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Supreme Court on Port City Bill: Implications for Fundamental Rights and Devolution

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5 years ago

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The determination of the Supreme Court on the Colombo Port City Economic Commission Bill was that as many as 26 provisions of the Bill were inconsistent with the Constitution and required to be passed by a two-thirds majority in Parliament. The Court further determined that nine provisions of the Bill also required the approval of the people at a referendum.

Among the grounds of challenge was that the Bill effectively undermined the sovereignty and territorial integrity of Sri Lanka and infringed on the sovereignty of the people. It was argued that several provisions undermined the legislative power of the People reposed on Parliament. Several provisions were challenged as violating fundamental rights of the People and consequently violating Article 3, read with Article 4(d) of the Constitution. Another ground of challenge was that the Bill contained provisions that dealt with subjects that fall within the ambit of the Provincial Council List and thus had to be referred to every Provincial Council for the expression of its views thereon as required by Article 154G(3).

 

Applicable constitutional provisions

Article 3 of our Constitution recognises that “[i]n the Republic of Sri Lanka, sovereignty is in the People and is inalienable”. Article 3 further provides that “Sovereignty includes the powers of government, fundamental rights and the franchise”. Article 3 is entrenched in the sense that a Bill inconsistent with it must by virtue of Article 83 be passed by a two-thirds majority in Parliament and approved by the people at a referendum.

Article 4 lays down the manner in which sovereignty shall be exercised and enjoyed. For example, Article 4(d) requires that “fundamental rights which are by the Constitution declared and recognised shall be respected, secured and advanced by all the organs of government and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided”. Article 4 is not mentioned in Article 83. In its determinations on the Eighteenth Amendment to the Constitution Bill, 2002 and the 19th Amendment to the Constitution Bill, 2002, a seven-member Bench of the Supreme Court noted with approval that the Court had ruled in a series of cases that Article 3 is linked up with Article 4 and that the said Articles should be read together. This line of reasoning was followed by the Court in its determination on the 20th Amendment to the Constitution Bill.

Under Article 154G(3), Parliament may legislate on matters in the Provincial Council List but under certain conditions. A Bill on a matter in the Provincial Council List must be referred by the President, after its publication in the Gazette and before it is placed in the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon. If every Council agrees to the passing of the Bill, it may be passed by a simple majority. But if one or more Councils do not agree, a two-thirds majority is required if the law is to be applicable in all Provinces, including those that did not agree. If passed by a simple majority, the law will be applicable only in the Provinces that agreed.

 

Violation of fundamental rights and need for a referendum

Several petitioners alleged that certain provisions of the Port City Bill violated fundamental rights. The rights referred to were mainly Article 12(1)—equality before the law and equal protection of the law, Article 14(1)(g)—freedom to engage in a lawful occupation, profession, trade, business or enterprise— and Article 14(1)(h)—freedom of movement. Some petitioners specifically averred that provisions that violated fundamental rights consequently violated Articles 3 and 4 and thus needed people’s approval at a referendum.

The Supreme Court determined that several provisions of the Bill violated various fundamental rights and thus were required to be passed by a two-thirds majority in Parliament. The question of whether the said provisions consequently violated Article 4(d) and thus Article 3 and therefore required the approval of the People at a referendum was not ruled on.

The Essential Public Services Bill, 1979 was challenged as being violative of both Article 11 (cruel, degrading or inhuman punishment) and Article 14. Mr. H.L. de Silva argued that a Bill that violates any fundamental right is also inconsistent with Article 4(d) and, therefore, with Article 3. The Supreme Court held that the Bill violated Article 11 but not Article 14. Since a Bill that violates Article 11 has, in any case, to be approved at a referendum as Article 11 is listed in Article 83, the Court declined to decide on whether the Bill offended Article 3 as well, as it “is a well-known principle of constitutional law that a court should not decide a constitutional issue unless it is directly relevant to the case before it.”

A clear decision on the issue came about in the case of the 18th Amendment to the Constitution Bill; a seven-member Bench of the Supreme Court held that the exclusion of the decisions of the Constitutional Council from the fundamental rights jurisdiction of the Court was inconsistent with Articles 12 (1) and 17 (remedy for the infringement of fundamental rights by executive action) and consequently inconsistent with Article 3, necessitating the approval of the Bill at a referendum.

When the 20th Amendment to the Constitution Bill sought to restore the immunity of the President in respect fundamental rights applications, the Supreme Court determined that the “People’s entitlement to remedy under Article 17 is absolute and is a direct expression of People’s fundamental rights under Article 3 of the Constitution.”

In the case of the Port City Bill, however, the Supreme Court only determined that certain provisions of the Bill violated fundamental rights and thus required a two-thirds majority, but did not go further to say that the offending provisions also required approval of the people at a referendum.

Perhaps, the Court took into consideration the Attorney-General’s assurance during the hearing that the impugned clauses would be amended at the committee stage in Parliament.

However, Parliament is not bound by the Attorney-General’s assurances. In the absence of a clear determination that the clauses concerned required a referendum as well, Parliament could have passed the clauses by a two-thirds majority. The danger inherent in the Supreme Court holding that a provision of a Bill violates fundamental rights and requires a two-thirds majority but makes no reference to the requirement of a referendum is that a government with a two-thirds majority is free to violate fundamental rights, and hence the sovereignty of the People by using such majority. It is respectfully submitted that the Court should, whenever it finds that a provision violates fundamental rights, declare that Article 3 is also violated and a referendum is necessary, as it did in the cases mentioned.

 

The need to refer the Bill to Provincial Councils

The Port City Bill had not been referred to the Provincial Councils, all the Provincial Councils having been dissolved. The Court, following earlier decisions, held that in the absence of constituted Provincial Councils, referring the Bill to all Provincial Councils is an act which could not possibly be performed.

In the case of the Divineguma II Bill, the question arose as to the applicability of the Bill to the Northern Provincial Council, which was not constituted at that time. The Court held while the Bill cannot possibly be referred to a Council that had not been constituted, the views of the Governor (who had purported to express consent) could not be considered as the views of the Council. In the circumstances, the only workable interpretation is that since the views of one Provincial Council cannot be obtained due to it being not constituted, the Bill would require to be passed by a two-thirds majority. Although not explicitly stated by the Court, this would mean that if the Bill is passed by a simple majority only, it will not apply in the Northern Province. The Bill was passed in Parliament by a two-thirds majority. The Divineguma II Bench comprised Shirani Bandaranayake CJ and Justices Amaratunga and Sripavan, and it is well-known that the decision and the decision on the Divineguma I Bill cost Chief Justice Bandaranayake her position.

It is submitted that Article 154G (3) has two requirements—one procedural and one substantive. The former is that a Bill on any matter in the Provincial Council List must be referred to all Provincial Councils. The latter is that in the absence of the consent of all Provincial Councils, the Bill must be passed by a two-thirds majority if it is to apply to the whole country. If such a Bill is passed only by a simple majority, it would apply only in the Provinces which have consented.

The Divineguma II determination accords with the ultimate object of Article 154G(3), namely, that a Bill can be imposed on a Province whose Provincial Council has not consented to it only by a two-thirds majority. It also accords with the spirit of devolution.

A necessary consequence of the Court’s determination on the Port City Bill is that it permits a government to impose a Bill on a Provincial Council matter on a “disobedient” Province by a simple majority once the Provincial Council is dissolved and before an election is held. What is worse is that at a time when all Provincial Councils are dissolved, such as now, a Bill that is detrimental to devolution can be so imposed on the entire country. It is submitted that this issue should be re-visited when the next Bill on a Provincial Council matter is presented and the Supreme Court invited to make a determination that accords with the spirit of devolution, which is an essential part of the spirit of our Constitution.

 

 


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Features

Eastern University and the making of a culture of peace

Published

20 hours ago

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2026/09/29

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by Jehan Perera

There is an important change in the way peace is being understood in Sri Lanka. The notion that peacebuilding is not simply the responsibility of governments, politicians and peace organisations, but is also a responsibility of educational institutions, appears to be permeating the consciousness of at least a section of the academic community. This was visible on International Peace Day at an event held at Eastern University by the Faculty of Health-Care Sciences. The event was unusual not least because the medical and nursing faculty of the university had decided that peacebuilding was relevant to its academic and professional responsibilities.

Peacebuilding has too often been treated as something undertaken after conflict, when the fighting has stopped and the immediate task is to rebuild relationships between communities. But peace cannot be sustained by governments and peace organisations alone. If it is to become long lasting, the values and practices of peace have to become part of the institutions through which a society educates its younger generations. Universities and other educational institutions are therefore important to peacebuilding. They are among the places where the foundations of a culture of peace can either be built or neglected.

The experience of the Faculty of Health-Care Sciences at Eastern University provides a practical example of what this can mean. Led by its Dean, Prof Thillainathan Sathaananthan, the faculty organised an event which went beyond the ordinary academic scope of a medical faculty. University academics are experts in writing project proposals and applying for research grants. On this occasion, the members of the Faculty of Health-Care Sciences used those skills to apply for a UNESCO grant that they won to conduct an International Peace Day event. The significance lies less in the Rs 200,000 grant than in the decision to use the university’s institutional capacity and resources to invest in peacebuilding. The event at Eastern University needs to be understood as more than a successful university programme. It represents a possible paradigm shift in peace thinking.

Institutional Commitment

The Peace Day event obtained the support of the university administration, including Vice Chancellor Prof P Peratheepan, and reached out to secondary schools in the vicinity to mobilise their attendance. The event itself was meticulously organised. There were cultural items including traditional and modern dance and song in the three languages, performed by combinations of solo, duet and multiple singers, dancers and actors drawn in part from nearby secondary schools. There was a panel discussion by senior academics on the general theme of peacebuilding and how to prepare for it. A discussion among the students followed, where each student spoke on behalf of a religion that was not theirs. This is significant because peacebuilding cannot remain an idea discussed by specialists at conferences. It has to become part of the way institutions educate and prepare people for life in a plural society.

The Faculty of Health-Care Sciences at Eastern University has provided a model through its Peace Medicine course modules that were introduced to the curricular as a compulsory core course over 10 years ago. Two senior academics, Dr Kuveriel Eliyas Karunakaran and Dr Thillainathan Sathaananthan, have written a book on “Peace Medicine- A Health Care Concern” that was published five years ago. Its Peace Medicine Module integrates principles of medical ethics, compassion, equity, social justice and community engagement into health education and practice. In his introduction, former Vice Chancellor of Eastern University, Prof T Jayasingam noted “This book is an introduction to a theme which had already been operating in the Faculty of Health Care Sciences as a course.”

Doctors, nurses and health workers know better than anyone the harm that war and violence does. They are the people who treat the wounds and trauma that violence leaves behind. In a hospital, a patient is not asked what their religion or ethnicity is before they are treated. Health care is one of the places where peace is practised every day. The Faculty has therefore found a way of connecting its professional responsibilities with the wider social responsibility of peacebuilding. The question is whether this experience can be replicated throughout the country, at universities and at other educational institutions, so that peacebuilding becomes part of the consciousness of education itself. If that happens on a sufficient scale, it can begin to generate a culture of peace that becomes increasingly difficult to reverse.

Local Action

The Eastern University event corresponded closely to the United Nations theme for this year’s International Day of Peace, “Invest in Peace – For Everyone, Everywhere, Every Day”, which honours the “everyday architects of peace”, people driving local action, laying the groundwork for stability and building lasting peace from the ground up. The emphasis on investment is important. An investment means that something is put in: time, courage and resources. There is no more violent conflict in Sri Lanka today. But the absence of war does not automatically produce a culture of peace. The factors that fed the country’s conflict have not disappeared from the world. Racism, corruption and the violation of laws and human rights are the raw materials of conflict. So too are unresolved grievances, discrimination and the failure to recognise the suffering of others.

A country that does not deal with its past does not escape it. The past can return in the next generation. This is why the experience of Eastern University needs to be replicated countrywide, both at universities and at other educational institutions. The objective should not be to turn every academic discipline into peace studies. Rather, peacebuilding needs to become part of the consciousness of education itself. Eastern University shows that a medical faculty can develop Peace Medicine. A law faculty can examine the relationship between justice, rights and peace. Faculties of education can prepare teachers to work in diverse communities, while the humanities and social sciences can examine the different narratives through which communities understand their histories. Every institution can find its own way of making peacebuilding relevant to what it teaches.

Sri Lanka has had many declarations, pledges and programmes in the past. What matters is whether these produce changes in behaviour and institutional practice. Peacebuilding requires confronting difficult issues rather than avoiding them. It requires respect for different identities, but also engagement across those identities. It requires dealing with grievances in the present while also addressing unresolved issues from the past. It requires truth, accountability, reparations and guarantees of non-recurrence. It requires people to learn that the rights of another community do not diminish their own rights. The International Peace Day event at Eastern University was evidence of a change in the way at least some academics in a part of the country deeply affected by war are thinking about their responsibilities. Peace needs to be invested in and the most important investment will be in the minds of those who will inherit the future.

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Features

Quality assured education commodities

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20 hours ago

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2026/09/29

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by Ahilan Kadirgamar

I have always noticed the little paper tags that are inside the packaging of some products that say quality assured or quality control. I often wonder who might have checked the product and stamped that tag, but I also forget the tag soon enough. Decades later, when I entered academia, I was taken aback by the emphasis placed on quality assurance in our universities. It is not something that could be forgotten and done away with; the entire university system is obsessed with quality assurance.

Beginning with the staff induction programme, quality assurance is drilled into the newly recruited lecturers. It is the norm, not seen as doing any harm and only trying to improve quality. It is accepted as given, and not questioned. Quality Assurance Cells and Committees are omnipresent and hover above the Departments and, at times, even the Faculty Boards. Quality Assurance reviews are feared by the Deans and Vice Chancellors. University life itself seems secondary to the rule of quality assurance. What do we make of this system of quality assurance and what are its implications for our university system?

Corporate speak

Universities globally have been going through major changes with neoliberal education policies. In many countries, universities increasingly became corporatised to be run like businesses in the 1980s. As state support for universities declined, cost cutting became the norm. They started hiring adjunct or part-time staff. Many public non-fee levying universities around the world began to charge fees. Decade by decade, tuition fees became more and more exorbitant, forcing students to take student loans. The total student debt in the United States now stands at close to US$ 2 trillion; which is about 20 times the GDP of Sri Lanka. As the higher education landscape transformed in the West, university administrations began to recruit Presidents, Vice Chancellors and administrative officials with corporate backgrounds and experience.

Such corporatisation of universities in the West has since been imported into countries like Sri Lanka, introducing a new corporate vocabulary, including quality assurance, graduate competencies, programme outcomes, intended learning outcomes, etc. University teaching has become secondary to documenting so-called outcomes. The teacher-student relationship, the environment of the lecture hall and even administering the university have been over-determined by the processes of ensuring quality. How did such major changes come about in such a short time? Indeed, academics of just two generation ago, would never have heard of these terms and processes in the Sri Lankan university system.

World Bank Trojan horse

Since the early 2000s there have been a number of World Bank projects that have drastically changed the character of Sri Lankan universities. Quality assurance as a central agenda within universities, and many other changes to the working of our universities, came through these World Bank initiatives. The Improving Relevance and Quality of Undergraduate Education (IRQUE) project and Higher Education for the 21st Century (HETC) project were two such earlier projects that set up the Quality Assurance and Accreditation Unit (QAAU) under the University Grants Commission (UGC) and established systematic quality assurance reviews for state universities. The public often thinks these are grants from the World Bank to modernise our universities. However, they are not grants but loans.

The most recent such project, Accelerating Higher Education Expansion and Development (AHEAD) is a US$ 100 million loan from the World Bank implemented from 2018 to 2023, which consolidated the quality assurance structures from the earlier projects. Furthermore, these projects are implemented with tremendous arrogance, prioritising their implementation over all other concerns in the universities, when the project over six years for example accounts for just one fourth of our budget allocation for universities this year.

The AHEAD project drastically changed course curricula, sought to increase student enrolment in science, technology, engineering, mathematics (STEM) disciplines, commercialise the university research agenda and create university-business linkages. All of this was pushed to supposedly help us face development challenges. We have heard the ideological attack on our universities and even students claiming they are “unemployable graduates”. These changes to our higher education system were supposedly going to create jobs and increase employment.

The irony of the AHEAD project is that just as it was ending in 2023, apparently after having reached its targets, the Sri Lankan economy was collapsing. The World Bank often gets the direction of causality wrong. It is the economy that creates jobs for graduates, and not the training or kind of graduates that create jobs. It is decades of World Bank policies, and those of its ideological twin the IMF, that have led to such high youth unemployment, not only in Sri Lanka but also in many other countries in the global South.

Sri Lanka entered an IMF agreement in March 2023 and started a new Country Partnership Framework with the World Bank in June 2023. These programmes have little to say about, and actively discourage, government initiatives that aim to create an industrial policy or an employment creation policy. Instead, they push for austerity measures, which not only restrict the allocation for education among other sectors, but also end up contracting the economy to the detriment of increasing employment. Their goal is the commercialisation of higher education, to make universities into businesses and run them like factories.

In this context, the ideology of quality assurance is powerful. The International Organisation for Standardisation (ISO), whose different standards are necessary for marketing, is the institution that came up with the concept of “quality assurance”. It promoted quality assurance as a process of identifying defected products. Therefore, when the World Bank promotes this conceptual framing, our students are, in fact, seen as products on the assembly line, with quality assurance processes aiming to prevent the release of defected products from the university system. For the US$ 100 million we borrowed for the AHEAD project and the many more million dollars in similar World Bank projects, there is no evidence of increased employment of graduates.

Commodity fetishism

Over a century and a half ago, Karl Marx critiqued the economic analysis prevalent at that time that associated some inherent or monetary value for commodities without considering the social relations that underlie the production of those commodities. Marx called this commodity fetishism. Furthermore, he theorised that such commodity fetishism was also a reason for the alienation of human beings from the world. If our labour and what we produce is seen devoid of the social relations that underlie them, we lose our connection with the people and the world. In this process we become alienated from what we produce and the world.

We are now in a world where our students themselves are fetishised as commodities for the market. Universities are no longer communities concerned about knowledge and human growth, but mere factories producing commodities, which have to be produced without defects to be marketed. In this way, quality assurance has become the cause for the alienation of students, academics and our universities themselves, from the larger relationship with our economy and society.

Our university system does need reform. It is grossly underfunded and not providing the financial support and facilities for our students. Universities have become hierarchical spaces without the academic freedom and democratic ethos necessary for producing knowledge. Academics and students need to engage more with their communities to make their learning and research meaningful, not to mention their contribution to and integration with society. However, when it comes to even questions of governance and regulation of the universities, such concerns are merely reduced to improving quality. In our contemporary times, this singular focus on quality assurance, as opposed to addressing the larger structural issues, is crippling our universities. There may be no way out, but to put back quality assurance where it started, those little tags on goods, to perhaps be noticed but quickly forgotten.

Ahilan Kadirgamar is a political economist and Senior Lecturer, University of Jaffna.

(Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies)

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Features

Thailand’s biggest new global star …

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20 hours ago

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2026/09/29

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The entertainment scene, globally, is agog with excitement, and, why not!

Yes, a new global star has emerged … from Thailand, and she hit the headlines by winning America’s Got Talent.

Rattikarn Amloy, known to millions by her stage name Nene Royal, was crowned the winner of America’s Got Talent (AGT) Season 21 at the live finale at Pasadena Civic Auditorium, California, taking home the USD 1 million grand prize.

The 16-year-old rocker, from the holiday island of Phuket (I’ve been to Phuket, courtesy Tourism Authority of Thailand), has struck a power chord around the world, and is the first Thai national ever to win the hit NBC show.

She beat nine other finalists, including runner-up magician Geno Ploeger, after a blistering final performance.

Nene’s story is pure rock and roll fairy-tale. She says she picked up a guitar at age seven, fell in love at the first chord, and taught herself mostly by watching videos online. That dedication earned her a music scholarship to Kajonkiet International School Phuket.

Her audition at America’s Got Talent — a swaggering, shredding rendition of The Cranberries’ classic ‘Zombie’ — exploded online, amassing over 200 million views across AGT’s platforms, more than any act this season.

She kept wowing: ‘Hysteria’ by Muse, then ‘Black Hole Sun’ by Soundgarden which earned her Spice Girl Mel B’s Golden Buzzer, sending her straight to the live shows.

For the final, she unleashed ‘Seven Nation Army’ by The White Stripes. Judge Howie Mandel shouted: “You should win. Give her the million, America.” Mel B praised her “mysterious, mystical stage presence”.

And for the grand finale, she lived every teen rocker’s dream — performing on stage, alongside US rock giants Linkin Park.

When host Terry Crews announced her as winner, the teenager collapsed to the stage floor in tears. “I’m very happy and you know I’m emotional right now,” she said.

And Thailand erupted. Her school held watch parties, posting: “You did it, congratulations, champion. We are so proud of you.”

Even Prime Minister Anutin Charnvirakul sent a personal congratulation. He had earlier hosted Nene at Government House in July, where she played guitar while he sang a Thai rock song. His office said her talent “brought pride to Thai people.”

Corporate Thailand also rallied behind her — Charoen Pokphand Foods, owned by billionaire Dhanin Chearavanont, even rented a giant billboard in Times Square, New York, to cheer her on.

With her blistering guitar solos, rock-ballad shrieks and fearless spirit, little Nene Royal has just become Thailand’s biggest new global star.

What’s more, this amazing teenager will be bringing her powerful vocals, guitar skills and signature rock-metal style to the stage, as opening act, before one of the world’s biggest rock bands, America’s Avenged Sevenfold, in Singapore, on 13 October.

Unfortunately, we are still to see a local artiste, grab the spotlight, on a global scale … like Thailand’s Nene.

Yes, they do shine, but mostly on social media, and that, too, with the aid of AI (Artificial Intellegence).

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