Top lawyer says separate legal framework for Port City constitutionally unfeasible
„Dr. Harsha Cabral, PC foresees a constitutional mess if such a move attempted „Says SL’S Commercial High Court has adequate structure but verdicts could take long time
The country will get into a constitutional mess if the government goes ahead with its original policy of governing the Colombo International Financial Centre (CIFC) in the Port City through a separate legal framework based on English laws, a leading lawyer in the country said.
“Unfortunately, you can’t do that in Sri Lanka. Unless you change the constitution, you can’t do anything about it. You can’t have one place to have English law and the rest of the country to have Sri Lankan law,” Dr. Harsha Cabral, PC told a panel discussion in Colombo, yesterday.
Dr. Cabral expressed disappointment over Sri Lanka’s inability to have a similar judicial and arbitration system as in Singapore’s financial centre.
“With Port City, it’s rather unfortunate that we won’t have the same mechanisms like Singapore,” he said.
Singaporean Member of Parliament Professor Mahdev Mohan said, Singapore’s financial centre has a separate legal system based on English law, which makes arbitration decisions, and the judicial rulings on commercial matters made there are acceptable globally. Singapore established Singapore International Commercial Court (SICC) in 2015 and also has an international arbitration centre.
“I went to the first sitting in Singapore and it was like you were in The Hague because you would have an international panel of judges. These judges, for the duration of each case, would be appointed as high court judges in Singapore,” he said.
He noted that through such a mechanism parties could come to Singapore to resolve their disputes through an independent and credible party, which Sri Lanka too could copy.
“Positioning yourself as a hub between Dubai and Singapore, I honestly think is a competitive advantage for you,” he said. Dr. Cabral said that although Sri Lankan politicians have chosen to adopt commendable initiatives, some, such as the court system in the CIFC, are impractical. “Changing the constitution is a big, big mess. You see?” he stressed.
While the unity government has agreed to change the constitution with regard to election processes as part of the promises it made to win the 2015 election, the minority party in the coalition, the Sri Lanka Freedom Party, as well as some of the opposition parties, have shown heavy resistance to changing any other part of the constitution.
The 2016 budget initially envisioned the CIFC, along with an international commercial court system, to be set up by April 1, 2016, alongside the Beira Lake, where the proposed casino strip— which was side railed—was supposed to be built.
Later, the government said the CIFC would be located in the Port City built by the Chinese.
How successful the CIFC would become under Sri Lankan law remains to be seen. The Sri Lankan legal system has been ranked poorly in the Ease of Doing Business Index compiled by the World Bank, Index of Economic Freedom compiled by the Heritage Foundation, as well as by the World Trade Organisation.
Dr. Cabral noted that while Sri Lanka’s Commercial High Court has an adequate structure, cases could take 10 to 15 years before a ruling is made, which is unacceptable for the investors who are expecting to recover their investments within five to 10 years and are used to legal systems where the rulings are made within months.