By Sarath Wijesinghe
FTA International Agreements
Free Trade Agreements are international agreements binding among and between state party or parties and international organizations generally involving commerce, trade politics and international relations among states and international organizations. The Agreement between Sri Lanka and Singapore is mainly on the economic aspects rather than political unlike some agreements we have agreed upon with governments and international institutions.
The agreement entered into recently between the two countries is the hot topic and has become controversial based on the speed by which it is concluded, magnitude and the importance of the agreement in relation to economic, politics and future of Sri Lanka and not necessarily Singapore because Singapore is an experienced and seasoned player in trade, business and arbitrations and appear to be the main beneficiary of the agreement when the beneficiaries and benefits for Sri Lanka is speculative with expectations in the future.
Singapore though a tiny strip of land adjoining Malaysia is an economic giant unconcerned of politics being extreme right wing ruled ruthlessly with an iron fist with a successful business and trade regime.
It is not certain who initiated this agreement and what benefits Sri Lanka will derive until it is properly implemented with serious doubts of the future vision and the knowledge on the subject by the Sri Lankan side. By considering the speed in which it is formulated and decided indicates that it will be implemented fast as the line minister Malik Samarawickrema – novice to parliamentary politics and the Cabinet have confessed that it is already implemented from March 2018 initiated with his signature in the presence of the leaders of two countries without proper ratification of the Cabinet or the Legislature.
He speaks of advice from the Attorney General said to have been stated that the ratification of the legislature is not a requirement is incorrect as our Constitution and the worldwide practice is otherwise for which we are bound to follow and respect as a respected and a responsible member of the world family. There are concerns and disappointments as to whether and why it is not gone through the accepted and proper channels recognized internationally as in many other countries including UK, Canada and USA where there are rules and precedents for consideration, cooling periods, deliberations, and compulsory parliamentary grilling, studying by the public and many other requirements, pass it through the legislation which is a requirement according to local and international law.
But the excuse in Sri Lanka for rushing through is that there is no requirement, impediment or a procedure laid down in our system which should not be an excuse to rush through with no transparency without obtaining a mandate from the people and the legislation which is not a very satisfactory. President Sirisena has appointed a committee of experts on economics (not conversant in international law and international trade) to revisit the agreement when it is doubtful whether any changes are feasible without going through the arduous arbitration process.
Over 1000 pages prepared in a hurry!
The Agreement consisting of over 1,000 pages and annexures appear to have been prepared in a hurry but in a most sophisticated and legalistic way referring to international organizations which are binding on us such as WTO and GATT for which Sri Lanka is a signatory shows that it has gone thorough highly professional group conversed in international trade and agreements referring to “Berna Convention” of 9 of 1886, international covenants on 2611/1961, Article 16 (2) of WTO, 16.5 and 7 of Arbitration clauses, which are binding on Sri Lanka too with legitimate doubts whether Sri Lanka was aware of the complexity and the depths of the international implications and complications ahead of the nation. With due respect to our lawyers on other subject in Sri Lanka the reality is that this instrument may probably have been initiated and drafted by the proponent (possibly Singapore) with their wealth of knowledge and experience in the absence of experts in Sri Lanka on GATT, WTO, and International Trade law, except the knowledge acquired by the Trade Officers in the State based on their experience in trade. It is a serious matter that the instrument has not properly gone through the Cabinet nor the legislature and the proper and accepted international or local norms and the procedure including the mandate is followed is in question. Even the African and Caribbean belt is taking precautionary measures in such circumstances and attest advice from foreign experts in such situations!
Complicated and controversial Document
The Agreement is so complicated and controversial that it is doubtful whether the members of the legislator is in a position to understand the subtleties, deep meanings, future implications and complications as it is available only in English (available after clamoring for few months) and also difficult to access as it could be retrieved only through the website which the professionals complain difficult to have access. Billions are spent on the expenditure of the legislature and it is difficult to understand why copies in National languages cannot be made available to the members of legislature to understand the contents with their limited educational standards to go through a proper discussion on this document which decides the future and fate of the Nation. Even though Singapore is a small strip of land full of immigrants is a powerful business giant in the world extremely advanced in their legal system being a center for arbitrations and also dealing in multimillion transactions worldwide in par with any other major power showing how asymmetrical the power of the two countries.
Therefore it is necessary for us to be extra careful as Sri Lankans in the past have made mistake after mistake in dealing with international agreements starting with invaders such as Portuguese, Dutch and English with 1815 Conventions and on agreements with India and Indo Sri Lanka Accord the FTA and other Agreements. Therefore, it is prudent for Sri Lanka to discuss whatever the agreements we enter into and to debate in full in the legislation as in other parts of the country where discussions on 21 days is imperative cooling off periods, public discussions and procedures adopted as once this agreement is entered into termination is not easy.
Unfortunately, in the Singapore Agreement, it appears that there is no termination clause and any changes and termination, the procedure of arbitration is as complicated and expensive as specified in this massive document consisting of over thousand pages. Do we have a proper Trade Policy is in doubt as the document that was used as trade policy has been a document prepared by an academic for his studies used as the new trade policy which is alleged to have used in the Cabinet and Legislature, touch any international trade document has to be in conformity and in accordance with the national policy when it is doubtful whether we have a trade policy at all.
Seminar Conduct by OPA Organization of Professionals
The Organization of Professionals have conducted a seminar recently on this subject by inviting experts and academics representing with diverse views that is for and against at the Auditorium addressed by Prof. Rohan Samarajeewa supporting the agreement and others including Kanishka Witharana a leading lawyer, Mr. P.D. Fernando, a former Director of Commerce, Dr. Anuruddha Padeniya, GMOA leader , Mr. D.L. Mendis, UN Expert who are experts accepted and respected in their own areas took different viewpoints followed by a lively discussion. This is the second seminar that was organized at the OPA Auditorium followed by the previous seminar by the same speakers organized by the West End Law Centre SarathWijesingeh being the initiator and moderator. The proponents Professor Rohan Samarajeeva ably promoted and defended the Singapore agreement as a necessity in the new world/trade order to be a player in the trade arena promoting investing and international trade minimizing the concerns and allegations by the opponent to the FTA. Kanishka Witharana dealt with the dilution of sovereignty of the peoples in the constitution, whilst UN Expert D L Mendis dealt with the international law and procedure adopted in their countries including West, Caribbean and even African countries in safeguarding the national interest. DrAnuraddaPadaniya head of GMOA and P D Fernando the respects former director of Commerce and Trade dealt mainly on the national interest and the adverse effects of the document based on their experiences in their fields.
This matter was discussed partially at AluthParliementuwa by Derana due to lack of time presented by popular rand able presenter Sanka Indrajith in which many leading experts and politicians took part including Dr. Bandula Gunawardena, Mahinda Abeywardena, Prof. Ashu Marasinghe, Dr. Harsha de Silva. Therefore it is suggested that these discussions should continue as there is a lacuna, loopholes, clarifications in the implementation of terminating process especially because this agreement is linked to GATT and WTO. Subject matters on complicated international agreements and organizations are embroiled in all the chapters which is making things very complicated as we are bound by these two international agreements which we are not honestly in contrast with where Singaporeans are experts on which are not only in a symmetrical situation. Due to vast and complicated nature of the subject the discussions could not be concluded within the specified time frame thereby it was agree to continue the dialogue further.
West End Law Canter
In these circumstances the Organization of Professionals and or West End Law Centre are planning to organize another detailed discussion inviting Prof. Rohan Samarajeewa, Dr. Bandula Gunawardena, Kanishka Vitharana and few others for deliberations and it is suggested that public must be vigilant and follow up the process while requesting the Government to provide Sinhala and Tamil translations. We also urge the Government to follow the procedure in full in future by not steamrolling through and not taking arbitrary decisions as has been taken by Malik Samarawickrema by signing the Agreement with no proper mandate and the fact that Maithripala Sirisena, the President has appointed a committee consisting of only Economists to look into and revisit the agreement that was signed in his presence by the two Ministers with his knowledge.
Around 9900 items initially on traffic and customs available on the table- Way forward
To make matters worse the document contains over 9,900 items on tariff and custom issues and also refers to many international agreements which are complicated for which we have agreed upon. It should be considered that this is our country and when we represent the country and act on behalf legislature will have to be extremely careful on taking arbitrary decisions on behalf of the Nation, as there are ample opportunities, infrastructure, legal systems and educated group of intellectuals’ country/worldwide to assist the Nation.
We take this opportunity to thank the organization of professionals associations, Derana News Channel and the media for steps taken to educate the citizen and invite media to take this to the Sinhala and Tamil medium national channels as it is a matter that the citizen and members of the legislature should be educated and conversant with. It is wise to revisit the document and explore possibilities on avenues to dilute the dangers in the draconian parts sooner without it being stable and cement with practice and passage of time.
Sarath Wijesinghe is the former Ambassador to UAE and Israel and head of the West End Law Center
The writer could be reached on [email protected]