H’tota port deal clears SC hurdle

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Under the framework agreement signed in January the Government would gain $ 1.12 b from the Hambantota Port partnership

By T. Farook Thajudeen

The Supreme Court yesterday dismissed the fundamental rights petition filed by MP Vasudeva Nanayakkara seeking an order from the Supreme Court to nullify the Framework Agreement the Sri Lankan Government entered into with two Chinese companies to lease out the Hambantota Port and the investment zone.

A three-judge bench comprising of Judge Buwaneka P. Aluvihare PC, Judge Sisira De Abrew and Judge Anil Gunaratne inquired into the petition but dismissed it after observing that the petitioner had suppressed material facts of the case, including information of the original agreement signed during former President Mahinda Rajapaksa’s tenure as President. They observed that the purported agreements were signed in 2012 and 2013 while the petitioner was a Cabinet Minister.

The judges said that as a matter of fact when the agreement was signed the petitioner was well aware of it and had intentionally and wilfully suppressed the facts from the court. The petitioner, UPFA Parliamentarian Nanayakkara, had alleged that the leasing of the Hambantota Harbour and 15,000 acres of land in Hambantota to the Chinese firm was an infringement of the fundamental rights of the petitioner guaranteed in the terms of Article 12 (1) of the Constitution.

The petitioner had contended that by the arbitrary and unlawful decision of the respondents to enter into an agreement with China for the promotion of investment in Sri Lanka by Chinese investors by entering into an agreement or in any other manner dispose of approximately 15,000 acres of land was an infringement of the petition’s rights guaranteed by the Constitution.

The petitioner had cited as respondent the Members of the Cabinet, Members of the appointed negotiating committee, Director General of the Department of External Resources of the Ministry of National Polices and Economic Affairs, Sri Lanka Ports Authority, China Merchants Port Holdings Company Ltd. and China Communications Constructions Company as respondents.

The petitioner had further sought a declamation that the Framework Agreement dated 8 December 2016 as null and void and a declaration that the said agreement has no force in law until the same is approved by Parliament as required by Article 1.57 of the Constitution.

Additional Solicitor General Sanjay Rajaratnam, who appeared on behalf of the Sri Lanka Port Authority, had informed court that the Memorandum of Understanding (MOU) signed in respect of the Hambantota Harbour was signed in 2012.

The petitioner further sought a declaration that the Framework Agreement dated 8 December 2016 was null and void and had no force of law until it was approved by Parliament, as required by article 1.57 of the Constitution.

President’s Counsel Manohara de Silva with Senior Counsel Kanishka Vitharana appeared for the petitioner while Additional Solicitor General Sanjay Rajaratnam, PC appeared for the Attorney General.