Legality of agreements with foreign countries

By Neville Ladduwahetty-une 11, 2019, 8:03 pm 

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.