The Colombo Port City

However hard the government tries to claim that it won a famous victory in getting through the legislature the controversial Colombo Port City Bill, now an Act of Parliament following its certification last week by Speaker Mahinda Yapa Abeywardena, the fact remains that the Supreme Court (SC) found as many as 25 of its 74 clauses in conflict with the constitution. This is more than a third of the Bill that was originally presented and has been described as a “stinging rebuke” by critics. The SC held that many of the clauses, if not amended, required a two thirds majority of the House for their enactment; and there were others that required both the special majority plus the people’s consent at a referendum. It goes unsaid that the government will under no circumstances wade into a referendum. If we by some miracle have one, people will not bother about any Port City question that is put. They will vote on whether they do or do not want the incumbent government to remain in office. That is reason enough for any government to avoid referendums like the plague.

As promised, the impugned clauses were amended in line with SC guidelines to pass muster. After that, there was no need for the two thirds majority – which the government failed to get by a single vote – or any referendum. Readers will remember the one referendum we had was when the J.R. Jayewardene government asked the people to vote for either the ‘pot’ or the ‘lamp’ to indicate whether they consented to extend the massive mandate JRJ won in 1977. He asked for authority to continue to hold, without an election, the five sixths majority he won in that unprecedented landslide. That was in 1982 and the then incumbent Parliament got six more years without an election. There were numerous allegations that the referendum was rigged but nothing was proved. But it was as clear as daylight to anybody with eyes to see that the prohibition on the display of symbols was flagrantly violated.

It is true that JRJ applied some whitewash over this highly undemocratic act of canceling an election. He did that by requiring sitting ruling party MPs who could not carry their constituencies when he sought re-election (actually a misnomer as we will presently explain) in 1982 and the referendum that followed some weeks later. The misnomer is that he was not elected president in 1977. He was elected prime minister and was later “deemed” president by his 1978 constitution creating the executive presidency. Even in the whitewashing, there was dilution. Then Finance Minister Ronnie de Mel was exempted from facing a by-election and moved from Devinuwara to Bulathsinhala and no by-election was held at Panadura, out of the fear of Dr. Neville Fernando elected on the UNP ticket in 1977, who later resigned from Parliament following differences of opinion with the president.

We have been told by government MPs that there was a miscount in the parliamentary voting on the Bill and an inquiry of whether this was so would be held. Although there were different tallies, none of them hit the magic 150 number which constitutes the two thirds majority in the 225-member legislature. Voting in Parliament is now electronic and not physical. Gone are the days of voice votes of ‘ayes’ and ‘noes’, MPs standing at their seats for physical counts, or the calling of names where a vote by name is called for. Mr. Dhammika Kitulgoda, a former Secretary General of Parliament had been appointed as inquirer into this matter but had not begun his inquiry as this is being written. However the government’s Information and Communication Technology Agency (ICTA) was called to investigate and a report, not yet published or publicized, had been presented. Readers will agree that if the finding was in favour of the government contention, this would not have been the case.

We run in this issue a call by Mr. Chandra Jayaratne, a former Chairman of the Ceylon Chamber of Commerce who headed the CTC Eagle Insurance Company when the Ceylon Tobacco Company was in the insurance business, calling for the creation of an Independent Parliamentary Counsel in this country. This institution exists in the United Kingdom and Australia and Jayaratne, a civil society activist sees the Port City Bill (now Act) as a good reason for Sri Lanka too setting up such an institution to carry out the duties now undertaken by the Legal Draftsman. The people of this country will join him is asking how a Bill, with more than a third of its clauses in variance with the Constitution, could have in the first place been gazetted and then presented to Parliament with such defects. It presumably went through the Legal Draftsman, Attorney General, Ministry of Justice and the Cabinet before it came to Parliament. In fact the state-controlled Daily News reported over a month ago that AG had informed the Secretary to the President that “provisions of the Bill are not inconsistent with the Constitution. The Bill is not subject to any prohibitions or restrictions imposed by the 13th Amendment to the Constitution and may be enacted by Parliament.” Thereafter when the various unconstitutional defects were being pointed by counsel supporting the 19 petitions before the SC, a series of intended amendments were presented.

We are all familiar with the police arresting suspects on Friday evenings so that they can be held in custody until Monday morning without being produced before a Magistrate. The Port City Bill was presented to Parliament in the middle of the New Year holiday season limiting the time-frame open for citizen to challenge it. Nevertheless 19 petitions were filed and considered by a five-judge bench of the SC that made a unanimous determination. Whether the creation of the institution promoted by Jayaratne will make any difference to mala fide acts of governments seeking political advantages, we doubt. Perhaps the Port City will make a difference to the economy of our country. But that is no excuse for attempting to push through legislation that is bad in law.