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Port City Bill Requires Referendum

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by Dr Jayampathy Wickramaratne,PC

The Colombo Port Economic Commission Bill was presented in Parliament on 08 April 2021, while the country was getting ready to celebrate the traditional New Year. With the intervening weekend and public holidays, citizens had just two working days to retain lawyers, many of whom were on vacation, and file applications challenging the constitutionality of the Bill in the Supreme Court within the one-week period stipulated in the Constitution. One wonders whether the timing was deliberate.

Special economic zones are common. They are created mainly to attract foreign investments. In return, investors are offered various concessions so that their products are competitive in the global market. Several negative effects of such zones have also been highlighted. The sole purpose of this article, however, is a discussion on the constitutionality of the Bill.

The Bill seeks to establish a high-powered Commission entrusted with the administration, regulation and control of all matters connected with businesses and other operations in and from the Colombo Port City. It may lease land situated in the Colombo Port City area and even transfer freehold ownership of condominium parcels. It operates as a Single Window Investment Facilitator for proposed investments into the Port City. It would exercise the powers and functions of any applicable regulatory authority under any written law and obtain the concurrence of the relevant regulatory authority, which shall, as a matter of priority, provide such concurrence to the Commission. The discretion and powers of such other authorities under the various laws shall thus stand removed.

The Commission consists of five members who need not be Sri Lankan citizens, quite unlike the Urban Development Authority, the Board of Management of which must comprise Sri Lankan citizens only. One issue that arises is that the vesting of such powers upon persons with loyalties to other countries, especially superpowers, would undermine the free, sovereign, and independent status of Sri Lanka guaranteed by Article 1 of our Constitution. It would also impinge on the sovereignty of the People of Sri Lanka guaranteed by Article 3 read with Article 4.

The removal of the discretionary powers of the various regulatory authorities is arbitrary and violative of the right to equal protection of the law guaranteed by Article 12 (1).

Under Clause 25, only persons authorized by the Commission can engage in business in the Port City. Clause 27 requires that all investments be in foreign currency only. What is worse is that even foreign currency deposited in an account in a Sri Lankan bank cannot be used for investment. Thus, Sri Lankans cannot invest in the Port City using Sri Lankan rupees; neither can they use foreign currency that they legally have in Sri Lanka. The above provisions are clearly arbitrary and discriminatory of Sri Lankans and violate equality and non-discrimination guaranteed by Article 12. They also violate the fundamental right to engage in business guaranteed by Article 14 (1) (g).

Under clause 35, any person, whether a resident or a non-resident, may be employed within the Port City and such employee shall be remunerated in a designated foreign currency, other than in Sri Lanka rupees. Such employment income shall be exempt from income tax. Clause 36 provides that Sri Lankan rupees accepted within the Port City can be converted to foreign currency. Under clause 40, Sri Lankans may pay for goods, services, and facilities in Sri Lankan rupees but would be required to pay a levy for goods taken out of the Port City, as if s/he were returning from another country! The mere repetition of phrases such as ‘in the interests of the national economy’ throughout the Bill like a ‘mantra’ does not bring such restrictions within permissible restrictions set out in Article 15.

Clause 62 requires that all disputes involving the Commission be resolved through arbitration. The jurisdiction of Sri Lankan courts is thus ousted.

In any legal proceedings instituted on civil and commercial matters, where the cause of action has arisen within the Port City or in relation to any business carried on in or from the Port City, Clause 63 requires Sri Lankan courts to give such cases priority and hear them speedily on a day-to-day basis to ensure their expeditious disposal.

The inability of an Attorney-at-Law to appear before the court even for personal reasons, such as sickness, shall not be a ground for postponement. These provisions are arbitrary and violate Article 12.

Clause 73 provides that several Sri Lankan laws listed in Schedule III would have no application within the Port City. Such laws include the Urban Development Authority Act, Municipal Councils Ordinance, and the Town and Country Planning Ordinance. Under Clauses 52 and 53, exemptions may be granted by the Commission from several laws of Sri Lanka, including the Inland Revenue Act, Betting and Gaming Levy Act, Foreign Exchange Act, and the Customs Ordinance.

The Commission being empowered to grant exemptions from Sri Lankan laws undermines the legislative power of the People and of Parliament and violates Articles 3 and Article 4 (c) of the Constitution.

Several matters dealt with by the Bill come under the Provincial Councils List. They include local government, physical planning, and betting and gaming. Article 154G (3) requires that such a Bill be referred to Provincial Councils for their views. As Provincial Councils are not currently constituted, passage by a two-thirds majority will be necessary in the absence of the consent of the Provincial Councils.

The exclusion of the Municipal Councils Ordinance from the Port City area is not possible under the Constitution. When the Greater Colombo Economic Commission was sought to be established in 1978 under the 1972 Constitution, a similar exclusion was held by the Constitutional Court not to be arbitrary. Since then, under the Thirteenth Amendment under the 1978 Constitution, local government has been given constitutional recognition and included under the Provincial Council List. Under the present constitutional provisions, therefore, the Port City cannot be excluded from laws on local government.

The writer submits that in the above circumstances, the Colombo Port Economic Commission Bill requires to be passed by a two-thirds majority in Parliament and approved by the People at a Referendum. Quite apart from the constitutional issues that arise, such an important piece of proposed legislation needs to be widely discussed. It is best that the Bill is referred to a Parliamentary Committee before which the public, as well as citizens’ organizations and experts in the related fields, could make their submissions.



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Implementing 13A: Some thoughts

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The 13A requires the Government to establish a National Land Commission, which would be responsible for the formulation of a national policy, concerning the use of State land. This Commission will include representatives of all Provincial Councils. The Commission will have a Technical Secretariat, representing all the relevant disciplines required to evaluate the physical as well as the socio-economic factors that are relevant to natural resources management. National policy, on land, use will be based on technical aspects, but not political or communal aspects.

by Dr Jayampathy Wickramaratne, President’s Counsel

The 13th Amendment to the Constitution (13A), which introduced devolution of power to the periphery, is again in the news, this time on the need to fully implement it. President Ranil Wickremesinghe first raised the issue in Parliament, asking the various parties whether they are for 13 Plus, meaning improving on 13A. SJB’s Lakshman Kiriella, an avowed supporter of devolution, while saying that his party is for it, asked the President whether Mahinda Rajapaksa’s SLPP, which provides the President with the Parliamentary majority he needs for his legislative agenda, was supportive. Pressed by the President and Kiriella for a response, Rajapaksa, who had promised India to improve on 13A, rose reluctantly and said ‘13 Plus’.

President Wickremesinghe’s attempt to get a consensus on a constitutional settlement of the national question did not get off the ground. The SLPP is unlikely to abandon its Sinhala-nationalist platform. Opposition parties were sceptical. Realising the impossibility of a far-reaching amendment, the President has changed his strategy to one of fully implementing 13A, without changes, or with minor changes, that could muster SLPP support.

Several Opposition parties, that attended the previous meetings of the All-Party Conference (APC), stayed away from the meeting, held on January 27. While the SJB said that the APC was a mere ‘talk show,’ its ally among the Hill Country Tamils, the TPA, said that the President had not considered the issues facing them. The SJB’s Muslim allies did participate. MP Harini Amarasuriya clarified that while the NPP supported the 13A, in principle, it did not consider the President’s statement, on fully implementing the13A, credible.

The main areas in which the 13A has not been implemented are law and order (Police powers) and land. To add to this, successive governments have, over the last 35 years, taken back several subjects, and functions, that legitimately belong to the Provincial Councils (PCs) – agrarian services being one of them. The high point of central intrusion was the Divineguma Act of 2013, under which several functions of PCs, related to rural development, were taken over, using the two-thirds majority that the Government possessed.

Constitutional and legislative changes

The President spoke of the need to establish the National Land Commission, a requirement of the 13A, but which successive governments had not done. He also said that a decision on whether to continue with Provincial Police Commissions, or to bring the Provincial Police, under the National Police Commission, had to be taken. The latter would be a centralising feature—a 13 Minus—that will be to the disappointment of pro-devolution forces.

At the time of the 13A, there was no National Police Commission. Appointments, transfers, etc., of Police personnel, were handled by the Public Service Commission, with the Cabinet of Ministers having the power to overturn decisions of the PSC. To set up the National Police Commission and Provincial Police Commissions, provided for by the 13A, the Police Commission Act No. 1 of 1990 was passed but has not been brought into force by successive Presidents. Under the 13A, a Provincial Police Commission would consist of the Deputy Inspector General of Police, a person nominated by the Public Service Commission, in consultation with the President, and a nominee of the Chief Minister. Since the 13A, a National Police Commission was set up by the 17th and 19th Amendments, and the President now appoints its members on the recommendation of the Constitutional Council. The writer submits that these changes must be reflected in the Provincial Police Commissions, as well. The sub-committee on Law and Order, of the Constitutional Assembly of the previous Parliament, recommended that the Chairman, and the members of the Provincial Police Commissions, should be recommended by the Constitutional Council, having considered nominations, jointly provided by the Chief Minister and the Leader of the Opposition of the respective Provincial Council. The writer submits that a better option would be for a Provincial Police Commission to be appointed by the Governor, on the recommendation of the Constitutional Council, which should be required to call for nominations from the general public and also consult the Chief Minister and the Leader of the Opposition of the Province concerned. Any such change would require a constitutional amendment.

The 13A requires the Government to establish a National Land Commission, which would be responsible for the formulation of a national policy, concerning the use of State land. This Commission will include representatives of all Provincial Councils. The Commission will have a Technical Secretariat, representing all the relevant disciplines required to evaluate the physical as well as the socio-economic factors that are relevant to natural resources management. National policy, on land, use will be based on technical aspects, but not political or communal aspects. The Commission will lay down general norms, regarding the use of land, having regard to soil, climate, rainfall, soil erosion, forest cover, environmental factors, economic viability, etc. In the exercise of the powers devolved on them, Provincial Councils shall have due regard to national policy, formulated by the National Land Commission. The Constitution does not set out the composition, etc., of the National Land Commission. The establishment of the Commission would have to be ordinary legislation.

Broad consensus needed

President Wickremesinghe, with former President Mahinda Rajapaksa, and Premier Dinesh Gunawardena, sitting beside him, told the APC that the Cabinet of Ministers had approved the full implementation of the 13A. If as President Wickremesinghe confidently says, he has the support of the Cabinet of Ministers and, thus, of the SLPP, the full implementation of 13A would be certainly possible. But it is important that the President reaches out to the Opposition parties, as well. The SJB is for devolution as a solution to the national issue. Sajith Premadasa’s Presidential election manifesto pledged maximum devolution, within an undivided and indivisible Sri Lanka. Premadasa won areas dominated by Tamils, Muslims and Hill Country Tamils, with percentages second only to those secured by President Kumaratunga, in 1994. SJB’s Muslim and Hill Country allies support devolution, but the President needs to talk to parties representing those communities, about issues pertaining to them, too.

The new ‘Helicopter’ alliance seems unable to take a unified stand on the 13A. Dullas and Dilan Perera were at the forefront of CBK’s campaign for devolution, and Professor G.L. Pieris was the architect of her devolution proposals. Tissa Vitarana did an admirable job of getting a consensus on the national issue, through the APRC process. The Left parties in the Utttara Sabhagaya are strong supporters of devolution, while their nationalist allies are against it. Former President Sirisena spoke in support of implementing the 13A at the APC. The JVP/NPP is unlikely to oppose moves to implement the 13A.

It must not be assumed that the President’s declared intention to implement the 13A could be put into practice easily. Sinhala nationalists, in the Uttara Sabhagaya, have already declared war against fully implementing the 13A, and not all SLPP elements would be enthusiastic about supporting the proposed changes. They are sure to be joined by Sinhala extremists outside Parliament. Anti-13A forces would attempt to use discontent among the masses suffering due to the economic mess the country is in. In these circumstances, the Government needs to convince the people, and the Opposition, of the genuineness of the exercise and the chances of its success. Lest the extremists raise the ‘separatist’ bogey, President Wickremesinghe and the Government must meet such arguments, taking the bull by its horns, and also explain to the people that power-sharing, through devolution, is a must, not only to solve the ethnic issue but also for the development of the periphery. Given its composition, the present Government cannot do so on its own. It must reach out and build a broad consensus on the issue.

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Aiyo, Sirisena

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By Dr Upul Wijayawardhana

Former president Sirisena has declared that he is poor and therefore has to go begging to pay compensation awarded by the Supreme Court to the victims of the Easter Sunday massacre! He was unwilling to stand in the dock when he appeared as an accused in a subsequent case and had to be ordered to do so by the Magistrate.

Just imagine an ex-president going around begging from the populace that was made destitute by the actions of the government he headed and the government that followed, which he was part of! To make matters even worse he gives totally ludicrous and unbelievable explanations. Let me add a few of my thoughts to many opinions expressed so far, including those in the editorial “Sirisena’s plea” (The Island, 24 January) wherein the editor quite rightly names those responsible for making this totally undeserved person the President, and suggests that they should help him pay, if at all.

The two important issues that need consideration are whether Sirisena is guilty of neglecting his duties as president in not defending the country from terrorism and who is responsible for paying the compensation awarded by the Supreme court.

I pose the first question because in numerous press conferences, Sirisena has stated that the Supreme Court awarded compensation because he was indirectly responsible for the actions of security chiefs he appointed, implying that there is no direct responsibility! One wonders whether Sirisena is unable to understand the judgement, which categorically states that there were lapses such as the malfunctioning security council for which he was directly responsible. In fact, what surprised me was the reflected annoyance or frustrations of the honourable justices by their use of terms like “what takes the cake” in referring to some of these terrible lapses! Though Sirisena does not come from an academic background, having been a cabinet minister and the general secretary of a major political party for years, surely, he should be able to grasp the contents of a judgement.

Obviously, Sirisena cannot challenge the judgement as it was delivered by the highest court in the land and he cannot criticise the judgement as it would amount to contempt of court. Therefore, it is pretty obvious that he is using a diversionary tactic hoping to fool us. Perhaps, he is unaware of the famous adage: “You can fool all the people some of the time and some of the people all the time, but you cannot fool all the people all the time.”

Sirisena seems to have developed total amnesia about the commission he appointed to inquire into the Easter Sunday massacre! From parts of the report released, it was pretty obvious that the blame lay, in addition to the security establishment, on him as well as the prime minister of the day, who as the present president must be having bad dreams of the day when he no longer has presidential immunity!

In fact, one of the reasons for the downfall of President Gotabhaya Rajapaksa was his reluctance to take action on that report. Perhaps, he did so at the behest of his younger brother who was obsessed with the two thirds majority.

Sirisena seems to disregard facts and is on a shameless mission to deceive the public again by stating that he has no means to pay compensation. He claims that his only income is from a mango plantation and that he does not own even a motorcycle. But have we ever seen him riding a bicycle or travelling by bus?

Although he has not provided any proof, Sirisena claims that he was in a hospital in Singapore for an urgent medical condition at the time of the attack. Why did he go to Singapore instead of seeking treatment at home? Afterall, he was the Minister of Health before contesting the presidency! How did the urgency resolve for him to return the following day? How did this poor mango grower have the money to go to Singapore for treatment? Did the public coffers cough up the money for allegedly a shopping trip he did for his son’s wedding?

In spite of the Presidential Commission he himself appointed finding him guilty and the highest court of the land directing him to pay compensation to victims, Sirisena has failed the nation by refusing to show any remorse or take his share of responsibility. Instead, he is attempting to make a political drama out of it. What about his brother Dudley, who roared like a lion threatening to teach a lesson to anybody who tried to punish his elder brother in any way? Why is he hiding like a lizard not offering to foot the bill? Has Sirisena no shame in allowing one of his supporters to beg under the Bo tree in Pettah? A decent politician would have opted to go to jail rather than beg but decency is, perhaps, something totally alien to Sirisena!

Sirisena, who really should set an example to others who were ordered to pay compensation, does not seem even to follow their behaviour of silent acceptance. He should remember that we have not forgotten what was stated by the ex-IGP that Sirisena offered him a diplomatic posting provided he accepted responsibility. He must be regretting the refusal! Those who should go round begging are government servants who have no means to pay compensation, not the mango grower whose brother is one of the richest “Hal Mudalalis”!

Mr Sirisena! You have no sense of shame and you have done everything possible to deflect blame. What I fail to comprehend is why the SLFP does not get rid of you. Perhaps, it has a death-wish and so do the ex-Pohottuwa chaps who decided ‘helicopter’! It clearly shows that ours is the land of politicians with no sense of shame!

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Harassment of women in politics on the rise

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by Rathindra Kuruwita

Election monitors and activists express concern that digital harassment of female politicians will increase when the local council elections campaign gets into full swing in the coming weeks.According to the preliminary results of a survey conducted by the Campaign for Free and Fair Elections (CaFFE), more than 70 percent of female local councillors and grassroots political activists have faced digital harassment.

CaFFE Executive Director Manas Makeen said the majority of those who were subjected to digital harassment (around 80 percent) had not lodged complaints with the law enforcement authorities or with the political party leadership because they felt it was an exercise in futility.

“Even if these women politicians go to the police or their party leadership, there is no solution. They have to find solutions themselves. The introduction of the quota for women candidates at the local council level has upset some politicians and they have resorted to the digital sphere to undermine their female opponents,” he said.

Makeen said the survey had also revealed that about 55 percent of women politicians and activists had faced physical harassment during their political careers. However, digital harassment was the most common form of harassment now. He said almost 90 percent of those who were harassed online believed politicians in the same party were behind the attack.

Nilka Perera (not her real name) is a member of a local council in Puttalam.

The 33-year-old politician said the harassment had begun with the announcement of the 25-percent-female-candidate quota ahead of the last local council elections, in 2018.

“Some religious leaders gave sermons on why people should not vote for women and their video clips are all over social media,” she said, noting that such misconceptions were not limited to one religion or community. “People were initially sceptical about women in politics and male politicians were quick to latch on to it. While there is misogyny in society, most attacks on female politicians are organised campaigns,” she said.

SJB MP Rohini Kavirathne said the Women Parliamentarian’s Caucus was well aware of systematic digital harassment of female politicians. She said that all female politicians including her had been victims of online harassment and that the Caucus had been active in assisting women in need.

“We have always been willing to help women, on an individual basis. We have also contributed and worked with election monitors, the Elections Department, and other relevant parties to empower women and stop the harassment. While the harassment continues, I am glad to see that women are becoming stronger and are proactively countering propaganda against them,” she said.

The CaFFE survey also found that although the majority of participants received some kind of training from a government or a civil society organisation in countering digital harassment, most of the female politicians over the age of 55 were unable to answer what they would do if they faced digital harassment.

The People’s Action for Free and Fair Elections (PAFFREL) Executive Director Rohana Hettiarachchi said he, too, had noted a spike in digital harassment of female politicians during the campaign for the 2018 local council elections after the 25 percent female candidate quota was given legal effect. At least 25 percent of the names on the nomination lists, submitted by parties or independent groups should be female candidates.

“Targeted harassment of female politicians, especially those who engage in grassroots-level politics, continues to be a serious problem,” he said, expressing fears that the problem would only aggravate with the election season approaching without any proactive countermeasures from political parties.

There was also a lot of character assassination through social media, and such campaigns were ongoing, Hettiarachchi said.

Pointing out that Sri Lanka did not have a mechanism to take swift action against election malpractice, he said this was a major lacuna that should be addressed, especially given the harassment female candidates faced in the digital sphere.

“Our law enforcement mechanisms are slow. During an election period, immediate action should be taken against election law violators,” he said. “What’s the point in taking action against a campaign of digital harassment a few months after the elections are over?”

Police spokesman Nihal Thalduwa said the Sri Lanka Police Computer Crime Investigation Division had been established to help victims of computer crimes including digital harassment.

“I don’t have numbers on the top of my head, but I don’t think we get a lot of complaints from grassroots-level female politicians about digital harassment,” the Senior Superintendent of Police said.

He said this was probably because the women politicians feared they would antagonise their party leaders if they complained to the police.

“However, since you brought this issue up, the police must work closely with other stakeholders as the elections approach,” he said.

The urban-rural divide

When the then government introduced a quota for women in late 2017, weeks before the nominations for local council elections were called, most political parties had not been ready, said Kalana Weerasinghe, Chief Operating Officer at the Federation of Sri Lankan Local Government Authorities (FSLGA). He said several political parties nominated friends and family members to fill the 25 percent female-candidate quota.

“Women were often made candidates in wards that male party leaders thought they would lose. However, now we have more than 2,000 female local councillors out of some 8,000, and they can be divided into three categories.

“First, there are seasoned female politicians who have been in politics for decades and some of them are even more popular than their parties’ electoral organisers. They could easily win parliamentary elections, too, if they were given an opportunity. Then there are friends and family members of political party officials, and they have no interest in politics although they are now elected people’s representatives. The third group comprises newcomers who are passionate about what they are doing.

“So, when it comes to digital harassment, the first group is capable of handling any personal attacks. The second group probably will drop out but those in the third group have learnt to adapt and fight back though they were at first depressed by digital media harassment,” Weerasinghe said.

He said the fightback was especially visible in the urban areas where women politicians were more educated and apt in digital technologies than their rural counterparts. These women realise the power of digital media, and how it can benefit their careers. “Being in politics also makes them tougher,” he said.

With the mainstream media giving little or no space for women local council politicians, social media was the main tool they could use to build up a larger support base and tell the voters about what they did and what they believed in, Weerasinghe said.

“A person who is facing harassment can lock his or her profile pic, but a politician can’t do so. No country has been able to reduce online harassment to zero. So, it is also about empowering women and building support structures. We have to make female politicians resilient and there is a lot that the government, political parties and civil society groups can do,” he said.

Role of civil society and govt.

While some female politicians in urban areas are coming to terms with the digital landscape, there are other women and activists who are not yet tech savvy to promote themselves or deal with increasing levels of online harassment.

Makeen said that although most women politicians were on Facebook, quite a few did not know how to use the platform to promote their political careers. If they faced online harassment, they would lock their profiles or stop using social media, he said.

“Early this year, we did a study on online harassment faced by women politicians. We found that they knew about the platforms and online harassment, but they did not know how to use social media to boost their career or how to proactively deal with cyberbullies,” he said.

Makeen said they had also held a series of consultations with national-level female politicians and found out they had also been victims of concerted digital harassment.

“A young former MP once told us that at the beginning of her career, she had been devastated by cyberbullying. This is the case of someone coming from a political family and had gone through trauma. She said it was so bad that she had even contemplated quitting politics. With the backing of her family, she had learnt to ignore the bullies and connect with those who supported her although she is one of the most memed female politicians today,” he said.

Women fighting back

Manjula Gajanayake, Executive Director of the Institute of Democratic Reforms and Electoral Studies (IRES), said several young and educated female politicians including those at the grassroots level had learnt how to navigate the digital sphere.

While digital harassment continued to be a serious problem, there were signs of female local councillors building the necessary support structures to overcome it, he said.

“Initially, a lot of local women councillors were devastated by digital media harassment. I was told that some families were on the verge of breaking up. However, in the past few years, we have seen a counterattack. Female local councillors who are serious about their work have behaved with great integrity and now they are getting social recognition. Their family members, who were initially hesitant or upset about them being in politics, have now warmed up,” he said.

Describing the trend as a positive change, Gajanayake called on the government and political parties to step up efforts to end digital harassment of women candidates.

He said that often targeted digital harassment was carried out by political actors and sometimes by those in the same party.

“If the political parties are stricter and take complaints by their women candidates more seriously, we would see a sharp drop in instances of targeted digital harassment,” he said.

* This story is produced under the ANFREL Asian Media Fellowship on Election Reporting.

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