by N. V. Gooneratne
There were several articles on ‘Colombo flood protection’ in your newspaper and I would like to mention the following. The following fact should be placed before the public:
The Madiwela East diversion canal was constructed under the Greater Colombo Flood Control and Environment Improvement Project (GCFC&EIP) Phase 1. A little upstream of the Malabe Athurugiriya Road there was a deep excavation. For earth canals, the slope of the sides of the canal must be at least 1:1.5. i.e. for one foot vertically it should be 1.5 feet horizontally. If the earth is week, it should be 1:2 or 1: 2.5, depending on the earth. Also, in the case of deep excavations, one or two horizontal sections are required. The Consultant of the project requested sufficient land to be acquired. The officer in charge of the project gave, in writing, to construct the canal with the available land. Thus, this section was constructed with a slope of approximately 1:1. Hence, this section collapsed in a short time and the canal became ineffective. Either the required land should have been acquired or some other alternate method, such as a concrete structure, should have been constructed, in this section of the canal. I am not aware of the present condition.
In the early 1990s, a Senior Engineer decided to buy and install two 25 cusec pumps near the Elvitigala Mawatha Bridge and pump the water across the road as there was a flooding problem in the Torrington area and the pumps were bought. When the other Engineers explained that more than 50 cusecs would flow under gravity these pumps became redundant. At that time there was the problem of pollution in the canals and then the Engineer who ordered the pumps decided to install them at the North Lock at Nagalagam Street to pump water from the Kelani River to flush the canal system. For this, a gate was installed with the bottom of the gate at 6.0 feet above mean sea level when fully opened which was the designed high flood level. During the 1992 floods, the water level, at the North Lock, was about 7.0 feet above mean sea level. There were several complaints that the gate was obstructing the flow. Dr. Obeysekera, who was the Chairman, contacted a high officer in the Navy (I remember as Mr. Tissera) and instructed me to go and meet him to get the gate demolished. I went to the Navy Camp, in the Mutual area, and met the officer who sent two Navy Officers with me to the North Lock. When we went there, we observed that the water was flowing as the bottom level of the canal was 4.0 feet below mean sea level and the gate was fully opened up to 6.0 feet above sea level. However, there was an obstruction as the water level was 7.0 feet above mean sea level. As the gate was a wooden one, the two Navy Officers removed the bolts and nuts from the timber obstructing the flow, removed the timber and the water flowed without any obstruction after that. The claim that the gate was blasted is false.
There were a large number of structures in the canal system. During the 1992 floods, the salt water exclusion structure near the Havelock Road Bridge, in the Wellawatte Canal was a major obstruction. There were wide piers and less than 30% of the width of the canal was flowing when all the gates were open. The difference in water level, on either side of the structure, was about five feet. Colombo had not experienced such a heavy rainfall for a very long time and also a large extent of land had been developed increasing the discharge to the canal system. The Corporation was very fortunate that Dr. Obeysekera was the Chairman at that time. He immediately brought the Corporation machinery and staff and demolished the structure within two or three hours. This enabled the water level to be reduced considerably although it took some time for the water to discharge to the sea, as the volume of water, collected in the catchment area, was large. The Wellawatte Canal is the main outlet when it rains, at present, and it is important to maximise the discharge to the sea when it rains.
Colombo developed mainly due to the Port, and most parts of it are at a low level. Most of the rain water was earlier retained in the large marshes which have been developed mainly during the last 50 years and has resulted in high levels of water when it rains. The Parliament floor level is about 7.0 feet above mean sea level and some Committee Rooms are about a foot below that level. The Galle Road is around 30 feet above mean sea level. If you look at the water in the canal, near the Galle Road Bridge near Savoy Cinema you can see how deep it is. However, if you look at the water in the lake at Battaramulla Bridge you can observe that it is only a few feet below the bridge although there is very little difference in the water levels during dry periods. When Parliament was to be constructed, the Corporation requested, in writing, that the Parliament floor level be raised by at least two feet. At that time the Corporation was dredging the lake and the person in charge of the project rejected the request saying they only knew how to pump chocolate mud and did not know the effect of seeing the water when anyone is in the Committee Rooms. The result is that Parliament has been under water several times and a large sum of money is spent to protect the Parliament when the water level in the lake rises.
The Beira Lake is an artificial lake, constructed at 6.0 feet above mean sea level, to transport goods from the harbour to the warehouses that were constructed around the Beira Lake. Now goods are transported in containers. Hence, the Beira outlet, near the old Parliament can be used as an outlet when it rains, as the necessity to maintain the water level at 6.0 feet above mean sea level is not there. After some studies, the water level can be reduced, at least during the rainy periods, by constructing some gates at the outfall. Then by connecting the St. Sebastian Canal near, the Technical College, to the Canal, leading to the Beira Lake, the water level in the main canal system can be reduced.
When the Parliament was constructed it was decided that there should be a green belt on either side of the canals. Also the canal reservation, when the Irrigation Department handed over the canals to the Corporation, in 1979, was one chain (66 feet) in some sections and half a chain (33 feet) in some sections of the canal. However, the Corporation has reduced it to 6.0 meters (20 feet) and 3.0 meters (10 feet). Thus, there is hardly any green belt and insufficient room for maintenance.
In the report prepared for the GCFC&EIP Phase 1 it was proposed to have 980 acres of retention around the Colombo Canal System and in addition it was stated that there is 3.8 million cubic meters of retention around the Parliament Lake of which 95% should be kept for retention. The Corporation through the government acquired about 1,200 acres of which some areas were fairly high and some low areas had not been acquired. The acquisition should have been done according to some level such as those less than four feet above mean sea level.
People, whose land had been acquired, wanted them released and when they knew that more than the requirement had been acquired in an unreasonable manner the demands increased. The Corporation decided to release a maximum of 20 perches to an original owner and keep 980 acres, but people with influence obtained in acres whereas some did not get anything. Now, out of the 1,200 acres acquired there must be less than 600 acres. The land around the Parliament Lake had been acquired by the UDA and hence the Corporation did not get it acquired as the UDA, which implemented the Parliament Project, agreed to keep it. With the development that has been carried out around the Parliament Lake definitely the retention available is very much less than the requirement.
At present, the Wellawatte Canal is the main outlet and it is important to maximise the flow in the canal. The width of the canal under the Galle Road Bridge is very much less than the canal on either side of the bridge. When it rains you can see a difference in the water level on either side. The Consultants of the GCFC&EIP Phase 1 observed this but did not consider it as reconstructing the Galle Road Bridge was not allowed due to the traffic. However, after the Marine Drive Bridge Construction and the Duplication Road Bridge Construction this was possible. Similar to the Baseline Road Bridge construction, it could be done even half at a time. In 2005, after Colombo experienced some floods, the government agreed to fund it with local funds. As this bridge is under the RDA, a decision was taken at the meeting for the Corporation to prepare an estimate with the RDA. The Chairman at that time was a politician and a Board Member advised him not to get RDA involved and that the Corporation could construct the bridge on its own. Hence to date this has not been done. If anyone stands at the Galle Road Bridge and looks towards the sea, you can see that there is no reservation and how people have encroached on the canal bund. On the other side, when the Irrigation Department handed over the canals, between Galle Road and Duplication Road, the Wellawatte side was Canal reservation and there were only trees. Today, the entire section is occupied and some have even constructed buildings up to the canal with no reservation. Hence the widening of the canal by reconstructing the bridge will be difficult.
When the tunnel was constructed under the GCFC&EIP Phase 2 along 5th Lane, in Colpetty, there was a concrete structure along Duplication Road and the bottom of it was about 9.0 feet above mean sea level. The inside of the pipes used for the tunnel was 8.0 feet in diameter and with the thickness of the concrete was nearly 9.0 feet. As the tunnel had to be below this structure and satisfactory investigations had not been done before awarding the contract, at the sea outfall, the bottom of the pipe was at sea level. It would have been better if it was at least a foot higher, but could not be done. The concrete structure, along Duplication Road, is very likely to be the sewerage line from Colpetty to Wellawatte. If it is the sewerage line, it will cross Bullers Road also. I observed that a new tunnel is being constructed along Bullers Road. According to the plans displayed, it is 10.0 feet in diameter. In that case, either the outlet will be below sea level or the pipe will have to be raised and the full capacity cannot be utilised. This will be a waste of funds.
The Corporation handles only the main canals. The drains taking water to the canals are maintained by the CMC. Sometime ago a study was done and over 150 problem areas were identified and the CMC was to solve them. However, during recent rains it was observed that very little had been done. They also do not follow up when anyone creates obstructions and it is seen that more areas are flooded when it rains. In the recent past, the RDA constructed drains on either side of the Marine Drive. Some sections were rectangular drains and others were hume pipes. The drains were covered and paved for people to walk. Now the people have a nice walking path on either side of Marine Drive. However, the drains are blocked and never cleaned. When it rains, all the sea side roads, in Colpetty, Bambalapitiya and Wellawatte, are flooded. For the recent rains, people living close to Marine Drive found the roads and their gardens flooded and a few even may have had water in their houses. In addition, all the garbage bins were floating and people had to clean everything. The CMC and RDA are aware of the problem as it has happened several times, but do not clean the Marine Drive drains. The main problem is that officers are attending meetings and do not attend to the work.
Getting foreign aid and implementing projects seem to be what everyone wants. When foreign aid is given the country that gives the funds, although it is a loan, always sends their people at least as Consultants and sometimes to implement the project. Very often these Consultants have little experience and learn implementing projects here at our expense. I have seen a large number of Consultants and I am sure our local companies can do a better job for a fraction of the cost. It is only for specialised fields that we require Consultants. For the GCFC&EIP Phase 2 tunnel, at Colpetty, the Corporation had a Consultant. The Construction period was about eight or nine months. He was stationed at Thailand and during the construction he came about five times and stayed about a week each time he came. He was the only person that deserved to be called a Consultant. In the GCFC&EIP Phase 3 there was a large canal excavated at Attidiya. When this was excavated there was no access to six lands. The Consultants proposed six bridges on piles. Then a Corporation Engineer suggested to construct a 20-foot road on the other side of the canal which was implemented instead of the six bridges, which resulted in a large saving. This indicates the experience of the Consultants that we get paying large sums of money in foreign currency obtained as loans. Very often these inexperienced Consultants prepare preliminary designs for a project within one year. Thus, what is implemented is not the best solution as they are inexperienced and do not consult the local people sufficiently. In most projects, the local staff do not do sufficient checking to get a better job done.
I can write more, but will conclude here mentioning that we must carry out the drainage improvements utilising the funds carefully and implement the best solutions. It is important that all projects are monitored to see that incorrect decisions that can be avoided are not taken. We must also use gravity drainage as much as possible and avoid pumping, which is expensive and we do not have proper maintenance experience and sufficient funds which is essential for pumping schemes. Besides, all responsible authorities should see that they do not allow any organisation or person to create additional problems. When the GCFC&EIP Phase 2 was implemented it was observed that in a road off Jawatte Road a house had been built over the drain. Hence it would not have been cleaned and there was no way to improve the drain. How this has been allowed defies comprehension. Hence, it was not possible to widen the drain. Fortunately, a civic-minded resident allowed to construct a drain through his garden and divert the water.
A Policy Science Analysis
President’s Gama Samaga Pilisandarak
By Dr D. Chandraratna
Trying to place President’s Gama Samaga Pilisandarak (PGSP) in a scientific perspective of public policy making is timely. One of the stated objectives of the Presidents election manifesto, ‘Vistas of Prosperity’ is to create a village-centered development of our predominantly agriculture-based rural economy. The President has pledged to achieve a four-fold objective: a productive citizen, a happy family, a virtuous, disciplined and just society and ultimately a prosperous country. A laudable project worthy of comment and analysis.
President Rajapaksa believes that to achieve this broad objective, he must clearly identify the problems faced by the rural population, which constitutes about 70% of the population in Sri Lanka. It is well known that people in rural areas have suffered for far too long as national development goals are stymied. Given the fact Sri Lanka has an executive presidential system of government it must be understood that decisions that the executive President makes supersede all other decision centres. It is no secret however, that political decisions are tied up with ideology, party politics, group interests, vote banks and the survival of regimes. But in this paper we will leave the ideology and rhetoric aside and examine only the facts, evidence, ends and means only.
Ideal methods of policy making; the end points of a continuum
At the outset it is necessary to contextualise the exercise within the science of policy making in public affairs. Policies are a web of executive decisions made to overcome problems that people in society face in their day-to-day lives. These can be arranged on a continuum from the complex to the simple. At the complex end lies the oldest model, based on the theory of decisions expounded by the management guru Herbert Simon; it is called the Root Method or Comprehensive Rational model, where policy decisions are made after a laborious weighing of all alternative courses in terms of optimum results, costs, and many other value positions. Obviously, this is absolutely necessary in national issues and problems which consume a vast amount of national resources and are costly in nature. Infrastructure projects such as transport systems, communication systems, river and waterways, energy supplies etc., fit in with the comprehensive method of policy making. Governments issue white papers and appoint commissions, task forces and professional consultant bodies before such are undertaken because of the vastness in costs and liabilities. The most important fact is that the country as a whole must realise the value and necessity of such vital state projects. In Sri Lanka, it is a matter of regret that some costly projects such as the Mattala airport and the Hambantota Port have come under criticism because the national implications have not been professionally argued. The author is of the view that both were valuable projects in their own right and if only the relevant Ministry at the time had followed though the correct professional procedure in public policy-making, the projects may have had a different outcome.
In other countries, projects of that magnitude go though extensive weighing of alternatives, open professional debates and university research centres arguing about costs, benefits and opportunity costs of the nation’s limited resources. Science has to be put before ideology because haphazard interventions in national policy or grids or systems can be deleterious.
The opposite method at the other end is called incremental policy making, for as the name suggests it is limited in scope and applicable to small time projects with little or limited national implications. These appear solutions to residual ills, minor dysfunctions of national policies, which need remedial outcomes. Hence, such measures are called disjointed, piecemeal and also having incremental outcomes, benefitting a few at the margins. The fact that they are disjointed invites numerous criticisms. But their positives will be explored first.
This is the method of policy making that the President has taken up as a speedy solution to the numerous problems faced by the rural peasantry in Sri Lanka and his entourage has selected the most backward of villages as the points to touch on.
In fairness to the President, it must be stated at the outset that we do not consider this as a ploy on the part of the President to escape the political overload that he has inherited from years gone past. Ever since the gradual dissipation of efforts by governments since Independence, to kick-start the village economy as the mainstay of the national development strategy, the dividends have been sub-optimal. The colonisation schemes, village expansion schemes, financial assistance to tenants were only partially successful. We do remember the 10-year plans, five-year plans, Operations rooms, Planning Ministries but the results have been poor. The President will succeed to the extent that his advisors keep him informed of the successes, and especially failures of the efforts in the past. The President’s officials must not be a bunch of ‘yes men’ leading the President up the garden path.
Transparency in respect of both means and ends is the path to success. People are not unaware of the fact that politicians are in the habit of recommending such incremental stop-gap policies as a way out to avoid political embarrassment, hoping for a temporary respite. Bottom-up policy making has its positives but its limits and usefulness must be properly grasped.
President’s Gama Samaga Pilisandarak –– the context
Before we evaluate what the President has so far addressed, we must note the following facts about our broad policy field. Sri Lanka has nine provinces, 25 districts, 318 divisions and 14,022 Grama Niladari areas or villages. The country, consisting of 14,022 villages, is demarcated into 196 electorates. For 196 electorates there are 225 Members of Parliament to advance the welfare of all 14022 villages. Given the electoral system these members of Parliament represent not electorates, but districts. They are elected on the proportional representation system of voting. Hence no one at the Centre is responsible, theoretically at least, for any of the problems in any particular village.
Having identified that the PGSP is located at the incremental end of public policymaking we need to put it in an analytical perspective.
It is fair to surmise thus far the President has in his encounters identified and sometimes attended to some of the following major issues identified by the President inter alia: shortage of lands and water for agriculture and houses, unavailability of deeds for lands, inadequate health and transportation facilities, shortages affecting school and other educational issues, inaccessibility to drinking water, elephant-human conflicts and difficulties in marketing.
We are also aware that around 30 precent of the total households in rural societies in Sri Lanka live below the poverty line. Moreover, nutrition surveys conducted in the recent reveal a high prevalence of malnutrition among those in rural areas, which may have been caused by chronic poverty.
There are particular issues in some villages, which we will leave out in this paper.
The Analysis: Plusses and Minuses
I will use a famous textbook in policy making by Hogg and Gunn (1984) to follow through with the Presidential initiative. Let us start with the positives of the PGSP.
This move in the President’s opinion is for the top policy maker to ascertain the real situation in the village, which any text will title as an issue search. The pertinent question to ask is why these concerns do not come up on any agenda paper. Basically, it may be that those affected have no voice because organised interest groups with power and influence drive the issues that get priority. In a poor country, this should come as no surprise. The electronic media of late have had a number of programmes as an agenda-setting exercise with limited success but their main objective was to embarrass the local politicians and bureaucrats. The president also has an interest in attending to their immediate concerns before they could intensify in the future creating more headaches for him. Seeing the problem first hand gives the first policy maker in the country a view of the issue plus the complexities and need for ameliorative action.
The other positive from the perspective of the villager is the immediacy of solution, as resources can be mustered straight away by the President, which otherwise takes long years noting the plethora of departments and other bodies that are involved.
Sri Lanka is one of the highly bureaucratised countries with a public service ‘surplus to requirements’ and running the gauntlet is beyond the capacity of villagers. For example, to regularise a land permit, I was told by a one-time Land Commissioner, one has to have approvals from 23 odd government and semi government organisations. Things are unbelievably complicated by the number of authorising bodies. It took me 12 years after occupation to obtain the deed to my apartment from a government department in Colombo, and that too after two costly court cases. Bureaucratic corruption and inefficiency! Let us not talk about it. No wonder that the people awaiting the arrival of the President were sadly disappointed last week by the cancellation of his visit at the last minute.
In this bottom-up policy initiative there are many pitfalls that we can list straightaway. The President can visit only a few villages and those that are neglected can be politically ‘not with him’. Secondly, the problems are the same in most villages and it will be pointless wasting the time of the President because he will reach the saturation point very soon. He will realise that there are better and efficient mechanisms, given the resources, which can attend to these problems. What the information tells the President is that the issues, being common to many of the fourteen thousand villages are crying out for a national plan of action. Hence we wonder whether it is it the enormity of the issues that strained the limits of those who had power before, causing this neglect? Was it lack of insight, proper understanding, ministerial inexperience or the fear of realising the complexity of the interrelationships between issues or sheer lack of resources that caused this oversight?
The President cannot visit all villages and the solutions he instantaneously gives can be counterproductive. The furore over the environment and forests is a classic case where the Presidents instant solutions have become the weapon in the hands of an environmentally conscious middle class youth on whose bandwagon the opponents of the government are taking a joy ride.
The President will face similar catch-22 situations, which adversely affect his popularity. Incremental policies at the margins by themselves do not achieve much.
Sri Lanka failed in the bottom-up policy development due to many reasons and I can only highlight briefly a few for lack of space. The inefficient and lethargic conduct of the public institutions, the way our peoples representatives are elected without responsibility for particular localities, over 8000 politicians, the haphazard manner in which ministries are created for politicians (Foreign Affairs coupled with Lotteries!), the total lack of coordination between departments, the corruption of public officials, the inability of law to punish those who flout the law, the misuse of power and influence, the non-use or decay of coordination mechanisms such as Divisional, District and Provincial coordinating committees, and the lack of nexus between Provincial Councils and local authorities and many more. The political solution proposed by way of Provincial Councils has become a dead weight. Generally, we are an over governed society and as such the use of modern scientific management for policy implementation is non-existent.
An article appeared in your paper the other day by our colleague Ranjith Soysa from Australia about the successes of China in eradicating poverty in a matter of decades by comprehensive social policy planning which Sri Lanka can learn from. A white paper on poverty alleviation, which outlines the success of policies implemented, the methods employed and her desire to share the unique social experiment with other developing countries was mentioned therein. ‘Sri Lanka should make use of this opportunity to study the programme and follow its guidelines if a national comprehensive policy is to be implemented.
China achieved the largest scale battle against extreme poverty, as 98.99 million people had been lifted out of absolute poverty––a miracle in human history. But China achieves success because it is a planned centrally and the ideology is driven with strict, rigidly enforced rules, but whether we, being overly democratic, can enforce such discipline in a country noted for a poor work ethic is any one’s guess.
Hogwood,B.W & L.A.Gunn (1984) Policy Analysis for the Real World, Oxford, Oxford University Press.
D.Chandraratna, Making Social Policy in Modern Sri Lanka (2003), Vijitha Yapa, Colombo.
Colombo port city economic commission bill 2021
“Poorly drafted statutes are a burden on the entire State. Judges struggle to interpret and apply them. Attorneys find it difficult to base any sure advice upon them and the citizens desire to conform to them is confused. At times, totally unforeseen results are seen… On many occasions, defects lead to litigation.”
J. Menard, Legislative Counsel.USA
The Draft Bill, titled Colombo Port City Economic Commission Act 2021, is an important piece of legislation. It can be described as a game-changer for Sri Lanka. It is the biggest foreign investment received by Sri Lanka and it can lead to a success story as in many other countries. At this stage, review of the Draft Bill is of paramount importance, as it constitutes a marketing tool along with the Master-Plan prepared by the Chinese Harbour Company Ltd.
Unfortunately, this Draft Bill was not subject to pre-parliamentary review by our professional organisations and the epistemic community. In modern times, there is a constitutional practice in Commonwealth countries to consult the stakeholders, professional bodies and the epistemic community in regard to important legislation. The Advisory Council, appointed to draft the Securities Exchange Commission Bill 2019, under Dr. Kanag Iswaran, of which I was the Drafting Consultant, decided to involve the stakeholders and those interested in the subject matter by providing them with an exposure draft. It was a very useful exercise to clarify any ambiguities, inconsistencies and grey areas which can create problems in the implementation process.
Before I deal with the review of the draft Bill, I would like to provide a global perspective on legislation relating to port cities and special economic zones.
Legislation relating to port cities and special economic zones differ from one jurisdiction to another. There is no uniformity in such legislation, as “one size does not fit all”.
In Latin America and the Caribbean, special economic zones or offshore financial centres have grown piece-meal over a period of time to meet the needs and demands of the international business community. At the early stage, these countries enacted International Business Companies Act with no-tax or low-tax regime. Later on, they developed offshore banking, offshore trusts, offshore captive insurance and many other products and services to satisfy the needs and demands of high net-worth individuals and corporate clients.
Bahamas Offshore Banks and Trusts Act and the BVI Offshore Companies Act stand out as success stories. Likewise, Panama has registered several offshore shipping companies and provided them with the Panamanian flag to sail around the world. Antigua and Barbuda introduced internet gambling and it was challenged by the USA, but they won the case at the WTO.
In Europe, similar developments took place in Switzerland, Ireland, Jersey, Isle of Man and Cyprus. These countries and territories have made many innovations to attract foreign investments by registering international business companies and later on by introducing various products and services. Switzerland is known for bank secrecy.
In the Middle East, new legislation was enacted to start on a clean slate. Both in Qatar and Dubai, they were confined to one piece of legislation and managed by Qatar Financial Services Authority and Dubai Financial Services Authority respectively according to regulatory policy and the law. It is very different from the way the English-speaking Common Law countries operate Special Economic Zones.
In Labuan (Malaysia), Dr. Mahatir Mohammed established the Labuan Offshore Financial Authority and introduced lengthy legislation on offshore banking, offshore trusts, offshore insurance, offshore partnerships, etc., so that they are guided by law and not by policy. It has proved to be a roaring success with the participation of a very few but very rich clientele.
In Sri Lanka, the Draft Bill provides the legal and regulatory framework to attract investments to develop the infrastructure of the Port City and also provide offshore products and services to the international business community. This legal framework is one of its kind and conceptually sound, as its scope and content can be expanded by the Economic Commission by way of Regulations, Rules, Orders and By-Laws. Hence, Sri Lanka has adopted the legislative technique of shorter Parliamentary Act and longer Executive Regulations in drafting complex legislation, as advocated by Justice Crabbe at CALC meeting in Ocho Rios, Jamaica (1986).
On reading the draft Bill, I find that there are few gaps and problems relating to legislative drafting. Hence, I wish to say something about legislative drafting before I undertake a constructive review of the draft Bill for the sake of our children and grandchildren.
Legislative Drafting is a form of communication very different to any other form of writing. It has no excess words and no repetitions. It must have clarity and simplicity, so that it could be understood clearly by stakeholders, statute users and investors.
Lord Thring, former First Parliamentary Counsel of the UK, said about 150 years ago that legislation must be drafted in the same way as razors are made to sell. Hence, legislation should be marketable, effective and efficient to achieve the objectives enumerated therein. On this basis, I will now proceed to suggest a few changes to make the draft Bill more attractive to investors and reduce ambiguities, lacunae and grey areas in the capacity of a Legislative Draftsman with 40 years standing in many Commonwealth countries.
REVIEW OF THE DRAFT BILL
(a) Long Title
The long title is too long. It must be clear and concise to capture the broad scope and content of the draft Bill. I humbly suggest the following long title.
to make the Colombo Port City a Special Economic Zone; to establish and empower the Economic Commission to promote, manage, regulate and attract investments to the Colombo Port City by establishing a single window; to attract corporate clients and high net-worth individuals to establish offshore banks, offshore companies, residential condominium units, hospitals and any other product or service; to provide investors with incentives and tax exemptions; to establish International and National Dispute Resolution Centre within the Zone; and for matters connected therewith or incidental thereto.
The preamble to the Draft Bill is not attractive and should illustrate Sri Lanka’s competitiveness by reference to her strategic position in the Indian Ocean. I humbly submit the following opening lines to the preamble.
, Sri Lanka enjoys an enviable strategic advantage in the Indian Ocean as a gateway to West Asia, East Africa, Indian Sub-Continent and East Asia where the Chinese Belt and Road Initiative will impact on the Special Economic Zone along with the participation of other trading powers in this region and beyond …
Part II of the Draft Bill
Part II of the Draft Bill deals with objectives, powers, duties and functions of the Commission. It is an important part and should include a clause to ensure that the prime duty of the Commission is to prevent money laundering and inflow of terrorist financing.
Clause 5(b) should be deleted and be substituted by the following sub-clause, in order to avoid inconsistency with the Board of Investment Act –
(b) attract foreign direct investments to develop the infrastructure of the Port City with multiplier effect on the rest of the country.
It is useful to add immediately after paragraph (2) of clause 6, the following new paragraph (3), in order to allow local legal and accountancy firms in Sri Lanka to play a dynamic role as AGENTS in promoting investments in the Colombo Port City as in other Port Cities. The Offshore Directory provides a List of all agents operating in various jurisdictions. The draft Bill does not appear to provide an opportunity to our lawyers and accountants to play a dynamic role in promoting investments as agents and this should be expressly stated in paragraph(3)
(3) In the exercise, performance and discharge of its powers and duties and functions under sub-section (1), the Commission shall approve agents who may represent offshore companies, offshore banks and other investors at the Commission by being resident in Sri Lanka.
(d) Part III of the Draft Bill
Part III deals with the composition, administration and management of the affairs of the Commission. The Commission has exclusive responsibility in granting registration to offshore banks and companies. A question may arise whether the Commission could register an offshore bank, if the Monetary Board refuses to give a license or classifies the licence into class A, Class B and Class C Banks and impose certain conditions to protect investors as in other offshore financial centres.
The Commission needs to maintain a check-list of all black-listed investors with the assistance of other Special Economic Zones. Otherwise, criticisms will be mounted against the Commission.
The Commission needs to protect the reputation of the Colombo Port City. If something goes wrong, the Colombo Port City will not be a blessing but a curse. Hence, every endeavour should be made to prevent drug money or terrorist funds coming into the Colombo Port City in a devious manner. Such devious methods include numbered accounts and bearer shares. In this day and age, we cannot adopt the policy “Let the robber barons come”, as the international community will be watching us at every step as to how we handle our offshore business.
Lack of proper scrutiny of the investors may lead to a disaster. In Antigua and Barbuda, Robert Allen Stanford obtained a license to operate an offshore investment bank. He built several offices, condominiums and sponsored 20/20 Cricket Tournaments. Later on, he was convicted of a Ponzi scheme and was sentenced to imprisonment by an US Court for a period of 120 years. In 2015 when I visited Antigua, I was shocked to see that a part of the Financial Centre was like a Ghost City.
(e) Part V of the Draft Bill
Part V deals with the Director-General and the Staff of the Commission. There should be a provision in this Part to say that the Director-General and the Staff of the Commission shall be deemed to be public servants under the Bribery Act and the Penal Code.
(f) Part VII of the Draft Bill
Part VII deals with the registration of offshore companies. It is not something new to Sri Lanka. Offshore companies were introduced under the 1982 Companies Act, so that youth in Sri Lanka could be employed as seafarers in these offshore shipping companies. It was a dream of late Lalith Athulathmudali to register offshore shipping companies as in Panama and provide opportunities for our youth to be seafarers, marine engineers and pilots.
Offshore company registration under the Companies Act 1982 and the Companies Act 2007 failed for several reasons. The tax regime was not clearly laid down. The provisions relating to offshore companies were inadequate to deal with issues relating to offshore shipping. A provision should be included in this Part of the Draft Bill to make Regulations relating to offshore companies, especially offshore shipping companies, offshore trusts companies, offshore insurance companies, etc., if we were to develop this concept to its logical ends as a competitive destination in the offshore world.
The Economic Commission provides offshore companies with tax exemptions and fiscal incentives, case by case, and thereafter such exemptions and incentives will be submitted for Cabinet approval. Once approved, President will make an Order and it will be gazetted and be laid before Parliament. Hence, it is likely that mere brass plate offshore companies will not be able to operate in the Colombo Port City.
(g) Part VIII of the Draft Bill
Part VIII deals with offshore banking. The definition of “banking business” in the Draft Bill is too narrow, if we were to attract reputed banks to operate in the Colombo Port City. The definition should include Investment Banking and Islamic Banking. Regulations made under this Part are of paramount importance to avoid crisis situations. Regulations made under Clause 45 must deal with confidential relationships and bank secrecy. It is the hen that lays the golden egg, as secrecy is fundamental to attract offshore banking business.
On many occasions, law enforcement agencies of other countries may require documentation relating to bank accounts. Sometimes they will subpoena such bank officials when they enter their country. (See: USA vs Bank of Nova Scotia (1982). Hence, there should be a mechanism either in the Draft Bill or in the Regulations to deal with such requests by the Commission if there is a prima facie evidence against a particular bank or a personal account.
Constitutionality of the Draft Bill
The purpose of this article is not to deal with the constitutionality of the Draft Bill, as this matter is before the Supreme Court of Sri Lanka. The issues are likely to be very controversial but some claims relating to unconstitutionality are not justifiable and spurious. It is a different ball game as we are dealing with foreigners in regard to their offshore operations and therefore discrimination with nationals may not arise on reasonable differetia.
However, the failure on the part of government to provide the professional bodies an opportunity to review an important Draft Bill of this magnitude can be construed as a violation of the principles of participatory democratic process and the sovereignty of the people as enshrined in our Constitution. South African Constitutional Court in Doctors for Life vs Speaker (2006) invalidated an Act of Parliament as it failed to consult the professional bodies and the Court thereafter recommended to the Legislature to re-enact the same Act after consulting the relevant professional Bodies.
Managing the Colombo Port City by the Economic Commission is an onerous task. The Draft Bill is only “the tip of the iceberg” and many regulations, rules, by-laws, etc,. need to be made to deal with offshore products and services, condominiums, time shares, stock-exchange and hospitals within its area of governance.
It is wrong, unfair and unpatriotic to say that this Draft Bill will convert the Port city into a Chinese colony.ri Lanka will welcome all countries from the East and West to establish international business companies, international banks, hospitals, condominiums, etc., in a strategic location, notwithstanding Rudyard Kipling’s saying “East is East, and West is West, and never the twain shall meet”.
Offshore business is competitive. The developed countries such as the UK and the USA have a “row” with the developing countries for initiating offshore financial centres, as they reduce their tax revenue from high net worth individuals and corporate entities. However, there is duplicity in this matter more severe than the “Geneva process”, as they encourage territories under their control to transfer money to the UK or the USA banks and stock exchanges and impose restrictions on those countries which do not transmit their deposits or invest in stock exchanges in the UK and the USA. Hence, we must be prepared to meet this challenge.
(The writer is a law graduate of the University of Ceylon and holds postgraduate qualifications from the University of Cambridge, UK. He served as UN Legal Expert, Legal Consultant and Legal Draftsman to many Asian, African and Caribbean Countries. He has drafted legislation relating to offshore products and services and handled legal issues on these matters in the Caribbean. Email: email@example.com).
900-year-old Buddhist monastery discovered in India’s Jharkhand state
BY S VENKAT NARAYAN
Our Special Correspondent
NEW DELHI, April 18:
The Archaeological Survey of India (ASI) made a major discovery early this year. It found remains of a sprawling Buddhist monastery at least 900 years old, full of small and large statues of Buddhist deities in Bahoranpur village of Gurhet panchayat in Hazaribagh’s Sadar block in India’s Jharkhand state. There were also some Shaivite remains at the site.
The site, at the eastern side of Jharkhand’s Sitagraha hills, has been cordoned off by security personnel. Over the last several weeks, groups of people have been making their way to the site, about 12 kilometres outside Hazaribagh town, on foot or on bicycles.
Hazaribagh is 124km from Bodh Gaya in Bihar, where Gautama Buddha (567-487BC) had attained enlightenment at the age of 35 after 49 days of continuous meditation under the Bodhi Tree.
“Bhagwan ke darshan karne aaye hain,” (“I have come to see God”), said Prajapati, a skilled labourer trying to make his way to the site. He is hoping the excavation will continue for some time so he can perhaps find a job at the site.
Already, shops selling tea and sugarcane juice have come up at some distance from the site. Villagers claimed there are days when up to 5,000 people come to look at the statues.
Among the ASI’s discoveries are four statues of Taras, the “saviouresses” of the Thunderbolt Vehicle, displaying the Varada mudra, a hand gesture signifying the dispensing of boons. There are six statues of the Buddha in the Bhumisparsha mudra, with all five fingers of his right hand extended towards the earth, symbolising his enlightenment. Then there are remnants of a statue of the (Hindu) Shaivite goddess Maheswari, with a coiled crown and chakra, suggesting a degree of cultural assimilation at the site.
Assistant Archeologist Niraj Kumar Mishra of Excavator Branch III, Patna, said: “We had excavated this area in November 2019… Since January 31 this year, we focused on a mound near Juljul Pahar in the Sitagarhi hills, where we found remains of a Buddhist monastery-cum-shrine, with an open courtyard and rooms along the sides.”
Soon after the findings became widely known, two of the statues disappeared from the site. The thieves were arrested in Jharkhand capital Ranchi a week later, and the statues were recovered. But the incident underlined the neglect that the priceless archaeological site faced.
Mahesh Tigga, head of Gurhet panchayat, said: “Buddhist relics have been found at several places in this area. We have asked the government to build a museum here. We will not allow the statues to be taken away from our land.”
The first archaeological discoveries in this area were made three decades ago. In 1992, veteran environmentalist and tribal arts conservationist Bulu Imam, convener of the Hazaribagh chapter of the Indian National Trust for Art and Cultural Heritage (INTACH), stumbled upon pottery and remains of Buddhist relics and statues here.
Imam reported the discovery of painted grey ware (PGW) pottery, a votive stupa, a black basalt apsara torso, and an “eight-petalled astadala lotus” inscribed on stone.
“Remains of a vihara, stupa, and village with iron smelting siter alongside in a Sarna or sacred grove which yielded PGW fragments are confirmed. It seems that several tanks and wells and villages in the region were once part of comprehensive Vihara on the pilgrim route to Midnapore (Tamralipti),” Imam wrote (Damodar Valley Civilisation, 2001).
Imam estimated the antiquity of the Buddhist sites of Hazaribagh from 300 BC to the period of the Palas (8th to 12th centuries AD), and the Sena (11th-12th centuries). The monastery that has now been excavated lies on the old trade route from Varanasi to Tamralipti, via Sherghati in Gaya district in neighbouring Bihar state, and the Sitagraha hills in Jharkhand.
A lot of Hazaribagh district is forested, and is home to the Birhor tribals to whom Juljul Pahar is sacred. Every year, on Buddha Purnima day and other occasions of religious significance, local people go to the top of the hill with offerings of rice and milk. Besides the remains of the ancient vihara, the hill has a 65-foot stone face that the Birhors revere as Mahadeva (Lord Shiva, a Hindu deity).
Imam, who is now 79 and runs a museum that contains neolithic artefacts and collections of the local Khovar and Sohrai paintings, said he had been trying to get the Central Government to relocate a BSF (Border Security Force) firing range in the area from the early 1990s.
“However, till date, the firing range remains as it is… I informed ASI in 1992, but it took them close to 30 years to begin excavating this major Buddhist site… The ASI’s recent findings are the most significant archaeological discovery in Jharkhand in modern India. No other intact Buddha statue of this beauty and quality, around four feet tall and with heavy back support typical of the time of the Palas, has been found … Even in Bihar only a few statues of this quality have been found,” he said.
Imam’s discoveries were confirmed in the ASI’s report on ‘Exploration in districts Hazaribagh and Chatra, 1995’. The report, published in 2000, said: “Historical sites at Sitagarh yielded evidence of three circular brick structures besides one habitational mound, while Itkori yielded temple remains alongside a huge habitational area.
“At both these sites were noticed the sculptures of both Brahmanical and Buddhist pantheon. At Itkori a large number of sculptures, majority of which comprised votive stupas, were noticed. These sculptures belong to the Pala period, and only a few of these are inscribed.”
Imam believes the Chinese scholar Hiuen Tsang (Xuan Zang) may have visited Sitagraha during his travels in India in the seventh century. “His visitations were very complex, but at that time, he could have gone back to China through one of only two routes, from Mayurbhanj in Odisha and Tamralipti in Bengal,” he said.
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