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Ministry of Justice Law Reforms: Clarifying and updating law and finding solutions, or creating more problems and confusion?

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By Kalyananda Tiranagama

Executive Director

Lawyers for Human Rights and Development

As reported by the media, over the past one year and more, addressing meetings at various places of lawyers, Judges and public officials and the media, Minister of Justice Ali Sabry, PC has spoken of steps taken by him to modernise the law by reforming and amending outdated laws.

During a visit to the new courts complex building at the Beligaha Junction, Galle on December 23, 2020, and addressing the media the Minister said, ‘To expedite justice process we have made a lot of efforts to enact new laws amending the outdated laws. Within the last three months, we have amended 37 laws and 30 more new laws to be enacted in the coming months.’

Commencing work at the Ministry of Justice for the New Year on 01 January, 2021, the Minister said, ‘After 1947 our legal system has not been updated. Within the last three months we have amended 37 laws. With these amendments unprecedented relief will be granted to the people through courts.

One can get an idea as to how these legal reforms are done from the following passages in a full page advertisement published by the Ministry in all the newspapers in all three languages on January 25, 2021 under the title – Ministry of Justice – Overview of Projected Reforms and Development:

C. i. Increase in Budget allocation

– The Ministry of Justice’s standard Budget allocation over the years has been Rs. 4,500 million

– The government in 2021, allocated an unprecedented sum of Rs. 20,000 million to the justice sector for infrastructure development and digitalisation amongst other key improvements. This reflects the largest ever commitment by a govt in the history of the country towards a complete reform and development of the justice sector.

iii. Special Project Unit of the Ministry of Justice

* The creation of five sub-committees was the brainchild of Mohamed Ali Sabry PC, the Minister of Justice. One of his earliest tasks after taking office was the submission of a comprehensive Cabinet Memorandum setting out the issues clearly and detailing a two year plan to fix laws delays.

* It provides for the creation of five sub-committees headed by dynamic lawyers from the private bar who would work together to come up with a complete solution to the problem. Cabinet Memorandum was approved by the Cabinet, thus giving the Ministry of Justice the green light to go ahead with the plan.

* The Cabinet has allocated an impressive expanse of resources for this project – a full-blown secretariat, staff and all the facilities necessary for the sub-committees to carry out their objective.

* This is the first time that the state has fully backed such a mammoth endeavour to reform the law.

* The terms of reference are precise and reflect a very clear overall plan.

* The five sub-Committees are 1. Infrastructure Development 2. Digitalization and Court Automation 3. Criminal Law Reforms 4. Civil Law Reforms 5. Commercial Law Reforms

As mentioned in this advertisement itself, the Budget allocation of the Ministry has been increased five times from Rs. 4,500 million to Rs. 20,000 million. It is the largest ever commitment by a government in the history of the country for judicial and legal reforms. It is a reflection of the importance the government has attached to legal and judicial reforms expected by the people over decades.

It is a mammoth endeavour to reform the law entrusted to five sub-committees headed by dynamic lawyers from the private bar. The creation of five sub-committees was the brainchild of the Minister. The terms of reference are precise and reflect a very clear overall plan.

As disclosed by the Minister in his public announcements, the number of laws identified for reforms and amendment is going up from month to month. Addressing a meeting at Medawachchiya on 27 October, 2021, the Minister has said that Cabinet had received suggestions for amending 60 laws and a lot of laws would be amended in the next six – 12 months. There are many antiquated laws that were adversely affecting the people. Some of these obstruct development and they needed to be amended.

In an interview with The Sunday Divaina newspaper of 28 November 2021, the Minister stated that since he assumed duties as the Minister of Justice, 14 months ago, steps had been taken to amend 84 laws, already 10 amended, about 20 had been submitted to the Cabinet for approval and about another 30 sent to the Legal Draftsman. Things have never moved so fast.

On the occasion of the opening of the Debt Conciliation Board Office at Gampaha on 29 December 2021, the Minister said that during the last one year 10 new laws enacted reforming outdated laws and steps were being taken to amend 98 laws in the coming days.

In our laws, there are many provisions that are outdated and lack clarity, resulting in injustice or inconsistent with generally accepted norms of human rights, or obstructing the smooth and effective implementation of the law. There are many issues encountered in the administration of criminal justice that need to be addressed, but have remained unaddressed for decades without required legal provisions to address them. There are many areas where the law needs to be further strengthened and improved to address issues encountered in emerging situations.

With these public utterances of the Minister, the legal fraternity and the people of the country undoubtedly expected the Ministry to identify not only a few outdated expressions in the law but also main problem areas and lacunae in the law encountered by the people in their search for justice and by the law enforcement authorities and that need to be urgently addressed with reforms required for smooth and effective implementation. What the country needs is substantial legal reforms aimed at addressing the issues that frequently come up in the administration of justice and enforcement of the law, and not some superficial or ornamental amendments.

The following 30 Acts have been passed by Parliament in 2021. Out of them 23 are Amendments brought to existing Acts and 7 (shown in bold letters) are newly enacted laws. The first 8 Amendment Acts were passed in the first week of January, receiving the endorsement of the Speaker on January 18, 2021.

1.

Shop and Office Employees (Regulation of Employment and Remuneration) (Amendment) Act No. 1 of 2021 – (January 18, 2021)

2.

Employment of Women. Young Persons and Children (Amendment) Act No. 2 of 2021 – (January 18, 2021)

3.

Minimum Wages (Indian Labour) (Amendment) Act No. 3 of 2021 – (January 18, 2021)

4.

Factories (Amendment) Act No. 4 of 2021 – (January 18, 2021)

5.

Penal Code (Amendment) Act No. 5 of 2021 – (January 18, 2021)

6.

Evidence (Amendment) Act No. 6 of 2021 – (January 18, 2021)

7.

Bail (Amendment) Act No. 7 of 2021 – (January 18, 2021)

8.

Intellectual Property (Amendment) Act No. 8 of 2021 – (January 18, 2021)

9.

Value Added Tax (Amendment) Act No. 9 of 2021 – (May 13, 2021)

10.

Inland Revenue (Amendment) Act No. 10 of 2021 – (May 13, 2021)

11.

Colombo Port City Economic Commission Act No. 11 of 2021- ( May 27, 2021)

12.

Fiscal Management (Responsibility) (Amendment) Act No. 12 of 2021 (June 14, 2021)

13.

Sri Lanka Land Development Corporation (Amendment) Act No. 13 of 2021 (June 30, 2021)

14.

Code of Criminal Procedure. (Amendment) Act No. 14 of 2021 (July 15, 2021)

15.

Torture Convention (Amendment) Act No. 15 of 2021 – (July 15, 2021)

16. National Minimum Wage of Workers (Amendment) Act No. 16 of 2021 (August 16, 2021)

17. Coronavirus Disease (Covid-19) (Temporary Provisions) Act No. 17 of 2021 – (August 23, 2021)

18.

Finance Act No 18 of 2021 (September 15, 2021)

19. Securities and Exchange Commission of Sri Lanka Act No. 19 of 2021 – (September 21, 2021)

20. Consumer Affairs Authority (Amendment) Act No. 20 of 2021 – (September 22, 2021)

21.

Petroleum Resources Act No. 21 of 2021

22.

Registration of Electors (Amendment) Act No. 22 of 2021

23.

Employees Provident Fund (Amendment) Act No. 23 of 2021

24.

Youthful Offenders (Training Schools) (Amendment) Act No. 24 of 2021 (2021. 10. 21)

25.

Penal Code (Amendment) Act No. 25 of 2021

26.

Appropriation (Amendment) Act No. 26 of 2021

27.

Immigrants and Emigrants (Amendment) Act No. 27 of 2021 – (12/11/2021)

28

. Minimum Retirement Age of Workers Act No. 28 of 2021

29

. Termination of Employment of Workmen (Special Provisions) (Amendment) Act No. 29 of 2021 – (17/11/2021)

30.

Appropriation Act No. 30 of 2021

However, when one examines the above amendments, it appears that some of them are nominal and superficial, some are meaningless, redundant and ridiculous, and in some others only some marginal issues are touched, ignoring the real ones that need to be urgently addressed, especially in relation to the administration of criminal justice. Some other amendments are totally unnecessary and impracticable and create unnecessary problems.

The first four amendments in the list of Acts amended relate to the increase of the minimum age of employment of children from 14 years to 16 years and the definition of the words, ‘child’ and ‘young person’. The definition of the word ‘child’ has been amended to mean ‘a person under the age of 16 years’ and the definition of the word ‘young person’ has been amended to mean ‘a person who has attained the age of 16 years, but is under the age of 18 years’. All these 4 Acts have been amended by replacing the phrases – ‘a person under the age of 16 years’ with the word ‘child’; ‘a person who has attained the age of 16 years, but is under the age of 18 years’ with the words ‘young person’ and ’14 years’ with ’16 years’ in the relevant sections in the Acts. Though it is a simple, clerical job without requiring much knowledge of law, it is undoubtedly a salutary step taken to protect the interests of children belonging to the age group of 14 – 16 years.

(To be continued)



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The heart-friendly health minister

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Dr. Ramesh Pathirana

by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka

When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.

Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.

Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.

Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.

The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.

This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.

Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.

This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.

Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.

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A LOVING TRIBUTE TO JESUIT FR. ALOYSIUS PIERIS ON HIS 90th BIRTHDAY

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Fr. Aloysius Pieris, SJ was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera on Nov. 23, 2019.

by Fr. Emmanuel Fernando, OMI

Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.

It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.

Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.

Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.

Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.

Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.

Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.

Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.

In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.

Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.

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A fairy tale, success or debacle

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Ministers S. Iswaran and Malik Samarawickrama signing the joint statement to launch FTA negotiations. (Picture courtesy IPS)

Sri Lanka-Singapore Free Trade Agreement

By Gomi Senadhira
senadhiragomi@gmail.com

“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech

Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).

It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.

Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.

However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.

1. The revenue loss

During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.

The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”

I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.

As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!

Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”

If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.

Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.

Investment from Singapore

In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.

And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.

I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”

According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!

What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).

However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.

Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.

That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.

The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?

It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.

As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.

(The writer, a specialist and an activist on trade and development issues . )

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