Delaying the debate on Colombo Port City Commission Bill an act of deception or genuine miscalculation?

The Supreme Court decision on the Colombo Port City Economic Commission Bill will be presented to Parliament on the 18th, Speaker Mahinda Yapa Abeywardena said early this month.

He further added that the conclusion for the bill was received. It was later decided at the party leaders’ meeting in Parliament to hold a debate on the bill and hold a vote on the 5th.

However, the ruling party announced that both the debate and poll won’t take place as scheduled. In a statement issued by the Presidential Media Unit, it was stated that President Gotabaya Rajapaksa was also present that day to hear the speeches of the Members of Parliament. Reliable sources state that the government has to take a step back with regard to the Port City Commission. It is said that there is a conflict of opinion about the matter.

Usually, the second reading of a bill takes place more than seven days after the first reading. The Committee on Parliamentary Affairs has the power to determine that date.

Under Article 121 of the Constitution, when a petition is filed in the Supreme Court against a Bill, the date for the second reading of such Bill shall be fixed only after the decision of the Supreme Court has been declared in Parliament in accordance with Standing Order 55 (2).

It appears that this due date has been postponed beyond 18th May. The decision of the Supreme Court on a Bill must be notified to Parliament within 21 days of the conclusion of the hearing of the petition. Now it is time to present the conclusions obtained.

In the meantime, it should be recalled that three high-ranking Chinese diplomats visited Sri Lanka despite the Covid 19 epidemic. Yang Jiechi, China’s head of foreign affairs, visited Sri Lanka last year. Then, with the third wave of Covid this year, Chinese Defense Minister Wei Feng arrived in Sri Lanka. As he was crossing Borella, a youth was also arrested for honking vehicle horns in protest of blocking the traffic.

The police had not taken any action against it initially but the youth was later arrested and accused of organizing this objection. This is despite the Supreme Court ruling in the Sirimal vs Amaratunga case that even such an objection applies to the right to freedom of speech and expression enshrined in the Constitution.

It was sarcastically stated on social media that the temporary occupants of the estate had no right to protest or shout when the owner visits the estate.

Irrelevant responses from the court

This was another instance where doubts about the role of the judiciary were raised because of the way court officials treated the young man accused of organizing the protest. When the youth was produced before the court, the Colombo Additional Magistrate had said, ‘Don’t try to act macho, responding like lunatics at everything’. The youth was produced before the court on the 30th. The lawyers representing the youth informed the court that he had recently returned to Sri Lanka from Australia.

Lawyers said that such restrictions would not be imposed even when the Prime Minister of Australia is travelling. ‘That’s in Australia. This is Sri Lanka. If you do not love the country, do not return, stay in Australia… You talked enough. I saw how you were talking on social media.’ The relevant judge had also expressed these views. Lawyers point out that a judge should not say such things about a suspect in a case.

They also stated that there is an issue as to whether the presumption of innocence established by the Constitution has been considered in this regard. According to Circular No. 328 issued by the Judicial Service Commission on September 01, 2010, judges should refrain from making statements which are not relevant to the case in open court as it damages the independence and dignity of the judiciary.

China for the win!

Meanwhile, Chinese Foreign Minister Wang Yi is scheduled to visit Sri Lanka next month. It is said that he will also visit Sri Lanka during his regional tour. But Sri Lanka’s significance to China at this time is evident even through these diplomatic missions. It is also reported that several important commercial lands around the port city, including the land where the Kollupitiya supermarket is located, are being planned to be given away for Chinese investment projects.

Its initial steps have already been taken. Two weeks ago, Prime Minister Mahinda Rajapaksa, in his capacity as the minister in charge of the subject, issued a gazette notification regarding the immediate takeover of the land where the Kollupitiya Super Market Complex has been under the Colombo Municipal Council since 1976 with immediate effect.

Meanwhile, Prime Minister Rajapaksa presented another special resolution at the Cabinet meeting held on the 3rd and it was passed immediately. It was mentioned in a statement issued by the Department of Government Information under No. 01 that,

‘The proposal made by Prime Minister Mahinda Rajapaksa to construct a Sri Lankan Buddhist temple at the White Horse Temple in the People’s Republic of China, was approved by the Cabinet.’

Subterfuge for whom?

The Commission Council Bill on the Port City of Colombo was tabled in Parliament on April 08. Among the proposals in the Bill was that 07 Acts currently applicable in Sri Lanka are not applicable to that area and another 14 acts are subject to change or exemption in this area. There were also comments about the danger of the city becoming a major center for money laundering.

It was also stated that this area does not belong to any local government body or administrative structure in Sri Lanka. Citizens residing in this area do not have the right to vote. Instead, a group of between five and seven people owns authority in the area. According to the draft, it is not necessary for those persons to be Sri Lankans. The government had informed the Supreme Court that an amendment stating that the majority of these people are Sri Lankans, will be proposed.

It was clear from the outset that the government had an ulterior motive in introducing this bill. For example, this bill was introduced in Parliament on April 08. According to the constitution, a citizen can go to court against a bill within a week from the day it is tabled in Parliament. Accordingly, it was not possible to file a petition in court on 09th which was a Friday.

The next two days were a Saturday and Sunday. The government declared the 12th a special holiday. The 13th and 14th were New Year holidays. Accordingly, only 15 days were left as the date to go to court against this bill. However, that underlying objective was defeated. The Bill was challenged before the Supreme Court.

At the party leaders’ meeting held in Parliament on the 30th, the government had stated that the relevant decision would be given to the Speaker by the 4th of May and the debate would be held on the 5th. Although the opposition pointed out that a one-day debate was not enough for such an important and influential bill, it was rejected, reasoning the Covid situation. However, for whatever reason, the government’s original objective was defeated and this objective had to be changed.

Can only the Judiciary be held responsible?

Whatever the decision of the Supreme Court, it will only determine whether the draft is constitutional or not. It does not focus on the socio-economic advantages and disadvantages of such a decision. When the current ruling party was in opposition, it continued to say that there was no need for foreign parties to investigate crimes committed in Sri Lanka. They were referred to as foreign interventions, imperialist interventions.

But now PC Romesh de Silva, who is representing a party that said such interventions were needed, told the court that there is nothing wrong with foreign interference. The lawyers pointed out in court that the appointment of the Chief Justice and even the Supreme Court judges did not mention being a citizen of this country and that the privilege should be given to the Port City Commission as well.

This Commission exercises the powers and functions of a regulatory authority under any other Act, and it is imperative that all regulatory bodies prioritize matters as requested by the Commission. That is, the regulatory authorities here are government agencies. They should serve the purposes of the Commission, aside from all other matters.

This removes the discretion and powers of those regulatory authorities. Lawyers point out that doing so is arbitrary and violates the universality of the protection of the law guaranteed by Article 12 (1) of the Constitution.

As stated by President’s Counsel Romesh de Silva, it is not mandatory for all five members of the Port City Commission to be Sri Lankan citizens like the members of the Governing Council of the Urban Development Authority. Lawyers question whether granting such super powers to persons bound to other countries violates the freedom, sovereignty and independence of Sri Lanka guaranteed by Article 1 of the Constitution. He also pointed out that it violates the sovereignty of the people guaranteed by Articles 2 and 3 of the Constitution.

Constitution for what? 

According to Article 26 of the Bill, only those who have the permission of the Commission can do business in the port city. According to Article 27, all investments should be in foreign exchange only. Even foreign exchange deposited in a bank in Sri Lanka cannot be used for investment here. Accordingly, Sri Lankans cannot invest not only in Rupees but also foreign exchange which are deposited legally in an account in Sri Lanka in the port city.

These provisions are clearly arbitrary and treat Sri Lankans differently, depriving them of the equality guaranteed by Article 12 (1) of the Constitution and depriving them of the freedom to engage in trade and enterprise guaranteed by Article 14 (1) (g).

According to Article 62 of the Bill, all disputes involving the Commission must be resolved through arbitration. Sri Lankan courts are thus bypassed. When there are any other civil or commercial cases arising in the city which are not related to the Commission, they should be given priority on a daily basis. The inability of a lawyer to appear in court even for personal reasons such as illness is not a reason to adjourn the case. Lawyers argue that these provisions are arbitrary and violate Article 12 of the Constitution.

That’s how it was from the beginning! 

The first EIA report on the Colombo Port City Development Project was submitted to the Department of Coast Conservation and Coastal Resource Management in 2011 by the Sri Lanka Ports Authority for approval. It was presented as a very weak and incomplete report.

However, the report was released for public opinion on June 11, 2011 for a period of 30 working days. The report was prepared to reclaim 200 hectares of land from the sea. Later, in 2012, a proposal was put forward by the Chinese Communications Construction Company to reclaim 233 hectares of land by filling the sea.

Accordingly, an annexure report to the first EIA report was prepared and submitted on behalf of the relevant company to the Department of Coast Conservation and Coastal Resource Management, the project approving agency again by the Sri Lanka Ports Authority for approval. The report was not opened for public opinion.

The Department of Coast Conservation and Coastal Resource Management, the project approving agency, has given 42 conditional approval to the Sri Lanka Ports Authority on October 23, 2014, irresponsibly.

Prior to receiving the approval from the Sri Lanka Ports Authority, China Telecommunications Construction Company commenced sea reclamation on 16 September 2014. The company had illegally started the filling work a month before the approval was given. It is a question of on what legal basis this happened. This is how the port city has been under Chinese Authority since the very beginning.

The risk of marching down the wrong path

One needs to be careful about all of these. One could argue that the government has suffered a setback by introducing the bill and postponing the debate. But it is too early to say whether it is a real setback or a move to deceive the opposition. What is needed is staying on alert and not to let deceivers from using the Covid-19 outbreak for their own advantage.

The Supreme Court has said it will present its conclusion is a time when the public’s attention is on somethings else. It would be a time when people think only of their own survival.