See More on Facebook

Diplomacy

Legality of Sri Lanka’s agreements with foreign countries

As a major hub in the Indian Ocean, Sri Lanka stands at a crossroads for trade and diplomacy.


Written by

Updated: June 12, 2019

A report in The Island of June 8, 2019, carrying the heading “Opposition demands halt to signing agreements with foreign countries in secret”, cites MP Dinesh Gunawardena as stating: “The other thing is handing over terminals in Colombo Port to foreign countries. Both these agreements (the ‘other’ referred to being ‘a corridor from Trincomalee to the Colombo Port’) will have a bearing on our national security. These are very crucial assets to us. But the government has handed them over to foreign countries without even consulting Parliament. This is a grave threat to the national security. Therefore, I suggest that such agreements be presented to Parliament and approved by a two-third majority before being inked”.

The Island report also cites MP Bimal Ratnayake of the JVP as stating: “How can you sign agreements with foreign countries in secret? What right you have to do something like that? That is why we came up with the suggestion. Before signing sensitive agreements with foreign countries you should present them to Parliament and get them approved by a two-third majority”.

IMPACT on SOVEREIGNTY

When any Government of Sri Lanka signs agreements or treaties with foreign governments, all commitments made therein are made in the name of the People of Sri Lanka, who are constitutionally recognized as being sovereign. It is imperative therefore, that such agreements or treaties are conducted in a manner that does not violate the sovereignty of the People. Article 3 of the Constitution states; “sovereignty is in the people and is inalienable. Sovereignty includes the powers of government…” which according to Article 4 states: (a) the legislative power of the People shall be exercised by Parliament…(b) the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President…(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals…”.

The wise and good People of Sri Lanka in their wisdom voted to divide their sovereignty relating to legislative and executive power between two organs of government, namely, the Parliament, elected by the People and the President directly elected separately, also by the People. The People of Sri Lanka were cautious not to grant both legislative and executive power to one body – the Parliament, and make it the “supreme instrument of State power” as in the previous Constitution of 1972. Therefore, between Articles 3 and 4 of the Constitution, the People of Sri Lanka made sure that their sovereignty would be better protected and safeguarded by separating powers between a Parliament and an Executive headed by a President. This interpretation was confirmed by Dr. N.M. Perera when he stated: “A President elected directly by the people and therefore entitled also to be an instrument of the sovereignty of the people…” (Critical Analysis of the New Constitution of the Sri Lanka Government). And according to the Supreme Court judgment on the 19th Amendment (S.D. No. 04/2015) “so long as the President remains the Head of the executive, the exercise of his powers remain supreme or sovereign in the executive field and others to whom such power is given (e.g. Cabinet of Ministers) must derive the authority from the President…”. Therefore, it is crystal clear that while the Legislative power of the People is exercised separately by Parliament, executive power is exercised separately by the President as part of the collective sovereignty of the People.

This principle of separation of powers is the foundation of Sri Lanka’s present Constitution. This means powers assigned by the People under the Constitution cannot be transferred to another organ of government without the consent of the People through a Referendum. This fact was emphasized by the Supreme Court in their determination relating to the 19th Amendment cited above. The Court stated: “It is in this backdrop the Court in the Nineteenth Amendment Determination came to the conclusion that the transfer, relinquishment or removal of a power attributed to one organ of government to another organ or body would be inconsistent with Article 3 read with Article 4 of the Constitution”.

For instance, powers assigned to Parliament cannot be exercised by the President and his Cabinet of Ministers. This applies conversely as well. Thus, it is an absolute imperative that if the sovereignty of the People is to be protected that either Parliament and the Executive act separately within their respectively assigned spheres of influence, or act together if the Peoples’ sovereignty is not to be violated whenever governments make commitments in the name of the People. Therefore, since international treaties and agreements are made in the name of the People, the Executive that initiates such instruments is constitutionally required to seek and obtain the required approvals of Parliament if the sovereignty of the People is not to be violated. It therefore follows that any agreements concluded by a Sri Lankan government without the approval of Parliament, would be in violation of the sovereignty of the People, the Constitution and therefore do not have any legal validity; a fact that needs to be confirmed by a Court of Law.

LEGALITY of AGREEMENTS

Successive governments have signed several agreements, some with foreign governments and others with foreign corporations and companies. Whenever governments do so they commit the People of Sri Lanka to fulfilling the terms of such agreements.

Since such commitments have an impact on their sovereignty it is imperative that all organs of government agree to commitments incorporated in such agreements. Agreements based on commitments made only by one organ of government – the President and the Cabinet of Ministers, or only by the Cabinet of Ministers, amounts to a violation of the People’s sovereignty since they represent only a facet of the sovereignty of the People. If the people’s sovereignty is not to be violated, it is imperative that approval is sought and obtained by the remaining facets of sovereignty such as Parliament, to make up the totality of sovereignty of the People. Since most agreements that Sri Lanka enters into are with sovereign States, approvals of Parliament should meet the threshold of a two-thirds majority of Parliament in keeping with the special majority called for in Article 157 relating to treaties and agreements. This Article states: “Where Parliament by resolution passed by not less than two-third of the whole number of Members of Parliament voting in its favour, approves as being essential for the development of the national economy, any Treaty or Agreement between the Government of Sri Lanka….’’ and the Government of any foreign State for the promotion and protection of the investment in Sri Lanka of such foreign State …such Treaty or Agreement shall have the force of law in Sri Lanka…”. Therefore, if any treaty or agreement requires a two-third approval of Parliament if the investments of foreign States are to be protected, it must follow that any treaty or agreement that impacts on the sovereignty of the People also should require a two-third approval as a minimum.

This means that Free Trade Agreements and any other agreements between Sri Lanka and any foreign State and/or agreements with private entities of foreign States would not only have the force of Law if it is approved by a two-third majority of Parliament, but also safeguarding the sovereignty of the People of Sri Lanka.

CONCLUSION

Successive governments have signed treaties and agreements with foreign States or with private entities of foreign States, some with and others without even Cabinet approval in the name of the People of Sri Lanka. Consequently, only the Executive branch of government has committed the People of Sri Lanka to the commitments in these agreements. Such arbitrariness amounts to a betrayal of the sovereignty of the People because Parliament that is also constitutionally empowered to protect the collective sovereignty of the People, is excluded from the process. Therefore, if the sovereignty of the People is to be protected it is imperative that both branches of government, namely, Parliament and the Cabinet are both associated with agreements that commit the People of Sri Lanka. This means all treaties and agreements should require Cabinet approval as well as two-thirds approval of Parliament if the collective sovereignty of the People is to be protected without which Article 3, an entrenched Article, would be impacted resulting in the Constitution being violated.

Advisors to governments do not appreciate the constitutional implications associated with agreements between Sri Lanka and other foreign States or its nationals, because they do not realize that when agreements are made in the name of the People of Sri Lanka what is at stake is the sovereignty of the People that is total, comprehensive and inalienable. Either due to their ignorance, or for reasons of personal profit, the implications involved in agreements such as the Acquisition and Cross Service Agreement; Status of Forces Agreement, Millennium Challenge Corporation Compact or the several Free Trade and other Agreements that have been signed or yet to be signed are trivialized on grounds that it is no big deal because such Agreements are commonly signed by many other countries.

While commending the Opposition for the initiative taken to propose that Parliament should be involved in the review and approval of agreements with foreign States and their nationals, there is an urgent need to institutionalize the procedures and practices that should be adopted in respect of treaties and agreements with foreign States and their nationals, if the sovereignty of the People of Sri Lanka is to be protected and the Constitution is to remain inviolate.



Enjoyed this story? Share it.


The Island
About the Author: Established in 1981, The Island is an English-language daily newspaper published in Sri Lanka.

Eastern Briefings

All you need to know about Asia


Our Eastern Briefings Newsletter presents curated stories from 22 Asian newspapers from South, Southeast and Northeast Asia.

Sign up and stay updated with the latest news.



By providing us with your email address, you agree to our Privacy Policy and Terms of Service.

View Today's Newsletter Here

Diplomacy

‘History will take note of those who ridiculed removal of Article 370’: PM Modi in Maharashtra

PM Modi also expressed confidence that the BJP will break all victory records in the October 21 Maharashtra Assembly elections. Prime Minister on Thursday once again lashed out at the opposition saying that history will take note of those who mocked the abrogation of Article 370, that gave special status to Jammu and Kashmir. “Whenever Article 370 will be discussed in history, — the decision that was taken in the interest of the country — the people who opposed and ridiculed will be remembered,” PM Modi said while addressing a poll rally in Maharashtra’s Parli. He said the next week’s state Assembly elections were a battle between BJP’s “karyashakti” (power of development) and opposition’s “swarth shakti” (selfishness). Further targeting the Congress and NCP leaders, he wondered if “frustrated and dejected” people could do anything good for people. “A Congress


By The Statesman
October 18, 2019

Diplomacy

Malaysia’s PM Mahathir says rail line RTS linking Johor Baru to Singapore to proceed

The rail line has been on again and off again. Prime Minister Mahathir Mohamad on Thursday (Oct 17) said Malaysia will proceed with the 4km Johor Baru to Singapore rail line. His comments about the Rapid Transit System (RTS) rail link followed that of Malaysian Transport Minister Anthony Loke on Tuesday that details of the project will be decided by the Malaysian Cabinet within two weeks. Tun Dr Mahathir said when asked by reporters on Thursday: “We will proceed with the RTS but we will take some time.” Asked if this meant the Malaysian government had resolved 


By The Straits Times
October 18, 2019

Diplomacy

S. Korean, ASEAN officials look ahead to special summit and stronger regional ties

Korea has increasingly look to Southeast Asia as an export destination and regional partners. Ahead of the highly anticipated summit in Busan next month between the leaders of South Korea and the Association of Southeast Asian Nations, top officials from participating countries gathered in the southern port city Wednesday and voiced high expectations for the future of the relationship between South Korea and the ASEAN nations. South Korean Ambassador to ASEAN Lim Sung-nam, ASEAN-Korea Center Secretary-General Lee Hyuk, Busan Mayor Oh Keo-don and Myanmar Ambassador to South Korea U Thant Sin said they looked forward to the upcoming summit, calling it a steppingstone to stronger South Korea-ASEAN ties and to economic prosperity and peace on the Korean Peninsula. “In the past 30 years, the relationship between South Korea and ASEAN has grown to an astonishing degree. Trade volume rose 20-fold and human e


By The Korea Herald
October 18, 2019

Diplomacy

We will never abandon people of occupied Kashmir, says Army chief during LoC visit

The army chief said that the Pakistan army will fulfil its role no matter the cost. Army chief Gen Qamar Javed Bajwa while visiting troops stationed along the Line of Control (LoC) on Wednesday vowed “to never leave Kashmiris alone” in their fight against Indian oppression. “Kashmiris in IOJ&K are bravely facing Indian atrocities under continued siege. We shall never leave them alone and play our rightful role at whatever cost”, said Gen Bajwa. Gen Bajwa’s remarks followed a briefing of the “deliberate targeting of civilians” by Indian troops and the response by Pakistan’s armed forces. A day earlier, at least three civilians died and eight others were injured in Azad Jammu and Kashmir after Indian troops resorted to “indiscri


By Dawn
October 17, 2019

Diplomacy

Singapore’s 4G leadership lays out plans to take relationship with China ‘to a higher level’

The two countries share a close relationship. Singapore’s fourth-generation leadership has a comprehensive plan for engaging with China economically and plugging into the East Asian giant’s rapid development. Ten members of the “4G” cohort drove home this point as they spoke with Singapore media at the end of a bilateral meeting in Chongqing on Tuesday (Oct 15) that was of particular significance, as the Singapore team was composed fully of this new generation of political leaders. Deputy Prime Minister Heng Swee Keat led the Singapore delegation as he co-chaired the 15th Joint Council for Bilateral Cooperation, the highest-level bilateral platform between Singapore and China. Mr Heng, who took over the reins from former DPM Teo Chee Hean earlier this year, said his first meeting in the new role was forward-looking and productive, and that he took the opportunity to “


By The Straits Times
October 16, 2019

Diplomacy

Prince William pays tribute to Pakistanis who lost their lives to terror

The future King has met the current Pakistan Prime Minister when he was a boy. Prince William, the Duke of Cambridge, on Tuesday paid tribute to all those who “endured sacrifice and helped build Pakistan to the country it is today”. His remarks came during his first official speech delivered during a reception at the Pakistan National Monument in Islamabad hosted by the British High Commissioner to Pakistan Thomas Drew. “For a country so young, Pakistan has endured many hardships, with countless lives lost to terror and hatred. Tonight I want to pay tribute to all those who have endured such sacrifice and helped to build the country that we see today,” said William. He recognised that for “Pakistan’s great potential” to be realised, difficulties will have to be faced and sacrifices made. William also spoke of the “unique bonds” between


By Dawn
October 16, 2019