The Supreme Court has examined that except for the specific provisions and clauses set out in the table following the rest of the clauses of the Bill are not inconsistent with the Constitution.
The Supreme Court has also determined that upon the amendments suggested by "the determination of Court" being affected, the Bill and its provisions will cease to be inconsistent with the Constitution.
Earlier, the Petitioners were of the view that the proposed Bill’s provisions and clauses in particular, Clauses 3, 4, 6,7, 9, 16, 23, 24, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 55, 58, VII, Part VIII, Part IX, Part X, Part XI, Part XII, Clauses 62, 63,64 and/or Part XVI and/or Part XVI 65, 66, 68 and 73, are inconsistent with one or more of Articles 1, 2, 3, 4, 5, 12(1), 12(2), 14(1)(g), 14(1)(h), 17, 33,75, 76, 126,140, 141,148 and Article 154(G) of the Constitution of Sri Lanka.
Inconsistent clauses and provisions according to the Supreme Court | Whether it can be approved by a special majority or approved by the people at a referendum | The proposed amendments by the Supreme court to cease the inconsistencies and pass with a simple majority |
Establishment of the Commission 3(4) The Commission shall be responsible for preparing, developing, amending, updating, publishing and enforcing all Community Rules and Development Control Regulations applicable within the Area of Authority of the Colombo Port City.
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Inconsistent with Article 76 read with Article 3 and 4 of the Constitution.
Could be validly passed with a Special Majority (As per Article (84(2)) and by the people at a Referendum(Article 83) |
Delete the word "for" and substitute therefor the words "to facilitate" Delete the words "and Development Control Regulations"
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Establishment of the Commission 3(5) The Commission shall, in the exercise, performance 20 and discharge of its powers, duties and functions, where so required by the respective written laws applicable to any Regulatory Authority, obtain the concurrence of the relevant Regulatory Authority in respect of the subjects vested in or assigned to, such Regulatory Authority and to the extent specifically provided for in this Act: Provided that, the concurrence of the relevant Regulatory Authority sought shall be limited to the implementation, within the Area of Authority of the Colombo Port City, of the respective written laws applicable to such Regulatory Authority.
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Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority (As per Article (84(2)). |
Add the words "by the Commission" after the word "implementation"
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Establishment of the Commission 3(6) 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. 3(7) Nothing in this Act shall, unless otherwise specifically provided for in this Act, be deemed to restrict in any way the powers, duties and functions vested in such Regulatory Authority by any written law in relation to the Area of Authority of the Colombo Port City.
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Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority (As per Article (84(2)). | 3(6)- Delete the words "provide such concurrence" and substitute therefor the words "communicate its decision" 3(7)- To be shifted after Clause 73 of the Bill and re-numbered as Clause 74. The new Clause 74 will now read as follows: "Nothing in this Act shall, unless otherwise specifically provided for in this Act, be deemed to restrict in any way the powers, duties andfun"ctions vested in such Regulatory Authority by any written law in relation to the Area of Authority of the Colombo Port City."
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Powers, duties and functions of the Commission 6(1)(b) to facilitate and exercise overall regulatory supervision and control over all investments and businesses in and from the Area of Authority of the Colombo Port City, in terms of this Act, with the concurrence, of the relevant Regulatory Authority, as the Commission considers necessary: Provided that, the concurrence of the relevant Regulatory Authority sought shall be limited to the implementation, within the Area of Authority of the Colombo Port City, of the respective written laws applicable to such authority.
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Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority (As per Article (84(2)). |
Delete the word "overall" Delete the words "as the Commission considers necessary"
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Powers, duties and functions of the Commission 6(1)(u) to prepare, develop, amend, update, publish and enforce all Community Rules and Development Control Regulations as may be prescribed for applicability within the Area of Authority of the Colombo Port City
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Inconsistent with Article 76 read with Article 3 and 4 of the Constitution.
Could be validly passed with a Special Majority (As per Article (84(2)) and by the people at a Referendum(As per Article 83) |
Insert the words "enforce the" before the words "Development Control Regulations"
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Commission to function as a Single Window Investment Facilitator in relation to the grant of any registration, license, authorization or other approval in terms of this Act 30(1) 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, license, authorization 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.
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Inconsistent with Article 14(1)(h) of the Constitution.
Could be validly passed with a Special Majority (As per Article (84(2)). |
Delete the words "or to visit".
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30(3) first and second provisos 30(3) The Commission shall obtain the concurrence of any relevant Regulatory Authority in the process of granting such registration, licence, authorization or other approval, where so required by the respective written laws applicable to such authority, in respect of the subjects vested in or assigned to, such Authority and to the extent specifically provided for in this Act: v Provided that, the concurrence of the relevant Regulatory Authority sought shall be limited to the implementation, within the Area of Authority of the Colombo Port City, of the respective written laws applicable to such authority: v Provided further, 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, render such concurrence to the Commission.
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Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
Clause 30(3), first proviso Add the words "by the Commission" after the word "implementation"
Clause 30(3), second proviso -Delete the words "render such concurrence" and substitute therefor the words "communicate its decision"
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33(1) The Commission, as the Single Window Investment Facilitator shall accept an application for and facilitate the processing of, any visa, entry permit or work permit, and other approvals as may be required by an authorized person, any consultant of,or any person specially authorised by an authorised person or an employee of an authorised person, and a person who intends to engage in business, to invest in, to reside in, to be employed in, or to visit the Area of Authority of the Colombo Port City, as may be necessary.
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Inconsistent with Article 14(1)(h) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
Delete the words "or to visit"
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37(1) An authorised person may, subject to the applicability of all written laws for the time being in force and regulations which may be made hereunder, in the national interest and in order to safeguard the interest of the domestic economy, apply to the Commission for an authorisation to engage in business in Sri Lanka, with a citizen of Sri Lanka or a resident, who is engaged in business in Sri Lanka, outside the Area of Authority of the Colombo Port City. (2) The Commission having considered such request, may in the national interest, in the interest of the advancement of the national economy, and while ensuring the interest of the domestic economy, issue such an authorisation, in such mannerandsubjecttosuchconditionsasshallbeprescribed.
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Inconsistent with Articles 12(1) and 14(1)(g) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
However, the said inconsistency will cease if a new sub-clause is added to Clause 37 of the Bill restraining such authorised person making use of any exemptions or incentives granted under this Bill when conducting business outside the Area of Authority of the Colombo Port City to the detriment of similar businesses conducted outside such Area of Authority but within the territory of Sri Lanka
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A citizen or a resident of Sri Lanka, may utilize facilities or services within the Area of Authority of the Colombo Port City 40 (2) Any levy as may be required to be paid by a citizen of Sri Lanka or a resident on goods purchased at retail facilities as set out in subsection (1), when leaving the Area of Authority of Colombo Port City, shall be as prescribed.
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Inconsistent with Article 14(1)(h) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
Delete the words "when leaving" and substitute therefor the words "to be taken out of'
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Grant of exemptions or incentives to Businesses of Strategic Importance 52(3) Upon a business being so identified as a Business of Strategic Importance, exemptions or incentives as provided in this Part may be granted thereto, in so far as it relates to its operations in and from the Area of Authority of the Colombo Port City. In the case of tax related exemptions, such exemptions may be granted, either in full or part, and from all or any of the enactments set out in Schedule II hereto. {Schedule II - ENACTMENTS FROM, OR UNDER, WHICH EXEMPTIONS OR INCENTIVES MAY BE GRANTED} READ WITH CLAUSES 52(5) Regulations may be made prescribing any further guidelines as may be necessary on the grant of exemptions or incentives, as provided for in this Part of this Act. 71(2) (p) specifying for the purposes of section 52, any further guidelines on the grant of exemptions or incentives to a Business of Strategic Importance. (clause 71 – The President or Ministry in consultation with the Commission regulations may be made on what matters)
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Inconsistent with Article 76 read with Article 3 and 4 of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)) and by the people at a Referendum(Article 83) |
52(3) - Add the words "in accordance with the Regulations made under this Act... " after the words "granted thereto "
52(5) - Delete in its entirety and replace with the following: "(5) Regulations may be made prescribing guidelines on the grant of exemptions or incentives, as provided for in this Part of this Act."
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Details of Businesses of Strategic Importance to be specified by Order (following Clauses 53 (2)(b) and (3)(b)) The President or in the event that the subject of the Colombo Port City is assigned to a Minister, such Minister, may, having considered such recommendations, and having regard to the national interest or in the interest of the advancement of the national economy, in consultation with the Minister assigned the subject of Finance, take such steps as are necessary to inform the Cabinet of Ministers, of 53(2) (b) the specific enactments from those listed in Schedule II to this Act, that are proposed to be exempted from being applicable to such Business of Strategic Importance and any other incentives,
Within two weeks from the date on which the Cabinet of Ministers approves the designation of a business as a Business of Strategic Importance and the granting of the exemptions or incentives so approved, the President or in the event that the subject of the Colombo Port City is assigned to a Minister, such Minister shall, by Order published in the Gazette, specify 53(3)(b) the specific enactments from those listed in Schedule II to this Act, that are exempted from being applicable to such Business of Strategic Importance and any other incentives granted;
| Inconsistent with Articles 148 and 76 read with Article 3 and 4 of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)) and by the people at a Referendum(Article 83) | 53(2)(b) - Delete the words "the specific enactments from those listed in" .and substitute therefor the words "the specific exemptions from those enactments listed in" Delete the words "exempted from being"
53(3)(b) - Delete the words "the specific enactments from those listed in" and substitute therefor the words "the specific exemptions from those enactments listed in" Delete the words "exempted from being"
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Commission may seek the concurrence of the Condominium Management Authority 55 (2) The Condominium Management Authority, shall as a matter of priority in the circumstances, provide such concurrence to the Commission.
| Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
Delete the words "provide such concurrence" and substitute therefor the words "communicate its decision"
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Commission to seek concurrence of the Security and Exchange Commission 58(1) Where the concurrence of the Securities and Exchange Commission is sought by the Commission, Securities and Exchange Commission shall as soon as practicable in the circumstances, as a matter of priority, render such concurrence to the Commission.
| Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
Delete the words "render such concurrence" and substitute therefor the words "communicate its decision"
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Powers of the Estate Manager 60(c ) to facilitate the collection of area related taxes and levies imposed by the Commission within the Area of Authority of the Colombo Port City, as authorised by this Act, and collect fees and charges for services provided within the Area of Authority of the Colombo Port City, including management fees, utility charges, vehicle parking charges, user fees and such other fees or charges from authorised persons, employees of authorised persons, residents, occupiers and visitors within the Area of Authority of the Colombo Port City; and 60 (f) to collect on behalf of the Commission, the local rates, taxes, levies and such other charges imposed by the Commission and applicable within the Area of Authority of the Colombo Port City, and credit the total of the sum so collected to a bank account as directed by the Commission;
| Inconsistent with Article 148 of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). | 60(c ) - Delete the word "taxes" and substitute therefor the word "rates"
60 (f) - Delete the word "taxes" and substitute therefor the word "rates"
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Offences – 68(1)(f) and 68(3)(a) Notwithstanding the provisions contained in any 10 other written law, any person who, within the Area of Authority of the Colombo Port City– 68(1) (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. 68 (3) (a) Notwithstanding the provisions contained in any other written law, any person who contravenes or fails to comply with any provision of this Act or any regulation, rule, direction, order or requirement issued or imposed thereunder commits an offence under this Act and shall be liable on conviction after summary trial before a Magistrate to a fine of not less than rupees five hundred thousand and not more than rupees one million or to imprisonment for a term of not less than three months and not exceeding one year, or to both such fine and imprisonment. |
Inconsistent with Article 76 read with Article 3 and 4 of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)) and by the people at a Referendum(Article 83) |
68 (1) (f)- Delete in its entirety
68 (3) (a) - Delete the words "rule, direction, order or requirement issued or imposed"
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Regulations 71(1) The President or in the event that the subject of the Colombo Port City is assigned to a Minister, such
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Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
Delete the words "as is considered necessary"
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Without prejudice to the generality of powers conferred by subsection (1), regulations may also be made in respect of all or any of the following matters:–
71(2) (l) specifying for the purposes of section 40, any levy as may be required to be paid by a citizen of Sri Lanka or a resident on goods purchased at retail facilities within the Area of Authority of the Colombo Port City at the time of leaving the Area of Authority of the Colombo Port City, and the procedure applicable to the conversion of payments made by a citizen of Sri Lanka or resident when using retail facilities or services at restaurants, cinemas, entertainment facilities, shopping facilities, or parking facilities, within the Area of Authority of the Colombo Port City, into any other designated foreign currency;
| Inconsistent with Article 14(1)(h) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). | Delete the words "at the time of leaving the Area of Authority of the Colombo Port City"
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71(2)(p) specifying for the purposes of section 52, any further guidelines on the grant of exemptions or incentives to a Business of Strategic Importance;
| Inconsistent with Articles 148 and 76 read with Article 3 and 4 of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)) and by the people at a Referendum(Article 83) | delete the words "any further"
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Interpretations “Regulatory Authority” includes the Monetary Board of the Central Bank of Sri Lanka, the Registrar- General of Companies, the Director-General of the Central Environmental Authority, the Controller of Immigration and Emigration, the Director- General of Customs, and such other regulatory authority or approving authority, and in whom the powers, duties and functions relating to the respective subjects which are dealt with in this Act are vested in or assigned to, in terms of any applicable written law to the extent provided in this Act. The relevant Regulatory Authority shall be limited to the implementation of the respective written laws applicable to such authorities, within the Area of Authority of the Colombo Port City; |
Inconsistent with Article 12(1) of the Constitution.
Could be validly passed with a Special Majority(Article (84(2)). |
Delete the words commencing from "to the extent" to "Colombo Port City" Present Clauses 74 and 75 be re-numbered as Clauses 75 and 76 respectively
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By Shehan Chamika Silva
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