noise little action
By Ayesha Wijeratne
This year heralded several new laws that were meant to protect the
public in Sri Lanka. The ban on smoking in ‘public’ was one such. The
government showed similar concern relating to the supply of genetically
modified (GM) food products into our markets, and brought laws to compel
the suitable identification of such products.
In other words, importers and sellers are now required by law to attach
a label to all GM products that were available for sale. In the wake of
this decision banner headlines were published to highlight the
government’s commitment to caution the public of what they were
The government’s action was all the more commendable given that the
previous attempt by a previous regime in 2001 to regulate GM foods
faltered and fell by the wayside, in the face of opposition from local
trade chambers and international displeasure, especially from the United
States. Given this background, and Sri Lanka’s Treaty obligations, The
Nation was curious to find out how much state muscle was going to be
used in enforcing the new law.
The use of GMO (genetically modified organism) and GMF (genetically
modified food) has been a hotly debated topic in the scientific world as
well as among the public for many years because of their supposed
advantages as well as possible risks to human health and the
environment, and other concerns such as ethical and moral issues.
What are GMOs and GMFs?
All organisms on earth, whether they are microbes, plants, animals or
humans are described by means of characters. Every such character is
the result of the expression of a gene or by many genes that produce the
necessary protein for the character to appear. A gene is a part of a
molecule called DNA (Deoxyribo Nucleic Acid) which resides in the
nucleus of higher organisms. Therefore, an organism exists and carries
out its activities by means of expression of genes which themselves are
under the control of other parts of the DNA molecule. Therefore, a gene
can be switched ‘on’ or ‘off’ according to the needs.
With the rapid development of modern biotechnology, scientists are able
to identify, isolate and transfer genes of one organism (donor) to the
DNA of other organisms (recipients) using recombinant DNA technology.
These genes will be expressed in the recipient organism, thus producing
a new character that it did not possess before. This organism that
receives a ‘foreign’ gene is known as a Genetically Modified Organism (GMO)
or transgenic organism. Any food obtained from such an organism is
known as Genetically Modified Food (GMF).
This means that genes can be transferred from one species to another
which does not normally occur in nature.
There are many products of this modern technology. For instance, plants
carry genes from microbes giving the plants resistance to pests,
diseases and herbicides (e.g. corn, soybean, cotton, papaya); plants
carrying microbial genes that produce higher amounts of vitamins such as
in the case of ‘golden’ rice; genetically modified microbes producing
human insulin and various enzymes used in industries such as
confectionary, cosmetic, garments, leather, brewery etc. The list is
increasing with genes being transferred across species and kingdoms!
There is, therefore, a justifiable concern regarding the use of GMO and
GMF because of the risks it poses to human health and the environment.
The risks include the possibility that the new (foreign) protein can be
toxic or allergenic, the new gene can move to other plants, animals or
microbes that it was not originally intended to, thus producing
‘unknown’ GMOs in the environment, whose behaviour cannot be
Where is Sri Lanka in this scenario?
The Convention on Biological Diversity (CBD), to which Sri Lanka is a
signatory, has identified the risks and concerns of the use of GMO/ GMF
and as a result has introduced a protocol (known as the Cartagena
Protocol on Bio safety) based on the precautionary principle. Sri Lanka
is a signatory to this protocol as well.
The precautionary principle is based on the fact that countries have a
right to protect themselves from the transboundary movement
(importation) of GMO/ GMF until such time that there is absolute proof
that these are safe. The Cartagena Protocol proposes the establishment
of a National Bio safety Framework (NBF) for every country, which
includes regulations, administrative structure, risk assessment and
management procedure, method for public participation and the
establishment of the national bio safety policy.
In 2003, the Ministry of Environment & Natural Resources initiated the
establishment of the NBF for Sri Lanka by means of a project supported
by UNEP/GEF. Professor Athula Perera, Professor of Agricultural
Biology, Faculty of Agriculture and Director of the Postgraduate
Institute of Agriculture, University of Peradeniya who was the former
National Coordinator of the UNEP/ GEF project told The Nation that the
project was successfully concluded in 2005.
This project proposed a new Bio safety Law, and until such time to use
existing laws to frame regulations on GMO/ GMF as an immediate safety
measure. Risk assessment measures, laying national policy on Bio
Safety, carrying out of awareness programme at various levels and the
construction of a National Database on Biotechnology and Bio Safety
which has extensive data on experts and their qualifications,
techniques/technologies, equipment, laboratories etc were carried out by
The new regulations came into effect from first of January as a
consequence of the work carried out under the project.
Dr. C K Shanmugarajah, Director, Environmental, Occupational Health and
Food Safety Unit, Health Ministry regarding the present situation said
that according to the regulations, all genetically modified food or
foods that include GM organisms that are being sold in the country have
to be labeled stating that they are GM modified, so as to inform the
consumer that it contains genetically modified material. The new
regulations are known as the Food (Control of Import, Labeling and Sale
of Genetically Modified Foods) Regulations 2006.
These regulations were made in terms of the Food Act No 26 of 1980.
Under the regulations, no person can manufacture, import, sell,
distribute, store, transport or expose for sale, any food for human
consumption which is genetically modified or which contains genetically
modified ingredients without the prior approval of the Chief Food
The requirement to label GM food would give consumers in Sri Lanka the
freedom to choose between GM or non-GM food. The Chief Food Authority
is authorised to ascertain that the particular food item is not
injurious to the health of the consumer. If an importer or seller fails
to their products contain GM or GM organisms, they can be fined up to
Rs.10,000/- for contravening the law.
This is not the first attempt by Sri Lanka to protect the public
through the law from the perceived risks of consuming GM food products.
In 2001, the Health Ministry gazetted a list of GM foods that may be
available in Sri Lanka including a ban on identified items which were
thought to be GM. This is in contrast to the new regulations that do
not contain either a list of permissible products or of products that
cannot be imported. On 4 April, 2001, the then government published a
gazette notification No 1178/18 imposing a prohibition on GM Foods with
effect from first May. Importation of 21 food items, without due quality
certification from approved laboratories, was to be banned. However, its
implementation was postponed indefinitely, and the framing of the recent
regulation is the only serious attempt by the government to raise
awareness of GM food products imported to Sri Lanka.
After the 2001 regulations were introduced, due to pressure from the two
main chambers of commerce in Sri Lanka and several foreign embassies
alleging that it was unfair to impose a blanket prohibition, a 60 day
moratorium was declared on 26 June (bearing No 1190/6) to enable
importers to adjust to the new regulations until 01 September 2001.
Allegedly due to further pressure from interested parties, on the eve
of the new regulations coming into operation, on 30 August, a sudden
gazette notification (bearing No 1199/23) was issued indefinitely
postponing the imposition of the prohibition of GM foods. An Expert
Committee was appointed to study and make recommendations and a draft
proposal was submitted by the committee in January 2003 recommending
that GM foods should be permitted subject to approval on a case by case
basis and with mandatory labeling to offer the consumer an informed
In terms of the new regulations, an application has to be made to the
Chief Food Authority who is the Director General of Health Services (DGHS)
who will refer it to a Technical Evaluation Committee (TEC). The TEC
will submit a risk evaluation to Food Advisory Committee (FAC) set up
under the Food Act. The Chief Food Authority is bound to make a
determination according to the recommendations of FAC.
Dr. Shanmugarajah said that the authority cannot assure the consumers
about the long term repercussions of consuming GM foods. They can only
assure the consumers according to currently available scientific
evidence that the particular product that carries the GM label under the
approval of the Food Authority is found to be safe. The consumer has
been given the benefit of knowledge of informed choice.
Dr. Shanmugarajah said that the authority would strengthen the GM
testing facilities in the laboratories of the Food Analyst Department in
Kalutara and Anuradhapura, as well as analytical facilities in Kandy and
Colombo in future. There are private as well as university laboratories
in Sri Lanka that have facilities for testing. The Agricultural
Biotechnology Centre of the University of Peradeniya has already carried
out two international training programmes on GM testing. There are
authorized officers in the field, public health inspectors and food and
drug inspectors specially tasked for import inspection, and to visit
supermarkets and shops to see if GM labeling is properly carried out.
Despite this assertion doubts are being expressed in certain quarters
whether the authorities in a position to carry out testing.
Consumers can directly complain to the Food Authority concerning any
violation of the law or their rights relating to GM food, Dr.
Shanmugarajah said. Dr Shanmugarjah, however, admitted that testing
would be highly expensive and was of the opinion that each test would
cost around Rs.5,000/- to 10,000/-.
“So far, from January 1, we have not received any applications for GM
approval .If importers or sellers want to, they can contact us and we
will take samples to test if they are GM or not”, he said.
Not receiving a single application for GM approval after the regulations
came into effect is indeed a serious indictment on the authorities. It
speaks of a lack of confidence in the system. There appears to be no
explanation as to why the authorities are not enforcing the new
regulations, if they do indeed have the testing capabilities as well.
Both importers and exporters of food to and from Sri Lanka face the
need to test their products for GM food content. Many countries require
that the exporter produces a non-GM certificate, and food exporters from
Sri Lanka are in need of a low cost certification scheme. Similarly,
with the new regulations, some food importers will also have to prove
the GM status of their products, and are in need of low cost testing and
certification, which will not place the burden of the cost on the
Although the law is in place to regulate GM food, consumers and traders
appear to be in the dark primarily due to the lack of awareness
campaigns on the new regulations concerning GM food. Indeed, it is a
moot point whether even officers of the state, the enforcement agencies
and customs officers have received adequate training to detect
violations of the law. Without immediate and committed state attention,
the new regulations on GM will only be adhered to in the breach.
An overview of our courts’ functions
By Dharmapala Senaratne
The appointment of not only judges but even of those of non-legal
members of the staff of court houses bears certain special features
about it. Furthermore, provisions in this connection have been made not
by any Act of Parliament but by the Supreme Law of the land itself,
namely, the Constitution.
Once so appointed, the salary and pension entitlements of the judges of
the superior courts, i. e. the Supreme Court and the Court of Appeal,
shall not be reduced under any circumstances. Moreover, such
remuneration is directly charged on the Consolidated Fund, which is a
privilege not enjoyed even by the members of the Executive.
Even with regard to retirement age, it is an extraordinary
characteristic in comparison with others of the public service. A judge
of the Supreme Court retires at the age of not 55, but 65 years while in
the case of the judges of the Court of Appeal, it is 63 years. A
comparable case in point is that of the members of the academic staff of
universities who retire at the age of not 55, but 60 years.
All the non-legal members of the staff of all courts in the country,
from the all island Fiscal to book binders, too, are distinct from other
public officers. They belong to a specified closed service and are known
as ‘scheduled public officers’.
In this connection, the 11th amendment to the Constitution must be
noted. For, it created a new post called ‘Fiscal’. Making an alteration
in Article 113A of the Constitution, section 4 of that amendment
provides that, ‘There shall be a Fiscal who shall be the Fiscal to the
whole Island, and shall exercise supervision and control over Deputy
Fiscals attached to all Courts of First Instance’.
Scheduled public officers do not come under the jurisdiction of the
Public Service Commission. Instead, their appointment, transfer,
dismissal and disciplinary control are handled by the Judicial Service
Since every possible attempt has been made by the Constitution to
maintain the independence of the JSC, free of interference by the
Executive, scheduled public officers, too, are free from such
interference. In that sense, they are a privileged lot and on par with
judges of Courts of First Instance.
The JSC consists of the Chief Justice who is the Chairman of it and 2
other judges of the Supreme Court, directly appointed by the President
of the Republic. Two members form the quorum for any of its meetings.
Members of the JSC hold office for a period of 5 years and are eligible
for re-appointment. It may interest many to hear that the Secretary to
the JSC cannot thereafter at any stage be a judge of any Court of First
As for the High Court, there was only one High Court for the whole of
Sri Lanka from 1978 up to 1987. With the coming into operation of the
13th amendment which was certified on 14. 11. 1987, a High Court was
established for each Province thereby increasing their numbers equal to
the number of Provinces in Sri Lanka.
Originally, the High Court was a Court of First Instance having only
original jurisdiction. But the Provincial High Courts have been invested
with appellate, revisionary and Writ jurisdiction as well under the
provisions of the 13th amendment. Subsequent legislation has made more
elaborate provisions in this connection.
However, High Court judges are appointed by the President by warrant
under his hand unlike other judicial officers of the minor judiciary
whose appointment, transfer, dismissal and disciplinary control are
vested in the JSC. High Court judges are removable and are subject to
disciplinary control by the President. But that should be on
recommendations of the JSC.
In terms of Article 107 of the Constitution, all judges of the Superior
Courts including the Chief Justice are appointed under the hand of the
President. In so doing, he has absolute discretion and is not required
to consult anybody whosoever.
However, in some European countries such as France, Germany, Italy, the
Netherlands, Portugal and Spain, there exist, Judicial Appointment
Commissions and one is being considered in New Zealand. In those
countries, the appointing process is quite distinct from that in our
(The writer is an Attorney at Law)
Hilton’s fate in the balance
The inquiry into the application to wind up Hotel Developers Limited,
the owners of Hotel Hilton, was fixed for 21st May 2007, by the District
Court of Colombo when the matter came up last Friday.
The state, which holds 65% in Hotel Developers Limited, gave notice of
its intention to oppose the winding up, as did several creditors of
The application to wind up the company was made in terms of section 255
(f) of the Companies Act on the basis that it is just and equitable to
wind up the company. This application was made by a former director who
is currently a minority shareholder of Hotel Developers Limited, Nihal
In its application to wind up the company the Petitioner also stated
that Hotel Developers Limited was unable to pay its debts. The Petition
specifically referred to loans granted to Hotel Developers Limited by
Mitsui and Taisei for the construction of the hotel, for which loans the
government had granted a guarantee.
Among the grounds of opposition taken up by the creditors was that the
Petitioner had no standing in law to make the application for the
winding up of the company.
President’s Counsel K. Kanag Isvaran, and Dr. Harsha Cabral, P.C
appeared for the Petitioner. Senior State Counsel, A.H.M. D Nawaz
appeared for the state.