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D-day for Port City and Govt. coalition tomorrow 

18 Apr 2021

  • Opposition, trade unions, civil society to SC over Port City 

  • MR to hold key meeting with coalition partners tomorrow 

  • Rethinking fielding three candidates from a party for each electorate 

  • SLFP mulling options to stand alone while Dayasiri takes charge 

  • Govt. extends olive branch to Western countries through dialogue 

  Several key issues faced by the Government will either be resolved or further compounded tomorrow (19). It would be appropriate to say that tomorrow would be D-Day for the Government led by President Gotabaya Rajapaksa and Prime Minister Mahinda Rajapaksa.  While the Supreme Court (SC) will tomorrow deliberate a slew of petitions challenging the proposed Colombo Port City Economic Commission Bill, Prime Minister Rajapaksa will sit down with the governing alliance leaders to try to iron out differences and prevent the formation of a splinter group that would have an adverse impact on the Government. Apart from the issues faced within the Government, the Prime Minister’s meeting will also focus on the holding of the delayed Provincial Council (PC) elections, and the way forward for the proposed PC Amendment Bill.  The Government presented the Colombo Port City Economic Commission Bill to Parliament during its last session, leaving seven days that were dominated by holidays to file objections before court. Despite this impediment, multiple petitions were filed before the SC last Thursday (15) by various stakeholders and members of civil society, challenging the proposed bill on several grounds, including its alleged impact on the country’s sovereignty and territorial integrity.  The petitioners included Sri Lanka Podujana Peramuna MP Dr. Wijeyadasa Rajapakshe PC and Chief Incumbent of the Abhayarama Temple in Narahenpita Ven. Muruttettuwe Ananda Thera, as well as the Bar Association of Sri Lanka (BASL), several trade unions, Janatha Vimukthi Peramuna (JVP), United National Party (UNP), Samagi Jana Balawegaya (SJB), and Centre for Policy Alternatives (CPA).  A five-judge bench of the SC, comprising Chief Justice Jayantha Jayasuriya PC, Justices Buwaneka Aluwihare PC, Priyantha Jayawardena PC, Murdu N.B. Fernando PC, and Janak De Silva, is set to hear these petitions tomorrow (15).  The proposed Bill, which seeks to establish a special economic zone called the Port City Economic Zone, was gazetted on 24 March and placed on the Order Paper of the Parliament on 8 April.  Speaking at a press conference held last Thursday (15) after filing the petition before court, Dr. Rajapakshe charged that the Bill directly violates the Constitution and harms the sovereignty of the country. “This Bill fulfils all four conditions set out in the Montevideo Convention of 1933 on the Rights and Duties of States to create a separate State. It has a population which is within a set boundary, and there are separate rulers, although not elected, and it can enter into agreements with other states. We are essentially making this a Chinese colony,” Dr. Rajapakshe said, adding that the creation of the Port City added new land onto the Sri Lankan map that is not yet included in the country’s Constitution.  “The Constitution must be changed to include the new land. Bills brought in about it remain unconstitutional otherwise,” he suggested.  He also stated that while everyone thought the Chinese acquisition of the Hambantota Port was done by the Yahapalana Government, the Opposition at that time also played a role in it.  “What they are doing is selling the country off and returning to America, where they are residents. Basil Rajapaksa is the mastermind behind these decisions, not the President,” Wijeyadasa added.  Meanwhile, Ven. Muruttettuwe Ananda Thera, who also attended the press conference, expressed similar concerns. “The ‘Rata Rakina Jana Hada’ organisation helped elect this Government. We went from Point Pedro to Dondra Head to raise awareness to bring this Government into power. We did not give them the power to destroy this country. We want this country to be sovereign and united. We do not oppose the Port City or foreign investors. But it is going to be a Chinese colony. We appointed rulers to build the country, not to sell the country, rent it, or make regulations that harm the country,” Ven. Ananda Thera charged.  The Thera also noted that while they do not oppose the Government, they are merely looking for a solution to the problems created by the Bill.  The Bar Association of Sri Lanka (BASL) President Saliya Pieris PC and Secretary Rajeev Amarasuriya also challenged the Bill. In a statement released on Thursday, the BASL also expressed concerns over the time during which the Bill was placed on the Order Paper of the Parliament.  “The Executive Committee of the BASL is extremely concerned about the limited time given for the scrutiny and discussion of this important Bill, as well as the timing of the placing of the Bill on the Order Paper of Parliament, which was after the suspension of sittings of the SC, a time when many members of the legal profession are unavailable. Furthermore, the period of one week within which such a bill could be challenged before the SC to determine its constitutionality, included not only the weekend but also three public holidays. Thus, the members of the public have been deprived of a meaningful opportunity to scrutinise the Bill and to discuss its merits,” the statement noted.  The BASL has therefore requested the Government to halt further action on the Bill, until the views of all public stakeholders are given due consideration. The BASL Executive Committee has also noted that the Bill directly affects the Judiciary, violates the principle of the “equality of parties before the law”, and may violate Articles 3 and 4 (on sovereignty and its exercise), 12 (right to equality), and 14 (fundamental rights) of the Constitution.  Meanwhile, the Ceylon Mercantile, Industrial, and General Workers Union (CMU) along with four other organisations, have filed a separate petition.  The JVP also filed a petition, while the UNP and SJB filed two petitions each. The UNP has challenged the Bill on the grounds that it is inconsistent with Parliament’s control over public finances, allows for the abuse of power, and fails to ensure a transparent system of checks and balances.  Some of the key points made by the petitioners, apart from questioning the constitutionality of the proposed piece of legislation, are the facts that the Bill was placed on the Order Paper of Parliament on 8 April 2021, at a time when the sittings of the SC were suspended for the vacation, and that in terms of the Constitution, any citizen seeking to challenge a bill on the grounds that it is inconsistent with the Constitution is required to do so within one week of it being placed on the Order Paper of Parliament, which in this instance is 15 April 2021.  Also, between 8 and 15 April, there was the weekend and three public holidays intervening, thus giving any citizen seeking to challenge the Bill only two working days to obtain legal advice and representation, while the circumstances in which the said Bill was placed on the Order Paper have resulted in a lack of consultation and transparency, and there has been insufficient time granted to stakeholders to examine the Bill and its effects in detail, one of the petitioners had noted.  The petitions further note that the impugned Bill consists of several provisions that will affect the administration of justice, and will adversely impact the judicial power of the people exercised through the courts of law in the republic; hence, these are inconsistent with the provisions of the Constitution in respect of the exercise of the sovereignty of the people.  Also, the proposed Bill has imposed an obligation on courts to give priority to civil and commercial cases of businesses carried in/from the Port City, or of which the cause of action arises from the Port City, over other litigants. This provision interferes with judicial discretion and judicial sovereignty, thereby violating Articles 3 and 4 of the Constitution, as well as Article 12(1), the petitioners had stated.  According to the petitioners, in terms of the penal provisions contained in Clause 68(f), anyone who, inter alia, contravenes and or fails to comply with any rule, code, direction, or guideline made or issued in terms of the Act, commits an offence punishable with a fine or imprisonment. However, it appears from the Bill that only “regulations” need to be placed before Parliament, and not any “rule, code, direction, or guideline”, the breach of which constitutes an offence. The petitioners have stated that this would be a violation of the provisions of Articles 1, 2, 3, 4, 75, and 76 of the Constitution.  It has further been noted that the proposed Bill and/or the aforesaid provisions and/or clauses, inter alia; are contrary and/or repugnant to the rule of law; are contrary and/or repugnant the independence of the judiciary; are in violation of the doctrine of separation of powers; amount to repeal and/or suspension of the operation of the Constitution and/or a part thereof; abdicates and alienates the legislative power and sets up an authority (other than Parliament), with legislative powers which directly undermine the powers of Parliament and its members.     Chinese Defence Minister’s visit  China’s Defence Minister General Wei Fenghe is expected to arrive in Sri Lanka next week to hold bilateral discussions with President Rajapaksa, Prime Minister Mahinda Rajapaksa, and other government officials. However, a date for the Chinese official’s visit is yet to be confirmed. This will be the second-highest visit by a Chinese official within months.  Meanwhile, following a fresh invitation extended by President Xi Jinping during recent discussions held between the two leaders, President Rajapaksa is also considering an official visit to Beijing. During his conversation with the Chinese President, President Rajapaksa had assured that he would undertake a formal visit to China as soon as the pandemic-related travel restrictions ease.  However, unconfirmed reports state that the visit could take place sometime within the next two months.    Concerns over Port City  Meanwhile, US Ambassador to Sri Lanka and the Maldives Alaina Teplitz has reportedly warned Sri Lanka of unintended consequences of “nefarious actors” who may try to misuse a China-backed Colombo Port City’s easy business rules as a permissive money laundering haven amid concerns of tax leaks.  “Any legislation relating to the Port City has to be considered very carefully for its economic impact,” an ANI news report quoted Teplitz as telling reporters in Colombo during an online discussion.  “I do recognise that the Government of Sri Lanka wants to take advantage of the investment that has already been made in creating the Port City foundation, but the legislation really needs to be reflected to address these challenges, and to be careful of what it might be to open doors to bad practice and unfair competition for the rest of the country,” Teplitz had further noted.    Decisive meeting  Apart from the mounting objections against the proposed Port City Economic Commission Bill, the local political scenario is also warming up with the cold war brewing within the governing alliance surfacing from many areas.  The continuing clash between the governing Sri Lanka Podujana Peramuna (SLPP) and its key ally Sri Lanka Freedom Party (SLFP) was witnessed at a minor level at the Panduwasnuwara Co-operative Society, when an election was held to appoint two directors to the society. According to a report published in a pro-government news site, the SLFP candidate had polled 58 votes to defeat the SLPP candidate.  The interesting fact is that there are only 16 SLFP members and six United National Party (UNP) members in the respective society, while the number of SLPP members stands at 58. With a quick look at the number of votes polled by the SLFP candidate, it is evident that a group of SLPP members would have also had to cast their votes in favour of the SLFP candidate to record 58 votes.  It is in this backdrop that the long-awaited governing party leaders meeting to iron out key issues faced by the Government – including the proposed PC Amendment Bill, as well as the holding of the long-delayed PC elections, among other issues – is to be held tomorrow (19) under the patronage of Prime Minister Mahinda Rajapaksa.  Governing party allies, especially the 11 alliance partners of the SLPP that have currently formed a separate group as a pressure group on the Government, have placed much importance on this meeting, as the future political path of these parties will be determined by its outcome. The group of 11 political parties includes the SLFP, National Freedom Front (NFF), Pivithuru Hela Urumaya (PHU), Communist Party of Sri Lanka (CPSL), Democratic Left Front (DLF), and Lanka Sama Samaja Party (LSSP), among several others.  This group has continuously been pointing out the shortcomings of the Government, as well as the SLPP’s mistreatment of alliance partners. While the group has already commenced discussions on the possibility of holding a joint May Day rally as well as an alliance to contest the impending PC elections, a final decision is to be reached after the meeting with Prime Minister Rajapaksa.  It is learnt that one of the key amendments to the PC Act opposed by the group of 11 alliance partners is the one on the fielding of three candidates from a political party to contest in one electorate.  A senior government member representing an alliance partner explained that this particular amendment has been mooted by a senior SLPP official who is worried that the waning popularity of the party’s electoral organisers would result in the party losing votes at the impending elections.  “The fielding of three candidates from each party for an electorate is a ploy by the SLPP to ensure that one of its candidates would win the electorate. We will not support it,” the Government member noted.  It is also learnt that the proposed amendment was mooted by SLPP National Organiser Basil Rajapaksa.    SLFP at a crossroads  The SLFP is currently at a political crossroads, with pressure mounting on the party hierarchy by its members to take a firm stand against the mistreatment of its members by the governing SLPP. Many former SLFP members who had defected to the SLPP during the 2015-2019 period are once again reaching out to the SLFP, expressing their displeasure at the actions of the SLPP.  The main figure in the SLFP pushing the party to take a stand against the injustices faced by the party and its members is its General Secretary State Minister Dayasiri Jayasekara. While several senior SLFPers express displeasure at criticising the Government’s actions, Jayasekara continues to take on issues faced by the people as well as shortcomings in the Government’s policies.  Jayasekara has also irked SLPP Founder Basil, who had recently stated to a group of SLPPers that it was Jayasekara who is continuing to be critical of the Government from the SLFP, while even SLFP National Organiser State Minister Duminda Dissanayake, a former critic of the Rajapaksas, was also remaining silent at the moment.  Several SLPP Ministers had also made public statements against Jayasekara, claiming that he should know not to criticise the Government since he too is a member of it. However, Jayasekara had responded saying that regardless of the displeasure expressed by senior SLPP members, he would continue to stand by the people as well as the SLFP members.  Apart from Jayasekara, members of the other parties in the group of 11 political parties, have also claimed that the SLPP was mistreating those who had worked hard during the last Presidential Election to ensure the formation of a Government with a two-thirds majority.  Soon after the last meeting of the group of 11 political parties, Basil convened a meeting with several SLFP seniors. The SLFP was represented by Jayasekara, Dissanayake, Minister Mahinda Amaraweera, and State Minister Lasantha Alagiyawanna. The SLPP was represented by Basil, SLPP General Secretary Sagara Kariyawasam, and Administrative Secretary Renuka Perera.  During the discussion, after Basil expressed his concerns over the formation of a separate alliance of 11 political parties in the Government, Perera had criticised the SLFP for making critical comments against the SLPP.  Jayasekara and Dissanayake had pointed out that they had continuously explained the issues faced by the SLFPers, as well as the growing dissension among the public towards the Government, but the senior government members had chosen to ignore their concerns. The SLFPers had also noted that the party has received invitations by several political parties to contest as an alliance at the PC elections.  However, the SLPP side had noted that while the final decision was up to the SLFP, it would be better if the SLPP and SLFP contest as an alliance.  Angered by the SLFP’s stance, Perera, representing the SLPP, had said the SLPP would not allow a repeat of the political defections that took place in 1975 and 2014 that affected the then-governments. He had further said that his party would identify its enemies and would work to defeat them. Since Perera’s threat was made in front of Basil, the SLFPers had noted that actions of the likes of Perera’s were another reason that the SLFPers were pressuring the party to take a stand.  Basil had then said that he had not asked any SLPPer to criticise the SLFP, to which a senior SLFPer had responded: “When people who are close to you make critical comments against the SLFP and its members and behave in this manner, we have to believe that such incidents would not take place without your knowledge.”  However, amidst all this political hullabaloo, the SLFP last week discussed the possibility of holding a separate May Day rally – not with the SLPP, nor jointly with other political parties, but alone.  The SLFP has already launched an aggressive party reforms programme and has opened the doors for disgruntled former party members to rejoin its fold. Given the present actions of the party, several senior SLFP members have discussed that it would only be a step in the right direction to hold a separate May Day rally as part of its party reforms programme.  The venue is tentatively being discussed as Polonnaruwa, the hometown of Party Leader and former President MP Maithripala Sirisena. Nevertheless, the final decision on the SLFP’s May Day rally is to be reached after tomorrow’s party leaders’ meeting.    Challenging de-radicalisation  Apart from the proposed Port City Bill, the proposed Prevention of Terrorism (De-radicalisation from holding violent extremist religious ideology) Regulations No. 01 of 2021 has also been challenged before court.  The CPA and its Executive Director Dr. Paikiasothy Saravanamuttu, have filed papers challenging the regulations, published in Extraordinary Gazette No. 2218/68 dated Friday, 12 March 2021. While the petitioners have maintained the need to integrate a process of rehabilitation into the criminal justice system, they have noted that the impugned regulations violate several of the constitutionally-guaranteed fundamental rights of the petitioners as well as of the general public.  The petitioners have argued that the impugned regulations serve to enable the denial of due process, due judicial protection, and a fair trial, and result in an arbitrary deprivation of liberty, entailing infringement and/or imminent infringement of the fundamental rights guaranteed under Articles 12(1), 13(2), 13(3), 13(4), and 13(5) of the Constitution. They have also argued that the impugned regulations, and the broad language contained therein, entail provisions that may result in degrading treatment of persons, and deny persons the safeguards provided by law in cases of detention and imprisonment, and thus and otherwise entail infringement and/or imminent infringement of Articles 10, 11, 14(1)(a), 14(1)(c), 14(1)(e), and 14(1)(f) of the Constitution.  The petitioners have further maintained that the impugned regulations are ultra vires, as they have not been promulgated by the proper authority, and thus and otherwise entail infringement of Article 12(1) of the Constitution. They have also argued that the impugned regulations have the effect of conferring and/or transferring discretion required to be exercised (as may be duly conferred upon it by law) by the judicial arm of Government, to the executive arm of Government, in a manner inconsistent with Articles 3 and 4 of the Constitution, and thus and otherwise entail infringement of Article 12(1) of the Constitution.  The petitioners have prayed for inter alia declarations that the impugned regulations violate the fundamental rights guaranteed by the Constitution, and that they are null and void and of no avail in law.  Meanwhile, former Human Rights Commission of Sri Lanka (HRCSL) Commissioner Ambika Satkunanathan has also filed a fundamental rights petition challenging these new PTA regulations. Satkunanathan has stated in her petition that the regulations contain vague terms that lend themselves to over-broad applications, amounting to a continuing and imminent violation of Articles 10, 12, 13, and 14 of the Constitution.  Further, the petition has stated that the regulations allow arrest and detention contrary to the procedure set by the law, permit investigations to commence after the arrest, which deprives a person of being informed of the reason for the arrest, and allows a person to be subjected to rehabilitation without being entitled to a fair trial, as they seem to deem a person guilty, thus requiring rehabilitation.  Satkunanathan has also stated that the regulations can prevent an arrestee from accessing legal representation, scrutinising the evidence against them, and preparing a proper defence. Under these de-radicalisation regulations, the extension of detention of 12 months to a further 12 months without judicial scrutiny is also allowed.  Therefore, Satkunanathan has stated that all these factors can make a person vulnerable to rights violations. She goes on to mention that the regulations have no oversight or regulatory mechanism, and purport to extend the limit of powers set out in the PTA, thus resulting in negative stereotyping and profiling based on ethno-religious factors.    Building relations  Meanwhile, the Government is currently in the process of rebuilding its relations with Western countries post the adoption of the Resolution on Sri Lanka by the UN Human Rights Council (UNHRC). Foreign Minister Dinesh Gunawardena has recently met with the US envoy in Sri Lanka Teplitz and several ambassadors of the European Union (EU) member nations.  During the meeting between Gunawardena and Teplitz, the US envoy had briefed the Sri Lankan Government on the US President Joe Biden’s commitment to democracy. Since assuming office, President Biden has implemented new policies, including on human rights.  The Ambassador and Gunawardena had discussed a range of issues, from the pandemic and the US contribution to Covax, to trade and President Biden’s commitment to democracy.  Meanwhile, the Foreign Ministry has stated that the US and Sri Lanka are to broaden relations in multiple areas.  “The Minister briefed the Ambassador on the various positive developments taking place in the country under the guidance of President Gotabaya Rajapaksa. They also discussed ways and means of enhancing bilateral co-operation including through development assistance. Climate change, green energy, and information technology were identified as priority areas for US support,” the Foreign Ministry had further stated.  The US, which had earlier withdrawn from the UNHRC, has now re-joined the Council, and is expected to take a lead role again in the Council on the Sri Lanka issue over the next few years. The US also signed the Resolution on Sri Lanka that was adopted last month.  According to reports, the US is Sri Lanka’s largest export market and accounts for nearly $ 3 billion of the $ 11.7 billion of goods annually exported by Sri Lanka.  Meanwhile, Gunawardena had recently also briefed the EU on progress related to the implementation of reconciliation mechanisms. This was discussed when the Foreign Minister had recently met with the Colombo-based senior diplomats representing the EU.  The Minister had reportedly updated the envoys of ongoing processes, including the constitutional reform process, the strengthening of democratic institutions, and on progress related to the implementation of reconciliation mechanisms, among other issues, the Foreign Ministry said.  The discussion had also focused on EU-Sri Lanka co-operation, including trade, investment, and development co-operation, and plans underway to convene the scheduled Sri Lanka-EU Joint Commission Sub-committees following the convening of the 23rd Meeting of the Sri Lanka-EU Joint Commission in January 2021.  Measures in place for the revival of tourism in Sri Lanka in the Covid-19/post-Covid-19 context, and the Government of Sri Lanka health protocols related to quarantine had also been discussed.  Ambassador of France Eric Lavertu, Ambassador of Italy Rita Mannella, and Chargé d’Affaires of Romania Ambassador Victor Chiujdea, as well as the Deputy Heads of the Mission of Germany, the Netherlands, and the EU, participated in the meeting.     Economic woes  However, an issue that has not captured the required spotlight is the country’s growing economic plight. The diminishing foreign reserves are cause for much concern, while the Government continues to downplay the issue by diverting attention to the monies flowing to the country from China.   Despite a depletion in the country’s foreign reserves being observed, from a figure of $ 4,500 million in February to $ 4,100 million in March, the State Ministry of Money and Capital Markets, and State Enterprise Reforms has maintained that Sri Lanka, at present, has an accessible foreign currency reserve amounting to $ 7,050 million, The Sunday Morning learnt.  State Minister of Money and Capital Markets, and State Enterprise Reform Ajith Nivard Cabraal had told The Sunday Morning: “The rupee is expected to appreciate substantially within the next two quarters of 2021, as the accessible reserves have increased following the swap arrangement the country entered into with the People’s Bank of China that provides access to a foreign exchange (forex) facility of a further $ 1,500 million.”  Cabraal had further noted the China Development Bank’s loan of $ 500 million and the International Monetary Fund’s new Special Drawing Rights allocation of approximately $ 800 million.  The State Minister had further noted that the Central Bank of Sri Lanka (CBSL) is currently accumulating around $ 150 million per month from the forex market. Accordingly, Sri Lanka’s accessible reserve, which is around $ 7,050 million, is likely to increase in the next six months.  Meanwhile, former Central Bank Deputy Governor W.A. Wijewardena had noted that Sri Lanka will run the risk of failing to protect the rupee unless there is a massive inflow of forex. 


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