President’s Counsel Romesh De Silva told the Supreme Court of Sri Lanka on Wednesday (21) that there was no constitutional bar to the Chief Justice of Sri Lanka being a foreign national, as he strove to make a case for the Government of President Nandasena Gotabaya Rajapaksa to allow Beijing to “govern” the Colombo Port City.
Making a three hour submission before a five judge bench of the Supreme Court, led by the Chief Justice, De Silva PC said that even the Chief Justice himself and the other judges can be non-Sri Lankans. Counsel for the Secretary to President Gotabaya Rajapaksa added that foreign nationals can also be appointed to independent (state) institutions except the UDA because the UDA Act expressly contains a bar.
The assertion comes after years of agitation against the involvement of foreign judges by the Sri Lanka Podujana Peramuna and the ‘Joint Opposition’, in respect of a judicial mechanism to prosecute alleged war crimes and other human rights abuses on the basis that foreign nationals sitting in judicial positions was a violation of the country’s sovereignty and constitution.
Moving a resolution of Parliament in June 2017, then Chief Opposition Whip and current Foreign Minister Dinesh Gunawardena said that the UN “continues to recommend the established of a “hybrid court”, including foreign “judges, defense lawyers, prosecutors and investigators”, despite such a court being in violation of the constitution of this country.”
In countless other public communications, the pro-Rajapaksa Joint Opposition has adopted a similar position.
But on Wednesday, the submissions in Sri Lanka’s Highest Court by Counsel for the President’s Secretary no less, proved what the SLPP detractors have always maintained – that there was no article in the constitution that would stand breached if foreign judges played a role in a judicial mechanism in the country.
“When you need to eat, even the water-monitor (kabaragoya) becomes the iguana (thalagoya)” social media users mocked the Government baldly after De Silva’s submissions were made public.
Assertions by the lawyer for Dr Jayasundara proved how much political capital Gotabaya Rajapaksa’s government is willing to expend to appease Beijing’s desires for the reclaimed city by the sea. Recent international media reports indicated hesitancy on the part of the Chinese Government to provide a USD 500 million lifeline to Colombo’s debt-ridden Government after multiple international rating agencies downgraded Sri Lanka’s sovereign debt rating. Negotiations on the USD 500 million loan had been stalling for a year, until President Gotabaya Rajapaksa’s administration promised Beijing two things.
Firstly, that it would end all talk of renegotiating the Hambantota port long-lease with China Merchant Ports, a key Gotabaya Rajapaksa campaign pledge.
Secondly, that the Government would do everything in its power to “fast-track” the Port City Commission Bill and incorporate all the concessions Beijing was demanding.
De Silva PC who has a history of making explosive statements in court to defend the Rajapaksa regime and its officials also served in the capacity of President Gotabaya Rajapaksa’s personal lawyer in a flurry of legal cases he was facing after the Mahinda Rajapaksa presidency ended in 2015.
He said it was ironic that petitioners against the port city bill were claiming Sri LAnka would become a Chinese colony if the bill was enacted while standing in a court complex constructed by China and gifted to the island.
“What is the problem if China Governs the Port City” asked De Silva incredulously. “We are slaves to Britain, but China is our friend.” He said: “It is something Sri Lankans can be happy about to a certain extent.
De Silva was representing Presidential Secretary P.B. Jayasundera, who was appearing as an intervening petitioner in the spate of challenges filed against the Colombo Port City Economic Commission Bill. De Silva said that because members of the Port City Economic Commission are appointed by the President, therefore it does not violate the constitution in any manner”.
Romesh De Silva’s arguments in court coincided with a merchant ship bound for China docking in the Hambantota Port on Tuesday (20) night. The Sri Lanka Atomic Energy Regulatory Council sent out an alert that the vessel contained uranium stocks to be used in nuclear power plants. Radioactive material cannot enter Sri Lanka without special approval, the Council said. The vessel not only failed to declare it was carrying uranium, initially Sri Lanka naval personnel were not permitted to carry out an inspection.
The incident set off geo-political alarm bells in the Indian Ocean and medical experts and lawyers warned that the Chinese Radioactive Ship issue in the midst of the consideration of the Bill was ironic and a grave warning of what could happen in the future.
“Today we were able to send the ship away, though it should never have come here in the first place. If the ship comes to the Port City the Commission may allow it to come there, they may even direct the Atomic Energy Authority to grant approval, and they will be forced to grant that approval. This is what happens when laws are drafted by amateurs, and in a bid to satisfy vested interests. The Bill should be withdrawn by the government, and drafted afresh, after considering the views of multiple experts – scientists, environmentalists, tax experts, constitutional experts, national security experts etc,” a concerned environmentalist told Colombo Telegraph.
Remarkably, the Government Medical Officers Association which inserted itself into a raging debate regarding the Millenium Challenge Corporation (MCC) grant proposal is yet to even make a statement regarding the radioactive material that docked in a Sri Lankan port without the necessary approvals. “What this damning silence from the usual suspects shows is that all those protests were carefully choreographed dramas by Rajapaksa appendages, who are also quite possibly pawns of Beijing’s manipulations,” a medical expert told Colombo Telegraph.
The Port City Bill has irked a cross section of society, including ultra-nationalist Buddhist monks who have challenged the draft legislation in the Supreme Court. The Bill provides for the establishment of a Commission consisting of 5-7 persons appointed at the President’s sole discretion, and these persons do not need to be Sri Lankan citizens. The Commission will govern the Port City.
The Commission would be vested with the power to exempt Port City investors from specified laws including Inland Revenue, VAT, Excise, Customs, Betting and Gaming Levy, Exchange Control and Casino Business Regulation.
The draft law blatantly discriminates against Sri Lankan citizens by preventing them from using foreign currency deposits in local banks to be used for investment in the Port City. Foreign investment may only be raised outside Sri Lanka, under the proposed law. Furthermore, citizens who make retail purchases within the Port City may be charged duty in respect of those goods on their departure from the Port City – as if they were leaving a foreign country and making a customs declaration.
The Parliament of Sri Lanka will have no oversight over finances of the Port City of Colombo and the governing Commission’s accounts will not need to be audited by the Auditor General of Sri Lanka.
Anti-corruption activists have called the Port City bill a recipe for creating a tax-haven for black money and a money laundering hub.
Appearing for Minister G.L. Peiris, President’s Counsel Gamini Marapana on Wednesday tabled a report in Court by PriceWaterHouseCoopers (PWC) dated February 2020. Based on the report, Marapana said, the Government of Sri Lanka stood to earn USD 800 million annually in tax revenue from the Colombo Port City.
However, Colombo Telegraph learns that not only was the PWC commissioned by China Harbour Engineering, the company that built and operates the Port City, but the PWC findings were based on an old version of the bill, which imposed taxes on foreign investors. In its current avatar, the Port City will earn GoSL almost no revenue in taxation from companies that will invest in the land mass.
The PWC report submitted to Court also raised questions about why the Government did not commission its own report on the financial viability of the Port City, and why a cabinet minister instead chose to rely in court on a report commissioned by the same company that would benefit from the Government’s sweeping legislation and tax breaks.
Based on the current version of the Port City bill, parties with vested interests on the Port City Commission who will not be answerable to parliament, will be granted the power to provide tax holidays to companies operating within the Port City.
In a separate development, a cabinet sub committee comprising Udaya Gammanpila and others have claimed that the current draft of the bill which was tabled in Parliament, was never seen by the Cabinet Sub Committee. The claim raises serious questions about who drafted the bill that was eventually sent to Parliament.