Wave of legal challenges against Port City Bill; petitioners say Constitution undermined

Ahost of petitions filed against the Colombo Port City Economic Commission Bill claiming that the proposed Commission violates Sri Lanka's Constitution will be taken up tomorrow for hearing by a five-judge bench headed by Chief Justice Jayanatha Jayasuriya.

The other judges are: Justices Buwaneka Aluwihare, Priyantha Jayawardena, Murdu Fernando and Janak de Silva.

Among the 18 petitioners are the Bar Association of Sri Lanka, the United National Party, the Smagi Jana Balawegaya, the Janatha Vimukthi Peramuna, the Centre for Policy Alternatives, the President of the IT Professionals Association, and several other civil society members, including former LECO chairman Bandula Chandrasekara.

The petitioners have cited various clauses in the Bill which has been gazetted and are seeking a Supreme Court's determination that one or more provisions of the bill require to be passed by a special majority in Parliament and approved by a referendum.

The moves came as concerns were expressed by political parties, professional organisations, civil society and the public regarding the bill's clauses giving sweeping powers to a commission.

The BASL Executive Committee appointed a committee to study the provisions of the Bill. One of the concerns of the Committee was that the Bill was placed on the Order Paper of Parliament on April 8, giving only one week for those intending to challenge the constitutionality of the Bill to do so.

“The Executive Committee of the BASL is extremely concerned about the limited time given for scrutiny and discussion of this important Bill, as well as the timing of placing the Bill on the Order Paper of Parliament, which was after the suspension of sittings of the Supreme Court, a time when many members of the legal profession are unavailable,” the BASL said in a media release .

It also highlighted the Bill's provisions that directly affect the judiciary and the legal profession.

Among the recommendations of the Committee is that the BASL should request the Government to defer any further action on the proposed Bill for a reasonable time to enable the BASL to consult the relevant stakeholders.

In his petition, BASL President Saliya Peiris says the Bill is inconsistent with one or more of articles of the Constitution and several provisions will affect the administration of justice and adversely impact on the judicial power of the people exercised through courts.

BASL Secre t a r y R a j e ev Amarasuriya in his petition says one of the clauses of the Bill imposes an obligation of courts to give priority to civil and commercial cases of businesses carried from the Port City and the provision interferes with the judicial discretion and judicial sovereignty thereby violating the Constitution.

Also describing the bill as inconsistent with the Constitution is the main opposition Samagi Jana Balawegaya. Its General Secretary Ranjith Madduma Bandara says that among other clauses, they are challenging those which prescribe local assessment rates, other levies and provisions to regulate gaming which comes under provincial councils.

The SJB petition notes that the Bill empowers the President to appoint even non-citizens as members of the Port City Commission and it enables an arbitrary appointment of a body comprising solely of foreigners to administer, regulate and control all matters connected with businesses and other operations within a part of Sri Lanka's territory.

The petition also states the Bill prevents Sri Lankan citizens who have foreign currency deposits in an account maintained or operated in Sri Lanka or who have the capacity and capability to invest in Sri Lankan rupees from making any investment in the Port City.

SJB MP Harshana Rajakaruna in his petition states the clause which requires the accounts of the Commission to be audited by an international firm of accountants and the clause that grants power to appoint an international firm of accountants to audit the Commission's Fund was inconsistent with the Constitution.

United National Party General Secretary Palitha Ranga Bandara, another petitioner, says the Bill is in violation of the people's legislative powers, judicial powers, executive powers, the constitutional provisions that guarantee fundamental rights of the people and right of franchise of the people.

He also states that the Bill is inconsistent with the doctrine of the public trust and the concept of checks and balances while it leaves room for corruption and abuse of power, besides undermining Parliament's control over public finances.

UNP C h a i r man Va j i r a Abeywardena in his petition says the Bill's clauses are contrary and/ or repugnant to the rule of law, the independence of the judiciary and are in violation of the doctrine of separation of powers.

It also suspends the operation of the Constitution or several parts of it and abdicates and alienates the legislative power as the Bill seeks to set up an authority with legislative power.

Boralesgamuwa Urban Cuoncil member Bandula Charasekera, a former Chairman of Lanka Electricity Company (LECO), in his petition says he sees the Bill as inconsistent with the Constitution as it seeks to empower the Commission to establish a fund parallel to the Consolidated Fund established under Article 149 of the Constitution, undermining the role of the Consolidated Fund. It also seeks to establish off-shore banking institutions outside the purview of the Monetary Board established under the Finance Act and takes away the Auditor General's financial oversight power as stipulated in Article 154.

He says the Bill also seeks to empower the Commission to raise foreign debt and negotiate foreign grants without the concurrence of the Treasury and thereby Parliament. If the Bill is passed, he says it will empower the commission to collect taxes, rates and levies through self- imposed regulations which do not get the sanction or concurrence of Parliament. Therefore, the Bill violates the Constitution's Article 3 while undermining the people's legislative power exercised through Parliament.

Engineer Kapila Renuka Perera, Chairman of the Association of I n f o r mat i o n Te c h n o l o g y Professionals ( AITP), in his petition states the Bill will threaten Sri Lanka’s economy and national security.

He say the Bill permits the transfer, sale, and lease of property within the Colombo Port City to another party, while it also has the power to permit another party to approve visas for those employed in the Colombo Port City.

Among the petitioners is Wasantha Samarasinghe, a JVP Political Bureau member and Convener of the Inter Company Employees Union.

The Attorney General has been cited as the respondent in the petitions.

The Executive Committee of the BASL is extremely concerned about the limited time given for scrutiny and discussion of this important Bill, as well as the timing of placing the Bill on the Order Paper of Parliament, which was after the suspension of sittings of the Supreme Court, a time when many members of the legal profession are unavailable