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It was significant, no less than ironical, that the SLPP Government chose to present the Port City Bill to Parliament on the day the nation was commemorating the defining triumph over the Tamil militia’s long-drawn struggle to establish a separate state of Eelam on Lankan soil twelve years ago.

On March 18, 2009, when Prabhakaran’s bullet riddled body was found in the mangrove belt on the banks of the Nandikadal lagoon in Mullaitivu, thus ending the 30-year terrorist war, the patriotic cry that roared was deafening even as the scramble to claim sole credit was frantic. But in her hour of triumph, the exultant nation was generous, and whoever offered his chalice had it poured to the brim without stint to be drunk to the lees without restraint.

But memories of Lanka’s ‘finest hour’ seem to have faded, and winds that blew in exultant relief following the slaying of the Eelam spectre no more blow in regal sway to kindle the governing conscience into learning from past horrors; and the terrible toll the nation paid in flesh and blood to exorcise the phantom from the land, no more serve as fitting warnings that eternal vigilance is the price of liberty.

Instead, the easily foreseeable consequences that may inexorably flow from granting to  the Chinese exclusive rights to occupy for 99 years the new land born from  Lanka’s territorial waters midwived by the Chinese, an unsolicited project proposed by the Chinese, financially  aided by the Chinese, and heavily promoted by the Chinese are met with apathy; and the long term threat posed to Lanka’s territorial integrity and the possible de facto usurpation of the Lankan people’s sovereign rights seem not to have been looked askance but  tossed aside in the face of promised Chinese trinkets.

Perhaps the irony was lost, when the SLPP Government chose May 18 as the day to present to Parliament the Port City Bill which, from whatever angle one looks at it, seeks to create on the island’s capital shore, a separate entity possessing all the makings of a separate pseudo state, with its own set of rules and regulations, with its own established oligarchy in overall command; and, had it not been for the timely intervention of the Supreme Court, would have required a ‘visa’ to enter for all Lankans.

Considering its radical nature and the paradigm shift it would cause in the body politic of Sri Lanka, the bill had been surrounded with controversy not merely for its content which excluded, in the Port City zone, the applicability of 14 statutes prevailing in the rest of the island but also for the questionable manner in which, as claimed by the Opposition, it was surreptitiously advanced through its many stages.

The Colombo Port City Economic Commission Bill was presented to Parliament on April 8 by Leader of the House Dinesh Gunawardena. The 20th Amendment to the Constitution had reduced the time within which a Bill could be challenged in the Supreme Court from 14 to 7 days. With the 10 and 11 being Saturday and Sunday and 13 Tuesday and 14 Wednesday being Aluth Avurudu holidays, the Government declared ad hoc 12 Monday as a public holiday, leaving only 15 Thursday as the final day to lodge petitions.

PORT OF CALL: What will the Port City, promoted as the Gateway to South Asia, hold for Lanka?

The Supreme Court on April 23 concluded the consideration of petitions filed challenging the bill and announced that the determination would be directed to the Speaker. The judgment was expected to reach the Speaker on May 4 and the debate scheduled to be held on the following two days. But due to the Speaker not receiving the court determination, the debate was postponed. The Speaker received it that Friday and it was decided to present it to Parliament this week on the 18 May.

The opposition also charged that the bill had been presented in the backdrop of a raging coronavirus resurgence. With an unstoppable third wave sweeping across the land, the most virulent so far seen in the island, with the attention, energy and resources of the nation totally marshalled to meet the paramount threat, was this the time, was this the right climate, asked the opposition in unison, to hold a short two-day debate within 24 hours of receiving the Supreme Court determination of a Bill that sought to change the face of the land and, possibly, endangered its territorial integrity and sovereignty of its people?

But, in spite of opposition clamour to delay the debate in view of the compelling circumstances, SLPP party leaders stuck to their guns and steadfastly refused to allow the rising pandemic fires delay their journey to the Promised Land.

In the light of the Supreme Court determination, the Opposition’s demand for more time to study the far-reaching implications it will hold for Lanka seems justified when it was revealed that 26 clauses in the bill were inconsistent with the Constitution and required a two-thirds majority to be enacted. Furthermore nine of these clauses also required a referendum to be held in addition to a two-third parliamentary vote to be ratified.

One glaring example of a clause the Supreme Court found vitiating the Constitution and demanding a two-thirds majority vote and reference to the people at a referendum to remedy the defect was Clause 68(1)(f)  of the original Bill which stated:

‘Notwithstanding the provisions contained in any other written law, any person who, within the Area of Authority of the Colombo Port City–

(f) contravenes or fails to comply with any rule, code, direction or guideline made or issued in terms of this Act, commits an offence and shall be liable on conviction after summary trial before a Magistrate, to a fine of not less than rupees one million and not more than rupees five million or to imprisonment for a term not less than three months and not more than two years, or both such fine and imprisonment and the court may take into consideration the grave nature of the offence committed, in fixing the amount of such fine or the period of such imprisonment.’

The offending sub clause(f) of Clause 68 was held by the Court as “contravening or failing to comply with any rule, code, direction or guideline made or issued in terms of this Act,” and was accordingly deleted thus ruling out the need for a two-thirds majority vote and public approval at a referendum for the bill to be enacted.

Another Clause the Court found repugnant to the Constitution was Clause 30(1) which stated:

‘Subject to Part VII, Part VIII and section 33 of this Act, the Commission shall be the Single Window Investment Facilitator responsible for the consideration and determination, in an expeditious and coordinated manner, whether to accept or reject for good reason, any application made to the Commission for a registration, licence, authorisation or other approval as may be necessary, to engage in any business in, to invest in, to reside in, to be employed in, or to visit, the Area of Authority of the Colombo Port city.’

The words ‘or to visit’ was held to be in conflict with the freedom of movement guaranteed in the Constitution.  Since the said offending words were also found in Clause 33(1), the Court also called for its deletion. The Court held, ‘It is pertinent to observe that Clauses 30(1) and Clause 33(1) require a person to obtain prior approval of the Commission in order to visit the Area of Authority of the Port City’. These two clauses were duly deleted as the Court had directed.

Another instance for example was Clause 3(6) of the Bill which had stated:

‘The relevant Regulatory Authority from whom such concurrence is being sought by the Commission, shall as soon as practicable in the circumstances, as a matter of priority, provide such concurrence to the Commission.’

Since this would have robbed the Regulatory Agencies of exercising any discretion and its regulatory role reduced to a mere rubber stamp with its concurrence made compulsory, the Court held that the offending words, ‘provide such concurrence,’ be replaced with the words ‘communicate its decision.’ The same key phrase was used to replace the offending words when it appeared in Clause 55(2) which stated that “The Condominium Management Authority, shall as a matter of priority in the circumstances, provide such concurrence to the Commission.”

Again when the Commission sought concurrences from the relevant Regulatory Authority and the Securities and Exchange Commission and asked the parties in  Clause 30(3) and Clause 58(1) respectively to ‘render such concurrence’, the offending words were directed by the Court to be substituted by the words ‘communicate its decision’.

Thus did the Supreme Court deal with all the 26 clauses it found repugnant to the Constitution, suggesting suitable amendments to each which, if followed, will cease the inconsistencies with the Constitution, ruling out the need for a two-thirds majority, let alone a referendum, for enactment. The Government faithfully incorporated the amendments as suggested in the committee stage and the Port City Bill was duly passed on Thursday eve by a simple majority, with 149 voting for and 58 against. Undoubtedly for the Government, it was a case of all’s well that ends well.

But merely because the controversial Port City Bill had passed Constitutional muster, it did not douse the flames of fear the Chinese built Port City had ignited, kindled and raised in the nation’s breast. The ambit of the Supreme Court was limited to determining only whether the Port City Bill vitiated the Constitution or not. As the Supreme Court noted in the Additional Solicitor General’s submissions where reference was made to the Court’s determination in the Third Amendment to the Constitution Bill S.S.D. No2/1982 to 5/1982 where this court observed ‘a clear distinction must be borne in mind between the law and the administration of the law. A law cannot be struck down as discriminatory because of the fear that it may be administered in a discriminatory manner. Mere possibility of an abuse of power is not sufficient to hold that a law offends the fundamental right of equality.’

Thus merely because the Port City Bill had passed the Court’s Constitutional fitness test with the necessary amendments made to rid it of any inconsistencies repugnant to Lanka’s Supreme Law, what lies beyond the Constitution in the still unknown bourn  of the future in practice, gives the nation pause for thought; and shrouds the collective conscience in fear and  in despair, staring at the alarming prospect of having a foreign power, a regional and rapidly emerging superpower to boot, in occupation on an area of reclaimed land set next to the hearty of the capital of Lanka for the next 99 years.

Will these natural fears be assuaged simply by assurances of past friendship, by reference to past ties, when the eastern hand was stretched unreservedly — even as it is now — to help Lanka without stint?  But the concept of friendship in international relations between nations have long been debunked with the ruling diplomatic dictum for centuries holding that relations between nations are governed by permanent interests, not by permanent friendships. Holding otherwise is to commit ‘pathetic fallacy’, and attribute human feelings to abstract States.

The fear grows undiminished that with China’s presence as a legal tenant, the island will soon be turned into a theatre of conflict, nay, an arena of war when America and western powers, even Russia and Japan now replaced as the East’s rising sun by China, rush to stake their claim to this strategically located hub in the Indian Ocean. How will India react if she perceives the Lankan isle as a Chinese aircraft carrier anchored on her doorstep?

Long after the curtain has fallen on the chief protagonists of the present Port City drama, long after the present cast of political leaders, their supporters, the antagonists, judges, lawyers, professionals, rights activists, members of the clergy and the present generation of spectators have each taken their cues, made their bows and departed to the great beyond, will the new progeny they spawned and left behind to the mercy of the fates, find to their horror that the Port City their forefathers vaunted as a veritable gold mine, a cornucopia of ever flowing wealth, as the nation’s Kapruka, has turned into Lanka’s  monster, or has become China’s Trojan Horse?

Unless China and Sri Lanka can provide iron clad guarantees to the contrary and enter into a joint treaty embodying the same and have it ratified in China’s 2980 member strong supreme legislative body the National People’s Congress, the ominous fear the nation harbours in her worried heart, even if unfounded, still genuine concerns, will remain forever unabated.