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| Tenth SAARC summit in Colombo by Dr. Stanley Kalpage In 1989, the Summit did not take place as scheduled because President Premadasa refused to hold a Summit in Colombo so long as Indian troops were in Sri Lanka. Again, there were no Summits in 1992 or 1996, as Sri Lanka and India respectively were given extended periods of chairman until the next summit was held. Nuclear tension in
South Asia The Tenth Summit in Colombo is being held in aftermath of the May 1998 nuclear test explosions by India and Pakistan. Relations between these two prominent member states are at a low ebb. There was even a possibility that the Summit may not take place this year. But arrangements are complete to hold the Summit in Colombo from 29-31 July. Slow progress The SAARC Charter states specifically that the objectives of the Association shall be confined to accelerating economic growth, social progress and cultural development but it also clearly states that "co-operation within the framework of the association shall be based on respect for the principles of sovereign equality, territoril integrity, political independence, non-interference in the internal affairs of other States and mutual benefit." Among the general provisions in the Charter are that: "Decisions at all levels shall be taken on the basis of unanimity" and "bilateral and contentious issues shall be excluded from the deliberations." The principle of unanimity has been welcomed by all the members for it ensures that no undesirable decisions would be thrust upon them in the regional forum. Bilateral and
contentious issues However, the Male Summit did break new ground in relaxing the inflexibility about bilateral issues being taboo by agreeing that "a process of informal political consultations would prove useful in fostering good neighbourly relations, relieving tensions and building confidence as a means to promoting peace, stability and amity and accelerated social and economic co-operation in the region." Security concerns Even though bilateral relations cannot be formally placed on the agenda of the Colombo Summit, it is to be hoped that, in the spirit of Male, "informal political consultations" could take place to emphasise the need for India and Pakistan to be alive to the serious threat to the security of all SAARC countries if current tension should escalate any further. Poverty alleviation The Seventh Dhaka Summit in April 1993 accepted the report of the eminent persons group and decided "on the eradication of poverty, preferably by the year 2002 A.D. through an Agenda of Action." That was the last Summit president Premadasa attended. With his untimely demise soon afterwards, poverty alleviation in South Asia seems to have been placed on a back burner. The 1997 Male Summit referred to poverty alleviation only in the most perfunctory terms. The Male Declaration merely stated: "Government were unequivocal in their commitment to the eradication of poverty in South Asia at the earliest, preferably by the year 2002 A.D. through an Agenda of Action." These pious intentions seem to have been lost in the intricate web of the SAARC organisational infrastructure and bureaucracy. Preferential and free
trade Sri Lanka was the first South Asian country to implement a policy of trade liberalisation, beginning in 1977. Tariff liberalisation has been effected in successive phases with a uniform tariff rate of 15 percent by 1998. Other countries started liberalising their trade later in the 1980s and early 1990s. India, for example, began market reforms in 1991. A maximum import tariff rate has been progressively reduced from 150 percent to 50 percent in the 1995-96 budget. Pakistan has similarly reduced maximum import duty to 35 percent by 1996. However, notwithstanding tariff reductions, other obstacles to trade liberalisation remain Quantitative restrictions and non-tariff barriers are still in force, often negating the benefits promised in the tariff concessions. For progress towards a viable SAPTA and to the early establishment of SAPTA, efforts should be made to remove existing non-tariff barriers. Moreover, according to SAPTA rules of origin, manufactured products must either be "wholly obtained" within preference receiving SAARC member countries, or must have a 50 percent local content. This makes a number of manufactured products from Sri Lanka ineligible for concessions. The range of goods on which Sri Lanka could obtain concessions is thereby limited. Areas of SAARC activity In its thirteen years of existence, SAARC Summits have made declarations and produced regional conventions on a number of matters such as the suppression of terrorism, the establishment of a food security reserve, preferential trade and the promotion of tourism. But Sri Lankas President Chandrika Bandaranaike Kumaratunga candidly posed a relevant question at the 1997 Male Summit: "Does the proliferation of activities over the last decade signify anything more than the growth of barren foliage on a vast tree? What fruit has SAARC truly borne?" A long-term vision The GEP consists of one representative from each member state, with the discretion of each member state to appoint an additional representative. The GEPs report will be presented to the Heads of State or government at the Colombo Summit. People-to-people
contact When the people of South Asia, home to some one-fifth of the worlds population, realise the benefits to be derived from regional co-operation, it will be easier to break down bureaucratic barriers and counter the lack of political will. |
| L E G A L W A T C H Discrimination unlawful with or without FR application By
Nayana This was the clear message contained in the judgment of the Supreme Court in the case of Piyadasa and others vs Land Reform Commission and another, delivered on the 8th of this month. Justice Amerasinghe, with Justices Wijetunga and Gunasekera in agreement, stated that an arbitrary departure from a published scheme of land distribution by the Land Reform Commission amounted to an unlawful discrimination and a violation of Article 12 of the Constitution. Even though the application before the Court was not made with reference to the fundamental rights chapter, "the fact remained that acts of officials contravening the provisions of Article 12 are unlawful, not permitted and of no force or avail in law". The Court went on to state that "whether Article 12 existed or not, the reach of public policy would sufficiently prevent invidious discrimination". It was said that the courts would not allow a power to be exercised arbitrarily or capriciously or with unfair discrimination, neither in the making of rules nor in the enforcement of them. The case in question was an application for a writ of mandamus directing the Land Reform Commission (LRC) to transfer to the six petitioners certain paddy lands in the Ratnapura District which they had been cultivating as tenant cultivators with official permission under a Government scheme which, they claimed, would entitle them to purchase these lands. The chain of events that led to the filing of the case began in the early 1990s. It was common ground that in 1991 the then Government had approved a scheme to sell at concessionary rates to tenant cultivators the paddy fields of estates and plantations vested in the LRC. The evidence indicated that the land in question had consisted of paddy fields on which cultivation had been abandoned sometime in the 1980s and some rubber seedling nurseries subsequently established on parts of it. The Court found that the land had consistently been referred to as "abandoned paddy lands" in official records, and that the petitioners had been allowed to cultivate them from 1992 in keeping with a policy decision of the Government. The LRC had strenuously objected, maintaining that the lands had never been used for paddy cultivation and that the petitioners had committed criminal trespass. However they could not explain why, in that event, the authorities had not taken any action against the petitioners for several years. The LRC officials in fact went so far as to suppress the record of an inquiry at which evidence favourable to the petitioners had been given, and this suppression was one of the factors that led the Court of Appeal to refuse to grant mandamus and necessitated the petitioners appeal to the Supreme Court. The evidence also showed that in 1993 a survey had been carried out preparatory to transferring the lands to the tenant cultivators - a status the petitioners were entitled to claim on the basis of official records. Having invited applications in the prescribed manner from tenant cultivators who wished to purchase, arrangements were made to hand over deeds in 1994. But while other cultivators in the area received their deeds in due course, and the Regional Director of Agrarian Services sent the petitioners deeds to the LRC, no transfer was made to the six petitioners. Throughout 1995 the LRC resisted making the transfers. While some Government personalities of the area such as Athauda Seneviratne, Vasudeva Nanayakkara and the late Nalanda Ellawala intervened to recommend the petitioners applications, the principal opponent to the transfer of the lands appears to have been Deputy Minister for Education, W.D.J. Seneviratne, also from the area. G.S. Kumarasinghe, Director, District Land Reform Authority, in a letter written to the Chairman, LRC, in March 1995, dealt with the Deputy Ministers objection with these words: "The Hon. Deputy Minister of Education, Mr W.D.J. Seneviratne, M.P. for Ratnapura, has objected to the issue of these deeds, but I would like to point out to you that we are bound to issue these deeds as per decision of the Cabinet because these Ande Cultivators have been duly registered and their fields have been surveyed at their expense and plans have been approved and the money too has been recovered from the Ande Cultivators. Otherwise, in the event they take legal action against us in courts, we have no reasons to show why we are unable to issue these deeds to them." This letter received a special commendation from Justice Amerasinghe in his judgment: "Kumarasinghe, in my view, did what is expected of every public officer: without fear or favour, regardless of the pressures exerted, he gave his considered opinion." However the LRC Chairman, aided by the Secretary to the Ministry of Plantation Industries, continued to resist making the transfer on various grounds including the fact that the land allegedly had gemming potential. As State grants of land are always given subject to the State retaining mineral rights, there was no question of the petitioners being enriched by any gems that might be found, but the Ministry Secretary went further and recommended that the State Gem Corporation be allowed to auction the lands for gemming and after completing gemming, to "consider granting deeds to the farmers". Apart from the obvious impracticability of this scheme from the cultivators point of view, this would have amounted to an entirely new policy decision being formulated by the Ministry Secretary and the LRC Chairman in the teeth of the earlier Cabinet decision - something the Supreme Court refused to countenance with these words: "A decision had been taken by the Cabinet of Ministers with regard to the sale of paddy lands to tenant cultivators. The criteria for carrying out that decision were announced by the (then) Secretary to the Ministry. Those criteria were satisfied by the petitioners. The Ministry stated that those who satisfied the criteria would be given their deeds of transfer. In fact, some persons who were in similar circumstances were given their deeds. In my view, it was not open to the Secretary or other officials to arbitrarily suspend the operation of the announced scheme in relation to the petitioners, or to amend the scheme, by interposing the condition that the lands earmarked for allocation to the petitioners should first be auctioned for the purpose of gemming." However in 1996 the Chairman, LRC, came under further pressure from Deputy Minister Seneviratne who alleged that the petitioners had falsely got themselves nominated as tenant cultivators of what was actually a rubber land through the influence of the UNPs Minister of Lands and Ratnapura District MP Gamini Atukorale - a claim which the official records did not bear out. He was joined by another Deputy Minister, Pavithra Wanniarachchi, in calling for the land to be "alienated to landless people". In the face of these pressures, the Chairman LRC passed the buck by seeking directions from the Ministry Secretary "in view of the contradictory material submitted for and against the proposed alienation". The Secretary apparently made no response and the Chairman conveniently suspended the alienation in the meantime. The Supreme Court described the situation in these words: "As we have seen, the Government decided in 1991 to sell lands to tenant cultivators ......... The criteria to be satisfied were laid down by the Ministry and published with the assurance that persons who satisfied the requirements would be given their deeds of transfer. An official of the Land Reform Commission has correctly certified that those criteria were satisfied by the petitioners. Caught between the competing demands of politicians who had interceded on behalf of the petitioners, on the one hand, and others, the Chairman of the Land Reform Commission, instead of performing his duty to comply with the policy of the Government and implementing the publicly announced decision of the Ministry, referred the matter to the Ministry in the belief that he had divested himself of his obligations. If, as he obviously supposed, it was a clever device to slip aside his duties and befool the petitioners and others into thinking he had no duty, he was, in my view, mistaken." The Court accordingly granted a writ of mandamus and gave the LRC six weeks to execute transfer deeds in favour of the petitioners. The Court also awarded costs of Rs.5000 each to the petitioners, to be paid by the LRC. Apart from providing a study in bureaucratic obstruction the full details of which cannot be reproduced here, this case illustrates the nexus between writ applications and fundamental rights which is not always appreciated by a public and a legal profession geared to thinking of fundamental rights only in terms of applications under Article 126(2). For a start, there is also Article 126(3) which states that where, in the course of a hearing of a writ application (mandamus, certiorari etc) in the Court of Appeal, it appears to that Court that there is prima facie evidence of an infringement or imminent infringement of a fundamental right, the Court shall forthwith refer such matter for determination by the Supreme Court. The significance of this clause is that it provides an avenue for fundamental rights matters to be brought before the Supreme Court through the traditional public law remedies which are less restrictive than Article 126(2) with regard to time limit and locus standi. No reference was made in the case under discussion only because the Court of Appeal, at least partly due to the suppression of facts by the respondents, dismissed the petitioners application without referring the Article 12 aspect to the Supreme Court as it might have done. As mentioned at the beginning of this column, the Supreme Court, to which this case eventually came as part of its appellate rather than fundamental rights jurisdiction, held that a contravention of Article 12 by a public official was unlawful per se, irrespective of whether it was expressly challenged under the fundamental rights chapter. This is in keeping with the spirit of the Constitution which declares that fundamental rights "shall be respected, secured and advanced by all the organs of government" - Article 4(d). The addendum by the Court that even without Article 12, public policy would not allow for arbitrary, capricious or unfair discrimination is significant in the light of Article 15(7) of the Constitution which permits restrictions to several fundamental rights including Article 12 to be imposed by law on grounds of national security, public order, public health and morality etc. The judgment would suggest that even restrictions imposed under Article 15(7) would not be upheld if they are "arbitrary", "capricious" or amount to unfair discrimination. |
| The week that was Premadasa family raises hot air By Shan Wijetunge G.S.T. or D.K.T? After their clarifications, there was a spate of questions and comments. Minister Fowzie took the lead. He argued that because of the GST, everything has gone up in price. He maintained that even the eating houses have raised the prices of food items, take aways etc. The two officials explained that the tax does not apply to essentials. Minister Fowzie did not agree. And his disagreement was shared by Ministers Dharmasiri Senanayake, Jeyaraj Fernandopulle, and others. Minister Jeyaraj Fernandopulle proposed a new name for the tax. It should be called D. K. T. (Duppatha Kana Tax Eka) the tax that bleeds the poor he said. Hiding Premadasa's
doings "What about the matter about Chitta Vivekashramaya?" Minister Mahinda Rajapakse asked, "Nothing about the picture from the President's house, auctioned in London. A priceless picture featuring the Mulgirigala temple. Only the Sunday Leader reported about it. Not a word in our "Daily News." The President remarked that it was given publicity in the Sunday Leader at the instance of Ranil who wanted to attack the Premadasa family. What has to be done is not merely to attack Sajith. Before doing that, we must look at the political trend, she remarked. Her remarks on attacks by Mahinda Rajapakse led to a heated exchange of words between Minister Mahinda Rajapakse and her. No one made any attempt to intervene. They just watched the fun in silence. The meeting that Never
was! Not a single Provincial Councillor who had earlier expressed willingness to participate attended the meeting. Not even Mr. Sirisena Cooray! Richard Pathirana
meets the Mulberry Group Anura comes closer to
the Prime Minister Dinner for media men Conspicuous by their absence were the editors of Sunday Leader, Sunday Times and Sunday Lakbima, perhaps because the papers concerned have been sued by the government for criminal defamation of the President. Proceedings went on in a very warm atmosphere and the President made her comments on various papers with emphasis and occasionally with a smile. "A balanced newspaper is a myth. "She commented. "The duty of the media is to report the truth." The Editor of Ravaya wanted to ask a political question. There was no objection. He wanted to know whether there is going to be a Joint Operations Command under the President. The President denied it. She said that it is a canard invented to bring about friction between her and the Deputy Minister of Defence. Some of the editors wanted to know why the government refrained from publishing advertisements in the Upali Group newspapers. "The government is not foolish enough to pay money and listen to abuse"! replied Minister Mangala Samaraweera. Party Leaders Programme of parliamentary activities for the month of August was taken up for discussion. The main subject was the motion of no-confidence against Minister Mangala Samaraweera. It had been decided to table this motion on the 4th of August. The Speaker suggested that the debate should start at 9.30 a.m. and be finished by 3.30 p.m. Ranil objected to the limited time allocated and pointed out that less important subjects such as the Galle harbour had taken more time. "This is a charge against the government". he said. It was finally agreed to extend the time till 5.30 p.m. Goods and Services Tax was also taken up and it was decided to debate on it at a separate date. |
| Blowing hot and cold over Kandalama by S. J. Anthony Fernando The spectre of constructing a hotel overlooking the picturesque Kandalama tank seemed to conjure unimaginable environmental horrors in the minds of these critics including certain members of the Buddhist clergy with even certain Catholic clergymen and nuns throwing in their lot in a determined bid to see that no stone was unturned (including perching themselves on Dambulugala in a mass Satyagraha Campaign) to force the abandoning of the hotel project. Despite these protests launched islandwide, the hotel project went through attracting investment. The hotel has scaled the pinnacle of success by earning international accolades, ironically for enhancing the very environment which the critics said was endangered. The fact that the Kandalama hotel won the most prestigious Green Globe Award not only this year but three years in succession giving it the stamp of the most eco-friendly project is without doubt an honour to be shared by those at the helm of affairs in the country at the time who did not give into the ravings and rantings of those who were out to make political mileage in the guise of environmental hazards, calling for the scrapping of the project. Strange It is interesting to read, in this background, some of the comments made by the president and ministers in their messages to the supplement published (in Daily News of 7th July 98 Page 13) to mark the occasion of the Kandalama Hotel winning the Green Globe Award. This is what President Chandrika
Bandaranaike Kumaratunga states: "I offer my
congratulations to Kandalama hotel for its unique
achievement of winning the green globe award not just
once but three years in succession. To be identified
internationally as an eco-friendly hotel brings credit
not only to the company and the tourist industry but also
to the country." The message from Mr. Nandimithra Ekanayake, Minister of Forestry and Environment, who was in the vanguard of P. A. protests in the area over Kandalama is interesting: "This is a landmark event in sustainable development in Sri Lanka as this project has proved that development need not be at the expense of the environment but could be environment friendly and sustainable." What is more this is what Mr. Janaka Bandara Tennekoon, Deputy Minister of Labour and MP for Matale District another vehement critic of the project had to say: "My heartiest congratulations to Aitken Spence Hotel Managment (Pvt) Ltd. and to the Director/General Manager and staff of Kandalama Hotel for winning the "Green Globe Award" for the third consecutive year...... "This is indeed an honour to me as the Member of Parliament in the area where Kandalama Hotel is located and along with the Hon. Minister of Tourism will certainly help to boost tourism and to achieve the final goal by making the proposal a reality." Quite thought provoking words from those who opposed the project from its drawing board stage. Progress Kandalama Hotel project was one of them. With the country on course towards accelerated development on all fronts rural, urban as well as industrial and infrastructure, his detractors devoid of much political ammunition after the effective elimination of JVP terror clutched at whatever issue that came by to bludgeon the then government. Besides the Kandalama Hotel project, the provision of facilities for VOA at Iranawila, privatisation programmes, Air Lanka, Air bus deal were among other issues where they almost brought the roof down. But after the PA came to power all these issues became non-issues with the PA going through these deals without a murmur. Such horrifying stories like the Kandamala tank would get polluted, or overflow its banks causing mass destruction to life and property and harming the farming community, together with the prospect of pollution of cultural and social life of the community with influx of hippy type tourists created quite a stir in the country. This was despite the explanations given that the project has been so designed not to disturb the ecology but rather enhance it, instead of cutting trees more trees would be grown and that there was no danger of the tank overflowing or the supply of irrigation facilities to farmers being disrupted in anyway. I had the opportunity of visiting the Kandalama site when it was being prepared for the project. It looked a desolate place with huge rocks around the area. Mr. Melroy Perera, the architect on site explained how they hope to build the hotel to harmonise with the landscape. With graphic details he explained that the hotel would be constructed at such an elevation that if the Kandalama tank was to overflow its banks and cause destruction the hotel would first be under water. Nor would the capacity of the tanks in any way be reduced. Though these issues were explained through the media they were ignored and the protests went on regardless. However President Premadasa, a keen environmentalist himself, insisted that as in any project the people in the area first should be taken into confidence and their co-operation solicited. Through his intervention the entire neighbourhoods received a face-lift through infrastructure development like new roads, water supply, housing and electricity. More trees were grown to make it more idyllic. Soon the opposition to the project started waning when the protesters, mostly from outside, found it difficult to muster support from the area. Fears Now, with such disinformation and rumours being laid to rest, it is at least heartening to see those who opposed now admiring one of projects commenced under President Premadasa like so many of his concepts and ideas are now being followed by the self same critics devoid of course of the same results. One is reminded of the oft repeated saying of President Premadasa when confronted with so much wild rumours, insults, disinformation, misinformation and insinuations thrown at him at the mere drop of a hat. He would say "the truth will prevail some day". And it is apparent that day by day the truth is emerging with his critics wittingly or unwittingly gravitating towards his concepts and programmes for the welfare of the people. Reality of the once despised Kandalama Hotel now becoming the most admired by the P.A. is another classic example of the P.A. basking in the reflected glory of some of the achievements under the open market policies initiated by UNP regimes since 1977. We have seen many such on-going projects completed and opened by the P.A. with great fanfare as their own projects. Apart from a few projects initiated by P.A. being opened what we hear after nearly four years of P.A. in office is still a plethora of more promises, proposals and plans and foundation stone laying ceremonies with many promises and plans initiated soon after P.A. taking office falling by the way side. It is now transparently clear that the P.A. has had no other alternative than to fall back on the same entrepreneurs and companies, which were nurtured and developed under the open economic policies in previous years (most of them branded as UNP cronies) and vehemently opposed by P.A. parties, to keep the country head above water through export earnings, opening of industries to provide employment and sustain the economy as the engine of growth. |
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