Colombo Port City Economic Commission Bill - Oral Arguments before the Supreme Court (April 19-23)

  

 By Shehan Chamika Silva

The Bill was published in the Extra Ordinary Gazette notification on March 24, 2021.

It presented to the Parliament by the Prime Minister and Minister of Finance, Minister of Buddha Sasana, Religious & Cultural Affairs and Minister of Urban Development & Housing on April 8, 2021. 

 

As per the Article 120, 121, 123 of the Constitution, several petitions were filed challenging the constitutionality of the Bill in accordance with the certain provisions of the Constitution.

Subsequently, Chief Justice Jayantha Jayasuriya appointed a five-bench panel of Supreme Court Justices to determine the constitutionality of the proposed Bill. The five-bench panel includes CJ Jayasuriya, Justice Buwaneka Aluwihare, Justice Murdu Fernando, Justice Janak De Silva and Justice Priyantha Jayawardena.

The proceedings were started by them on April 19, 2021 by allowing the Petitioners and Intervening parties for their submissions.

All the Petitioners have named the Attorney General as the Respondent.

Saliya Pieris PC (President, Bar Association of Sri Lanka), Wajira Abeywardena, Dr Ajantha Perera, Jeran Jegadeeshan, Lakmal Anil Herath and Palitha Rangebandara were among the Petitioners, while Justice Ministry, P.B. Jayasundara, Sagara Kariyawasam, Podujana Peramuna Lawers Association and others intervened in favour of the Bill. 

 

 

The Petitioners state that the proposed Bill’s provisions and/or clauses thereof, 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 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.

 

Petitioners’ Arguments as reflected in their respective Petitions

 

In Clause 32 of the Bill which requires “Every such agreement shall include a provision whereby the parties agree to the resolution of any dispute arising therefrom, by way of arbitration in terms of Part XIII of this Act”, forces upon persons an arbitration clause whether such persons are actually willing to Arbitrate or not, and thereby effectively force an ouster of authority of the judiciary and judicial sovereignty. Hence such clause is inconsistent with Articles 3, 4, and 12(1) of the Constitution.

 

Provisions in Clause 62 (1) of the Bill makes it compulsory that any dispute between any authorized person and the Commission or the Commission and occupier in the Port City must be referred to arbitration at an Arbitration Centre established by the Bill. The same Clause also permits one party to the dispute unilaterally dictate the forum adjudication, ousts the right of one party to have recourse to court and ousts the jurisdiction of normal courts which otherwise a person would have a right to have recourse to. Thus, they are not consistent with Articles 3, 4, 12, 17 and 140 of the Constitution.

 

Clause 62(3) of the Bill forces upon an arbitration clause on Persons without regard to whether the Persons are actually willing to Arbitrate, and thereby forcing an ouster of authority of the judiciary and judicial sovereignty and is therefore inconsistent with Articles 3, 4, 12(1), 17, 126 and 140 of the Constitution.

 

People’s sovereignty as exercised through the Legislature, Executive and Judiciary, is inalienable and is so protected and vested with the people under Articles 3 read with 4 of the Constitution.

 

The Constitution of Sri Lanka must, through its provisions, strive towards enabling and ensuring a vibrant democracy that is replete with accountability, good governance, rule of law, fundamental rights and checks and balances, with judicial review of Executive and Administrative action is a predominant feature of it; hence, the total immunity from such judicial scrutiny stands to dissolve the very foundations of its true purport and ambit.

 

In terms of the penal provisions contained in Clause 68(f), anyone who, inter alia, contravenes and or fails to comply with any rule, code, direction or guideline made or issued in terms of the Act, commits an offence punishable with a fine or imprisonment. However, it appears from the Bill that only ‘regulations’ need to be placed before Parliament and not any ‘rule, code, direction or guideline’ breach of which constitutes an offence. The Petitioners state that this would be a violation of the provisions of Article 1, 2, 3, 4, 75 and 76 of the Constitution.

 

Some Petitioners specifically refer to some of the provisions as follows, 

 

Clauses 07, 15(2), 37, 44, 52, 53 & 64 of the Bill purports to give unlimited powers to the Executive President of Sri Lanka; 

 

Clause 65(1) of the Bill purports to take away the application of Urban Development Authority Act No.41 of 1978;

 

Clause 66 of the Bill purports to take away the application of Board of Investment Law No.04 of 1978

 

 

The Petitioners state that the process of aforesaid Bill has taken place in a hurried and non-transparent manner and has been timed to be tabled during the festive New Year period. No due and proper consultation process has taken place with relevant stakeholders and/or no proper expert opinion has been obtained prior to the formulation of the said Bill. Thus, the aforesaid Bill is being passed in the aforesaid manner inter alia for mala fides reasons and/or for collateral purposes.

 

Petitioners say that the proposed Bill,

 

Ø  Is contrary and repugnant to the rule of law and the independence of the Judiciary

 

Ø  Is in violation of the doctrine of separation of powers

 

Ø  Is amount to a repeal and/or suspension of the operation of the Constitution

 

Ø  Abdicates and alienates the legislative power and sets up an authority (other than Parliament), with legislative power

Ø  Is Inconsistent with the doctrine of public trust

Ø  Is Inconsistent with Parliament’s control over public finance

Ø  Leaves room for corruption and/or abuse of power

 

Petitioners thereby request the Supreme Court 

 

To declare and determine that provisions and/or clauses of the Proposed Bill shall become law only if passed by a special majority required under the provisions of Article 84(2) of the Constitution and/or approved by the people at a referendum in terms of Article 83 of the Constitution.

 

And to declare and determine that the proposed Bill requires placing before the Provincial Councils in terms of Article 154 (G) (3) of the Constitution.

 

Deliberations at the Supreme Court

Summary of the “Oral Submissions” made by the Counsel on behalf of the Petitioners on April 19, 2021 at the Supreme Courtroom 501

·      The issue with the Port City Land

Describing about the territory of Sri Lanka, President’s Counsel K. Kanag-Isvaran told the Court it is the Article 5 of the Constitution that specifies about the Territory of the Republic, “The territory of the Republic of Sri Lanka shall consist of the [twenty- five] administrative districts, the names of which are set out in the First Schedule and its [territorial waters]”.

President’s Counsel also drew the court’s attention onto the proviso of the same Article which says: “Provided that administrative districts may be subdivided or amalgamated so as to constitute different administrative districts, as Parliament may by resolution determine.” 

He contended that Sri Lanka’s territory (both land and waters) is defined under the above Article of the Constitution and it clearly provides only for consolidation or a subdivision of land of SL, but not for adding up any new territory.

“What does this Bill propose is to add-in an arbitrarily created, ‘artificial land area’ to the territory of Sri Lanka, which does not authorize by the Constitution as it is outside the territory of SL. You can’t affect the fundamental structure of Sri Lanka”, he emphasized.

He said that under the Maritime Zones Law No. 22 of 1976 (Section 5), the President may, by Proclamation published in the Gazette, declare any zone of the sea adjacent to the territorial sea, as well as the sea-bed and subsoil thereof, to be the exclusive economic zone of Sri Lanka, but cannot add up an artificial land parcel as a new territory of SL.

 

Thus, the Extra Ordinary Gazette notification issued on August 5, 2019, which added up the impugned land parcel (Port City land) to Colombo administrative district was illegal and a violation of the Article 5 of the Constitution.

Focusing on the aspect whether such artificial land may be added to the territory by the Government through Sri Lanka Land Reclamation and Development Corporation Act, Mr. Kanag-Isvaran pointed out that an artificially created land does not come under this Act to be reclaimed. For reclamation, such land has to be erupted out of natural causations but not as a reason of artificial creation, he said.

Inviting the Court’s attention into the Clause 65 of the proposed Bill, “….the President may issue a Land Grant under the Crown Lands Ordinance in the name of the Commission, in respect of all land comprising the Area of Authority of the Colombo Port City as set out in 

Schedule I to this Act, Mr. Kanag-Isvaran said the President can’t give any land under the Crown’s Ordinance as Sri Lanka is no longer a Crown’s land.

 

He concluded that SL’s territory is defined under the Article 5 of the Constitution and cannot be changed by adding up and artificial land parcel. Such act would amount to a violation of the Constitution as well as the International laws. “My contention is that you can’t even pass this Bill by a referendum because it is against the international conventions which prohibit adding up artificial lands as new territory to a country. Hence, it is beyond the competence of Sri Lankan Parliament to even consider”, he stressed.

 

·      Issues of Taxation

 

Addressing the fact that who is benefiting from this Bill, Kanag-Isvaran PC pointed out that as per schedule 2 of the Proposed Bill, following acts are completely exempted.

 

Ø  The Inland Revenue Act, No. 24 of 2017

 

Ø  The Value Added Tax Act, No. 14 of 2002

 

Ø  The Finance Act, No. 11 of 2002

 

Ø  The Finance Act, No. 5 of 2005

 

Ø  The Excise (Special Provisions) Act, No. 13 of 1989

 

Ø  The Debit Tax Act, No. 16 of 2002

 

Ø  The Customs Ordinance (Chapter 235)

 

Ø  The Ports and Airports Development Levy Act, No. 18 of    2011

 

Ø  The Sri Lanka Export Development Act, No. 40 of 1979

 

Ø  The Betting and Gaming Levy Act, No. 40 of 1988

 

Ø  Termination of Employment of Workmen (Special Provisions) Act, No. 45 of 1971

 

Ø  The Entertainment Tax Ordinance (Chapter 267)

 

Ø  The Foreign Exchange Act, No. 12 of 2017

 

Ø  Casino Business (Regulation) Act, No. 17 of 2010

 

 

As the offshore companies are exempted from the purview of the Banking Act Part 4 and the Casinos are not paying taxes to Sri Lanka, Mr. Kanag-Isvaran said it creates ‘a tax heaven and a paradise for money laundering’.

He was of the view that under the Article 148 of the Constitution, such tax exemption shall be first gone through the Parliament and without its approval, no levy or such tax exemption shall be imposed. {Article 148. Parliament shall have full control over public finance. No tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by Parliament or of any existing law.}

“It is a total abrogation of Legislative power of the people and it by passes the Chapter 17 (Finance) of the Constitution”, he added.

An authorized person can come outside the Port City to engage with domestic businessmen 

 

Kanag-Isvaran PC also said that an authorized person under the Clause 37 of the Bill can in fact come outside that special territory and engage in business activities with SL citizens, which might prejudice the national economy.

 

Clause 37 (1) An authorized 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 authorization 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 authorization, in such manner and subject to such conditions as shall be prescribed.

 

 

·      Bill should have been referred to WPC before presenting in Parliament 

 

A Preliminary Objection was raised against the Extra Ordinary Gazette notification issued on August 5, 2019, which added up the impugned land parcel (Port City land) to Colombo administrative district. It was said on behalf of the Petitioners that according to the said Extra Ordinary Gazette, the Port City land will come under the purview of the Western Province Council and therefore, according to the Article 154(G)(3) of the Constitution a Bill with regard to such land shall first be referred to the WPC. 

 

Article 154(G)(3) No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon, …….

 

·      Republic of Sri Lanka

It was submitted that the word ‘Republic’ stated in the Article 1 of the Constitution has the meaning that Sri Lanka is governed by its people and the sovereignty is vested upon the people and through their representatives, the Country is operated. Thus, the Constitution does not allow a separate tool (like Commission) to govern a territory without people’s representatives, which will result of alienating the sovereignty.

·      Status of the Commission

Appearing for the UNP Secretary, Counsel Eraj De Silva said that the Proposed Commission in the Bill will have its own life and operation once the Bill is passed by the Parliament. Referring to the Clause 68(1)(F) of the Bill, Mr. De Silva pointed out that imposing a penal provision for not following rules and guidelines imposed by the Commission and not requiring Parliament approval for making regulations by the Minister for strategic development projects have contravened the provisions of the Constitution.

“The Clause 3(1) “Establishment of the Colombo Port City Economic Commission” is a standalone provision which is not subject to any written laws, thus, depicting a status of a separate territory”, he said.

 

68(1)(F) “Notwithstanding the provisions contained in any other written law, any person who, within the Area of Authority of the Colombo Port City 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.”

Mr. De Silva was of the view that these provisions cannot be kept side by side with the Constitutional provisions, as it amounts to suspension of the Constitution. 

He also commented “there is a difference between a Financial Centre and a Fantasy Island, as the Commission tends to have a monopoly over the businesses in the Port City”.

………………………………………………………………………………………………….………………………………………………………………………………………………….

Summary of the “Oral Submissions” made by the Counsel on behalf of the Intervening Parties on April 21 and 22, 2021 at the Supreme Courtroom 501

 

·      Auditors

 

Rebutting the Petitioners’ viewpoint that the Bill allows international auditors to be appointed for the Commission, Romesh De Silva PC clarified that the proposed Clause itself is explanatory as it says “the accounts of the Commission shall be audited annually by a qualified auditor in terms of Article 154 of the Constitution. For the purposes of this section, the qualified auditor so appointed may be an international firm of accountants”.

 

He was of the view that though such auditors may be from international audit firms they have to be qualified auditors first in accordance with the Article 154 of the Constitution, thus no confusion or magic in it.

 

 

·      Funds of the Port City Project

 

President’s Counsel De Silva explained that, after the artificial land is created, Sri Lanka get the title of it and consequently, get to lease the land for investors without spending a single penny for its creation.  Thereafter, all the monies coming out of this project will come through the Commission to the Consolidated Fund subject to a hold of 1% monies by the Commission during the time period of 2023-2028. “This fact was lost over by the Petitioners”, he said.

·      Part of the Land which was already leased

 

When Justice Murdu Fernando questioned as to how the land of the port city may come under the Commission in connection with the funds it may generate in the future. Romesh De Silva PC said that some part of the land is already leased out to the Port City project company and the funds of that agreement have been already dealt with by the Government. Though the funds have been dealt with still the land parcel of that lease agreement too will fall under the purview of the Commission and will be managed by the Commission as well, he said.

 

·      Boundaries of the Land

 

When questioned by the Chief Justice, Mr. De Silva explained that the schedule 1 of the Bill depicts the entirety of the whole port city project comprising the land which has been already leased, marketable land, and the common land. And he further said this schedule also reflects in the Extra Ordinary Gazette issued in August 2019, which amalgamated the land into the administrative district of Colombo.

 

·      Does the Port City Land come under the territory of Sri Lanka?

 

Denying the Petitioners’ argument that this land does not form to be in the territory of Sri Lanka, Mr. De Silva told Court that the before the impugned Extra Ordinary Gazette issued in August 2019 the same had been passed by the Parliament in a resolution to be included into the administrative district of Colombo. 

 

Therefore, he said under the Article 5 of the Constitution now the land has been included into the territory of SL. 

 

“The territory of the Republic of Sri Lanka shall consist of the [twenty- five] administrative districts, the names of which are set out in the First Schedule and its [territorial waters]” (Article 5)

   

“The Parliament has passed it to be included into Colombo administrative district. No one had challenged that when it was done in 2019. So, it is illogical to say now that this land is not Sri Lanka. It is a part of Western Province”, he said.

 

Gamini Marapana PC also added that this new land has been created on the waters of Sri Lanka, where SL have full authority over it to do whatever it desires as per the United Nations Convention on Sea Article 1.

 

·      How to decide increasing boundaries of Colombo Administrative District?

 

Both Chief Justice and Mr. De Silva observed that once the new land parcel is included in Colombo Administrative District, it is the Administrative Act of SL No 22, 1955 shall be amended. Evidently, this process has been duly followed in this instance. 

 

·      Should the Provincial Councils have been consulted?

 

Gamini Marapana PC also appearing for intervening parties clarified that when the matter is of the National importance and in line with the national policy the Provincial Councils can be excluded to be informed. And as a matter of fact, that PCs are not functioning at the moment will render its irrelevancy in the petitioners’ argument he said.

 

·      Can President Grant State Land under Crown Land Ordinance?

 

Observing the Clause 65(3) of the Bill, Mr. De Silva PC pointed out that as the President exercising his executive people’s power under Article 33 of the Constitution this land can be granted under the Crowns Land Ordinance, because this land is not regarded as reserved or concurrence subject, but is supposed to be used for the development of the special economic zone.

 

·      Possible judicial intervention and issues of Appointment of the Commission and its members

 

PC De Silva was of the view that it is the President of Sri Lanka who exercises the People’s executive power under the Article 4 of the Constitution. Thereby, the Commission is appointed by the President and still such appointment is subject to the Constitution, thus, comes under the judicial purview if the President acts ultra vires.

 

Apart from that, Mr. Marapana pointed out that still the President is responsible for the Parliament under the Constitutional provisions. 

 

v Commission’s power to give exemptions

 

Mr. De Silva also said it is not the first time that a regulatory body has been given power to make exemptions, even under the BOI Act relevant minister can make exemptions time to time depending on the business nature.

 

“Parliament’s Legislative power has not been curtailed by this proposed Bill by any means. For simple reason it can repeal or amend this Act at any time if it wants”, he said.

 

·      Determination and Grant of Exemptions or Incentives for The Promotion of Businesses of Strategic Importance (Part 9 of the Bill)

 

Addressing the question as to why under this part of the Bill a consideration of granting of tax exemptions and incentives is proposed, Mr. Marapana PC said that no investments will come in the country if not for concessions for their businesses in a strategic project like port city. “These decisions have been made by the executive body of the state which represent the executive power of the people for the best interest of the country”, he said.

 

He said, development of special economic zones like port city are not new to the international community as there are more than 5400 such economic zones are being operated on different international jurisdictions. 

 

 

·      Have the Acts stated in the schedule 2 of the Bill been exempted fully?

 

Mr. Marapana drew the Court’s attention to the heading of the scgedule 2 of the Bill and invited to read it carefully, which says “Enactments From, Or Under, Which Exemptions Or Incentives May Be Granted”. He was of the view that none of the below mentioned Acts are exempted but given an opportunity to exempt from paying levies under those Acts for specifically decided businesses by the Commission. 

 

“For instance, The Custom will still operate in the port city, but only the certain goods may be exempted from levies. Thus, this is not a fantasy land. This a territory of Sri Lanka where Sri Lankan laws prevail”, he added.

 

·      Judicial purview under Article 140 and the Commission 

 

Appearing as an intervening party on behalf of the Justice Ministry, Counsel Nishan Premathiratne explained that the Petitioners were incorrect when they said that the proposed Commission will not be subject to judicial review of the country. 

 

He elaborated that the Colombo Stock Exchange Commission was also created in a similar vein in 1991 by the Securities and Exchange Commission Act. Under this Act, section 51(1) allows the Commission to make rules and Codes in relation to Securities Exchange without passing through the Parliament. In the event of any violation, the Commission is empowered to take actions in Magistrate’s Court by the Act. 

 

He was of the view that giving power to a regulatory body to make rules without going to the Parliament is not a novel thing, but the question shall be posed is whether such process will undermine the Constitution of the Country.

 

Referring to a precedent Mr. Premathiratne said that in Lanka SEC vs Colombo Stock Exchange case, where coincidently Justice Janak De Silva had presided, it was decided that even though the SEC is a private limited company, if such institution’s character is similar to the functions of a public institution then it could still come under the Article 140 of the Constitution, hence the Port City Commission and its functions too come under this judicial purview, he said.

 

However, it shall be noted that, President’s Counsel De Silva suggested that the Clause 68(1)(F) be removed from the Bill.

 

 

·      Issue of compulsory Arbitration

 

Addressing the Petitioners’ argument that Provisions in Clause 62 (1) of the Bill makes it compulsory that any dispute between any authorized person and the Commission or the Commission and occupier in the Port City must be referred to arbitration at an Arbitration Centre established by the Bill, Mr Premathiratne said even though such provisions seemingly put parties to go for Arbitration compulsorily it does not (The Bill) prevent the Arbitration Act being applicable in Port City dispute resolution mechanism as well, hence, the Act ipso facto applies in all arbitration matters.

 

Furthermore, Nihal Jayawardena PC also reiterated about this fact earlier in his submission that the Bill does not at any point prevent the arbitration award being enforced in court of law or the opportunity to challenge such award in courts.

 

Thus, according to the section 2(1) all such above matters will apparently come under the Arbitration Act of Sri Lanka.

 

 

 

Attorney General’s submissions – (Respondent)

(ASG Farzana Jameel appeared on behalf of the AG)

 

v Submitting a Cabinet paper to the Bench, ASG Jameel emphasized that the Colombo Port City Economic Commission Bill emanates from the National Policy of the Government, and that one cannot simply go against the project solely because there have been no identical mirror imaged projects like this. 

 

v Addressing on the territorial issue, the ASG explained that,

 

o   Firstly, the steps have been taken to add/reclaimed the altered/created Sri Lankan territory of waters (under State Land Ordinance) and subsequently the land was made part of the Colombo Administrative District by the Parliament, which cannot be questioned at any forum once passed. 

 

o   Then the said alteration of the waters (new land) became part of the administrative district of Colombo under the Article 5 of the Constitution.

 

o   Thereafter, the State Land Ordinance (Crown Land Law) (Sections 60 (3,5,10)) permits the President to dispose or lease such reclaimed land by proclamation.

 

“This land is included and reclaimed according to the State Land Ordinance and other laws as permitted by those laws”, ASG said.

 

v ASG Jameel also explained as to how the prospective residents in the Port City may exercise their franchise and come under the Constitution of Sri Lanka.

Exercising the ‘right to franchise’ under the Article 4(3) of the Constitution, all voters and their registering and administrative process shall come under the Registration of Electors Act. And according to the section 2 of that Act, it has referred to the Article 89 of the Constitution for reasons to be disqualified as a registered voter. On the other hand, one must bear in mind that this whole process is about a future event where a land may be populated by prospective residents, thus, it’s unreasonable to say that the people’s franchise has been violated in the proposed bill, she said.

 

Referring to a Supreme Court Determination No. 12-2010- Local Government Special Provisions Bill, she said that Petitioners argument on losing the franchise right on local authorities’ elections has no ground to stand as the Supreme Court has decided that the franchise right on local authorities’ elections does not come under the Article 4(3). 

 

v Rebutting the petitioners’ argument that, the Bill should have been referred to the Provincial Councils, the ASG said the Petitioners have somehow made a blunder by identifying the subject matter of the Port City project as a matter comes under the Provincial Council list under the Constitution. She said, after careful analysis on the items depicts in the said list it’s apparent that a project like the instance port city is not defined under the PC list. And also, item 21 of the PC list, excludes the subject matters that come under the category of National Policy. (SCSD 15/18)   

 

On April 22, the Respondent (AG) tendered the Supreme Court a letter from P.B. Jayasundara, which said to have reflected the proposed amendments of the Government at the Committee stage of this Bill in the Parliament. However, the Supreme Court observed that it needs a document directly from the AG addressing the Court Registrar. Chief Justice considered the letter given as a third-party correspondence upon which the Court can’t rely on. Subsequently, the ASG undertook to make arrangements with regard to the Court’s direction.

 

The Supreme Court has also directed the both parties to file their written submissions on or before 12 noon on April 23, 2021.  

 

 

 

Summary of the Arguments

 

Against	For
A new artificial land cannot be added to the administrative districts of Sri Lanka, hence inconsistent with the Article 5.	Creations to territorial waters come under State Land Ordinance and thereby permits the President to lease out by proclamation and also this addition was made a part of the Colombo administrative district by a parliament resolution, thus, consistent with the Constitution and the land is part of Sri Lankan sovereignty.
The President has no power to appoint a regulatory body like the Commission proposed in this Bill.	The President and the Cabinet exercise the executive power of people directly deriving from them therefore no violation of constitution. (Articles 3,4, 33)
The Judicial scrutiny has been taken away over the conduct of the Commission.	The appointment of the Commission members and its conduct still come under the Article 140 of the Constitution. Hence, the judicial scrutiny is unfettered under A 140.
The Commission is allowed to make rules and guidelines without passing through the Parliament and has the ability to take criminal actions against the violators.	The Commission like regulatory bodies are not new to Sri Lanka such as the Securities Exchange Commission.
The Commission’s power to make rules and grant exemptions have superseded the Parliament’ s legislation power over the Finance.	The Commission exercises people’s power through the President. Still under the Judicial scrutiny. And according to the Article 148 it is clear that this Bill first has to be approved by the Parliament and it can at any time repeal or amend this, hence, nothing is proposed to be done over imposing levies without the approval of the Parliament.
Exemptions proposed over several Acts under schedule 2 makes the land a money laundering heaven.	The heading of the schedule is very clear that it provides for the opportunity for imposing exemptions on levies but not that all of the Acts are inoperative in the Port City. The Custom will still employ its normal operations but certain commodities may get exemptions on levies.
Compulsory Arbitration ousts the jurisdiction of normal court.	Compulsory Arbitration has been proposed to make provisions to speed up the dispute resolution mechanism which will attract the foreign investments. However, the Bill does not prevent the Arbitration Act from being operative in the Port City, thus, any award given over a dispute can be challenged and enforced in normal courts.
The Bill should have been referred to Provincial council under the Article 154 (G)(3) of the Constitution.	This new creation of land first passed through the Parliament in 2019 before it was Gazetted in August 2019. And also, the subject matter does not fall within the ambit of the Provincial Council list under the Constitution. It is of national interest deriving directly from Government national policy by the Cabinet.