lanka

Opposition claims Covid health guidelines followed during protests
DGHS’ health guidelines, Quarantine Ordinance, Penal Code violated: DIG Ajith Rohana
Port City Law will affect unborn generations: Dr. Harini Amarasuriya

The Police are to take legal action against Opposition parties, the Janatha Vimukthi Peramuna (JVP) and the Samagi Jana Balawegaya (SJB), over recent protests conducted by them near the Parliament against the Colombo Port City Economic Commission Bill.

Speaking to The Sunday Morning, Police Media Spokesman DIG Ajith Rohana said that legal action would be taken against both protests due to the alleged violation of quarantine-related rules and regulations.

The JVP, which is represented in the parliamentary Opposition under the National People’s Power (NPP) alliance, staged the said silent protest at the Polduwa Roundabout on 19 May, while the protest of the main parliamentary Opposition party, the SJB led by party Leader and Opposition Leader Sajith Premadasa, was held near the Parliament Roundabout on 20 May.

The protests demanded that the Government not be allowed to pass the said Bill in the midst of the heightened Covid-19 pandemic environment in the country.

The Bill was, however, passed in Parliament on 20 May with a super majority.

DIG Rohana said that according to the B Report filed in the relevant court by the Officer-in-Charge of the Welikada Police, approximately 150 people had taken part in the JVP protest at the Polduwa Roundabout. The protestors had, according to him, violated the quarantine rules and regulations, especially the provisions in the gazette published on 15 October 2020, the health guidelines published by the Director General of Health Services (DGHS), provisions of the Quarantine and Prevention of Diseases Ordinance, and certain provisions of the Penal Code.

Legal action would be taken against the perpetrators after identifying them from the closed circuit television footage, DIG Rohana added.

Accordingly, action is to also be taken against the SJB protest where, it is learned, approximately 30 people had participated.

However, speaking to The Sunday Morning, NPP parliamentarian Dr. Harini Amarasuriya said that the party is not afraid of any legal action since they conducted the protest in connection with a national concern.

“If this Colombo Port City Economic Commission Bill is approved, we won’t be able to revise it for another 99 years. People should know the upcoming danger and the damage that could happen to the country by approving it. This could have an effect over the unborn generations as well,” she claimed.

According to Dr. Amarasuriya, the protest was not against the quarantine rules and regulations. “We did it while observing the social distancing rule and by wearing masks. So how could they say that we violated the law?”

By Dinitha Rathnayake/The Morning

The post Sri Lanka police to prosecute two main opposition parties over anti-portcity protests! appeared first on Sri Lanka Brief.

Before I commence my comments on the [Port City] Bill  I must place on record our protest at having this debate at a time like this, when there is a third wave of Covid – 19; when many experts have publicly declared that the alert level should be level – 4 and not level – 3.

Prof. Malik Peiris and Prof. Kamini Mendis have jointly issued a statement to the public. The Government has failed to adhere to professional advice on this matter, all for the sake of hurriedly having this Bill enacted in Parliament today.

There is a lot of talk about why this still remains a part of the country. Government speakers have repeatedly asked the question as to why focus is being made on China, when anyone can come and invest in this artificially created land mass that is annexed to the city of Colombo.

When I appeared in the determination before the Supreme court, I asked their Lordships the question as to why they were wasting their time trying to determine on a Bill that related to a place which is not part of Sri Lanka. And it is that intrigue with which I speak today as well as to why this house is deliberating on something that doesn’t relate to Sri Lanka. I will tell you the reason why I say that at the end of my speech.

Now with regard to,  with regard to the Chinese issue, just two days ago, Hon. Shanakiyan Rasamanikkam tweeted, about a board that was placed in this place called Central Park, which had a name board in Sinhala in English and in Chinese. Sinhala, English and Chinese. And you dare ask the question why people are saying Chinese, Chinese…. And that is not all; when he raised that question no Sri Lankan authority gave a reply. There is a tweet by the Chinese embassy … there is a tweet in reply by the Chinese embassy saying “We noticed an interim sign in a JV building site, not abiding by tri lingual rules; request raised, we respect all three official languages and urge companies to follow”.

They are saying we will rectify it. Not your Government. What has the Chinese embassy to do, with how name boards are to be put in this place? They have taken responsibility- they have taken over the Land- and you are engaging in an exercise trying to enact law for that area.

Now with regard to the Supreme Court determination: The Supreme Court engages in one exercise, to go clause by clause to see if it is inconsistent with any provision of the Constitution. Now you try to avoid that also happening and timed it in a way that there was only one day available for anyone to invoke the jurisdiction of the Supreme Court. Yet more than 20 petitions were filed. If they had not been able to do that you would have passed the Bill in the form in which it was Gazetted.

For all that you say about the legislature and its power; “Supremacy of Parliament” you had given powers to make rules, even criminal Laws, to punish people to that commission. And the Supreme Court has ruled that out as requiring even a referendum, because it violates the Parliament’s legislative powers.

Because of shortness of time I’ll give you just two examples as to why Supreme Court’s determination is not so relevant to us today. When we make laws we not only look at constitutionality, we also have to look at desirability and what is good for the country. Look at clause 40 (1)- there was lot of discussion here, about 30, 33, and 40. In 30 where you require a license to visit this place, “it is there” , any person wishing to visit this place requires a license. Supreme Court has said you can’t have that word “visit”, take it out. But you tried to have it. Now that is in addition, ‘an additional requirement this has to be read with clause 74 which gives this commission concurrent powers with several regulatory authorities.

And one of those regulatory authorities is the Controller of Immigration and Emigration. What has this commission got to do with the controller of Immigration and Emigration? That is why what you tried to sneak in, was in fact a Visa requirement ‘additional license’ for anybody to visit. Even now, if you are to reside in that place you have to get a separate license.

Now if you look at clause 40 Hon. [Vasudewa] Nanayakkara, you will see boarder control. So much you say about federal structure. Where in the world in a federal arrangement do you have boarder control between federal states? You don’t have that.

That is why we say this is not even federal, this goes far beyond that. Its boarder control.

Clause 40 says, any person, any Sri Lankan who enters that place. You can use Sri Lankan rupees ‘all that is said’, but when he’s leaving the place, clause 40 sub (2)’ when he’s leaving that place’ he has to pay a levy. Supreme Court has said No! change that! change those wordings: don’t say “leaving the place”, “taking the goods out”. That’s customs control! As if it makes any difference at all, leaving the place and taking the goods out. If you purchase any goods, the original draft said leaving the place you must pay a levy. Now the Supreme Court wants you to change it to “taking goods out”. It meant the same thing, no difference at all. Cosmetic changes. That is what the Supreme court has prescribed. But what is more important?

There is still going to be boarder control, something that you don’t have. You have to subject your things, your baggage, to a customs check and you have to pay a levy. If you are buying something – you buy Pizzas and you take it out, you have to pay a levy. So this is only examples that I can refer to.

It is a private company; this is not a Government corporation.

I heard Hon. Prof. G.L. Peiris say that this is a government entity. No it is not! It has not been so made and the Supreme Court hasn’t declared it be one. Even members who are to be appointed to this commission, five or up to seven can be foreigners ‘that is what the Bill says’. And that is what Counsel for the Secretary to the President told the Supreme Court, “that even the Chief Justice can be appointed who is a foreigner’, and so what’s the big deal he said. And the Supreme Court has not dealt with that.

The Supreme Court has thought it not fit to deal with that, because that has been our position right along ‘that there’s nothing unconstitutional about appointing any foreigner to even be a judge’. So that position has been retained in the determination of the Supreme Court. But nevertheless you are now bringing, – even though it is not prescribed by the Supreme court, you are bringing an amendment to say majority of them will be Sri Lankans. There is an argument that Hon. Keheliya Rambukwella just referred to, that Mr. Kanag – Isvaran advanced before the Supreme Court. It’s at page 14, that this does not form part of Sri Lanka’s territory in terms of International Law, or even Domestic Law.

Supreme Court has dealt with that in page 19. It doesn’t merely dismiss it as you said. This is what it says: it says, that so far no court has ruled it to be so. So far no court has ruled it to be that it is outside Sri Lanka. And this is what they say; presumption of validity, referring to annexation of this as part of the district of Colombo, they say presumption of validity exists pending a final decision by a court and they say the Supreme Court exercising special jurisdiction for determination is not that court. So it still is open for anybody, particularly the Chinese authorities, to claim this to be not part of Sri Lanka. And this determination will assist them in that. And finally Hon. Presiding member, I said, you wouldn’t even consider a federal arrangement, ‘something that exist in almost 100 countries in the world’.

But here you have given away part of Sri Lanka to be given to another Country. You say so much about Eelam; but this is “Cheelam”.

This is Cheena, this is “Cheelam”, that you are enacting in your own laws, when you even don’t have jurisdictions over that territory, but declaring it and gifting it in your territorial waters, a land mass to China. And you will reap, the consequences of this. Hon. Ponnambalam was to refer to various factors about this region. I don’t want to repeat that. You will reap the consequences of this injudicious act of yours very soon.

Excerps from the speech made by Hon. M.A. Sumanthiran in Parliament today (20-05-2021) on the 2nd reading of Colombo Port City Economic Commission draft Bill.

The post “You talk about Eelam but Port city is a “Cheelam” where you don’t have jurisdictions over that territory” – M.A. Sumanthiran (MP) appeared first on Sri Lanka Brief.

The post Sri Lanka: Port City Bill in short appeared first on Sri Lanka Brief.

Image: LNW.

The Colombo Port Economic Commission Bill was presented in Parliament on 08 April 2021, while the country was getting ready to celebrate the traditional New Year. With the intervening weekend and public holidays, citizens had just two working days to retain lawyers, many of whom were on vacation, and file applications challenging the constitutionality of the Bill in the Supreme Court within the one-week period stipulated in the Constitution. One wonders whether the timing was deliberate.

Read the Bill here:Port City Bill

Special economic zones are common. They are created mainly to attract foreign investments. In return, investors are offered various concessions so that their products are competitive in the global market. Several negative effects of such zones have also been highlighted. The sole purpose of this article, however, is a discussion on the constitutionality of the Bill.

The Bill seeks to establish a high-powered Commission entrusted with the administration, regulation and control of all matters connected with businesses and other operations in and from the Colombo Port City. It may lease land situated in the Colombo Port City area and even transfer freehold ownership of condominium parcels. It operates as a Single Window Investment Facilitator for proposed investments into the Port City. It would exercise the powers and functions of any applicable regulatory authority under any written law and obtain the concurrence of the relevant regulatory authority, which shall, as a matter of priority, provide such concurrence to the Commission. The discretion and powers of such other authorities under the various laws shall thus stand removed.

The Commission consists of five members who need not be Sri Lankan citizens, quite unlike the Urban Development Authority, the Board of Management of which must comprise Sri Lankan citizens only. One issue that arises is that the vesting of such powers upon persons with loyalties to other countries, especially superpowers, would undermine the free, sovereign, and independent status of Sri Lanka guaranteed by Article 1 of our Constitution. It would also impinge on the sovereignty of the People of Sri Lanka guaranteed by Article 3 read with Article 4.

The removal of the discretionary powers of the various regulatory authorities is arbitrary and violative of the right to equal protection of the law guaranteed by Article 12 (1).

Under Clause 25, only persons authorized by the Commission can engage in business in the Port City. Clause 27 requires that all investments be in foreign currency only. What is worse is that even foreign currency deposited in an account in a Sri Lankan bank cannot be used for investment. Thus, Sri Lankans cannot invest in the Port City using Sri Lankan rupees; neither can they use foreign currency that they legally have in Sri Lanka. The above provisions are clearly arbitrary and discriminatory of Sri Lankans and violate equality and non-discrimination guaranteed by Article 12. They also violate the fundamental right to engage in business guaranteed by Article 14 (1) (g).

Under clause 35, any person, whether a resident or a non-resident, may be employed within the Port City and such employee shall be remunerated in a designated foreign currency, other than in Sri Lanka rupees. Such employment income shall be exempt from income tax. Clause 36 provides that Sri Lankan rupees accepted within the Port City can be converted to foreign currency. Under clause 40, Sri Lankans may pay for goods, services, and facilities in Sri Lankan rupees but would be required to pay a levy for goods taken out of the Port City, as if s/he were returning from another country! The mere repetition of phrases such as ‘in the interests of the national economy’ throughout the Bill like a ‘mantra’ does not bring such restrictions within permissible restrictions set out in Article 15.

Clause 62 requires that all disputes involving the Commission be resolved through arbitration. The jurisdiction of Sri Lankan courts is thus ousted.

In any legal proceedings instituted on civil and commercial matters, where the cause of action has arisen within the Port City or in relation to any business carried on in or from the Port City, Clause 63 requires Sri Lankan courts to give such cases priority and hear them speedily on a day-to-day basis to ensure their expeditious disposal.

The inability of an Attorney-at-Law to appear before the court even for personal reasons, such as sickness, shall not be a ground for postponement. These provisions are arbitrary and violate Article 12.

Clause 73 provides that several Sri Lankan laws listed in Schedule III would have no application within the Port City. Such laws include the Urban Development Authority Act, Municipal Councils Ordinance, and the Town and Country Planning Ordinance. Under Clauses 52 and 53, exemptions may be granted by the Commission from several laws of Sri Lanka, including the Inland Revenue Act, Betting and Gaming Levy Act, Foreign Exchange Act, and the Customs Ordinance.

The Commission being empowered to grant exemptions from Sri Lankan laws undermines the legislative power of the People and of Parliament and violates Articles 3 and Article 4 (c) of the Constitution.

Several matters dealt with by the Bill come under the Provincial Councils List. They include local government, physical planning, and betting and gaming. Article 154G (3) requires that such a Bill be referred to Provincial Councils for their views. As Provincial Councils are not currently constituted, passage by a two-thirds majority will be necessary in the absence of the consent of the Provincial Councils.

The exclusion of the Municipal Councils Ordinance from the Port City area is not possible under the Constitution. When the Greater Colombo Economic Commission was sought to be established in 1978 under the 1972 Constitution, a similar exclusion was held by the Constitutional Court not to be arbitrary. Since then, under the Thirteenth Amendment under the 1978 Constitution, local government has been given constitutional recognition and included under the Provincial Council List. Under the present constitutional provisions, therefore, the Port City cannot be excluded from laws on local government.

The writer submits that in the above circumstances, the Colombo Port Economic Commission Bill requires to be passed by a two-thirds majority in Parliament and approved by the People at a Referendum. Quite apart from the constitutional issues that arise, such an important piece of proposed legislation needs to be widely discussed. It is best that the Bill is referred to a Parliamentary Committee before which the public, as well as citizens’ organizations and experts in the related fields, could make their submissions.

( Courtesy The Island)

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