to be passed not by a two thirds majority only but also by the people at a Referendum. In so deciding, the judges referenced international standards and declared that the Government is under an obligation to protect higher educational institutions from threats to academic freedom and autonomy coming from any source, (3S/D No 6-12/99, SCM 11.05.1999, Justices R.N.M. Dheeraratne, A.S. Wijetunge and Shirani A. Bandaranayake).

Autonomy was defined to be that degree of self governance necessary for effective decision making by universities regarding their academic work, standards, management and related activities. The Bill was withdrawn by the Government before the Court delivered its Determination. Where university ‘discipline’ is concerned, which the KDU’s guiding lights delight in stressing, we may well look at the passing warning in an otherwise conservative ruling by the Court (Disssanayake vs Sri Jayawardenepura University, 1986)  where the university authorities were reminded of the constitutional rights of the students, which should not be restricted ‘beyond what is reasonably required by the imperatives of discipline…”

Harebrained notions and a Government’s folly

In sum, replacing the give and take of critical thought and expression in Sri Lanka’s universities with the military model of behaviour in the name of ‘discipline’ is a harebrained notion, taken at its best. No wonder this has stirred a hornet’s nest of public fury which has impacted on already covid-traumatised Sri Lankan communities with force. What the President said on Friday has not settled the matter. Indeed, his solution that the UGC will have powers over the KDU is directly contrary to what (military) proponents of the KDU Bill have been saying.

That has been to the effect that the KDU will not come within the scope of the UGC and will not ‘overrule its powers’ (see, ‘Proposed KDU Bill will only govern KDU,’ Maj. Gen. Milinda Peiris, website of the Ministry of Defence, 30/06/2021). Reconciling this argument with what the President said on Friday is several of the more bizarre contradictions that we have to contend with. In fact, there is a tinge of palpable humor to the advice by the venerable members of the Buddhist Advisory Council, as per the official communique issued on Friday’s meeting.

Reportedly, this advice was that the Government must ‘educate’ the public about the ‘objectives of the Kotelawala Defence University and (sic) take steps to prevent the spread of misconceptions in the society regarding this University.’ However, it appears that the members of the Maha Sangha who listened attentively to the President, may well be advised to educate themselves on the precise scope and objectives of the KDU Bill.

That may serve both the Sangha and this country in good stead.