Excerpts from a speech made in parliament on June 6 2008:

Sri Lanka export development act

By Prof. G. L. Peiris

Hon. Speaker, the purpose of this Order which has been made under the Sri Lanka Export Development Act is to levy a cess in respect of certain items of goods. That is, unfinished leather goods, rawhides, without value addition.

We think that the export of these rawhides out of the country is not in the interest of the economy. It is to be discouraged. We want to bring in measures that would encourage value addition. That is, the rawhides would be worked upon and they will be finished leather products.

This will generate employment opportunities and it will also enable the country to earn a larger volume of foreign exchange. So, this is the purpose of the Order which has been made.

It is a cess which is being imposed in the interest of the economy to prevent rawhides from being sent out of the country or to discourage that and to give some encouragement for value addition that will be beneficial from two points of view.

That is, to enhance the total quantum of foreign exchange that we earn and also to enable employment opportunities to be generated within the country. It is a very simple Order under the Sri Lanka Export Development Act.

I do not think that there will be any opposition to that and I would ask for the support of the House in getting approval for this Order which has been made.

One of the conspicuous features of this Debate was the focus on the GSP Plus issue. Many speakers who participated in this Debate made suggestions about the manner in which the Government should deal with the negotiations in this regard.

There was a great deal of confusion reflected in many of the speeches that were made on the Floor of the House today. I think it is very important to clarify these issues. Several Honourable Members urged the Government to bring legislation before the House.

Sir, I was referring to the fact that many Honourable Members who took part in this Debate urged the Government to bring legislation before this House to give effect to the First Optional Protocol to the International Covenant on Civil and Political Rights. The Hon. Dilan Perera made the point that there is absolutely no connection between these two things.

That is the correct view, Mr. Deputy Chairman of Committees. GSP Plus is one matter, the First Optional Protocol is a different matter and there is absolutely no connection between the two. GSP Plus of course is a matter which we are all interested in. It has an important bearing on Sri Lanka’s economy.

In order to obtain this concession from the European Union for three more years, from 2009 to 2012, we have to comply with certain requirements. There are certain criteria which have been stipulated by the European Union.

One of these criteria is ratification and implementation of 27 International Covenants in four different fields; human rights, labour issues, governance and the environment. One of the major covenants in this regard is an International Covenant on Civil and Political Rights.

We have an obligation if we are to make out a successful case for GSP Plus to establish that the rights that are enshrined in the International Covenant on Civil and Political Rights are applicable, are enforceable in this country.

There are many substantive rights that are embedded in the ICCPR. So, we have to satisfy the European Union that those rights receive expression in the legal system of our country and they are enforceable by the courts of this country.

That is what we have to establish. The First Optional Protocol is a completely different matter. It has nothing to do with the enforcement of human rights in this country. It has to do with an appeal from the Supreme Court of this country to a tribunal abroad. This is not a requirement with regard to GSP Plus at all.

The European Union has never told us to incorporate the First Optional Protocol as a condition for obtaining GSP Plus. I think many other people who spoke of the First Optional Protocol did not have, with great respect, a clear understanding of what it is.

The First Optional Protocol means that a judgment by the most exalted judicial tribunal in this country, the Supreme Court of Sri Lanka, will be subject to appeal to a foreign tribunal. Now this cannot be done without amending the Constitution.

The Hon. Lakshman Kiriella said, “What is the problem? The United National Party will provide a two-thirds majority.” But that does not solve the problem at all. This is one of the basic provisions embedded in the Constitution of the Republic of Sri Lanka.

As the Hon. Leader of the House says this involves the alienation of Sri Lanka’s sovereignty. Articles 3, 4 and the other provisions of Sri Lanka’s Constitution involve an exclusive entrenchment of judicial power in the courts of the Republic. Nobody can exercise judicial power in this country other than the courts of Sri Lanka; courts and tribunals that are established by law.

Therefore, in terms of our Constitution it is absolutely impossible for a foreign tribunal to exercise judicial power in this country. Now this was pointed out very clearly by the Supreme Court of Sri Lanka in the Singarasa case.

They said that the First Optional Protocol is ultra vires the Constitution. In other words there is a fundamental incompatibility between the First Optional Protocol and the Constitution of Sri Lanka. It cannot be done. The UNP simply saying that they will give two-thirds majority does not solve the problem at all. There will definitely have to be a referendum.

I venture to suggest that no government in this country, the Sri Lanka Freedom Party, the United National Party or any other party will go before the people of this country and ask them to approve legislation to make the judgment of the Supreme Court subject to appeal to a foreign tribunal.

It is a transgression of self-respect and national dignity. Nobody will suggest that to the people of Sri Lanka and I state with confidence that if any such suggestion is made to the sovereign people of Sri Lanka at a referendum, there is absolutely no doubt that the people of Sri Lanka will reject such a proposition with contempt.

Now, I would also like to add, Sir, if that is the position, if we are content to have a foreign tribunal sitting in judgment over the Supreme Court of Sri Lanka, why did we abolish appeals to the Privy Council? There was a time when the Privy Council was the highest court of appeal in this country.

Judgments of the Supreme Court have been set aside in appeals in the Privy Council, but all self-respecting countries, after obtaining Independence at some time or other, have abolished appeals to the Privy Council.

That means, that we want the highest court in this country to have the last word with regard to the interpretation of the laws which govern the citizens of Sri Lanka. Therefore, Sir, I state categorically that the Government will under no circumstances bring legislation before this House to enact the First Optional Protocol. That will be a breach of the faith reposed by the people of our country in the Government.

We will under no circumstances do that and if anybody attempts it, I am quite certain that the attempt will be futile because the people of Sri Lanka in their wisdom, will reject such an attempt.

Now, I also want to make the point very emphatically, Sir, that the European Union has not expressly or by implication at any time suggested any such thing. This suggestion comes from other people. The EU has not asked for this. This is not a condition for obtaining GSP Plus. It is therefore a red herring across the trail. That is exactly what it is. Now, this is a suggestion that is made with ulterior purposes.

There may be certain political objectives that are accomplished by bringing about a situation in which the Supreme Court is not the final arbiter of the laws of the Republic. There may be some people who have a political interest in that.

And, that may be why those people are wanting the Government to bring such legislation before the House. But, it certainly has no bearing whatsoever on the European Union, on the criteria governing GSP Plus and the whole content of the negotiations which are taking place between the Government of Sri Lanka and the European Commission.

It is therefore necessary, Sir, to have a clear idea about this matter. We have an obligation. The obligation is to ensure that the rights enshrined in the International Covenant are fully enforceable in this country. We may all have different views with regard to this. But, there is only one view which matters.

There is only one view which is authoritative and that is the view of the Supreme Court of Sri Lanka. All that the European Union is interested in is one matter. If a person who complains of the transgression of a right that is guaranteed by the International Covenant on the Civil and Political Rights, if such a person comes before a court in Sri Lanka, will that person be entitled to a remedy or not?

We have to establish that such a person will have a remedy before the courts of Sri Lanka. Now, this is why, Sir, His Excellency the President using the powers that are conferred upon him by Article 129 (1) of Sri Lanka’s Constitution referred this very matter to the Supreme Court for an authoritative ruling.

The Supreme Court gave a categorical answer to that question. The Supreme Court of Sri Lanka ruled that the rights which are guaranteed by the ICCPR are embedded in the legal system of Sri Lanka and are justiciable through the judicial process of Sri Lanka. That was the clear ruling by the Supreme Court in the exercise of their jurisdiction under Article 129 (1) of the Constitution.

The Hon. Leader of the Opposition addressing the Seva Vanitha Unit of the Colombo District was reported in the media as having said that that is not an authoritative ruling because it was not pronounced in a judgement in litigation between parties. In other words, the Hon, Leader of the Opposition said that although the Supreme Court has expressed its view, it is not binding because it is not a judgement of the Supreme Court.

With all respect, Sir, that is an erroneous view of the law. Sir, it is therefore very clear from what the Supreme Court has said that there is no distinction between a judgement of the court in litigation between parties and the opinion that is pronounced in the exercise of jurisdiction under Article 129 of the Constitution.

The Supreme Court has stated very categorically that their ruling is equally authoritative in both cases. So, that is all I wish to say on that subject. The Government, I categorically state, will not bring legislation before this House to amend Sri Lanka’s Constitution. It is superfluous; it is necessary and it has nothing whatsoever to do with the case for GSP Plus.