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GSP+, sovereignty and checks and balances


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There is a debate whether the sovereignty of Sri Lanka is violated through GSP+ concessions to be given by the European Union 43(EU). GSP+ is a concession given by developed countries to developing countries on import duties. Therefore the imported goods from the countries which get GSP+ can be sold in those developed countries at a competitive price. As a result there could be more imports to those markets from those developing countries. 

The EU has granted this to several countries and in return they expect that those countries honourthe human rights conventions.In the Asian region Pakistan is getting GSP+ concession from the EU.Sri Lanka signed 27 international conventions on human rights, labour rights, good governance, sustainable development and environment protection. The following are those conventions:

1. International Covenant on Civil and Political Rights

2. International Covenant on Economic Social and Cultural Rights

3. International Convention on the Elimination of All Forms of Racial Discrimination

4. Convention on the Elimination of All Forms of Discrimination against Women

5. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

6. Convention on the Rights of the Child

7. Convention on the Prevention and Punishment of the Crime of Genocide

8. Minimum Age for Admission to Employment 

9. Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour 

10. Abolition of Forced Labour Convention 

11. Forced Compulsory Labour Convention 

12. Equal Remuneration of Men and Women Workers for Work of Equal Value

Convention 

13. Discrimination in Respect of Employment and Occupation Convention 

14. Freedom of Association and Protection of the Right to Organise Convention 

15. Application of the Principles of the Right to Organise and to Bargain Collectively.

Convention 

16. International Convention on the Suppression and Punishment of the Crime of

Apartheid

17. Montreal Protocol on Substances that deplete the Ozone Layer

18. Basel Convention on the Control of Trans-boundary Movements of Hazardous Wastes

and Their Disposal

19. Stockholm Convention on persistent Organic Pollutants

20. Convention on International Trade in Endangered Species

21. Convention on Biological Diversity

22. Cartagena Protocol on Biosafety

23. Kyoto Protocol to the UN Framework Convention on Climate Change

24.  UN Single Convention on Narcotic Drugs (1961)

25. UN Convention on Psychotropic Substances (1971)

26. UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances  (1988)

27. Mexico UN Convention against Corruption

By implementing these conventions, the Government is doing nothing but ensuring the sovereign rights of the people of Sri Lanka. 

EU has granted GSP+ to Sri Lanka in 2005 and requested that Sri Lanka should honour those conventions which were already agreed upon by the successive Sri Lankan Governments. EU has withdrawn this concession in 2010on the grounds that Sri Lanka has not honoured three conventions mainly. Those were International Covenant on Civil and Political Rights,Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and Convention on the Rights of the Child.

Sovereignty

In the Oxford dictionary, sovereignty is defined as follows. “The authority of a state to govern itself or another state”.

Article 3 of the Constitution of Sri Lanka is as follows. “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.”

Article 4 of the Constitution explains that there are five ways the people can enjoy sovereignty. legislative power of the people shall be exercised by Parliament; executive power of the people shall be exercised by the President; judicial power of the people shall be exercised by Parliament through courts; the fundamental rights which are by the Constitution declared and recognised shall be respected; and the franchise shall be exercisable at the election of the President/Members of Parliament/and at every Referendum.

Therefore sovereignty is with the people and the Government is the trustee of the sovereignty. When EU tells the Government that it should follow the conventions it has already agreed to follow to give GSP+ concessions the sovereignty exercised by the trustee is affected. But by following those conventions it is ensured that the sovereignty of the people is safeguarded and established.

Consecutive Governments of Sri Lanka, after getting the trusteeship of the sovereignty of the people from the people,have taken away that very sovereignty of them from them. Therefore by the act of the EU it tries to safeguard the sovereignty of Sri Lankan people from the Government which is the trustee of that very sovereignty. 

Sovereignty of the people is sovereignty of the State. By asking Sri Lankan Government to adhere to those 27 conventions, the EU safeguards the sovereignty of the State and that of the people. In the run pseudo sovereignty of the Government is affected.It is a pseudo sovereignty since in this very instance the Government is influenced not to violate the sovereignty of the people who have transferred that very sovereignty to the Government in a trusteeship which would amount to treason.

If the EU tells the Government that it should change its foreign policy to suit the requirements of the EU to give GSP+ concessions, then it is a violation of the sovereignty of the people and theState.

Checks and balances

There is another aspect of this scenario. In an organisation, there are internal controls. If a payment is made for goods received, firstly there should be a confirmation that the goods are received and secondly the payment should be authorised. Then only the payment can be effected. There is automatic control of the activities of each person. Similarly, in macro level governance there are checks and balances. 

The Oxford dictionary defines checks and balances as follows.“Counterbalancing influences by which an organisation or system is regulated, typically those ensuring that political power is not concentrated in the hands of individuals or groups.”

For example, introduction of the Constitutional Council by the 19thAmendment to the Constitution was a mechanism to control the power of the President who appointed key personnel to key institutions which was taken over by the Constitutional Council. Checks and balances are inherent in any constitution. Sri Lanka is not an advanced democracy and rules are not adhered to the very letter. Hence there are instances that the power is misused and not punished. 

The act of the EU to ask the Government to adhere to the conventions, which were signed by successive Governments,to grant GSP+ facility is a piece of checks and balances operating outside theconstitutionto safeguard the interests of the people.

Therefore if anybody argues that sovereignty of Sri Lanka is affected by the introduction of GSP+, it is a false and misleading argument. In fact it safeguards the sovereignty of Sri Lanka, which lies with its people. However, the whole argument is based on the fact that there are no self-declared slaves in Sri Lanka.

(The writer is not an Attorney-at-Law but a Chartered Accountant.)


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