he Courts of Sri Lanka cannot in any way recognise the SOFA as legal and internally effective because such recognition would be incompatible with the statement of sovereignty in Article 3

The proposed SOFA between the GOSL and the US

The contents of the proposed SOFA have not been officially released. However, the political Editor of the Sunday Times has given a detailed description of its contents, which the Government has not contradicted. Indeed, there is no reason to doubt the account of these proposed provisions because these would be a repetition of the standard agreements that the US has with Japan and the UK and had with the Philippines. 

Unfortunately, the GOSL has misled, albeit innocently, the US government into believing that it is authorised by the Constitution to enter into the SOFA. If the GOSL signs the SOFA, it will be an international agreement in terms of the Vienna Convention on the Law of Treaties (VCLT) and breach of its terms would be of an obligation to a powerful and friendly ally. At the same time, the Courts of Sri Lanka cannot in any way recognise the SOFA as legal and internally effective because such recognition would be incompatible with the statement of sovereignty in Article 3. Friendly relations with an important ally could thus degenerate into distrust and suspicion all because the necessary homework on Article 3 was not done. 

If signed, the SOFA would be unconstitutional for the following reasons:

The Sri Lankan parliament has enacted the Diplomatic Privileges Act, Short title No. 9 of 1996. This act gives internal effect to the Vienna Convention on Diplomatic Privileges of April 18, 1961 (VCDP). The SOFA being an executive agreement cannot broaden the provisions of the VCDP and thereby amend the Diplomatic Privileges Act (DPA) without an amendment to the DPA that is passed in parliament.

Even if such an amendment to the DPA is sought to be passed, it would infringe Article 3 as it contradicts some of the key features connoted by the term ‘sovereignty’; and

The projected exercise could result in legal nonsense. The VCDP attaches certain immunities to certain specific foreign officials and these immunities are keyed into specific positions, example, the head of mission, because job specific duties require certain immunities. It would destroy the structure of the VCDP if the term ‘US Personnel’ is substituted for every official mentioned in the VCDP. More significantly, it broadens certain carefully provisions meant to constrain privileges that contradict the essence of such provisions. In other words, it is legally impossible to shoehorn the SOFA into the existing constitutional, statutory and treaty framework.

Some of the provisions of the proposed SOFA, according to the account in the Sunday Times, are as follows:

The class of protected persons is indeed wide:

United States (US) military and civilian personnel identified as members of the US Department of Defence, respectively, hereafter referred to collectively as US personnel) and US contractors (defined as non-Sri Lankan companies and firms, and their employees who are not nationals of Sri Lanka, under contract to the US Department of Defence who may be temporarily present in Sri Lanka in connection with ship visits, training, exercises, humanitarian activities, and other activities mutually agreed. 

Companies and firms, and their employees, not under contract with the US Department of Defence shall not receive any privileges and exempt under this Agreement. (This is an unnecessary provision but is inserted merely to illustrate, by way of contrast, the class of persons who are able to claim immunity under the proposed SOFA.)

US personnel be accorded the privileges, exemptions, and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the VCDP.

That US personnel may enter and exit Sri Lanka with US identification and with collective movement or individual travel orders; that Sri Lanka shall accept as valid all professional licenses issued by United States, its political subdivisions, or States thereof to US personnel for the provision of services to authorised personnel, and that Sri Lankan authorities shall accept as valid, without a driving test or fee, driving licences or permits issued by the appropriate US authorities to US personnel for the operation of vehicles. The Embassy further proposes that the US personnel be authorised to wear uniforms while performing official duties and to carry arms while on duty if authorised to do so by their orders.

US Personnel: “Such importation, exportation, and use shall be exempt from any inspection, license, other restrictions, customs duties, taxes or any other changes assessed within Sri Lanka.”

Claims by third parties (in Sri Lanka) for damages or loss caused by US personnel shall be resolved by the US Government in accordance with US laws and regulations.

The Embassy proposes that US personnel shall have freedom of movement * * *.’

Comparison of provisions with the VCDP:

The foundation of the VCDP is that the receiving state, i.e. Sri Lanka, has complete discretion to accept or reject persons who will be appointed to diplomatic missions. Under the proposed SOFA, Sri Lankan officials do not have a say on which ‘US Personnel’ can enter the country much less even know their identity.

Article 7 of the VCDP envisages the submission of data regarding military attaches for approval before their posting. The SOFA on the other hand will allow the unrestricted entry of any GI Joe or GI Jane as members of ‘US Personnel’ and the authorities would not even know their names by checking their identity credentials. 

Article 8(3) of the VCDP permits the receiving country to reject the assignment of the foreign nationals. Under the SOFA, private military ‘contractors’, such as the notorious Blackwater aka Xe Services who might include mercenaries, benefit from the SOFA. 

Article 26 of the VCDP authorises the receiving state to declare no go exclusion zones for national security. Because of the freedom of movement granted to US Personnel under the proposed SOFA, these personnel could not be kept out of any future Nanthikadal. 

Claims for losses or damages caused to Sri Lankan by US Personnel “shall be resolved by the US Government in accordance with US laws and regulations.” In other words, the jurisdiction of the Sri Lanka Courts to adjudicate claims by Sri Lankans for wrongs committed against them in Sri Lanka by US Personnel is ousted. Sri Lankans who under Articles 3 and 4 of the Constitution are entitled to access Sri Lankan Courts to vindicate their rights are denied such access and are compelled to seek redress from the US Government in accordance with US laws and regulations. The multiple rape victims of US servicemen in Okinawa and the parents of Harry Dunn who was killed because another US personnel was driving on the wrong side of the road in Britain could provide some practical advice on this point to those negotiating the proposed SOFA.

SLSGFTA

The SLSGFTA is a treaty between Singapore and Sri Lanka. It is a massive document that covers many areas including trade and commerce as well foreign investment. Parliament has not approved the SLSGFTA pursuant to Article 157 of the Constitution. Yet, it is operational and given effect to in Sri Lanka. Although Sri Lanka is obligated under the VCLT to give effect to the SLSGFTA, a bilateral treaty executed with great pomp and ceremony between President Sirisena and Prime Minister Lee of Singapore, the Constitution makes it illegal to give internal effect to the provisions of the SLSGFTA. For present purposes, it is sufficient to examine some key provisions, as paraphrased, in the investment chapter, Chapter 10.

Article 10.4.1: Sri Lanka shall accord to Singaporean investors’ treatment no less favourable than that it accords, in like circumstances, to Sri Lankans with respect to the management, conduct, operation, and sale or other disposition of investments in its territory.”

Singaporeans are to be treated as if they are Sri Lankans with regard to management and conduct of business operations. [Note: Singaporeans may not buy landed property as if they were Sri Lankans.]

Article 10.8 Senior Management and Boards of Directors 

1. Sri Lanka shall not require that an enterprise of a Singaporean investor that is an investment appoint to senior management positions natural persons of Sri Lankan nationality.

No Sri Lankan law therefore can mandate that a company in Sri Lanka even partly owned by Singapore investors must appoint Sri Lankan citizens to senior management positions.

Article 10.10

Sri Lanka shall nationalise, expropriate or subject to measures having effect equivalent to nationalisation or expropriation (hereinafter referred to as ‘expropriation’) an investment unless such a measure is taken * * * upon payment of compensation in accordance with this Article. 

2. The expropriation shall be accompanied by the payment of prompt, adequate and effective compensation. Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriation or impending expropriation became public knowledge. Such compensation shall be effectively realisable, freely transferable in accordance with Article 10.11 (Transfers) and made without delay. The compensation shall include interest at an appropriate and reasonable rate for that currency, accrued from the date of expropriation until the date of payment. 

All nationalisations must be compensated for by reference to fair market value and be made in hard currency.

Sri Lankans who have their property taken over by the government have no such rights, much less that the compensation must be paid in hard currency that can be taken out of the country. 

Article 10.14.5:

5. A Singaporean investor may submit the claim to arbitration: 

(a) * * * ; 

(b) * * * ; 

(c) under the UNCITRAL Arbitration Rules;

Article 10.17:

Conduct of the Arbitration 

A tribunal established under this Section shall decide the issues in dispute in accordance with this Agreement and the applicable rules and principles of international law.

[A Singapore investor, but not a Sri Lankan investor, could sue the sovereign state of Sri Lanka in arbitration. Under UNCITRAL Arbitration rules, unless the investor and the GOSL agree on a venue for the arbitration, the arbitrators could choose the venue. This could be an expensive city like Paris, London, or New York. The costs of defending the arbitration and payment of part of the arbitrators’ fees would be borne by the Sri Lankan taxpayer. Sri Lanka law which would normally apply to determine the legality of the taking and the quantum of compensation is irrelevant.]

There is nothing unusual or offensive about the above provisions. In fact, they are almost boilerplate in the thousands of bilateral investment treaties that are in existence. What makes the SLSGFTA illegal with no internal effect is that it violates the Constitution and creates rights by foreigners and obligations on the Sri Lankan state not with the approval of parliament as required by Article 157 of the Constitution but by an act of the Executive.

As an illustration, consider the National Treatment standard which gives Singapore investors the same rights and privileges on company management as their Sri Lankan counterparts. A Sri Lankan manager aggrieved by an official decision could invoke the fundamental rights jurisdiction of the Supreme Court. If a Singapore manager in a similar situation attempted to do this, Article 14(2) of the Constitution would deprive her of standing. When this happens, there will be a denial of justice claim that would expose the Sri Lankan state to arbitration and consequential damages under Article 10.

Sri Lanka was one of the first group of countries that entered into investment treaties with foreign countries. Under the dualist system of international law under which Sri Lanka operates, an act of parliament is necessary to give internal effect to a treaty executed by the Executive. Mindful of this, the drafters of the constitution sought it fit to include a provision in the Constitution that provides the method by which an investment treaty becomes the law of the land. Once this method is successfully used, no subsequent law or regulation or administrative action may conflict with the obligations under the investment treaty.

Article 157 of the Constitution provides the method by which a treaty “for the promotion and protection of foreign investments” “shall have the force of law in Sri Lanka”. Article 157 requires two-thirds of the whole number of members of parliament (including those not present) voting in its favour. This is a specific provision on how a set of obligations contained in the SLSGFTA can be given the force of law. Quite apart from not having been approved by a two-thirds vote in favour, even a simple act of parliament has not attempted to transform an executive document into law. This violates Articles 3 and 4(1) as well as Article 157 of the Constitution. The GOSL, however, continues to enforce the SLSGFTA and order officials to comply with its terms despite the fact that it has no internal validity or legitimacy. 

Proposed amendments to the Land Alienation Act of 2014

Sovereignty arguably also connotes exclusivity in some areas. During the hundreds of years of colonisation, colonial powers have used the power of eminent domain to expropriate thousands of acres both in the Kandyan province and elsewhere belonging to Sri Lankans without compensation. Some writers have argued that the doctrine of eminent domain has really been used as a weapon against the weak and the powerless. In ‘Kelso v City of New London’, the dissent emphasised that the poor and the marginalised were the targets of eminent domain, and that the doctrine supported a reverse Robin Hood society. In Manhattan Beach in California, eminent domain was used to acquire prime beach properties owned by the African-American community. In Colombo too, reports allege forcible eviction of the marginalised to make way for luxury condominiums. 

In this context, the proposed law allowing listed companies with more than 50% foreign ownership to own land in Sri Lanka is problematic. In 2018 a bill amending restrictions on foreign ownership was enacted. Apparently, the Cabinet has approved a bill which will remove all restrictions on buying land with retrospective effect, in other words legitimising what was an original illegal transaction. 

Countries, such as Indonesia, Thailand, the Philippines, that have a much larger landmass than Sri Lanka do not permit foreigners or companies with foreign ownership to buy own land. The constitutions of these countries provide that foreign ownership of land is not allowed. Singapore likewise does not allow foreigners to own land. Why then does the Government of Sri Lanka propose a law that would allow companies owned by foreigners to buy land? There is evidence that foreigners, in effect, own land in places like Galle through nominees and brokers have been recorded boasting that they can circumvent existing restrictions on alien land ownership. Indeed the Philippines has an anti-dummy law that criminalises those who violate by circumvention the prohibitions of alien land ownership.

A persistent atavistic fear of the majority ethnic community is that it has nowhere to go unlike minorities who are perceived as migrants who can always go back to their countries of origin. Ironically, this fear might be realised if foreign land ownership is permitted. The governments of Indonesia, Thailand, and the Philippines are mindful that the vast majority of their citizens are poor and cash strapped. It protects these very citizens who could be induced to sell their ancestral lands, which often is their only asset of worth, for a mess of pottage. In tiny Sri Lanka with a large percentage of the population live below the poverty line, allowing foreign owed companies to buy land in effect squeezes the living space available. In effect, the fox is invited to enter the chicken coop with the door being opened by the GOSL. 

Many decades ago, the law permitted foreigners to buy freehold property in Sri Lanka. At that time the purchasers were Western European tourists in love with the country’s golden sands. The position today is quite different where the entire Asian region is awash with liquidity. Due to the instability in Hong Kong, massively rich Hong Kong companies could re-list on the Colombo Stock Exchange (CSE) and go on a buying spree leading to skyrocketing land prices. While previously the odd European tourist would buy property, the CSE listed companies majority owned by Indians, Chinese, and Hong Kong purchasers could go on an unchecked buying spree to own prime properties all over the tiny island. 

Sri Lanka can soon be like London and Sydney where property prices have made property ownership by the locals an unreachable dream. Perhaps an analogy is that of a house owned by the entire family where the householder crams the family into a tiny room and renting in perpetuity the other rooms in the house to strangers. 

Just as Chinese and Indian governments have brought pressure on the GOSL to distribute large tracts of land to them and their proxies, the donor agencies or the Millennium Challenge Corporation could bully the GOSL by establishing as a conditionality a change in the law allowing much of Sri Lanka to be owned by foreigners. These agencies would not dare dictating such terms to Indonesia, Thailand, or the Philippines. Would it be the fate of Sri Lanka to have the GOSL forget Article 3 of the Constitution and raise the white flag of surrender to these donors? 

The least dangerous branch of government

Stalin is famously supposed to have asked how many divisions the Pope had. The courts, like the Pope, do not have divisions at their beck and call. Their power flows from the esteem they are held in a society and the limited power they have to punish those who disobey their orders. This is the primary use of the contempt of court law which is to uphold the rule of law. This power to punish for contempt of court is enshrined in Article 105(3) of the Constitution. Usually the contempt is not explicitly recognised in a constitution and is normally regulated by common law or by an ordinary statute.

The armed forces rescued the country from the clutches of a ruthless band of terrorists in a decisive battle in 2009. Surely, these brave men and women did not win this battle for Sri Lanka to lose the war by self-inflicted injuries on its institutions. The rule of law is the central plinth of any civilised society and must be protected from those vandals who will take a wrecking ball to it. Because the contempt of court power, reaffirmed in Article 105(3) of the Constitution, is the only power that the Judiciary has to make sure that its orders are obeyed, it damages the courts as an institution when those found guilty of contempt are pardoned by the Executive. 

President Trump pardoned Sheriff Joe Arpaio who was guilty of contempt of Court. President Sirisena followed suit when he pardoned the Venerable Gnanasara Thero who was imprisoned for contempt. In none of these cases, was the punishment for contempt not fully justified unlike some previous convictions for contempt in Sri Lanka.

Disappointingly, none of the principal candidates in the forthcoming Presidential Election have pledged to make the entire country a riot-free zone. A riot-free country will be attractive to foreign investment, which the country needs, and will improve the ease of doing business indicators with respect to Sri Lanka. With modern technology and a rapid deployment force, any riot can be quickly quelled. The courts can play a positive role in preventing riots.

One must note two disturbing trends commencing from the dark days of July 1983. First, riots that cause death, injury and traumatic suffering are undertaken by mobs which appear to have political protection. Second the police, mindful of such political patronage, are mere spectators, especially if members of the clergy are involved, and ignore their sworn duty to uphold the law which requires them to control and arrest lawbreakers.

These riotous gatherings fall squarely with the definition of the offence of Unlawful Assembly as laid out in Sections 138 and 139 of the Penal Code. Undoubtedly, the rioters commit the offence of Unlawful Assembly. But what about the police? “They also serve who only stand and wait,” was a famous line from a sonnet by John Milton. Lord Summer in Barendra Kumar Gosh vs. Emperor used this as a legal standard, and Alles J cited this maxim with approval in Richard vs. State. This maxim rings true because it is true. The Courts in India and Sri Lanka have received this standard into the penal law.

The maxim covers the inaction of the police and they should also be held to account for the Unlawful Assembly.

As riots and other forms of senseless political violence appear to serve the dark ends of politicians of all stripes, it is unrealistic to expect politicians to implement anti-riot strategies. 

(The author is an associate of the International and Comparative Law Society (ICLS). The ICLS was formed to establish a community of legal professionals to study a range of matters that are relevant to Sri Lanka and interact with the public on important issues. This essay, written hopefully in accessible non-legalese language, is meant to engage with the many stakeholders interested in governance and the rule of law. The views expressed herein are those of the author and not necessarily that of the ICLS. The other usual disclaimers also apply.)

The courts should step into the breach. When a riot appears to be imminent, the courts, on the application of any citizen, should grant a restraining order, breach of which would be regarded as the offence of contempt of court. If despite this order, the riots take place, the malefactors and the police can be filmed, and this could be used as evidence in court to punish the rioters. 

Another application of the contempt power would be to restrain post-conviction abuses, where the convicted develops a sudden malady, finds an ever-willing doctor who breaches medical ethics by providing a phony medical certificate, and is admitted to a hospital. Such post-conviction antics are evasions of the consequences of the crime, which is a custodial sentence. This thwarts the court’s order by means of obstruction of justice, a matter over which the courts have jurisdiction. 

If the courts should demand a review of the physician’s conduct in question by a court appointed panel of doctors and the results show wrongful conduct, the courts should dis-enrol the doctor from the list of authorised practitioners. The abuse would soon stop and the rich and the privileged will no longer be allowed to render a custodial sentence meaningless, bringing the law and the courts into derision in the eyes of the public. 

A Native American folktale bears re-telling in the context of the long history of ethnic and religious riots in Sri Lanka: 

An old Cherokee is teaching his grandson about life. “A fight is going on inside me,” he said to the boy. ”It is a terrible fight and it is between two wolves. One is evil – he is anger, envy, sorrow, regret, greed, arrogance, self-pity, guilt, resentment, inferiority, lies, false pride, superiority, and ego.”

He continued, “The other is good – he is joy, peace, love, hope, serenity, humility, kindness, benevolence, empathy, generosity, truth, compassion, and faith. The same fight is going on inside you – and inside every other person, too.”

The grandson thought about it for a minute and then asked his grandfather, “Which wolf will win?” The old Cherokee simply replied, “The one you feed.”

No prizes will be awarded for guessing which wolf has been fed or the identity of the chefs who prepared the junk lupine cuisine during the many decades of Sri Lanka’s independence. But it is not the job of the Judiciary to provide sustenance for the famished wolf. That is the job of the religious, civil society groups, and concerned citizens. However, Articles 3 and 105(3) of the Constitution provide an opportunity for imposing some dietary restrictions on the other wolf, the morbidly obese wolf seething in fury at past injustices, whose appetite continues to become more ravenous in each passing day. 

Injunctions against foreseeable riots should be a practice developed and made routine by the Courts to rid the country of a scourge that ruins human lives, destroys job producing enterprises, and scares foreign investors. 

Conclusion

In response to the universal injunction to societies ‘To Go Set a Watchman’, the Constitution has entrusted this job to the Judiciary. In a judgment of lambent clarity, Sir Sydney Abrahams in the Bracegirdle case showed how judges must satisfy this duty. He also quoted Scrutton LJ as follows:

“This jurisdiction of His Majesty’s Judges was of old the only refuge of the subject against the unlawful acts of the Sovereign. It is now frequently the only refuge of the subject against the unlawful acts of the Executive, the higher officials, or more frequently the subordinate officials. I hope it will always remain the duty of His Majesty’s Judges to protect those people.”

If a colonial judge, serving at a British monarch’s pleasure, could draw a bright line rule between law and illegality, judges, who serve the republic as delegates of the sovereign people, must likewise provide “the only refuge of the [people] against the unlawful act of the Executive, the higher officials, or more frequently the subordinate officials.” 

Furthermore, it should always remain the duty of the country’s judges, at all level, to protect those people by upholding the rule of law and securing the enjoyment of fundamental rights. Who are then are “those people?” They are the ones described in the Preamble to the Constitution and in Article 3. A schoolgirl civics student knows that only a Legislature can create, amend, or repeal rights of Sri Lankan citizens. The Executive and the Legislature seem to have forgotten this simple truth. The courts should never ever forget this and hold those who violate it accountable. 

Go set a watchman – Part I