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Crisscrossing 13A Abolition

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By Austin Fernando

I have recently read a speech by Tamil National Alliance (TNA) Leader R Sampanthan, delivered in 2017. This excellent presentation supported the Thirteenth Amendment (13A) to the Constitution. In appreciation of his intelligent arguments, I share his thinking not to canvass for 13A but to broaden the discussion with forgotten overlapping references that need to be factored in.

 Status of 13A

Devolution was thrust upon us, consequent to the Indo-Sri Lanka Accord of 1987. Then, certain groups rejected this pact as well as 13A. Their position remains unchanged.  

  At the outset, we must remind ourselves that devolution was introduced to facilitate conflict resolution. Someone may argue that 13A was legalized at a time when terrorists held sway, and, therefore, the incumbent government need not stick to the beaten track. TNA politicians may argue that the reasons for, and the outcomes of, the conflict remain although terrorism is no more. 

The performance of the Provincial Councils (PCs) is barely satisfactory in many respects. Some critics have dubbed them ‘white elephants.’ I do not subscribe to such extreme criticisms because one reason for the weakness of the PCs is the lack of ‘center-periphery cooperation’. Decades ago, Professor GL Peiris emphasized that the PCs needed empowerment for financing, establishment management, and statute making. To date, these matters remain as issues.    

Some others who see intrinsic fault lines in devolution oppose PCs based on concept, content, and politics. They contend that devolving police and land powers, the amalgamation of provinces, etc., trespass the sovereignty and endanger national security.  

The vehement call for abolishing the 13A has originated from politicians, supported by media personnel, and a section of the Buddhist monks. Another alternative proposition is to withdraw certain functions (e.g. land and police powers) to impede PCs when drafting a new Constitution.   

 

Indians and 13A

Concurrently, there are some predicting that India will take up cudgels if the 13A is tampered with. Arguments are submitted against Indian interventions on devolution.

One reason adduced is that India failed to adhere to the Accord (e.g. disarming the LTTE) and therefore, its demand that we fully implement the devolution of power is unfair.

Secondly, they argue that foreign interference with our constitutional processes is inappropriate. They point out that the Indian Government repealed Article 370 with Article 35A in 2019, affecting Jammu-Kashmiri laws, including citizenship, property ownership, and fundamental rights, and silenced critics by stating it was an “Indian internal affair.” Hence, they argue that Sri Lanka should follow suit if India objects to abolishing the 13A.  

  Thirdly, they contend that the Indian government changed Jammu Kashmir rules to allow the Union Government to release lands to Indians to attract development/investment and hence India cannot object if we centralize land administration.

Fourthly, they argue that Indians perform asymmetrical administration in Himachal and Uttarkhand States, as against centralized Jammu-Kashmir, and therefore, by amending 13A, we could do similarly in selected Provinces.   

India stands for sovereignty, independence, and the territorial integrity of Sri Lanka, as repeatedly mentioned by Indian leaders. Additionally, there have been commitments made by Indian and Sri Lankan leaders and internationals to promote equal treatment to minorities.

My attempt is to refer to some such, extracted from the quoted speech, add a few more experiences to demonstrate that abolishing 13A will be considered a negative action in resolving conflict-related issues and there could be other solutions.   

 

Probing Indo-Lanka interactions  

 Let us turn to TNA Leader’s speech. In November 2006, Indian Foreign Secretary Shivashankar Menon has expressed to President Mahinda Rajapaksa: “India looks forward to an early ‘comprehensive political settlement’ of the ethnic issue. It must take into account the aspirations of all sections, including the Tamils.” 

This was nearly twenty years after the Accord and while the conflict was ongoing. Responding, President Mahinda Rajapaksa has detailed the work by the All-Party Representatives Committee (APRC) and the Committee of Experts. But it is well-known that these outputs did not matter to his government. It can be likened to the Indian expectations to implement the 13A during the conflict. 

At one stage, President Mahinda Rajapaksa was excessively supportive of ‘power-sharing.’  Addressing the inaugural Meeting of the APRC and the Experts Committee, he said: “The unity, territorial integrity, and sovereignty of our country must be preserved” and added, “Our objective must be to develop a just settlement within an undivided Sri Lanka.” Great. This is the common aspiration of people, TNA, and India. While identifying the roadblocks, he expected the people in their localities must “take charge of their destiny and control their politico-economic environment.” This is the Principle of Subsidiarity in action. 

He said: “Any solution must be seen as one that stretches to the maximum possible devolution, without sacrificing the sovereignty of the country. Given the ground situation, given the background to the conflict, it, therefore, behooves on particularly the majority community to be proactive in striving for peace ….”  This must have been an elixir to Indians and TNA! 

Next, Minister Basil Rajapaksa went to India (October 2008) and a statement said: “Both sides discussed the need to move towards a peacefully negotiated political settlement on the island including the North …. The Indian side called for the implementation of the 13A and greater devolution of powers to the Provinces. Minister Basil Rajapaksa emphasized that the President of Sri Lanka and his Government were committed to a political process that should lead to a sustainable solution”. Elixir again!

His message to India was that we had passionately committed to a political process. He is expected to be in the Cabinet soon and knowing the Indian External Affairs Minister Dr. Jaishankar’s ways personally, I may expect a reminder of his message.

PM Manmohan Singh, after this visit of Minister Basil Rajapaksa, (November 2008), informed President Mahinda Rajapaksa that Colombo must create conditions for meeting “legitimate political aspirations” of the Tamils under the devolution package (13A). Irrespective of domestic politics Indians were consistent in demands; Sri Lankans were consistent in declaring unfulfilled hopes!

Prof. Peiris visited India (May 2011) and mentioned “A devolution package building upon the 13th Amendment would contribute towards creating the necessary conditions for such reconciliation.” Further, he referred to the work of the Lessons Learnt and Reconciliation Commission (LLRC), which made extremely attractive, pro-peace, and reconciliation-oriented recommendations. No wonder when Foreign Minister Peiris spoke so favourably on the 13A, Indians continuously and without reservations harped on its implementation.

PM Singh (June 2011) said in Lok Sabha: “The decimation of the LTTE was something good. But the Tamil problem does not disappear, with the defeat of the LTTE. The Tamil population has legitimate grievances. They feel they are reduced to second-class citizens. And our emphasis has been to persuade the Sri Lankan Government that we must move towards a new system of institutional reforms, where the Tamil people will have a feeling that they are equal citizens of Sri Lanka, and they can lead a life of dignity and self-respect. It is not easy.”

Nevertheless, reverting to 2019, one may question whether the Indian politicians’ minds were responsive to the grievances/inequalities their Muslim brethren complained of when the Citizenship Amendment Act, National Register of Citizens, and National Population Register laws were launched.  

Two months after PM Singh’s statement, Indian External Affairs Minister S. M. Krishna said in Lok Sabha: “The Government has also articulated its position that the end of the armed conflict in Sri Lanka created a historic opportunity to address all outstanding issues relating to minority communities in Sri Lanka, including Tamils. The Joint Press Release of May 17, 2011 states that all such outstanding issues had to be settled in a spirit of understanding and mutual accommodation imbued with a political vision to work towards genuine national reconciliation.

The External Affairs Minister of Sri Lanka affirmed his Government’s commitment to ensuring expeditious and concrete progress in the ongoing dialogue between the Government of Sri Lanka and representatives of Tamil parties and that a devolution package building upon the 13th Amendment would contribute towards creating the necessary conditions for such reconciliation.” Sensibly we may agree.

The Indian Official Spokesman made a statement after the LRRC Report: “In this context, we have been assured by the Government of Sri Lanka on several occasions in the past, of its commitment towards pursuit of a political process, through a broader dialogue with all parties, including the TNA, leading to the full implementation of the 13th Amendment to the Sri Lankan Constitution, and to go beyond, so as to achieve meaningful devolution of powers and genuine national reconciliation.” Thus, Indian expectation rightly settled on an assurance ‘beyond 13A.’  

  When even the easily implementable LRRC recommendations were not executed by the government that appointed it, whether India could await further contributions to reconciliation was an issue. Indians may comment that every Sri Lankan government has only kindled hopes, but not delivered. The post-LLRC- UNHRC Resolution (2012) demanded the implementation of constructive LLRC recommendations and strengthening devolution, but we failed to do so.

The Indian Minister of External Affairs made a statement (January 2012) in the presence of our Minister of Foreign Affairs, from which I quote: “The government of Sri Lanka has on many occasions conveyed to us its commitment to move towards a political settlement based upon the full implementation of the 13A to the Sri Lankan Constitution  and building on it so as to achieve meaningful devolution of powers.” The Indian Minister has echoed the stark reality.

Then again, the Indian Prime Minister Manmohan Singh said that India was inclined to vote in favour” of a resolution on promoting reconciliation and accountability in Sri Lanka at the 19th session of the UNHRC. His inclination was adopted by voting against us. According to PM Singh, its objective was not wanting to infringe our sovereignty, “…. but concerns should be expressed so that Tamil people can get justice and lead a life of dignity.” In almost all Indian statements a few buzz words- ‘equality, dignity, justice, self-respect, political process, peace’ appear.

 There could be many more statements by Indian and Sri Lankan politicians and bureaucrats, unknown to us, confirming the need and commitment to implement the 13A to resolve the Tamils’ difficulties. But since our President was not in active politics per se in 2017 like his brothers and other Ministers, some of these statements may be new to him. However, I may remind two recent relevant statements, most probably known to him, worthy of consideration to understand the Indian attitudes on 13A.

PM Narendra Modi during President Gotabaya Rajapaksa’s State Visit, like other interlocutors, said: “I am confident that the Government of Sri Lanka will carry forward the process of reconciliation, to fulfill the aspirations of the Tamils for equality, justice, peace, and respect. It also includes the implementation of the 13th amendment.” Note the buzz words. President Gotabaya Rajapaksa, without responding directly kept aloof, imaging him “the President of all Sri Lankans, irrespective of ethnicity or religion or voting choices.”

Joint Secretary Amit Narang’s quote on India Sri Lanka Virtual Bilateral Summit – October 26th, 2020- stated that PM Modi has insisted on PM Mahinda Rajapaksa that “Sri Lanka must implement its 13th constitutional amendment to achieve peace and reconciliation…. PM Modi called on the new Government in Sri Lanka to work towards realizing the expectations of Tamils for equality, justice, peace, and dignity.” Buzz words: setting apart political ethics, it is ‘must implement its 13A’ and not ‘may.’ With so many positive quotes stated above I am not surprised of this insistence.  

These are ‘oven-fresh’ statements (latter only a fortnight old) and thoughts well embedded in PM Modi’s memory. We should not dupe ourselves into believing that PM Modi forgets easily and will give up demands or forgive when one repeatedly frustrates India! Whether it is Modi or Singh or Krishna or Menon, the buzz words are the same.

Here, PM Modi, like PM Singh (in 2012) expressed his “concerns”. I wish he will refrain from acting like PM Singh as regards the UNCHR 2021. We must remember that irrespective of political divides, for political expediency, Indian politicians capitalize on the Tamil aspirations.

Against this background, President Gotabaya Rajapaksa has withdrawn from promoting “national integration and reconciliation” by repealing Article 33(1)(b) under the mandated presidential duties in 19A. If it seriously conveys his unwillingness to undertake these two duties, abolishing 13A will surely lead to an undesirable reaction.  

 

International commitments

Besides Indians, Sri Lanka has been under the international microscope regarding peacemaking and power-sharing, commencing from Thimpu, extending to Peace Talks, with Ban Ki-Moon, and UNHRC, etc.

A notable event during the Peace Talks was the declaration of the Oslo Communique. Prof. Peiris led the government delegation, and I witnessed his excellent exposition with clarity, resonating factual arguments, and vast knowledge to convince Anton Balasingham, that LTTE should agree to power-sharing, without separation.  In a lighter vein, I am reminded how with Professor Peiris’s unmatched academic onslaught (which I adored), Anton Balasingham cut-short the discussion and retreated for external consultations—probably with Prabhakaran.

It was Prof Peiris -the Man of the Day- who pushed for the Oslo Communique. The parties agreed “to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking people, based on a federal structure within a united Sri Lanka.”

At the media conference, Prof Peiris praised extensive power-sharing within a one-county framework, sans cessation, and added, “Now if we believe in a political solution if we are renouncing war…. there could not be any other rural tribal except power-sharing – except the basis, the character of a federal solution.”

 The 13A is less devolutionary and federalist in content than the Oslo Communique that spoke of historical habitation and federal structure. Therefore, Prof. Peiris could now forget Oslo and take the lead in calming down protesters against 13A. Without any disrespect to Minister Ali Sabry, I may say that Prof. GL Peiris is the best bet to deal with 13A with his experience (especially with Indians). Paradoxically, it is also his disqualification, for his past stance is not in line with calls for abolishing 13A!

After  defeating the LTTE, President Mahinda Rajapaksa stated to UN Secretary-General Ban Ki-Moon that his firm resolve was ‘to proceed with the implementation of the 13th Amendment, as well as, to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka.” After three days, a resolution was submitted at the UNHRC, Geneva confirming his stances with Ban Ki-Moon. It was a commitment to implementing the 13A. For the first time, he made 13A a multilateral commitment.  

President Sirisena-PM Wickremesinghe government went a step further by incorporating it in October 2015 UNHRC Cosponsored Resolution. They failed to pass a new Constitution or move-on with 13A. More international attention was drawn to 13A.

 

Potential political manipulations

In the late 1990s, there were government proposals to create Regional Councils (RCs) – i.e. North-Eastern and South-Eastern RCs and even to create a center-controlled Ampara Electorate, to enable the establishment of the latter RC. Non-contiguous Muslim RC was another concept floated. SLMC Leader Mr. Ashroff was one keen supporter of those proposals.

The abolition of 13A will create a void. Muslim Parliamentarians who supported the 20A may expect Minister Ali Sabry and Romesh de Silva Committee to incorporate the said RCs proposal in the proposed Constitution, sometimes with revisions more favourable to the Muslims. This is a hypothetical situation, but those who call for abolishing 13A should take careful note of. They must be alert to political manipulations because the wrong judgment will cause more trouble than 13A.

Conclusion           

In summary, the opponents of 13A, who demand its abolition had better heed the domestic constitutional, political, institutional formations, bilateral agreement with India, many commitments made especially to India and international stakeholders in multilateral agencies. etc. If the decision is not to abolish, the government will be answerable to nationalistic elements who predict political, security, economic, and political organizational risks.  

Since the country is faced with a severe economic crisis, the international dimensions thereof are extremely important. As Dr. Jehan Perera writes: “In dealing with international governments, it is equally, if not more, important to keep commitments. The international community of governments is not as gullible as the voting public often is.”  This was written during Mahinda Rajapaksa Regime. Now, it is Gotabaya Rajapaksa regime. But irrespective of government changes, the thinking of the international community remains the same as for Sri Lanka’s commitments.

 Policies of the political parties that have been in power in India have been consistent as regards 13A and the issues Tamils are faced with. Nevertheless, India’s focus has shifted from devolution to Indo-Pacific, Chinese threats, free trade, investments, etc. and the possibility may exist of settling outstanding issues to mutual benefit (as Minister Krishna has said) “in a spirit of understanding and mutual accommodation imbued with a political vision.”

Abolishing 13A may entail a price payable geopolitically, politically, economically, diplomatically, security-wise, etc. Those who push for abolishing 13A must evaluate the potential balance sheet, weigh alternatives through negotiations and compromises. Forgetting these available options and to be overenthusiastic about their two-thirds majority, which can be used to abolish 13A may not mean happy hunting or a happy ending.



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Features

A Policy Science Analysis

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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.

Conclusion

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.

References

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.

 

 

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Features

Colombo port city economic commission bill 2021

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“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.

 

GLOBAL PERSPECTIVE

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

 

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.

AN ACT

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.

(b) Preamble

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.

WHEREAS

, 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 …

(c)

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.

 

Concluding Remarks

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: mendis_law@yahoo.com).

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900-year-old Buddhist monastery discovered in India’s Jharkhand state

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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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