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Legal implications on claiming damages by SL under international law

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Fire on New Diamond crude oil tanker:

BY Dulip Jayawardena

A Very Large Crude Career (VLCC) double hull tanker under the flagship of Panama was built by Mitsui Ichihara Engineering and Shipbuilding, Ichihara, Japan, in 2000 and has a gross tonnage of 160 079, with a dead weight of 299986 tons (DWT). The former names were Diamond Warrior (2013 Panama) and Ikomasan (2013 United Kingdom). It was reported that this tanker carried over 270 000 metric tons of crude oil above the gross tonnage.

The length of the tanker is 333 meres and breadth 60 metres. The present owner and manager are from New Shipping Company Athens, Greece. The International Maritime Organization (IMO) Registration No. 9191424 Maritime Mobile Service Identity (MMSI) is 351247000 for this tanker.

According to Ekathirinorini.com an Athens-based business site, the VLCC Panamanian tanker has been owned by Porto Emporios Shipping Inc., since 2013. The vessel’s commercial and safety manager is Greece-based New Shipping Ltd., which has a fleet of 32 oil tankers and bulk carriers under its care.

 

THE SEA ROUTE OF VLCC

NEW DIAMOND

This VLCC set off from Mina Al Ahmadi Port, in Kuwait, to the Paradeip Port, in the east coast of India, with 270 000 tons of crude oil. There were 23 crew members, comprising of five Greek and 18 from the Philippines. The position of the VLCC by the Automatic Identification System (AIS) was at the Persian Gulf (co-ordinates 26.32473 N/53.7858 E) on 23 August 2020 and was scheduled to reach the Port of Paradip Garh, on the east coast of India, on 5 September 2020, at 10.00 am. However, a fire erupted due to an explosion of a boiler in the main engine room on 3 September 2020 at 8.00 am, Sri Lanka time, when sailing 38 nautical miles off Sangamankanda Point off the eastern coast of Sri Lanka, according to the Sri Lanka Navy.

The VLCC, that left the Persian Gulf on 23 August 2020, reached the location of the explosion on 3 September 2020 after 11 days, travelling a distance of 2153 nautical miles at 195 nautical miles per day. It was scheduled to reach the port of Pradeep Garh on 5 September 2020 at 10 am travelling a distance of about 750 nautical miles at over 10 knots or 240 nautical miles per day. It is evident that the VLCC was to increase its speed while travelling from the south of Sri Lanka to the Port of Destination and it should be ascertained whether this caused a boiler in the engine room to explode.

 

PRESENT STATUS OF THE FIRE ON VLCC NEW DIAMOND AND SALVAGE OPERATIONS

According to News First, a Sri Lankan media, the VLCC, as of 6 September 2020 at 7.58 am, is 40 nautical miles away from land and there is a continuous effort to spray cooling agents to cool the oil storage section of the tanker.

As mentioned earlier, the vessel’s commercial outfit, New Shipping Ltd., of Athens, Greece, has appointed SMIT Singapore Pvt Ltd., as a salvage group for future operations and has one tug boat at site with the salvage chief who deals with such disasters. Two more large tug boats that can handle oil tankers of this size are expected. Further, 10 British and Dutch professionals with expertise in rescue operations, disaster evaluation and legal consultations have arrived in Sri Lanka and are expected to make recommendations on the future course of action.

It was reported that the fire erupted again on 8 September 2020 and was brought under control by the Disaster Management Team on the morning of 9 September 2020. A Dornier aircraft of the Indian Coast Guard air dropped diesel dispersant as there was a leak of diesel from the engine room. Further a research vessel from NARA has been dispatched to collect sea waters around the distressed tanker.

 

LEGAL IMPLICATIONS UNDEER

INTERNATIONAL LAW

The legal issues under international law are complicated as there are responsibilities under the three major entities involved, namely the Panamanian flag state, the owners Porto Emporios Shipping Inc and New Shipping Ltd of Athens, Greece.

The fire on board VLCC New Diamond as reported by the Sri Lanka Navy has occurred 38 nautical miles on 3 September 2020. Since this point is not within the territorial sea of 12 nautical miles and also is away from the contiguous zone of 24 nautical miles, it is within the Exclusive Economic Zone (EEZ) which is over 200 nautical miles.

 

UNITED NATIONS CONVENTION ON

THE LAW OF THE SEA (UNCLOS)

It is now evident that since the fire occurred within our EEZ, the vessel had the freedom of navigation under UNCLOS.

Sri Lanka ratified UNCLOS on 16 November 1994 the day that the Convention entered into force and therefore has the rights and obligations under international law.

 

NATIONALITY OF SHIPS AND FLAG STATE DUTIES UNDER ARTICLES 91 AND 94 OF UNCLOS 1982

Article 91 states that every State identify conditions for the grant of its nationality for registration of ships in its territory and the right to fly the flag and has a genuine link between the State and the ship. According to the Lloyds Register, there are 10 Flag State countries with the ships flying their flags. These are Panama (9367 ) Singapore (4962) China (4881) Marshall Islands (4163) Liberia ( 4027) Japan (3846) Hong Kong (3707) Malta (2637) Greece (1545) and Bahamas (1512).

Freedom of navigation and the right of flag State to sail ships on the high seas are included under customary law and codified under 1958 High Seas Convention and subsequently under Article 87 and 91 of UNCLOS 1982.

Freedom of Navigation as referred to in Article 87 of UNCLOS (Freedom of High Seas) also applies to EEZs.

Under Article 94 (1) (2) (3) and (4) of UNCLOS the flag State is responsible for duties related to effective jurisdiction and effective control over administrative technical matters on their ships on the High Seas or EEZs

Article 94 section 6 of UNCLOS refers to “A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not being exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate into the matter and, if appropriate take any action to remedy the situation.”

In the case of VLCC New Diamond the flag State is Panama and the appropriate authorities should initiate action, if not done so, inform Panama about this fire.

Attention is also drawn to Article 217 of UNCLOS highlighting the responsibility of the flag State to strictly take appropriate measures and adopt laws and regulations to prevent, reduce and control of pollution and ensure the compliance of those vessels flying its flag with international marine pollution laws. It must also be stressed that the flag State is bound to investigate any case where any ship registered under its flag violates any international anti–pollution laws.

However, the implementation of duties of flag States termed open registers or flags of convenience do not follow the obligations under UNCLOS and other relevant maritime Conventions under the International Maritime Organization (IMO).

The IMO Conventions are divided into (1) Maritime Safety – 11 Conventions (2) Marine Pollution – 7 Conventions (3) Liability and Compensation – 7 Conventions and (4) Other Subjects – 4 Conventions.

Some of the important Conventions relevant to the fire on board of New Diamond are International Convention for the Safety of Life at Sea (SOLAS) -1974 and International Convention on Maritime Search Rescue (SAR), 1979 International Convention for the Prevention of Pollution from Ships 1973 as modified by the protocol of 1978 relating thereto (MARPOL73/78),Convention on Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LDC) 1972, and International Convention on Oil Pollution Preparedness , Response and Cooperation (OPRC) 1990 .

As related to claiming of compensation and liability the applicable convention is the international Convention on Civil Liability for Oil Pollution Damage (CLC) 1969 and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (FUND) 1971, and International Convention of Salvage (SALVAGE) 1989.

It is customary to delegate responsibilities of Flagship States to Ship Classification Organizations (SCO) which are private institutions who are delegated to establish and maintain standards for the construction, maintenance and classification of ships including tankers.

 

The major problem is that majority of flag States are delegating most of their duties to SCOs and it has been noted that the SCOs lower their standards due to competition and attract more clients.

Sri Lanka is a member of International Maritime Organization (IMO) since 1972.

IMO has formulated the International Safety Management Code (ISM) which applies to the safe operation and management of the vessels and also for prevention of environment pollution. As a member of the IMO Sri Lanka should take action to report if the VLCC New Diamond has violated the applicable conventions indicated earlier.

 

PROCTED WATERS OF SRI LANKA

An excellent article by Howard Martenstyn (https://www.slam.lk/protected-waters..) Have listed Marine National Parks and Marine and Associated Sanctuaries.

The fire on VLCC New Diamond if resulted to oil spills would have severely polluted the Yala and Kumana National Parks, Pigeon Island near Trincomalee The other Marine Sanctuaries such as Godayaya , Kalametiya Lagoon (Hambantota), Little Sober Island, Great Sober Island (Trincomalee), Kokilai lagoon would have also been subjected to severe oil pollution. The rare fauna and flora in these areas would have been subject to extinction, including the rare species of Omura Whales.

SUGGESTED FUTURE PLANS FOR PROTECTION OF THE SEA AREA OF THE EEZ ON THE EAST COAST

The Marine Environment Protection Authority (MEPA) is the main body established by the Government of Sri Lanka under the marine Pollution Prevention Act No 36 of 2008 with the full responsibilities for preventing control and manage the pollution of Sri Lanka’s marine environment. The fire on VLCC New Diamond was within the EEZ of Sri Lanka and it is queried whether customary laws have been formulated and enacted in conformity with the international laws conventions and treaties covering our EEZ.

It is also reported that there is no effective modalities to ascertain that flag States set their own individual standards for registration of ships including tankers and to identify and implement protocols to effect conditions covering all flag States have failed. (Refer 1986 UN Convention on Conditions for Ship Registration).

Accordingly, the legal framework in place for monitoring and implementing effective flag State is not complete. It is also noted that most flagship States do not give much importance to identification of ownership of ships and accountability of ship owners and most of these States register ships without the requirement of the identification of owners. Accordingly, such incorporation is secretive and will normally cover all the related jurisdictions.

It has been reported that the Attorney General has ordered that VLCC New Diamond to be towed out of our EEZ which is identified as 200 nautical miles from the high water mark on the coastline.

Sri Lanka is now in the process of claiming an extended see area of 1, 400,000 sq. kilometers on the eastern Indian Ocean which is over 24 times the land area of 650 612 Km 2 under Article 76 of UNCLOS Annex 11 UN Commission on the limits of the Continental Shelf. With this development Sri Lanka will have a major task to control maritime pollution in such a vast sea area apart from the security and exploitation of off shore non living and living resources.

RECOMMENDATIONS

As a researcher at United Nations ESCAP I was involved in covering marine affairs under UNCLOS for over 13 years.

I would recommend the following for future course of action related to the VLCC New Diamond.

(1) The Treaties Division of the Ministry of Foreign Affairs should get actively involved in filing claims related to marine pollution of the eastern seas of Sri Lanka together with the MEPA, NARA, Environment Ministry, Environment Protection Authority, Department of Maritime Shipping and other prevalent agencies.

(2) The Government must work out a new sea route for all VLCC tankers to avoid Sri Lankan waters and navigate south of Sri Lanka to the new sea port now operating at Port Blair on the Andaman Islands. From Port Blair the path of the VLCC tankers should go north to the Indian coast avoiding Sri Lanka’s EEZ at present and also the extended sea area after the finalization of the of the extended sea area by the UN Commission on the Continental Shelf. Bi lateral talks should be initiated with India and Bangladesh regarding this matter. India imported 2.724 million metric tons for its refineries on the eastern seaboard of India. Accordingly, Bangladesh imported 1.4 million tons of crude oil from the Middle East in 2020. Most of these tankers were of the VLCC class. It is also reported that Sri Lanka also imports crude oil from India and to maintain our clean seas programme should also recommend avoiding our sea area defined as our EEZ.

(3) All VLCC tankers bound to the Chinese coast and Japan avoids Sri Lanka’s waters and navigates on a sea route to the Malacca Straits. The Chinese government as an integral part of the Belt and Road Project has initiated talks with Thailand to construct the Kara Channel, a 1220 kilometer Thai Channel . However the project is still on hold by Thailand and when this project is completed our southern sea waters will be safe from any oil spills from VLCC tankers and any ships carrying dangerous chemicals.

References :

(1) A Critical Analysis of Flag State Duties as Laid Down Under Article 94 of UNCLOS – Nivedita M. Hosanee – The United Nations – Nippon Foundation Fellowship Programme 2009 -2010.

(2) The International Law of the Sea by Yoshifumi Tanaka University of Copenhagen, Faculty of Law Cambridge university Press 2012

(3) Maritime Security and the Law of the Sea by Natalie Klein Oxford Monograph in International Law 2011.

(4) Environment Protection and Biodiversity Conservation – The Application and future development of IMOs Particularly Sea Area Concept by Julian Roberts 2010 Springer Publication.

(5) The Law of the Sea United Nations Convention on the Law of the Sea with Index and Final Act of the Third United Nations Conference on the Law of the Sea United Nations New York, 1983

 

(The author is a Retired United Nations ESCAP Economic Affairs Officer and also worked as a Senior Research Officer at NARA from 1986 -1989 and a World Bank Consultant to the Ministry of Industries in early 1990 and can be reached at fasttrack@eol.lk)



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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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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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