Sri Lanka Port City Economic Commission Bill - Determination of the Supreme Court - Full text

Supreme Court has declared that certain provisions of the Port City Economic Commission Bill are inconsistent with the Constitution, the Parliament was informed on Tuesday.

Speaker Mahinda Yapa Abeywardena, who read out the apex court's determination in Parliament, said that certain clauses of the Colombo Port City Economic Commission Bill need to be passed with two-thirds majority in the House and through a national referendum.

The Supreme Court in April had heard around 18 petitions filed against the bill by groups who had sought a national referendum and the passage of it in Parliament by two-thirds majority.

The apex court concluded its examination of the bill on April 23.

The debate on the bill was fixed for May 5 but had to be postponed as the Supreme Court's determination was not conveyed to Parliament by then. The debate has now been scheduled for Wednesday and the day after.

The bill was gazetted on March 24 and placed in the order paper of Parliament on April 9.

The final determination of the Court it its original form is given below...for the full proceeds Download Full text of SC determination

The determination of the Court as to the constitutionality of the Bill titled "Colombo Port City Economic Commission" is as follows:

(i) The provisions of Clauses 3(6), 30(3) second proviso, 55(2) and 58(1) of the Bill are inconsistent with Article 12(1) of the Constitution and could be validly passed only with the special majority provided for in Article 84(2) of the Constitution.

However, the said inconsistencies will cease if the clauses are amended as follows:
Clause 3(6)
Page 3, Line 33 - Delete the words "provide such concurrence" and substitute therefor the words "communicate its decision"

Clause 30(3), second proviso 
Page 30, Line 15 - Delete the words "render such concurrence" and substitute therefor the words "communicate its decision"

Clause 55(2)
Page 49, Lines 16 and 17- Delete the words "provide such concurrence" and substitute therefor
the words "communicate its decision"

Clause 58(1)
Page 52, Lines 9 and I 0 - Delete the words "render such concurrence" and substitute therefore the words "communicate its decision"

(ii) The provisions of Clauses 3(5) proviso, 3(7), 6(1)(b), 30(3) first proviso, 71(1) and 74
[interpretation "Regulatory Authority"] of the Bill are inconsistent with Article 12(1) of the
Constitution and could be validly passed only with the special majority provided for in
Article 84(2) of the Constitution.

However, the said inconsistencies will cease if the clauses are amended as follows:
Clause 3(5) proviso
Page 3, Line 27- Add the words "by the Commission" after the word "implementation"

Clause 6(1)(b)
Page 6, Line 27- Delete the word "overall"
Page 6, Line 32- Delete the words "as the Commission considers necessary"

Clause 30(3) first proviso
Page 30, Line 9- Add the words "by the Commission" after the word "implementation"

Clause 71 (1)
Page 62, Line 7- Delete the words "as is considered necessary"

Clause 74
Page 70, Lines 11 to 16- Delete the words commencing from "to the extent" to "Colombo Port City"

Clause 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:
"7 4. Nothing in this Act shall, unless otherwise specifically provided for in this Act, be deemed to restrict in any way the powers, duties and fun"ctions vested in such Regulatory Authority by any written law in relation to the Area of Authority of the Colombo Port
City."

Clauses 74 and 75
Present Clauses 7 4 and 7 5 be re-numbered as Clauses 7 5 and 7 6 respectively
(iii) The provisions of Clauses 3(4), 6(1)(u), 68(l)(f) and 68(3)(a) are inconsistent with
Article 76 read with Articles 3 and 4 of the Constitution and could be validly passed only
with the special majority provided for in Article 84(2) of the Constitution and approved by
the People at a Referendum by virtue of the provisions of Article 83.

However, the said inconsistencies will cease if the clauses are amended as follows:

Clause 3(4)
Page 3, Line I4 - Delete the word "for" and substitute therefor the words "to facilitate"
Page 3, Lines I6 and I7- Delete the words "and Development Control Regulations"

Clause 6(1)(u)
Page I 0, Lines I4 to I5 - Insert the words "enforce the" before the words "Development
Control Regulations"

Clause 68 (1)(0
Page 60, Lines I to 3 - Delete in its entirety

Clause 68(3)(a)
Page 60, Line 25- Delete the words "rule, direction, order or requirement issued or imposed"
(iv) The provisions of Clause 52(3) read with Clauses 52(5) and 71(2)(p) of the Bill are inconsistent with Article 148 of the Constitution read with Articles 3, 4 and 76 of the Constitution and could be validly passed only with the special majority provided for in Article 84(2) of the Constitution and approved by the People at a Referendum by virtue of the provisions of Article 83.
However, the said inconsistencies will cease if the clauses are amended as follows:

Clause 52(3)
Page 44, Line 20- Add the words "in accordance with the Regulations made under this Act ... "
after the words "granted thereto "

Clause 52(5)
Page 44, Lines 29 to 3I -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."

Clause 71 (2)(p)
Page 65, Line I -delete the words "any further"

(v) The provisions of Clauses 30(1 ), 33(1 ), 40(2) and 71 (2)(1) of the Bill are inconsistent with
Article 14(1)(h) of the Constitution and could be validly passed only with the special
majority provided for in Article 84(2) of the Constitution.

However, the said inconsistencies will cease if the clauses are amended as follows:

Clause 30(1)
Page 29, Line 24- Delete the words "or to visit".

Clause 33(1)
Page 31, Lines 32 and 33- Delete the words "or to visit"

Clause 40(2)
Page 35, Line 37- Delete the words "when leaving" and substitute therefor the words "to be taken out of'

Clause 71 (2)(1)
Page 64, Lines 11 and 12- Delete the words "at the time of leaving the Area of Authority of the Colombo Port City"
(vi) The provisions of Clause 53(2)(b) read with Clause 53(3)(b) of the Bill is inconsistent with Article 76 of the Constitution read with Articles 3 and 4 of the Constitution and could be validly passed only with the special majority provided for in Article 84(2) of the Constitution and approved by the People at a Referendum by virtue of the provisions of Article 83.

However, the said inconsistencies will cease if the clauses are amended as follows:

Clause 53(2)(b)
Page 45, Line 20- Delete the words "the specific enactments from those listed in" .and substitute
therefor the words "the specific exemptions from those enactments listed in"

Page 45, Line 22- Delete the words "exempted from being"

Clause 53(3)(b)
Page 46, Line 10- Delete the words "the specific enactments jro_m those listed in" and substitute therefor the words "the specific exemptions from those enactments listed in" 
Page 46, Line II- Delete the words "exemptedfrom being"
(vii) The provisions of Clauses 60(c) and Clause 60(f) of the Bill is inconsistent with Article 148 of the Constitution and could be validly passed only with the special majority provided for in Article 84(2) of the Constitution.

However, the said inconsistencies will cease if the clauses are amended as follows:

Clause 60(c)
Page 53, line I4- delete the word "taxes" and substitute therefor the word "rates" 

Clause 60(0
Page 54, line 2 -delete the word "taxes" and substitute therefor the word "rates"
(viii) The provisions of Clause 37 of the Bill is inconsistent with Article 12(1) and 14(1)(g)
of the Constitution and could be validly passed only with the special majority provided for
in Article 84(2) of the Constitution.

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.

We have examined the rest of the clauses of the Bill and determine that they are not inconsistent with the Constitution.

We determine that upon the amendments suggested by this Court, referred to in paragraphs (i)(viii) under "the determination of Court" being effected, the Bill and its provisions will cease to be inconsistent with the Constitution.

We place on record our deep appreciation of the assistance given by all learned Counsel for the Petitioners and Intervenient Petitioners and the learned Additional Solicitor General.