Legal / Opinion

Much 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 consuming.
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 predicted.  
 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 project.
 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 Authority. 
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 choice.
 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 consumer.
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 Commission.
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 Instance.
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 country.
(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 Hotel Hilton.
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 S. Amarasekera.
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.