Features
THE ONE LAW FOR SRI LANKA
by M Sornarajah
Emeritus Professor of Law
National University of Singapore
The consideration of a one law for Sri Lanka by a commission headed by a divisive figure was emblematic of an administration driven by ethno-nationalist animosities. Now that the young in particular have arisen against such tendencies, it is necessary to consider the one law that has guided and should guide the future of Sri Lanka.
The Supreme Court of Sri Lanka, in a long course of decisions, has held that customary international law, particularly the law on human rights, forms part of the law of Sri Lanka. It is the customary international law so declared by the Supreme Court that truly constitutes the one law of Sri Lanka. In that course of precedents are cases that captured the public imagination. In one, the court ordered that a foreign investment for the mining of phosphate in Eppawala, which would have caused the depletion of natural resources and harmed the foundations of the sacred sites in the area, should be discontinued. In another case, the Supreme Court protected the right of a young politician, Mahinda Rajapakse, in his earlier avatar as a human rights activist, to travel to Geneva to present the case before the Human Rights Committee on the rights of JVP detainees. Many of these cases were argued successfully by my distinguished teacher at the University of Ceylon, the late Mr RKW Goonesekere. A long-time Principal of the Law College, he was a teacher to many lawyers of Sri Lanka. He was committed to the cause of human rights in this country.
A later case, he argued, Sinnarasa v AG in which a politically inclined chief justice held that customary international law on torture is not incorporated in Sri Lankan law, unless expressed through statute, is an aberration widely condemned both in and outside Sri Lanka. It rests on the diminished authority of that particular chief justice. It does not reflect the law in any other common law jurisdiction. The judgment has been condemned by academics both in Sri Lanka and abroad. It, in no way, affects the established rule in Sri Lankan law that customary international law forms a part of the law of Sri Lanka.
The acceptance of customary international law as the only law that is common to Sri Lanka, besides of course, the law contained in legislation and the residual Roman Dutch law, is crucial to Sri Lanka at the current political stage. The consideration of any other “one law” would be divisive and inopportune at a time when the country is going through much hardship. Its pressing problems are reconciliation after the protracted civil war, the release of people kept in custody for inordinately long periods without trial on the allegation that they are terrorists under the draconian Prevention of Terrorism Act, the problem of missing persons and the elimination of rampant corruption that denudes the people of their wealth. For each of these issues, the answer lies in the adherence to the standards mandated by customary international law. The gradual moving away from the standards of the rule of law incorporated in customary international law is a prime reason for the political and economic conditions in our country. Some incidents of this are the lack of an independent judiciary, the absence of equal protection under the law of all citizens of the state, the principle of meritrocracy in public appointments, rampant corruption and the failure of the state to protect the lives of its citizens while having knowledge of threats to their lives.
There are more pressing issues than the stoking of communal and religious passions on the basis of an inquiry to institute one law for Sri Lanka presided over by a convicted Buddhist priest who has a history for promoting racial and religious hatred. There is already one law for Sri Lanka from which rules necessary for our political life can be quarried. Three important areas for which international law points to solutions relate to the need to bring about solutions to the ethnic dispute, the abolition of the Prevention of Terrorism Act and the rampant corruption that has induced an economic crisis in the country.
The 74-year curse of Sri Lanka has been the ethnic problem. It lies at the root of the present calamities. Every politician of the major political parties has jumped on the bandwagon of Sinhala Buddhist extremism to achieve power and then, engaged in corruption, without bringing any benefit to the people. While the children of these Sinhala Buddhist chauvinists were educated overseas or in international schools in English, the children of the poor have been taught in swabasha and are denied access to education in the sciences and technology. They are the political fodder for the future. It is necessary to put an end to this pernicious cycle. International law recognizes the equality of all human beings, as the organizing principle of life. International law recognizes the right to self-determination of the minorities as a means to a solution of ethnic problems. The lesser form of it permits solution within a unitary state. Internal self-determination speaks of devolution and other forms of constitutional settlement. The Supreme Court of Sri Lanka has held that such a solution is in keeping with the Constitution. Such ideas must be explored in putting this particular problem to rest for progress to be achieved. If they do not succeed, the rights of the minorities to be protected by external self-determination revive. The state must rapidly put in place a system that ensures maximum devolution of powers and equality to all minorities to avoid such a result.
The Prevention of Terrorism Act is an outcome of the ethnic problem. Its draconian provisions have resulted in several persons taken into custody going missing. Several still languish in jails without trial. Spurious convictions have occurred through forced confessions. The situation has provoked universal condemnation. Seven United Nations Rapporteurs have, in a joint report, identified what needs to be corrected in the PTA. They identified the following five “necessary prerequisites”: (i) a precise definition of terrorism in line with international norms (ii) legal certainty, especially where the Act impacts on freedoms relating to expression, association, opinion, religion or belief; (iii) prevention of arbitrary deprivation of liberty; (iv) prevention of torture and enforced disappearance; (v) provision of due process and fair trial guarantees.
The government has recently made cosmetic changes to the legislation that are woefully inadequate to meet these requirements. It would be best to abolish the Act and draft new legislation afresh making it measure up to international law standards. The abolition would mean that those who languish in the jails will be released. It is necessary to account for those gone missing after they had been taken into custody or had surrendered to the agents of the government. It is necessary to end the shameful episodes in our law through accountability and make a fresh beginning. The police, the armed forces and the state show scant regard to the value of the lives of citizens as there have been deaths at their hands which have not been inquired into. There has been no attributability of responsibility for these deaths.
The third factor is the extent of corruption that attends our public life. The politicians and the religious leaders who support them have earned public contempt. In that context, it is necessary to follow the prescriptions contained in the United Nations Convention on Corruption, the principles of which are widely considered customary international law. Sri Lanka has signed and ratified the Convention but has, characteristically, not made it part of domestic law. 186 countries (including Uganda) are parties to the Convention. The Convention creates procedure for money stashed away in foreign countries by corrupt politicians to be brought back to Sri Lanka. It will enable the repatriation of proceeds of corruption by successive administrations in Sri Lanka. Money stolen from the people can defray the debts that the country has incurred by successive corrupt administrations. The proceeds of corruption, defined as gained through abuse of “the power entrusted by the people for private gain” must be returned to the people.
Corruption is a violation of fundamental rights of the citizen as it leads to misallocation of public funds. It offends the right to equality by giving access to unexplainable wealth accumulation in the corrupt. There must be fundamental rights cases brought against the politicians requiring that they pay damages personally for the violations of these rights. BASL should take a lead in this. That is possible under existing law. Tracing the corrupt funds in foreign banks will be facilitated if new legislation incorporating the UN Convention on Corruption is made part of our law. True it is that the procedures for the recovery of the proceeds of corruption will take time but sooner they are instituted and the proceeds secured for eventual recovery the better.
Rather than pursue hate-mongering through the search for one law, the Government should pursue the rules of the one law that the Supreme Court has recognized as binding in Sri Lanka in finding solutions to the pressing problems of our country.
Germany had Hitler, a dictator who killed over 12 million Jewish people and took the country to war. After the Second World War, the German People, in the hope of avoiding repetition of such a calamity, enacted a constitution which makes human dignity and international law its centre-pieces. Article 1 reads :
Article 1[Human dignity – Human rights – Legally binding force of basic rights]
1. (1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.
2. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.
The Basic Law of Germany has a provision, Basic Law 25 which reads:
Article 25[Primacy of international law]The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the in-habitants of the federal territory.
It is imperative that a new beginning is made in Sri Lanka after the present chaos. When it comes about, human dignity, human rights and the duty of the state to protect human lives must be prioritized and provision must be made in the constitution to secure the primacy of international law.
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.
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.
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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