Category: News

After five days of exhaustive arguments, a five-judge Supreme Court bench on Friday evening concluded hearings into petitions challenging the constitutionality of the Port City Economic Commission Bill.

As lawyers for the petitioners argued that sections of the Bill violated the Constitution, the Attorney General insisted it had been drafted with the sole aim of advancing the country’s economy and was a reflection of government policy.

A total of 19 petitions had been filed challenging the Bill, with the petitioners urging the court to declare that it was in contravention of the law and it should be withdrawn, or rule that it should be passed by a two-thirds majority in Parliament and a referendum.

The court’s decision on the Bill will be conveyed to the Speaker in the coming days.

The bench comprised Chief Justice Jayantha Jayasuriya, Justices Buwaneka Aluwihare, Priyantha Jayawardena, Murdu Fernando and Janak De Silva.

Roland Perera, PC, appearing for United National Party (UNP) Chairman Vajira Abeywardena said the Bill would be harmful to the legislature, the judiciary and executive powers of the country.

The Bill should also be sent to the Provincial Councils for their approval since it contains subjects that come under the Provincial Councils List in terms of the relevant Act. Not doing so will be a fundamental violation of the Constitution, he contended.

The Bill paves the way for the creation of a federal state, argued Ikram Mohammed PC, appearing for Bar Association of Sri Lanka (BASL) President Saliya Pieris PC.

Certain laws that cover the rest of the country won’t apply to the Port City. This includes provisions under the Finance Act. Accordingly, the legislature will not have control over monetary transactions being conducted in this area. Provisions of the draft Bill curtail the powers of the legislature to control state finances, he submitted.

President’s Counsel Kanag-Isvaran PC, appearing for the Centre for Policy Alternatives and Transparency International, pointed out that the Port City is an artificially constructed island.

Recognising it as a separate entity outside the administrative control of Sri Lanka will be a death blow to the sovereignty and territorial integrity of the country, he stressed.

The Constitution’s Article 3 and 4 vest Parliament with powers to control public finance. However, Clause 40 of the proposed Bill violates these two articles of the Constitution, he said, warning that the Bill exempts regulatory oversight of offshore banking and other industries. This, in turn, could lead to money laundering and other fraudulent activities within the proposed Port City Special Economic Zone, Counsel Kanag-Isvaran contended.

The Bill confers the proposed Port City Commission powers to transfer, lease or sell land within the Port City. It also empowers the Commission to grant visas to foreigners coming to work in the Port City. Moreover, investors in the Port City are not liable to pay taxes, he explained.

The appointment of the Port City Commission violates the Constitution, submitted M.A. Sumanthiran PC, appearing for petitioner Gamini Viyangoda. He pointed out that the entire Commission is appointed by one person and there is no mention of the qualifications they must hold. Even foreigners can be appointed to the Commission, he noted. He also stressed that in its current form, the Port City will not bring benefits to the country.

The act of conferring the Port City with the Port City Commission is a blatant violation of the Constitution and the Bill paves the way for the creation of a separate state, insisted Wijedasa Rajapakshe PC, who appeared for Muruththettuwe Ananda Thera.

He noted that the Bill transfers presidential powers to an unknown Commission. Delegating presidential powers in this manner is a violation of the Constitution, he told the court, adding that workers in Port City will be paid in foreign currency and not Sri Lankan Rupees, and this is also a violation of the Constitution.

The Bill’s Clause 7 (1) Bill confers an arbitrary power on the President to appoint even non-citizens to the Commission, claimed Thisath Wijayagunawardane PC, representing Samagi Jana Balawegaya (SJB) General Secretary Ranjith Madduma Bandara. Thus, the Bill leaves room to run the Commission entirely or with a majority of foreigners, he pointed out.

If the Commission consists of all or a majority of foreigners, a body controlled by foreigners would be exercising extensive powers over a portion of the territory of Sri Lanka and over Sri Lankan citizens, and this would certainly affect the Sovereignty of Sri Lanka and its citizens, he said. He also noted that the arbitrary power vested in the President to appoint citizens of any country to the Commission interferes with the Sovereignty of the People and of the Republic.

He also noted that Clause 30 (1) empowers the Commission to be the sole authority in determining who may engage in business in, invest in, reside in, be employed in, or visit, the Colombo Port City. He submitted that as such a large concentration of power being vested in the Commission, Clause 30(1) is inconsistent with the Constitution.

Appearing for Presidential Secretary Dr P.B. Jayasundara, an intervenient petitioner, Romesh De Silva PC told court that COVID-19 had drastically impacted the economy with many Sri Lankan migrant workers returning to the country after losing their jobs. He claimed that such persons will be able to obtain jobs through the Port City project.

The Commission will consist of not less than five and not more than seven members. All of them will be appointed by the President. According to Articles 2 and 4 of the Constitution, the sovereignty of the people is exercised by the President. Foreigners can be appointed to any Commission in the country. Some Commissions can be composed entirely of foreign nationals, he said.

Additional Solicitor General (ASG) Farzana Jameel PC told court there was no need for the Government to refer the Bill to the Provincial Councils for approval as its contents refer to the country’s national economic policy.

She told court that the Presidential Secretariat had already submitted several amendments to the Bill to the Attorney General for consideration, and presented those amendments to court. Chief Justice Jayantha Jayasuriya ordered that these amendments also be handed over to the petitioners and intervenient petitioners for study.

The Bill does not give limitless powers to the Port City Commission, ASG Jameel insisted. The Commission, whose main purpose is to direct business activities at the Port City, is appointed by the President, who is answerable to Parliament. Any member of the public can go to court against his appointments to the Commission, she noted. As such, the Commission comes under the jurisdiction of the courts, she pointed out.

She argued that the land in which the Port City was built falls under the Crown Lands Ordinance of 1960 as it comes within the coastline of Sri Lanka. Under international law, everything along the coast belongs to the country. As such the Port City land belongs to the State, she stressed.

The petitioners are: The Bar Association of Sri Lanka (BASL), United National Party (UNP) Chairman Vajira Abeywardena and General Secretary Palitha Range Bandara, Samagi Jana Balawegaya (SJB) General Secretary Ranjith Madduma Bandara and MP Harshana Rajakaruna, Janatha Vimukthi Peramuna (JVP) Politburo member Wasantha Samarasinghe, BASL President Saliya Pieris and its Secretary Rajeeva Amarasuriya, Association of Information Technology Professionals (AITP) Chairman Kamal Renuka Perera, the Centre for Policy Alternatives, its Director Paikiasothy Saravanamuttu, Leslie Devendra, G.S. Shyamali, ‘Puravesi Balaya’ Convenor Gamini Viyangoda, Muruththettuwe Ananda Thera, Rajika Kodithuwakku, Dr Ajantha Perera, Bandula Chandrasekara, Transparency International, Nagananda Kodithuwakku and Raveena Gayen De Silva.

Meanwhile, Minister G.L Peiris, Presidential Secretary P.B. Jayasundara, Sri Lanka Podujana Peramuna (SLPP) General Secretary Sagara Kariyawasam, SLPP Lawyers Association, the Finance Ministry Secretary and the Cabinet Secretary were among 11 intervenient petitioners who made submissions in support of the Bill.

The impression the government had instilled in the minds of the people soon after the Sri Lanka Podujana Peramuna (SLPP) captured power that the provincial council system would be scrapped has by now vanished into thin air.

Barely a fortnight after assuming office as the President, Gotabaya Rajapaksa stated in India that it was through development and not through devolution that the problems faced by the Tamil people could be resolved. And he had assigned the subject of Provincial Councils to Rear Admiral Sarath Weerasekara who is dead set against the concept of devolution of power and provincial councils. And Weerasekara in turn had been expressing his antipathy towards the provincial council system.

However, now the government and the ruling SLPP is said to be discussing about holding of provincial council election which has delayed for over two years. The backpedalling is obviously due to the pressure exerted by India and the United Nations Human Rights Council (UNHRC). Indian leaders, though not interested in the merger of Northern and Eastern Provinces now, have been insisting on conferring more powers to the provincial councils.

It must be recalled that Indian External Affairs Minister Dr. S. Jaishanker arrived in Sri Lanka within 24 hours after Gotabaya Rajapaksa taking oaths as the President on November 18 with a personal message from Indian Prime Minister Narendra Modi and held talks with the new Sri Lankan President. Dr. Jaishankar had conveyed to President Rajapaksa “India’s expectation that the Sri Lankan government take forward the process of national reconciliation to arrive at a solution that meets the aspirations of the Tamil community for equality, justice, peace and dignity.”

On November 29, 2019, eleven days after assuming office, President Rajapaksa visited New Delhi. During the joint Press briefing with the new Sri Lankan leader, Modi also echoed the same sentiments with the same sentence. However, as if he wanted to allay doubts and stress what he specifically meant, he added that “it also includes the implementation of the 13th Amendment.”

On February 2, two days after the Cabinet decided to pull out from the Memorandum of Cooperation (MOC) signed in May 2019 with the Governments of India and Japan for the development of the Eastern Terminal of the Colombo Harbour, the Indian Deputy High Commissioner, Vinod. K. Jacob met two Tamil leaders from the Eastern Province, former Chief Minister and current MP, Sivanesathurai Chandrakanthan alias Pillayan, and former Deputy Minister Vinayagamurthi Muralitharan, alias Karuna Amman, and discussed the 13A. He had reiterated that meaningful devolution is the way forward for achieving the aspirations of the Tamil people and stressed full implementation of the 13th amendment.

At a time when Sri Lanka was desperately longing for India’s support last month as well, the latter used the devolution issue as a precondition. When Sri Lanka was facing a harsh resolution at the recent UNHRC session, India’s Permanent Representative to the UN Indra Mani Pande, while addressing the council on last February 25, insisted that aspirations of the Sri Lankan Tamils must be addressed “through the process of reconciliation and full implementation of the 13th Amendment to the Constitution of Sri Lanka.”

It is vivid that India has been using the Sri Lankan Tamil issue to advance its own interests. The issue is a lever for India to tame its southern neighbour when needed. Yet, these facts point that Sri Lanka would have to pay a heavy price if it resorted to abrogate the provincial council system arbitrarily, especially ignoring India.
Against this backdrop, India now wants provincial council elections held soon. India’s position in this regard had been asserted in a letter to AIADMK Rajaya Sabha member M.Thambi Durai recently by Dr. Jaishankar. The Indian External Affairs Minister in his letter had linked India’s stand in this regard to his country’s abstention from voting for the last month’s UNHRC resolution on Sri Lanka.

However, Sri Lanka is in a catch 22 situation in respect of conducting of provincial council elections due to a legal hiccup that has been created by an amendment to the Provincial Councils Election Act brought in by the last Yahapalana government. The Amendment introduced in September 2017 provides for conducting of elections for the provincial councils under the mixed electoral system of first-past-the-post system and the Proportional Representation (PR) system.

Yet, the mixed electoral system has run into controversy after it was experimented at the local government elections held on February 10, 2018, as many flaws in the new system were identified. In the wake of the LG elections even former President Mahinda Rajapaksa under whose leadership the SLPP swept the electorate had stated that the new system had to be changed again, as it had created a mess in many LG bodies.

There are strong grounds not only for the politicians but also for the people to reject the mixed electoral system in its present form, despite it having been experimented only at the last LG polls. It doubles the number of council members (from around 4,000 to 8,000 LG members) and it is the public coffers that have to maintain and facilitate them. Without a cut-off point for political parties to be eligible to represent the councils, many small parties won seats, creating an Opposition larger than the ruling party in many councils.

This muddled situation was further aggravated by the ridding of the bonus seat system that had earlier strengthened the winning parties to be above the collective strength of the Opposition parties. The mess resulted in unethical deals among political parties, although those settlements helped later for the smooth functioning of the councils. Besides, wards have to be demarcated within each provincial council area under the new system. Political parties are now divided over the system with one group preferring to revert to the old PR system and others wanting to stick to the new system, but with changes.

The second group is also in turn divided. During a recent discussion among the constituent parties of the ruling coalition, one group had proposed to field three candidates from each party for each ward which had been opposed by a section of the SLPP and smaller parties in the coalition. The proposal would definitely reintroduce the preferential voting system which would again lead to intra-party conflicts. There is no sign of any settlement to these controversies either.

Interestingly, no complaints were heard about the absence of elected provincial councils for the past three years even from the politicians representing the Northern and Eastern Provinces for which the devolution of power was originally meant. Nevertheless, the country has to maintain the system for two reasons – external pressure and Tamils would feel alienated if the system is done away with.