Sri Lanka Legal Summit 2015 Governance, regulation and investment – The way forward

The National Law Conference of the Bar Association of Sri Lanka under the theme ‘Sri Lanka Legal Summit 2015 – Governance, Regulation and Investment – The Way Forward’ was held last week.
The Chief Guest was Chief Justice K. Sripavan and the keynote was delivered by Former Director of Economic Affairs at the Commonwealth Secretariat, Dr. Indrajit Coomaraswamy.
The technical sessions of the conference focused on governance, regulation and investment with an excellent panel of speakers and experts.
Dr. Jayampathy Wickramaratne PC made the main presentation on ‘Governance Reforms’ and the session’s panel included Bar Association of Sri Lanka President-Elect Geoffrey Alagaratnam PC, who acted as Session Chair, former Supreme Court Judge Justice Saleem Marsoof, PC, Solicitor General Suhada Gamalath, PC, former Ceylon Chamber of Commerce Chairman Chandra Jayaratne and the former Dean of the University of Colombo Law Faculty, N. Selvakumaran.
The session on investment was chaired by K. Kanag-Iswaran, PC and principal presentations were made by Deputy Minister of Highways, Higher Education and Investment Promotion Eran Wickramaratne and Jetwing Hotels Chairman Hiran Cooray, who spoke on the ‘Opportunities and Challenges faced by Investors’.
Inland Revenue Commissioner General Wasanthi Manchanayake, Controller of Exchange D.M. Rupasinghe, Customs Director General Jagath P. Wijeweera and Board of Investment of Sri Lanka Investment and Promotion Executive Director Renuka M. Weerakone were the panellists.
Central Bank Governor Arjuna Mahendran and Securities and Exchange Commission Chairman Thilak Karunaratne lined up to speak on the future plans of their respective institutions, while Deputy Minister for Policy Planning, Economic Affairs, Child, Youth and Cultural Affairs, Dr. Harsha De Silva spoke on the role expected of these regulators.
Sankarshana. A. Parathalingam, PC chaired this session with National Development Bank CEO/Director Rajendra Theagarajah and Colombo Stock Exchange CEO Rajeeva Bandaranayake acting as the other panellists.
Bar Association Deputy President Prasanna Jayawardena, PC and Bar Association Executive Committee Member Anura Meddegoda also spoke at the technical sessions. The Members of the Summit Committee include attorneys-at-law Kushlan Seneviratne, Ruwandhi Thanthrige, Himali Orugodawatta, Dinesha De Silva, Samantha De Soysa and Ruvinda Welikala.
Following are excerpts from the respective sessions:

 

 

By Radhi de Silva and Senuri de Silva
Governance Reforms
The first session of the Legal Summit titled Government Reforms saw some of the country’s leading lawyers discussed the upcoming constitutional amendments that are being discussed as promised by the 100 day manifesto.
Constitutional Law expert Jayampathy Wickremaratne PC, made a presentation on the upcoming amendments that segued into a panel discussion chaired by Bar Association Sri Lanka (BASL) President Elect Geoffrey Alagaratnam PC, and participated by Retired Judge of the Supreme Court, Justice Saleem Marsoof PC, Solicitor General of Sri Lanka Suhada Gamlath, Ceylon Chamber of Commerce, Former Chairman Chandra Jayaratne and University of Colombo, Faculty of Law, former Dean N. Selvakkumaran.
Wickremaratne spoke on the conflict between the 19th and 20th Constitutional Amendments being drafted for the intended constitutional reform promised as a prominent part of the 100 day plan.
The 19th Amendment refers to the change in the form of government including the executive presidency while the 20th deals with changes in the electoral process and the matter of debate was whether one could be independent of the other. On this issue Wickremaratne pointed out, even though the 100 day manifesto presented them as two separate amendments intending it to be considered independently there was not widespread agreement on this point.
Highlighting the issue that has caused such disagreement regarding these amendments he said that there was a school of thought that believed the changes to be brought to the Government in the form of the 19th Amendment should be accompanies by changes to the electoral system. To this Wickremaratne said, “If you make a new electoral system and make it a precondition for abolition (of the executive presidency) then it will be disaster, it will be very difficult to find electoral reform. That’s why the 100 day program spoke of two different reforms. One for changes in the form of government and the second one for electoral reform. It would be difficult if one was conditional on the other but of course we must make the political parties come to an agreement on both issues.”
“We’re not going back to a (William) Gopallawa type president,” he said listing out some of the responsibilities that the president will hold under the amended purview of this office. The president would continue to be the head of the executive and the commander in chief and his interaction with the cabinet will take a consultative form as he said, “As in India the president would have the power to ask the cabinet of ministers to reconsider advice given to him so there would be a consultative process between the president and the cabinet. Of course he would be bound by advice given after reconsideration.” The same form would be followed when giving assent legislation presented to him.
Wickremaratne further said that the constitution refers to the President as the ‘symbol of national unity’ and have a duty to “promote national reconciliation and integration, to ensure and facilitate the preservation of ethnic and religious harmony, and very important role in governance, to ensure and facilitate the proper function of the constitutional council and the independent commission.”
It has become known in the past that the president’s term will be reduced to five years, however the new constitution will also look to limit the parliament’s term to five 5 and reform the power given to dissolve the Parliament which Wickremaratne pointed out has been problematic in the past, as a power used at times of political convenience. It has therefore been proposed that the dissolution of Parliament in the first four-and-a-half years can only take place in accordance with a resolution passed by a 2/3 majority of the Parliament. A similar provision also exists in the British Law.
Presidential immunity is also being reconsidered as Wickremaratne stated, it will no longer extend to acts or omissions of the president in his official capacity and, “Acts of the president in his official capacity would come under the fundamental rights jurisdiction of the supreme court.” It would then be possible for an application for the enforcement of these fundamental rights could be filed naming the attorney general as the respondent.
Moving on to the electoral reforms which are also a major focal point of the 100 day program Wickramaratne spoke of the difficulty that has arisen in finding common ground for all parties to agree on, to settle on the right mix of proportional representation which is preferred by the smaller parties and first past the post representation which is preferred by larger parties.
Another point of debate has been whether proportional representation should be on a district basis, provincial basis or national basis. Providing his view on the matter Wickremaratne added, “I think it should be on a national level or a compromise would be on a provincial level.” One proposal to eradicate this disagreement has been the suggestion of adopting proportional representation of a lower percentage out of only the votes gathered by defeated parties so that it translates to a larger portion of the number of seats available.

A new delimitation commission will also look into the electoral constituencies and take into account the changes in demography that have taken place since the current electoral map was created over 40 years ago.
The much discussed freedom of information will be provided to citizens as a basic right protected under the Constitution under a standalone article, specifically Article 14A as Wickremaratne expressed, “The right to information will be included as fundamental right subject to various restrictions but the restrictions would only be those which are necessary of democratic society in the interest of national security etc. This will be followed up with the Right to Information Bill which we should be able to present to parliament towards end of this month or the beginning of the next month.”
He also spoke of bringing back the 17th Amendment of the constitution. In addition to this Wickremaratne also said the Constitutional Council will better reflect the pluralist characteristic of Sri Lanka including professional and social diversity and the professional expertise of nominees will be taken into consideration.
The Bribery Commission will also receive constitutional recognition and their powers will no longer be limited to a reactive function. Therefore it will be amended to enable them to not only investigate allegations but also play a more proactive role and investigate possible allegations of bribery and corruption before they are brought to the notice of the commission.

 
Panellists’ views
The panel also chimed in, enriching the conversation with their views on the reforms.
Saleem Marsoof, believes that these reforms give the constitution an autochthonous nature. Previous constitutions have been enforced on the people and have lacked this autochthonous characteristic for this reason.
He said, “We have never had a constitution that was from the people. They have never enjoyed a constitution that was from their own making” and called for more consultation from the people, especially regarding the tussle between the 19th and 20th Amendments.
He further pointed out that the full effect of the right to information can be granted to citizens only hand in hand with the creation of more facilities for them to express their views and respond to question. India dealt with this by giving citizens interlinked computers. He made this point by saying, “The right to information is also very fundamental but if we have the right to information there should also be a method to make it possible to address the issues and answer the questions that are raised.”
Solicitor General, Suhada Gamlath expressed his support for the new consultative process to appoint judges to the Supreme Court as a “Very positive and healthy feature.”
Former Ceylon Chamber of Commerce Chairman Chandra Jayaratne spoke of a change in culture that was necessary for good governance saying, “Two things will make governance work. First is the tone at the top. The second is the culture.”
He further added that in the hierarchy of leadership, subordinates should be given the freedom to question the orders of their superiors rather than finding ways to justify them in order to facilitate their wishes.
He made this point by adding, “Those down the line should have had (freedom) to exercise their governance and take steps if somebody is wrong. Governance will never fall into place unless the culture changes with it.”

 
Introduction to the Technical Session by Prasanna Jayawardena
The technical Session of the NLC 2015 commenced with the pitch setting by Prasanna Jayawardena PC, and the Deputy President of the BASL.
Jayawardena explained that the BASL has in the recent past focused on matters concerning public and vocal advocacy, the rule of law, independence of the judiciary, ensuring free and fair elections and the implementation of good governance.
And in addition to the foresaid macro goals, Jayawardena held that the BASL has implemented good structured work on an annual and recurring basis in the field of professional ethics, legal education, professional training, human rights, legal aid and the welfare of legal professionals, etc., apart from these areas of work the BASL organises the NLC every year which is one of the significant events on the BASL annual calendar.
The topics covered at previous NLCs were based on matters of interests primarily to the lawyers, but this year the BASL NLC committee had done a remarkable job by focusing on a timely theme as our country is currently at a significant juncture in its history.
Jayawardena stated that the country at the moment has a recently-elected President and a Prime Minister who have come into power based on the promises made to the people which include the promise of good governance, the promise of instilling the rule of law and equality, the promise of the independence of the Judiciary and the promise of continuous development and the achievement of prosperity for the people of the country.
“We the people of Sri Lanka now expect that these promises be fulfilled and the policies and framework required to do so be quickly be drawn up and be implemented by Government which they publicly and repeatedly assured that they will fulfil these promises and apart from that, to focus on the very much needed values of civility and decency being the hallmarks of our country, and to prevent the country from treading on a reckless path towards disarray and eventually destruction and on a path of corruption, dishonesty and must take legal action against bribery and corruption, and most importantly perpetuating in the public that this will be so and this should be so.”
It was further explained that another purpose behind the theme of the NLC 2015 was to create a different culture in Sri Lanka, where Jayawardena took Dubai as an example and how it became the global city and business hub of the Persian Gulf region as it is described today which is mostly due to the security that is provided by the government for those who invest and do business in that country and thereby had brought in the expertise, knowledge and foreign revenue into the country.
Jayawardena explained that if we promise and grant our investors the security for their investments, security for their property, that their contracts be honoured and the laws and regulations will be held and duly enforced, and furthermore since Sri Lanka is geographically well located with an intelligent work force, developments in telecommunication, being a pleasant place to live in with good hospitable people, we must generate the path to open our doors to these investors to invest in Sri Lanka.
To ensure this goal Jayawardena explains that we need good governance by the officials of our country and with necessary regulatory framework and the commitment of the honest and dedicated regulators to ensure good governance, and with these factors in place it is certain to attract investment, and thereby development in Sri Lanka.

 
Session 2: Investment
A presentation was conducted by Hiran Cooray, the Chairman of Jetwing Hotels Ltd., where he addressed the challenges faced by the private sector in the investment climate in Sri Lanka and opportunities for the future, from the perspective of those in the tourism industry.
Cooray explained that Sri Lanka is currently in an equal playing field in relation to tourism and has targeted 2.5 million visitors to Sri Lanka this year, which Cooray states that it may be difficult to achieve when the industry has dwindled due to the civil war and has been trying to get up since 2009.
It was mentioned that the main issues faced by many investors in Sri Lanka are: the inconsistencies in the Government policies, such policies not being based on basic principles involving the relevant industries and the processes, the procedures put down by the authorities for investment being subjective and unclear and the negative outreach by the public sector to assist investors to proceed with their investments; makes it difficult for investors to have long term investment forecasts when investing in Sri Lanka.
Another issue faced by investors according to Cooray is the lack of skilled labour in Sri Lanka which is mainly due to the lacuna in the education system which needs to be addressed by providing useful training and creating opportunities.
He expressed the need to have an actual one stop shop where all relevant authority approvals can be granted for the investor and thereby increase investments in Sri Lanka. Cooray informed how disappointed he is in the one-stop-shop promoted by the Sri Lanka Tourism Development Authority which he defines as one stop, and not a shop.
Apart from what is needed for the industry, Cooray emphasised on the opportunities available in Sri Lanka for the tourism industry especially the hospitality that is in our Sri Lankan blood and soul which should be promoted and utilised for the development of our country.

Eran Wickramaratne, Deputy Minister of Highways, Higher Education and Investment Promotion, was also invited to speak at the NLC 2015 where he discussed about Sri Lanka’s opportunities in investment, in the changing landscape.
The Minister informed that the challenges faced by Sri Lanka at the moment are much greater than the simplistic answers that they put forward during the elections.
Wickramaratne informed that people in this country voted for a change but stated that we are not very sure what the definition of that change is, but some of the things people are expecting the new government to achieve is good governance, and such is to be done with the establishment of the rule of law in the country, and he states that the government has taken some preliminary steps in that direction but there is a long way to go.
Wickramaratne says that wherever he goes people say that not enough is happening and it must be said that people are expecting a lot of things to be done within this 100 days. But the Minister says that within these 100 days what they can do is what they have promised to do in their written election mandate, that is to put a framework in place to bring about the change the country needs, but the minister explains that the actual challenge is to change the culture in the country.
The Minister says that changing culture is not something that can be done overnight and at the moment the government is in the process of setting up procedures and building institutions, but in order to change the culture it is about understanding the issues faced by the public and the private sector.
The new Government has decided that if the economy is to develop it should move out of a state driven model to a participatory private sector driven model. The government is with the strong belief that if the economy of the country is to grow investment is critical, since currently there is an investment gap of about 6-7% which can be filled by Foreign Direct Investments and such needs to be attracted.
In order to attract the FDI the living standards of the people must be looked into, and be vary of the international markets and cater to its demands. But in order to do such, the economic and foreign policy of the country must be aligned together, and some of the few things the current Government has done is to align these policies and also normalise our international relations.
At the moment, the Government has received a response from the Human Rights Council in order to improve our relations from what it used to be, and the Government is also hoping to start a conversation on lifting the ban on the export of fish which was recently imposed by the European Union, and also on obtaining GSP+ but not only for the garment industry.
The Minister also mentioned the importance of the impending visit by the Premier of India and surprisingly is a visit by a Premier of India after 27 years, which is a significant step taken to normalise our relations with our neighbouring state.
The Government is also hoping to continue to develop the long lasting relationship with the Chinese government and not only on specific Chinese companies. It was also informed that the President will be going on a State visit to China shortly in order to strengthen our relations and to attract FDI.
He revealed that the country has attracted $ 1 billion through FDI, which is a very small amount since post war and when compared to countries such as Vietnam it is three times less based on a per capita basis.
Wickramaratne raised the question, how do we increase investment? He informed that the current government’s policy is to move away from a hard infrastructure investments to soft infrastructure investment over the coming months.
It was mentioned that the advantage Sri Lanka holds is in its location which no other country such as Singapore can challenge us with, and also our human resource base.
The Deputy Minister also informed that the private sector cannot grow unless the public sector is growing qualitatively, which however is currently growing quantitatively. In order to increase the standards of the public sector, much needs to be invested in the public sector by providing necessary training, sufficient remuneration for the public sector and also attract the smartest people in the country.
He emphasised on the high demand for public sector jobs even with low pay mainly because of the incentives that are provided for example job security, less pressure to perform, etc. which is less in the private sector. But such attitude would be different if those worked overseas so, the Deputy Minister added that the problem is in the soil and not in the seed.
The Deputy Minister said that the public sector can be transformed, and until such is done we will always be struggling facing the same issues without any change.
And in order for change to take place the most important is for the social contract needing to be changed, since the public sector employees have the same aspirations as the private sector which needs to be addressed and the minister informs that this cannot be done by the politicians and with unrealistic perspectives.
Wickramaratne informed that currently there are many restraints in investment and the powers of the BOI were taken away in the last couple of years with the passing of the Strategic Development Projects Act No.14 of 2008, but the current government hopes to reverse such by creating a central facilitation agency and bring all agencies together to make the process easy for investors.
With the new Government taking over it has been reviewing the investments currently in the pipeline which amounts to about 67 billion dollars of investment that needs to be resolved and enable the duly reviewed investments to go through.
It was also mentioned that in line with the policy of the current Government, it will not permit investments and grant licenses in relation to casinos but will be moving ahead with other investments and provide the assistance of the relevant Government agencies in order to facilitate these investments.
He said that issues pertaining to land need to be addressed concerning titles, etc. But it was mentioned that the policy with regard to foreign ownership of land will remain unchanged as it was decided with the consensus of the previous Government and the then Opposition, however the laws with regard to leasing of land to especially to foreigners are to be reviewed.
Attention was drawn specifically to the fact that the current Government will proceed with projects that were initiated by the previous Government unless there is a very good reason since just because the government changes the investments should not be changed or halted.

 
Colombo Port City Project
It was mentioned that the Government is currently reviewing the Colombo Port City Project and the Northern Highway Project in order to determine the financial and social returns from these projects.
A panel discussion was held inviting D. M. Rupesinghe, Controller of Exchange, Jagath P. Wijeweera, Director General of Customs, Ms. Renuka M. Weerakone, Executive Director, Investment and Promotion, Board of Investment of Sri Lanka, Wickramaratne and Cooray and the Panel Discussion was chaired by K. Kanag-Isvaran PC.
Questions were raised by the participants to the panellists and one such important matter was the issues regarding the Colombo Port City Project being halted.
Wickramaratne held that the halt is not because of any legal issues but in order to review matters concerning water supply, transport, sewerage and the environment impact, since when the project is completed approximately 300,000 people will be using this port and the government is looking into the manner in which the project can be done in a more holistic approach.
The Minister also added that when they took over there were no proper documents approving this port city project and the person in charge of this project is no longer in office. And since this is a big project the Prime Minister has appointed the necessary specialists to look into the prevailing matters.
Wickramaratne admits the current policies in the country are inconsistent, but needs to be mindful that the government has no majority in parliament and has a very restricted agenda at the moment that needs to be completed within 100 days. But subsequent to a new government being elected after the general election which is to be called shortly, the Minister assures there will be consistency.
It was also mentioned by the Minister that the Government is not promoting any serious investment projects at the moment as the dust needs to settle and a current pragmatic approach is added to address the current investment issues.

 
Session 3:
Role of the Regulator
The third technical session of the NLC 2015 focussed on the theme ‘Role of the Regulator’. The presenters at this session were Thilak Karunaratne, the Chairman of the Securities and Exchange Commission of Sri Lanka, Arjuna Mahendran, the Governor of the Central Bank of Sri Lanka and Dr. Harsha De Silva, Deputy Minister of Policy Planning and Economic Affairs.
Karunaratne during his presentation addressed the role of a regulator of the capital market in Sri Lanka.
One of the key points addressed by the Chairman was that the prevailing regulations are not adequate to monitor the malpractices that are currently taking place as such laws were introduced 27 years ago, and the Commission is currently trying to introduce new regulations that will prevent malpractices and enable the regulator to investigate on the malpractices especially the stock market manipulations that took place within 2010/2011.
It was also mentioned by Karunaratne that the salient features of a regulator of the capital market is to protect the interests of the investor and in order to carry out its duties the regulator should be enabled to operate independently and the government and other stake holders need only to provide their support and such is what the Commission expects from the current government.
Mahendran during his presentation it was sighted what the role of the Central Bank of Sri Lanka is, and most importantly the role of securing economic stability in Sri Lanka.
It was brought to notice that the CBSL must focus on the economic development of the country and in doing so will not be able to please everyone.
Criticism was drawn with regard to the Employees’ Provident Funds that were used in the past in order for the CBSL to invest in private sector banks and as a result had suffered losses which are yet to be investigated into.
It was cited by the Governor that a risk management department will be introduced in the CBSL in order to control and be observant of the investments made by the CBSL and a proper policy be in place in order to ensure high risk investments are not carried out.
Quoting John Exter, the Governor emphasised that the CBSL must be granted some degree of independence from the Government and not be dictated by Government policies and further added that the EPF should not be handled by the CBSL as such should be done so by a separate government body as the CBSL cannot be a regulator of debt and also manage and trade using pension funds of the private sector employees.
The third presentation was conducted by Dr. Harsha De Silva who articulated that the Government policies must be implemented to achieve greater investment, and provide efficient regulations and with better governance.
He also addressed as to why James Packer withdrew his intention to invest in Sri Lanka and according to the Minister it was mainly because there were no proper approvals granted to Crown Ltd. by the relevant Government authorities of Sri Lanka, and certainly with the lack of such approvals the New South Wales regulator was not going to approve the investment by Crown Ltd in Sri Lanka.
It was also cited by Dr. De Silva that it he inquired from the former president of Sri Lanka with regard to the enactment of a gaming regulatory body in Sri Lanka, however no response had been provided with regard to such and a mere regulation was issued to legalise gaming in Sri Lanka.
Legislation with regard to implementing a National Drug Policy was also discussed by Dr. De Silva where he cited the President’s speech that was made in Parliament recently regarding manner in which no action was carried out by the Legal Draftsman’s Department to implement the policy that was initially drafted more than 10 years ago, and such implementation was sabotaged by the drug mafia.
Whilst concluding the presentation made by the Deputy Minister, it was mentioned that proper regulations needs to be implemented and necessary supervision carried out by the regulatory bodies and hopes that a mandate can be created for a social market economy by June this year so that the people of the country enjoys political, social and economic justice.
A panel discussion was also held consisting of the presenters of the third technical session and also including Rajendra Theagarajah, the Chief Executive Officer and Director of National Development Bank PLC and Rajeeva Bandaranaike, the Chief Executive Officer of the Colombo Stock Exchange and the panel was chaired by Sankarshana A. Parathalingam PC.
During the questions and answer session many questions were raised and most notably were in relation to the allegations made regarding the refusal by the International Monetary Fund to grant borrowings to Sri Lanka, the Governor of CBSL expressed that there are serious allegations that will be addressed in parliament shortly but it must be noted that there were concerns by the IMF regarding the bond issues that took place last year September and especially since such did not comply with the international norms in issuing these bonds.
During the panel discussion emphasis was drawn to the role of a regulator and most importantly it was cited that the regulator is required to control certain areas of business in the country and to ensure such businesses are carried out fairly and that the public has faith in such business institutions because of such strict regulatory control.
Pix by Upul Abayasekara