By S.S. Selvanayagam
President’s Counsel Sanjeeva Jayawardane impugned before the Supreme Court that the Free Trade Agreement (FTA) Sri Lanka has entered into with Singapore is inimical to the interests of Sri Lanka.
He lamented that it is totally incompatible with the interests of Sri Lanka and grants totally an unfair and an uneven asymmetric advantage and benefit to Singapore’s interests at the cost of Sri Lanka’s interest.      

The fundamental rights petition filed by the Government Medical Officers Association (GMOA) and its office bearers along with two other petitions was taken up before the bench comprising Justices Eva Wanasundera, Lalith Dehideniya and Murdu N.B.Fernando.

Court fixed the applications to be supported on October 5.
Petitioners cited Development Strategies & International Trade Minister Malik Samarawickrama, Director General of Customs, Members of the Cabinet of Ministers, Attorney General and others as respondents.

Petitioners challenge the action and/or the decision of the minister to enter into the purported FTA between Sri Lanka and Singapore, executed on 23.01.2018.

Petitioners state no approval of the Cabinet of Ministers has been obtained, prior to the said purported agreement being entered into by the said minister.

They claim in any event, any purported approval, if any, granted by the Cabinet of Ministers, is illegal and bad in law.

They contend that for the purpose of entering into any agreement between the Sri Lankan government and any other foreign state, its nationals or of corporations, companies and other associations incorporated or constituted under its law for the investments in Sri Lanka, the approval of Parliament is necessary, by a resolution passed by not less than two-thirds of the whole number of Members of Parliament (including those not present) voting in its favour.

They bemoan that no sufficient legislation or regulatory framework has been introduced in Sri Lanka to ensure equal status competition and to eliminate disparities and inequalities in trade and supplying services to Singapore.

They identify that a clause of the said FTA, the term “national” is defined to mean “citizens of Singapore” and “permanent residents of Singapore”. However, in the context of Sri Lanka, the same term means “citizen of Sri Lanka” only.

The term “the national person of a party” is defined as a “natural person who is a national of a party”. Such an apparent and patent disparity may facilitate a person of a “third party” country, who is qualified to apply and obtain the status of a permanent resident of Singapore, to have the benefit of  accessing the domestic market, through this purported FTA, they bewail.

They pinpoint that in year 2016, Sri Lanka recorded a Gross Domestic Product (GDP) per capita of US $ 3759.20, whereas the GDP of Singapore is US$ 52,600.60. 

They assert that hence in an objective perspective, a citizen of Singapore, would not in all probability, be induced into or be attracted into invest his time and resources in Sri Lanka, in view of such a vast disparity of GDP and bi-polarity of the economic affluence of the two countries.

They express apprehension that the said clause has been included to provide a gateway or an opportunity, for totally unknown third party nationals to have access to the Sri Lankan market, merely on the basis of satisfying the requirement of permanent residency of Singapore.

They also pinpoint another serious disparity with regard to the definition of the term “Territory”.
Certain purported clauses of the said FTA relating to ‘reduction and/or elimination of customs duties,’ places Sri Lanka under the obligation to reduce or eliminate the existing customs duties and taxes with additional obligation to further eliminate them in the future, they caution.

They bring into notice that most of the goods referred to in the tariff schedule of Singapore are already exempted from customs duties irrespective of the purported FTA.

They state the exploitation by foreign nationals, without an effective regulatory framework in Sri Lanka to safeguard the interests of domestic service sectors, may lead to harmful competition, placing Sri Lankan citizens in a highly disadvantageous position, depriving competition on a level playing field and/or on an equal status.

They highlight the legislation and regulatory framework in Singapore has already established effective protective measures and mechanism to safeguard the interest and welfare of their domestic service providers.

They allege that there is a notorious lack and absence of parity which taints the entire transaction process, which seriously impacts the Sri Lankan citizens.

Sanjeeva Jayawardane PC with Lakmini Warsuvitana appeared for the petitioner. Ali Sabry PC appeared for BASL. Shavindra Fernando PC appeared for a connected application.