00006 food legislation sri lanka

Legislative Measures Relating to Food Security in South Asia: A Case Study of Sri Lanka

Prepared by Law and Society Trust, No: 3, Kynsey Terrace, Colombo 8, Sri Lanka

January, 2013

Table of contents

Abbreviations and Acronyms ............................................................................... i

1. Introduction .......................................................................................................1 2. Constitutional Provisions ..................................................................................4 3. Policies Pertaining to Food ...............................................................................5 3.1. National Nutrition Policy of Sri Lanka. .................................5 3.2. National Agricultural Policy ..................................................7 3.3. National Livestock Development Policy .............................10 4. Laws Pertaining to Food ................................................................................12 4.1. Food Act, No. 26 of 1980 .....................................................12 5. Laws Pertaining to Agriculture/Crops ...........................................................15 5.1. Seed Act, No. 22 of 2003 .....................................................15 5.2. Draft Seed and Planting Materials Act ................................19 5.3. Protection of New Plant Varieties (Breeders’ Rights and Famers’ Rights) Act ............................................................21 6. Laws Pertaining to animal husbandry .............................................................27 6.1. Pasture lands (Reservation and Development) Act, No 04 of 1983 ..................................................................27 7. Laws Pertaining to Fisheries ..........................................................................28 7.1. Fisheries and Aquatic Resources Act no. 02 of 1996 as amended ...........................................................................28 8. Laws Pertaining To Inputs ..............................................................................31 8.1. Forest Conservation Ordinance...........................................31 9. Laws Pertaining to Consumer Rights ............................................................33 9.1. Consumer Affairs Authority Act, No 9 of 2003 .................33 10. Laws Pertaining to Land ...............................................................................40 10.1. State Lands Ordinance ......................................................42 10.2 Land Reform Law ..............................................................42

10.3 Land Development Ordinance ...........................................43 10.4 Land Acquisition Act .........................................................43 11. Laws Pertaining to Fertilisers and Pesticides................................................43 11.1. Fertilisers Act ....................................................................43 11.2. Regulation of Fertilisers ....................................................44 11.3. Control of Pesticides Act ..................................................45 11.4. Agrarian Development Act ...............................................47 12. Analysis of Basic International Provisions ...................................................49 13. Recommendations for Food Security in Sri Lanka .......................................51 13.1. Using Directive Principles of State Policy to Guarantee the Right to Food Safety ......................................................................51 13.2. Using Provisions of the Fundamental Rights Chapter to Guarantee the Right to Food Safety ...............................................54 14. Further Recommendations ............................................................................55 15. Conclusions and Way Forward .....................................................................58 16. Annex 1 Subsequent to the Consultation ......................................................61 17. Where to From Here ....................................................................................67

Acronyms and abbreviations

GURTS

Genetic Use Restriction Technologies

PBR

Plant Breeders Rights

WTO

World Trade Organization

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1. Introduction Sri Lanka is an agricultural country and the issues related to food have taken a lot of prominence in many decision-making processes. They deal with such issues as food production, quality, and distribution and also seed production and trade practices. In most of these deliberations, much of the focus and attention has been devoted to the issues related to self-sufficiency in food, an important aspect of food security.

The Constitution of the Democratic Socialist Republic of Sri Lanka has, in the Directive Principles of State Policy, accepted and acknowledged that the state is pledged to provide measures to ensure that all citizens of the country shall have adequate food. Although the constitution does not elaborate on this, it is implicit that this right has, within it, the issue of food security as it is an important measure in affording food security for the different groups of citizens in the country. It is also seen that all the three national policies related to the sector, namely the policies on nutrition, agriculture and animal production has put the issue of food security as an objective of the policies. Since the discretionary power of the officials is guided by both the Directive Principles of State Policy and the sectoral policies relevant to them, this ensures that their decisions need to keep the objective of food security under consideration and those decisions should conform to the policy principles and strategies outlined to achieve this objective.

As per the Millennium Development Goals that were undertaken by Sri Lanka, the first goal is the eradication of extreme poverty and hunger which is very much related to food security. The UNDP Country Report provides the status that Sri Lanka has achieved in respect of the Millennium Development Goals that the state parties should achieve either by the end of 2010 or by the end of 2015. The section on the Progress of the MDG indicators in Sri Lanka begins with an introduction which is then followed by the section on the eradication of extreme hunger and poverty. The latter section should be a subject of analysis in this report due to the relevance that it has with regard to food security. The eradication of extreme hunger and poverty could only be done if there is food security in the country. Although there is no direct legislation in Sri Lanka with regard to food 1

security, there are ample provisions on the issue in various other food related legislations and the Constitution. At this juncture, what ought to be done is NOT to introduce another fancy piece of legislation which will not see the light of day. There is a high chance that it may only be limited to a paper legislation which has no value whatsoever in respect of implementation. In that light, what is now necessary is an effective and efficient mechanism to implement the existing laws to achieve food security and eradicate extreme hunger and poverty in the country. For that, ample recommendations and suggestions have been made in the section on recommendations along with best practices that can be adopted by looking at the International Standards prescribed by various relevant International Covenants.

When attempting to discuss the topic of food security and eradication of hunger, it is also necessary to pay relevant heed to the existing levels of poverty as that would have a huge impact on the capability of an individual to purchase food. In 1990, 26.1 per cent of Sri Lankans lived below the poverty line. The figure came down to 22.7 per cent by 2002 and to 15.2 per cent by 20071. These statistics prove that poverty is definitely on the decline. This is an encouraging factor for the Sri Lankan population, especially when the facts and figures are compared with other countries of the region, which still report very high poverty rates. For example, population living below the poverty line in India was reported to be 32.7 per cent2 of the total population at the end of 2010. In Bangladesh, the poverty level was reported to have been 31.5 per cent at the end of 2010. But these figures too and are on the decline3. Even Bhutan recorded a 27.2 per cent poverty rate by the end of 20104. Hence, it is clear that Sri Lanka has already made greater achievements with regard to poverty alleviation than other countries of the region.

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http://www.statistics.gov.lk/page.asp?page=Poverty see also http://www.undp.lk/Shared%20Documents/Millennium%20Development%20Goals%20Country%20Repor t-Final.pdf 2 As per the World Bank Report of 2010.

3 See http://data.worldbank.org/country/bangladesh 4 http://hdr.undp.org/external/mpi/Bhutan-OPHI-CountryBrief-2011.pdf

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The current laws in Sri Lanka deal with different aspects of food security through different government bodies that are entrusted with the implementation of the different enactments. However, it is seen that the Department of Agriculture has been entrusted with a major role in seeds and planting material sectors whereas the Consumer Affairs Authority is entrusted with a major role in ensuring equitable distribution and availability of food within the country.

A contentious area has been the drafting of a new act on Plant Breeders Rights, an obligation under TRIPS. Article 27(3) (b) of the agreement states that all members should provide protection for new plant varieties, either through a patent system or through a “sui generic� law. Sri Lanka has been preparing drafts since 2001 and the current draft is the fourth. Drafting of this upcoming law has led to changed contents. These changes are moving towards incorporating elements such as a minister being authorized to declare restrictions to breeders’ rights and compulsory licensing for seeds or other planting material in face of a national need. The draft also has provisions granting rights to farmers and researchers and these are considered negative rights. They are not positive rights that can be asserted through legal actions.

The collection of different food materials such as green leaves, fruits, nuts and edible yams has been a traditional practice that many people continue to uphold in different areas of the country. Most of these food items are collected from state land that are declared protected areas. It is allowed by the Forest Department in a sustainable manner under the provisions of the Forest Conservation Ordinance. Similarly, subsistence level fishing, using the rod and line and hand nets, have been allowed without the need for a permit whilst all commercial scale fishing activities have been controlled and regulated to ensure the sustainability of the fisheries sector.

This study has focused on different sectors that contribute to food security of the country, namely agriculture, animal husbandry, fisheries and the collection of wild food. The related sectors of intellectual property over planting materials, supply of good quality 3

planting materials, a fair and equitable provision of food as well as its quality and safety have also been discussed. In addition to the review of existing policies and laws that relate to food security, any drafts and proposed amendments too have been taken up.

Although there were no proposed amendments to be considered at present, there were two drafts, still not officially brought forward as bills. They were drafts of the Plant Variety Protection (Plant Breeders Rights) Act and the Seed and Planting Materials Act. The latter bill, when passed by the Parliament, would repeal and replace the existing Seed Act.

Recommendations have been provided not just regarding existing laws but also on the provisions of the two bills under consideration, especially if they deal directly or indirectly with food security. Although other provisions are also needed to make these legislations more effective, they do not play a role for the enhancement of food security of Sri Lanka.

2. Constitutional Provisions The 13th Amendment to the Constitution has inter alia provided for food security and nutrition in the Provincial Council List. Therefore, the government has also empowered the Provincial Council to have their own Provincial Policies and Programmes that may be necessary to meet the particular needs of the Province or a part of the Province. It is also encouraging to note that particular emphasis has been placed on family health, maternity and child care by virtue of the provisions of the Provincial Council List. Although Sri Lanka is not a federal state, and is still a unitary state, the government has taken measures to bring food security closer to people and increase accessibility by enabling the provincial councils to address the needs of their provinces in a much more effective manner.

The Provincial Council List empowers the provincial councils to have their own methods of “Food supply and distribution�. This could be used to address inequities and availabilities of food for underprivileged communities and areas with poor distribution 4

facilities within the province at a regional level, without waiting for the intervention of the government. Such arrangements can address food security and distribution issues within the province in a more efficient manner within a short time frame.

In the Concurrent List of subjects, that have to be addressed equally by both the government and the provincial councils, is included “rationing of food and maintenance of food stocks�.5 Therefore, both the government and the provincial councils are responsible for .issues such as the maintenance of adequate food supply and buffer stocks. This is a very important provision as it empowers both the government and the provincial councils to work together. In the event of a breakdown of a Concurrent Programme, either the government or the provincial council can act independently. This helps people in particular areas in the case of an emergency or contingency, as it has given wide powers to both the provinces and the government.

The Concurrent List also has a provision on Cattle Fodder6 allowing the provincial council and the government to act together in enhancing the productivity of the dairy industry in the provinces. In the absence of commitment of one, the other can compliment.

Both are also responsible for the maintenance of food quality, as prescribed by the Food Act, within the province. The provincial council can implement the provisions of the Food Act within the province or, in the converse, have their own provincial statute on food quality.

3. Policies Pertaining to Food 3.1. National Nutrition Policy of Sri Lanka The National Nutrition Policy formulated by the Ministry of Healthcare and Nutrition was approved by the Cabinet of Ministers on 11th of November 2009 and has been

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1978 Constitution of Sri Lanka, 13th Amendment to the Constitution, List III (Concurrent List) Section 14 ibid Section 23 (b)

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published in Gazette Extraordinary No.1639/5 of 02nd of October 2010. This policy is applicable for a period of ten years.

The vision of this policy is to ensure that every Sri Lankan has access to appropriate and adequate food and nutrition irrespective of their geographical location and socioeconomic status. The goal of the policy is to “achieve and maintain the nutritional wellbeing of all Sri Lankans enabling them to contribute effectively towards national socioeconomic growth and development throughout the life cycle”.

The objectives of this policy are, among others, •

To ensure optimal nutrition throughout the life cycle,

•

To ensure effective management of adequate nutrition to vulnerable populations

•

To ensure food and nutritional security for all citizens.

The policy statements that are intended to show the means of reaching these objectives include:

Policy statement 5.4.2 (dietary diversification) The policy is to promote the consumption of a wide variety of foods ensuring the intake of all macro and micro nutrients to prevent deficiency disorders and diet-related chronic diseases.

Policy statement 5.4.4 (Food safety) This policy statement advocates the enactment and implementation of appropriate legislation and other regulatory mechanisms to ensure the provision of safe nutrition to all citizens of Sri Lanka.

Policy statement 5.5.2 (Inter-agency partnership)

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Strengthen partnerships and networking with relevant sectors and stakeholders including the private sector to undertake collaborative programmes to improve nutrition at the community level.

3.2. National Agricultural Policy The goals and objectives of this policy are, among others, to: •

increase domestic agricultural production to ensure agricultural and nutritional security of the country.

•

enhance agricultural productivity and ensure sustainable growth

•

adopt productive systems to reduce cost of production and increase profits,

•

enhance the income and living standards of farming communities.

These goals and objectives are elaborated by 22 policy statements. Those that are related with food security are given below:

Policy statement 1: Promoting agricultural production This includes the increase of local food supply, employment opportunities and agricultural exports by emphasizing cultivation of rice and other crops such as root and tuber crops, herbal crops, and other underutilized and supplementary food crops. It also lays emphasis on the cultivation of food crops based on agro-climatic conditions and the introduction of improved and modern agricultural technologies to villages whenever and wherever possible.

Policy Statement 2: Seeds and planting material This statement emphasizes the need to produce and supply high quality seeds and planting materials to cultivation, and to enact laws and regulations to ensure quality of the seeds and planting materials. This statement also recognizes the need to maintain seed security by having buffer stocks of recommended varieties.

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In achieving the objectives of this policy principle, a set of regulations needs to be in place to ensure that the quality of the seed, such as purity, germination rates and confirmation to variety quality, be maintained. This is possible under the provisions of the Seed Act, No.22 of 2003. However, regulations under this act are still not in place without which it cannot be enforceable.

Policy statement 4: Pesticides This statement lays emphasis on pest management and control and not the use of pesticides as the title implies. It recommends strict adherence to plant protection regulations to prevent alien weeds and pests and diseases from entering the country.

Policy Statement 6: Irrigation and water management The use of efficient water management and moisture retention techniques has been encouraged to achieve high productivity. The statement also promotes conservation of water resources for agricultural purposes and safeguarding irrigation reservoirs, canals and drainage systems from natural calamities. It also promotes the conservation of rainwater and groundwater.

Policy Statement 7: Land Use The maximum use of degraded, barren and infertile land has been promoted by this statement including land that is under shifting cultivation (chena). Also promoted is the use of idle land for crop cultivation, forest cultivation and animal husbandry.

This statement also advocates mixed-cropping and inter-cropping to ensure efficient use of land. At present, land is usually given out for chena cultivation according to Forest Conservation Ordinance regulations. This system can be used to induce farmers to grow much more productive varieties that will not only increase their income but also help increase the nutrition of consumers.

Policy statement 11: Agricultural Research 8

This one focuses on agricultural research and development on livelihood improvement, poverty alleviation, achieving food security, enhancing agro-based industries and to face global challenges. It also aims to promote collaborative research between the state sector and private parties. It also intends to establish crop breeding programmes that will consider factors such as social needs and labour shortages.

Research has been directed to develop crop varieties that can withstand abiotic stresses brought about by climatic changes and also to cope up with the increase of pests and diseases brought about by changes in weather and climatic conditions.

Policy Statement 16: Traditional agricultural crops and methodologies This statement calls for the fostering, preservation and dissemination of Traditional Knowledge7 in agriculture relating to organic farming, pest management, and preservation and processing of food for nutritional and medicinal purposes. It calls for facilitation of the exchange of such knowledge among farming communities.

The traditional crop varieties and the traditional knowledge of the farmers are seen eroding due to disuse. Some aspects of traditional knowledge have also been misused.

The documentation of different areas of traditional knowledge has been proposed in order to prevent their loss. A new act has been drafted to protect traditional knowledge, to prevent its misuse and to work out a system to reward the holders of such knowledge when and if it is being used for commercial purposes. However, this act has not yet been passed.

Policy statement 17: Home gardening The policy objective is to enhance the nutrition of households, increase productivity and help the economy by increasing production of crops in home gardens.

Policy Statement 20: Utilization and sharing of Plant Genetic Resources 7

Commonly referred to as TK.

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This calls for the collection and conservation of crop varieties and their wild relatives for future crop breeding and improvement programmes. It is also needed for the development and maintaining of diverse farming systems for the ex-situ conservation of crop genetic resources. It also states that participatory breeding methods, by including farmers, should be used for the utilization of crop genetic resources.

Sri Lanka has not brought out any enactment to help safeguard the genetic resources of crops and farm animals. The same situation prevails regarding a fair and equitable sharing of benefits arising out of the use of such resources by third parties.

It has been suggested that some provisions to protect the indigenous genetic base of crop plants and related benefits sharing be included in the proposed Plant Variety Protection Act, or the Plant Breeders Rights Act. The draft being prepared does not have any provisions to meet this objective.

3.3. National Livestock Development Policy The principles of this policy includes among others: *The genetic merits of native livestock species has helped them survive in very hostile environments on low quality feed. These should be preserved for future use in animal breeding activities. *Land reserves for livestock farming should be conserved for animal breeding activities and livestock research. *Developing the livestock sector is necessary for ensuring food security. This is also true for improving soil fertility. *Developing a local feed resource base is crucial for profitable livestock farming.

The policy objectives are grouped under the following five categories:

Objective 2.1

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The dairy sub-sector is regarded as the priority sector for public sector investment in livestock development.

Objective 2.2 Promoting a market for liquid milk.

Objective 2.3 Upgrading the native herd is considered a fundamental necessity for dairy development and will be thrust area of public investment.

Objective 2.4 Efforts to increase the role of dairy goats and dairy buffalos in the domestic dairy industry.

Objective 2.5 The government to facilitate the transformation of the present subsistence level dairy production to a viable commercially oriented activity.

Objective 2.4.1 Development of an animal feed resource base, including pasture and other natural forages including agricultural waste and by-products is regarded to be of paramount importance in developing the livestock sector.

Objective 2.4.2.

The government to provide adequate protection and incentives for the growing and production of local feed resources.

Objective2.5.2 No land resources belonging to the National Livestock Development Board to be privatised.

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Objective 2.5.4.

Genetic conservation of native livestock species will be actively supported.

Objective 2.5.7 Development of the livestock sector is complimentary to rural agricultural development.

4. Laws Pertaining to Food 4.1. Food Act, No. 26 of 1980 This act deals with the production and importation of food items with provisions to control and regulate the distribution and sale of the items.

Part 1 of this act deals with prohibited acts in relation to food to ensure the purity and quality of food that is offered for sale.

According to the interpretation8 section, “Food” means “any article manufactured, sold or represented for use as food or drink for human beings and includes any article which ordinarily enters into or is used in the composition or preparation of food”.

According to Section 2, the following acts are prohibited in relation to all food items being produced, imported to Sri Lanka or offered for sale in the country.

2. (1) No person shall manufacture, import, sell or distribute any food (a) that has upon it any natural or added deleterious substance which renders it injurious to health; (b) that is unfit for human consumption; (c) that consists in whole or in part of any unclean, putrid, repugnant, decayed, decomposed or diseased animal substance or decayed vegetable substance or is insect infested; (d) that is adulterated; 8

Food Act, No 26 of 1980, section 33

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(e) that has in or upon it any added substance in contravention of the provisions of this act or any regulation made thereunder; or (f) in contravention of the provisions of this act or any regulation made thereunder.

(2) No person shall manufacture, prepare, preserve, package or store for sale any food under any insanitary conditions.

(3) No person shall import, sell or distribute any food manufactured, prepared, preserved, packaged or stored for sale under insanitary conditions.

According to the provisions of Section 39, it is an offence to have any label in any food item that may mislead, deceive or give an erroneous impression of the quality, nature, composition, nutritional value of the safety of any food item that is being sold in Sri Lanka. In addition, this section makes it mandatory to adhere to any and all regulations that have been made in order to ensure labeling of food items.

According to Section 4, “where a standard is prescribed for any food, no person shall label, package, sell or advertise any food which does not conform to that standard in such a manner as is likely to be mistaken for the food for which the standard has been prescribed�.

Section 32 of this act lists the following regulations: Section 32(1) deals with exposing and advertising for sale of food. The minister may make regulations in respect of matters required by this act to be prescribed or in respect of which regulations are authorized to be made and in particular the minister may, after consultation with the food advisory committee, make regulations in respect of all or any of the following matters; 9

(1) No person shall label, package, treat, process, sell or advertise any food in a manner that is false, misleading, deceptive or likely to create an erroneous impression, regarding its character, value, quality, composition, merit or safety.

(2) Any food that is not labelled or packaged as required by the regulations made under this Act or is labelled or packaged contrary to such regulations shall be deemed to be labelled or packaged contrary to subsection (1)

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a) declaring that any food or class of food is adulterated if any prescribed substance or class of substance is present or has been added to or extracted or omitted from that food; b) labeling, packaging, offering declaring that any food or class of food is adulterated if any prescribed substance or class of substance is present or has been added to or extracted or omitted from that food. c) the size, dimensions fill and other specifications of packages of food ; d) sale or conditions of sale of any food; e) the use of any substance as an ingredient in any food f) the standards of composition, purity, quality or other property of food; g) the importation of food in order to ensure compliance with the act and any regulations made thereunder; h) the method of preparation, manufacture, preservation, packaging, storing and testing of any food in the interest of, or for the prevention of injury to, the health of the consumer or purchaser; i) (i) the person to whom, the circumstances in which and the terms and conditions subject to which, licences under this act may be granted or refused; (ii) the manner and mode in which applications for licences under this act may be made and dealt with ; and (iii) the fee payable for the issue of a licence j) requiring persons who manufacture or sell any food to furnish such information and maintain such books and records as the Minister considers necessary for the proper enforcement and administration of this Act and the regulations made thereunder; k) the powers and duties of Authorized Officers, the Approved Analyst and Additional Approved Analysts and taking of samples and the seizure, detention or forfeiture and disposal of articles within the meaning of Sections 14 and 15; l) the forms to be used for the purposes of this Act and any regulations made thereunder; m) the analysis or examination of any food, procedure for taking samples if such food and tariff of fees to be paid for the analysis or examination of such food and; 14

n) prohibitions and restrictions relating to the sale and transport for sale of any adulterated food.

The provisions of the Food Act shows that the duty and responsibility of ensuring the purity, quality (including the nutritional value needed) and the safety of all food items sold or offered for sale within the country lies with the government.

Consumers can have a choice, but it is determined by factors other than quality and safety, and is thus related only to preferences of the consumer. Thus, the “buyer should beware10” concept does not apply in relation to food items and food products.

However it is seen that the provisions of this act do not ensure •

the quantity of the food that needs to be provided to the market and.

•

the availability of a food item in the market, even if it is an essential food item.

5. Laws Pertaining to Agriculture/Crops 5.1 Seed Act, No. 22 of 2003 This act regulates the quality of seeds and planting materials and matters connected therewith or incidental thereto.

According to the interpretation “seed” means11, i.

The mature fertilized part of the plant, containing an embryo ready for germination and transformation into a seedling.

ii.

Seed potatoes, bulbs, rhizomes, and

iii. Planting materials

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The principle is also referred to as the rule of caveat emptor.

Seed Act, No 22 of 2003, section 22

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This definition is broad and includes not only seeds but also any planting material that can be made use of to grow new plants. This means all vegetative propagations materials such as bulbs, rhizomes, tubers, bulbils or cuttings will also be considered as seed for the purpose of this act. This act is broad enough to regulate all planting materials of food crops to ensure their quality, whether they are imported to Sri Lanka or locally produced.

This is further clarified with the definition of the seed handler, which includes any importer or distributor.

The act defines “premises” to include any land, building, establishment, stores freight container, vehicle, vessel or conveyance wholly or partially used for keeping, storing, conditioning, transplanting or growing plants or for keeping or storing seeds.

“Variety” is defined as a plant grouping within a single taxon of the lowest rank including transgenies which can be distinctly differentiated from another of the same kind by at least one characteristic recognizable with the naked eye and is sufficiently uniform and stable after repeated propagation.

This definition has two interesting aspects as it includes, a.

all transgenies

b. The definition of variety depends on the recognisability by at least one characteristic with the naked eye c.

sufficient uniformity and stability after repeated propagation.

Although this definition goes by the distinctiveness, uniformity and stability (DUS criteria) that are adopted in recognizing variety, it restricts the distinctiveness only to a characteristic that can be recognized by the naked eye. Therefore, the qualitative characteristic (e.g. the content of the nutrient protein or fat or vitamin) will not be considered in recognizing variety. This means that certain transgenic variety such as those with enhanced vitamins may not qualify as a new variety for the purposes of this act unless they are recognizable by a visual trait.

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According to Section 20, “Nothing in this Act shall apply to any seed or any kind or variety grown by a person and sold or delivered by him on his own premises direct to another person for being used by that other person for the purpose of sowing or planting”.

This section in this particular form has allowed the continuation of the traditional practices of seed sharing and seed saving carried out by farmers. And although not stated explicitly as such, it has also recognised the importance of farmers. This act tries to regulate the process of seed handling.

The definition of the term “seed handler”, according to Section 08 of this act12, ensures that those involved in the planting material business have to register themselves with the Director. Therefore, no handling of seed for commercial purposes could be done unless the person is registered. The Director is empowered under Section 1413 to exercise the exclusive rights to certify seed and planting materials grown in Sri Lanka. It also empowers the Director to recognize the official system of seed certification of other countries from which seeds are imported to Sri Lanka. Therefore, the terms of certifying seeds can be used only if they are produced locally under the rules. The Director has the authority to publish standards for seed certification and also to take samples of seeds to ensure that they are in conformity with the standards. The Director is also empowered to carry out a monitoring of seed production and processing of food in order to ensure that standards have been met.

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(1) All seed handlers shall be registered with the Director.

(2) Every application for registration shall be in writing and shall be made to the Director in such manner as may be specified by the Director.

(3) A registration under this section(a) shall be issued on payment of the registration fee, by the applicants (b) shall be in writing and unless previously cancelled in accordance with any terms subject to which the registration was issued, shall continue in force for a period of two years; and (c) shall set out the terms and conditions subject to which the registration is being issued.

13 Refer the section ,Seed Act, No22 of 2003

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The provisions of the Seed Act are broadened by the regulations made by the minister under Section 1814 and also by the rules made by the council under Section 1915. The council mentioned here is a National Seed Council established according to Section 416 and shared by the secretary to the ministry in charge of agriculture. This National Seed Council is empowered in three broad areas. They are; a.) To advise the minister and other relevant authorities matters pertaining to the production of quality seeds and supply of seeds to farmers, b.)

The establishment of guidelines and principles for seed production and

distribution, to establish quality standards and their review with a view of developing the seed industry and also establishing quality standards such as viability, genetic purity, physical purity, and appearance of the seed, c.) To take appropriate action with regard to the protection of new plant variety.

This act empowers the director general or an official authorized by the director general to enter any premises where seeds are kept to examine them and take samples for examination and testing. If the officer or the director general is satisfied that the seeds or planting materials are stored or conditioned or offered for sale in violation of regulations or rules, the owner/occupier shall be directed to carry out the measures as specified by the directions. If the owner or occupier fails to carry out such directions, the director general 14 (1) The minister may make regulations in respect of any matter required by this Act to be prescribed or in respect of which regulations are authorized by this Act to be made.

15 The council may make rules in respect of all matters in respect of which rules are authorized to be made by this Act. 16 (1) There shall be established a National Seed Council (hereinafter referred to as the “Council”) for the purposes of this Act. (2) the Council shall consist of – (a) the following ex-officio members, namely – (i) the Secretary (ii) the Director general (iii) The Director in charge of seed certification in the Department of Agriculture (hereinafter in this Act referred to as the “Director”) (iv) The Executive Director of the Sri Lanka Council for Agricultural Research Policy. (v) the Director – General of the Sri Lanka Standards Institution established by the Sri Lanka Standards Institution Act No: 6 of 1984; and (b) Not more than four members appointed by the Minister from among seed producers, seed users and seed importers (hereinafter referred to as the “Appointed Members”). However, two of such persons shall be appointed to represent the farming community who are seed users.

(3) The Secretary shall be the Chairman of the Council.

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can carry out the specific task and can compel the person to pay all expenses occurred by the authorized officer in carrying out the specified task. In the event the person fails to pay the expenses as required, they can be recovered by initiative action in courts and by getting an order from the court and to impose it as a fine.

5.2 Draft Seed and Planting Materials Act This draft, which intends to repeal the existing Seed Act, was published in 2011 but has not yet been presented to the Parliament as a Bill. The intention of this new act, as stated in the long title is to regulate the quality of the seeds and planting materials and to protect the rights and uses and handlers of seeds and planting materials.

The key definitions in the draft are as the same as those in the existing act. According to Clause 2, no person can engage in the import, export and handling of any seed or planting materials unless the person has the written approval of the Director-General of Agriculture. This clause also imposes the responsibility of protecting the local traditional varieties and their genetic resources to the director-general. It is a novel feature that makes the director-general a custodian of the national varieties and the genetic resources contained therein. The addition will solve a persistent issue of who is responsible for the maintenance, protection and prevention of abuse of traditional varieties and their genetic resources. This is in conformity with the responsibilities vested upon the government under Article 27(14)17 of the Constitution under the Directive Principles of State Policy.

A key difference is Clause 2018 of the draft that intends to replace Section 20 of the Seed Act. This draft exempts actions carried out within his/her own premises, regarding planting materials, without a commercial intent. This will be a drastic reduction and narrowing down of the rights enjoyed by farmers at present, as the act allows a farmer to sell seeds within his premises if it has been produced by the farmer himself. Thus, this 17

“The state shall protect, preserve, and improve, the environment for the benefit of the community.�

The draft has been drafted in Sinhala. It can be translated to English as follows: “Nothing in this Act shall apply to any seed or any kind or variety grown by a person without a commercial intent and sold or delivered by him on his own premises direct to another person for being used by that other person for the purpose of sowing or planting.

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clause, if passed by Parliament in the present form, would be detrimental to the farmers’ traditional right to exchange sell seeds produced from previous crops.

Another important and new feature is Clause 1319 which empowers the director-general to prevent the import to Sri Lanka of any seed or planting material. He/she can prohibit the import, distribution, storage, transportation and sale of such material. The clause makes it clear that this power should be exercised by him/her under the findings of a research or analytical report. If and when such a ban is imposed, the director-general is empowered to dispose of such materials in a fit and proper manner, including their reexport or destruction. In addition, the DG is empowered to stop the import of any seed or planting materials to Sri Lanka until a pending investigation, research, analytical work or legal action is concluded. He/she can also prevent any distribution, storage or sale of the same until the conclusion of such action.

These are important measures to ensure the health, genetic purity and the existence of crop varieties. There are many instances when seeds and planting material infested with pests have been imported. There is also the possibility of varieties with hidden traits or those containing genetic modifications of being imported. Such traits could be adverse to plants, for example, those modified with Genetic Use Restriction Technologies (GURTS), such as the Terminator Technologies. These GM varieties could be imported without an honest disclosure or without getting due clearance under the Bio-safety measures that are in force at present.

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The marginal note of this Draft clause states that the section is regarding the forbidding and reexportation.

Clause 13 (1) The Director General of Agriculture possesses the authority to forbid the importation in to Sri Lanka of any seed or planting material that is based on any experimental or analytical report or the promotion, distribution, storing, transportation or sale within Sri Lanka of such seed or planting material�.

(2) The Director General of Agriculture possesses the authority to destroy, to alienate or re-export in manner that he deems suitable any seed or planting material as mentioned in Subsection 1 of this Section.

(3) No one shall export seeds or planting materials if a valid license has not been issued by the Director General after taking into consideration the agricultural requirements and food security of the country.

(4) The Director General has the power to prohibit the importation of a seed or a planting material, promotion, distribution, storing or sale until an analysis, experiment, inquiry or a legal action that has been commenced by him is completed.

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Another key element is in Clause 13(3)20 that makes it mandatory to get approval from the director general to export any seed or planting material from Sri Lanka. This clause also states that the director general has to consider the agricultural requirements and food security of the country.

5.3 Protection of New Plant Varieties (Breeders’ Rights and Famers’ Rights) Act Sri Lanka is in the process of drafting a law on Plant Breeders Rights (PBR) for new varieties of plants, as stipulated under Article 27 (3) (b) of the TRIPS Agreement, under the World Trade Organization (WTO). The first draft of the PBR Act was presented to a select group of interested parties in July 2001. It was drafted as per UPOV-1991 and did not even mentioned the term “farmer” in the whole document. After extensive opposition from farmers and environmental groups it was withdrawn. Since then, three other drafts, all titled “Protection of New Plant Varieties (Breeders Rights and Farmers Rights) Act have been prepared. They have never been presented at any public for. The latest one has not yet ready for tabling in Parliament. These three drafts, prepared in 2006, 2007 and 2012 respectively, are based on UPOV-1978 and are basically similar to the Plant Variety Protection and Farmers Rights Act of India.

This latest draft has 46 clauses dealing with definitions, the registration process for new varieties, scope and duration of breeders’ rights, farmers’ rights, researchers’ rights, licensing of varieties, compulsory licences, infringement and remedies and the power to make regulations.

The interpretation of terms is provided in Clause 2. The term “farmer” means any individual who –

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i.

Cultivates crops by cultivating the land himself; or

ii.

Gets crops cultivated in his/her land by any other individual; or

iii.

Is a tenant cultivator in terms of the law relating to tenant cultivators; or

See the footnote above.

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iv.

Conserves and preserves, severally or jointly, with any person any wild species or traditional varieties or adds value to such wild species or traditional varieties through selection and identification of their useful properties.

It is important that tenant cultivators have also been recognized as farmers by the Draft Plant Breeders Rights Act. Another important feature is the definition of “Farmers Variety” which is a crop that-i.

has been traditionally cultivated and evolved by the farmers in their fields; or

ii.

is a wild relative or land race of a variety about which the farmers possess common knowledge

The term “variety” is defined as-“a plant grouping within a single botanical taxon of the lowest known rank, which grouping, irrespective of whether the conditions for registration under this Act are fully met, can be – i.

defined by the expression of the characteristics resulting from a given genotype or combination of genotypes;

ii.

distinguished from any other plant grouping by the expression of at least one of the said characteristics; and

iii.

considered as a unit with regard to its suitability for being propagated which remains unchanged after such propagation.

The definition under (iii) needs to be considered carefully, as it would extend the granting of breeders rights to F1 Hybrid as well.

An F1 Hybrid, or a first generation hybrid, is one that is the direct result of crossing two different varieties. There are many F1 Hybrids that give high yields but will not give seeds that will provide the same yield in the second generation. Some other features seen in the first generation may not be shown, or show differently, in the second generation.

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Thus they do not fulfill the criteria of “Stability� necessary for a variety to be deemed as a Registrable Variety for the purposes of Clause 9 (1)21 of the draft act.

However, it is possible to get PBR for the two lines involved (i.e. the parent lines) of a F1 Hybrid, but not for the hybrid itself. This is because the F1 Hybrid is not stable, or in other words, does not show the same traits in subsequent generations. This problem is circumvented by including this part of the definition that make it possible to register the F1 Hybrid as a unit (male line, female line and F1 Hybrid) as it is possible to establish that two known parent lines will always give rise to a hybrid that will always show the same essential features.

This definition may create problems in instances where many parties want to make their own hybrids using varieties that are not registered or even those which have exhausted the duration of breeders’ rights. Thus, there is a possibility of it having an adverse impact on productivity by using F1 Hybrids.

Clause 9 (2)22 deals with the denial of registration of a variety even if it fulfils the criteria under Clause 9 (1)23. Such limitations and restrictions serve a positive purpose and may differ according to the national needs and cultural and social norms, as well as on

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A plant variety shall be registered under this Act if it conforms to the criteria of (a) novelty; (b) distinctness: (c) uniformity; (d) stability; and (e) variety denomination acceptable for registration.

22 Clause 9 (2): A variety shall not be registered under this Act if the denomination given to such variety(i) Is not capable of identifying such variety: or (ii) Consists solely of figures; or (iii) Is likely to mislead the public, or to cause confusion, as to the characteristics, value, identify of such variety or the identity of the breeder of such variety; or (iv) Is not different from any denomination which designates a variety of the same botanical species or of a closely related species registered under this Act: or (v) Is likely to offend the religious or racial susceptibilities of any community, or (vi) Is prohibited for use as a name or emblem under any other law, or (vii) Is comprised of solely or partly of a geographical name.

23 Clause 9 (1): a plant variety shall be registered under this Act if it conforms to the criteria of (a) Novelty (b) Distinctness (c) Uniformity (d) Stability (e) Variety, denomination acceptable for registration.

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scientific reasons. Two such limitations, if exercised judiciously, will have a positive impact on food security.

According to Clause 9(3)24, a variety will not be registered, among others, if it is necessary to protect human, animal or plant life and health and to avoid serious prejudice to the environment. This gives the discretion to the authorized officers to decide whether a new variety could pose such a problem to deny registration. However, it does not stop the seed or other propagative material from being imported, produced or sold in Sri Lanka. The prohibition of importation, production, cultivation of or sale or such material is beyond the purview of this type of law.

A more easily identifiable but, sometimes, more dangerous problem will be GM-plants that have been modified using Genetic Use Restriction Technologies (GURTS). Clause 9 (4) specifically prevents the registration of a variety, species or genera which involves “any technology which is injurious to the life or health of human beings, animals and plants”. In the explanatory note under this Sub-clause, it is stated that ‘for the purposes of this sub-section the expression “any technology” includes genetic use restriction technology and terminator technology”.

Clause 25 (1) of the draft act provides exceptions to breeders’ rights which are; (a) acts done privately and for non-commercial purposes; (b) acts done for experimental, research or educational purposes; and (c) acts done for the purpose of breeding other varieties except where the provisions of Section 24 apply. (d) situations described under farmers’ rights and researchers’ rights.

The exceptions under 25 (1) (a) and 25 (1) (b) are further developed and expanded under Part XI (Farmers Rights and Researchers’ Rights).

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Notwithstanding anything contained in this Act, a variety shall not be registered under this Act in cases where the prevention of commercial exploitation of such variety is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment.

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Another important sub-clause is 25(2)25 which, empowers the minister to make regulations to restrict breeders’ rights, in relation to the varieties of any specified plant genera or species to permit farmers to use the product of the harvest, for propagating purposes on their own holdings, which they have obtained by planting on their own holdings.

This particular provision needs to be implemented for particular species or genera. It is important to have this kind of provision to meet contingencies such as the failure of rights holders to provide adequate seeds and other planting materials for the next planting season. It will also prevent a right holder from withdrawing the material of an important or popular variety in order to promote a new variety. This is a very positive provision in terms of enhancing food security.

Clause 26 (1) covers exhaustion of breeders rights that (a) Involve further propagation of the variety in question’ or (b) Involve an export of material of the variety. The draft has a set of farmers’ rights spelt out in Clause 3526. It is seen that these are different from the commonly accepted farmers’ rights that are, in this draft, put down as "exceptions to breeders’ rights" Clause 37 (1)27 has provided a set of researchers’ rights. These rights are provided only to government departments, universities and research institutes. They are not extended to the private sector, but confined only to the public sector.

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The Minister may by regulations, within reasonable limits and subject to the safeguarding of the legitimate interests of the holders of breeders’ rights, restrict the breeders’ rights in relation to the varieties of any specified plant genera or species in order to permit the farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety or a variety covered by paragraph (i) or (ii) 26 (i) a farmer who has bred or discovered and developed a new variety shall be entitled to the registration and other protection in like manner as a breeder of a variety under this Act; (ii) a farmer shall be deemed to be entitled to save, use, sow, re-sow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: 27 Nothing contained in this Act shall prevent-

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Another important principle is in the provisions to grant “compulsory licences" provided in Clause 41 of the draft act.

The granting of a compulsory licence is subjected to the following. a) These should be for a minimum period of three years from the date of registration of the new plant variety. b) Any person, government department or statutory body can make an application. c) The applicant has to satisfy the Director General of Intellectual Property that the applicant has made a reasonable effort to obtain a licence on reasonable commercial terms and has failed in the effort. d) The requirement above is not needed if there is a national emergency or an extremely urgent situation or in case of public non-commercial use for purposes of nutrition, health or food security or for the development of a vital section of the national economy.

According to the provisions of 41(4), the issuance of a compulsory licence is subjected to the following conditions: (i)

the exploitation shall be limited in the scope and duration to the purpose as is specified in the licence;

(ii)

each application shall be considered on its individual merits;

(iii)

the issuance of licence shall be non-exclusive and subject to the payment of reasonable remuneration to the holder of rights as decided by the Director General of Intellectual Property taking into consideration the facts of each application including the economic value and where applicable, the need to correct anti-competitive practices and

(iv)

any other conditions as may be prescribed under regulations.

(a) the use of any variety registered under this Act by any person or government department or university or research institute for conducting experiment or research; and (b) the use of any variety registered under this Act by any person or government department or university or research institute as an initial source of the variety for the purpose of creating other varieties: provided that the authorisation of the holder of the rights to the registered variety is required where the repeated use of such variety as a parental line is necessary for commercial production of such other newly bred variety.

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6. Laws Pertaining to animal husbandry 6.1 Pasture lands (Reservation and Development) Act, No 04 of 1983 This act aims for the reservation of certain state land as pasture land, the leasing of such land and for the recovery of possession of such lands from persons in unauthorized possession or occupation.

The minister can, under Section 228, with the concurrence of the minister in charge of the subject lands, declare any area of state land as pasture land by a notification published in the Gazette. All pasture lands declared under this act are deemed to be state lands within the meaning of state lands (Recovery of Possession Act) and the provisions of this act can be applied as necessary for the ejectment of anyone in unauthorized possession or occupation of any pasture land.

The land commissioner can, under the provisions of Section 329, in consultation with the Director of Animal Production and Health, lease any pasture land to any government body, private entity or individual engaged in livestock breeding, if he is satisfied that the said person or body has the capacity to manage or develop the pasture land.

According to Section 430, the Land Commissioner can, in consultation with the Director of Animal Production and Health, terminate any lease agreement if the lessee has not complied with the terms and conditions of the lease agreement or maximum utilization of the land has not been made of by the person who has been given the land.

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The minister may from time to time, with the concurrence of the Minister in charge of the subject of lands, by Order published in the Gazette declare any State Land to be reserved as pasture land (hereinafter referred to as “ pasture land”) 29 The Land Commissioner or an officer authorized in writing by him in consultation with the Director of Animal Production and Health ( hereinafter referred to as the “lessee”) engaged in the business of livestock breeding, where he is satisfied that such institution or body of persons has the capacity to manage and develop such pasture land.

30 (1) The Land Commissioner or an officer authorized in writing by him in consultation with the Director shall, by order, terminate any lessee where he is satisfied that- (a) the terms and conditions specified in such lease agreement have not been complied with; or (b) maximum utilization has not been made of the pasture land which is subject to such lease agreement.

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The decline of the animal husbandry sector has also contributed to diminishing a significant source of nourishment to many, especially to those of the poorer segments of the population. The declarations under this act can systematically address the issue of reduction of grazing areas for domestic animals, one of the key issues behind the decline of the sector. The lack of adequate pasture has especially affected the cow milk industry. There is no land declared under this act to ensure the availability of grazing lands.

7. Laws Pertaining to fisheries 7.1 Fisheries and Aquatic Resources Act No. 02 of 1996 as amended This act aims for the management, regulation, conservation and development of the fisheries sector and aquatic resources of Sri Lanka.

The term “fish” is defined, under Section 66 of this act, to mean any aquatic organism, whether piscine or not, and includes any shellfish, crustacean, pearl oyster, mollusc, holothurian, or aquatic mammal and its young, fry, eggs or spawn and includes zooplankton;

According to the interpretation of this act “fishing operation” means catching, taking, killing, collecting, or culturing fish by any method and includes an attempt to catch, take, kill, collect or culture fish; According to Section 631, the minister in charge of the subject of fisheries can prescribe certain operations as “Prescribed Fishing Operations” and they can be performed only with a license obtained from the Department of Fisheries and Aquatic Resources. A license issued is valid for a period of one year (Section 08)32 but could be renewed.

31

(1) No person shall engage in, or cause any other person to engage in, any prescribed fishing operation in Sri Lanka Waters except under the authority, and otherwise than in accordance with the terms and conditions, of a licence issued by the Director.

32 Every licence granted under this Part shall-(a) be in such form as may be prescribed;

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Subsistence level fishing methods, such as the rod-and-line, cast net and the hand net, are not prescribed and hence can be carried out without a permit.

According to Section 3133, the Minister can, by an order published in the Gazette, designate a prescribed area of waters (inland, coastal or marine), or any land area adjacent to a water body, or both a water body and the adjacent land area, as a Fisheries Management Area. The minister can designate a Fisheries Management Authority for such an area and the authority is comprised of members drawn from the Fisheries Committees established in respect of the area.

This authority will have the power to make recommendations to the minister in respect of: *the conduct of fishing operations and the use of different types of fishing gear in the Fisheries Management Area, *the establishment of closed seasons for fisheries operations, *closed seasons for the taking of specific species of fish in the area, *the times of the day when fishing could take place.

The Minister can, under the provisions of Section 34, declare a closed season and an open season for the following purposes. *For fishing in such areas as specified, *The times for fishing in the area, *The taking of different species of fish as specified.

(b) Unless it is cancelled earlier, be in force for period of one year from the date of grant of the licence; (c) be subject to such terms and conditions as may be prescribed with regard to the fishing operation for which the licence is granted.

33 (1) The Minister may, by Order published in the Gazette- (a) designate prescribed areas of Sri Lanka Waters and land as adjacent thereto or both such waters and land as fisheries management areas for the purpose of this act; (b) designate the fisheries committee established under section 32 in respect of any fisheries management area as the fisheries management authority of that area; and (c) where two or more fisheries committees have been established in respect of any fisheries management area, establish, by Order published in the Gazette a fisheries management authority for that area consisting of not more than twelve members drawn equally from each of those committees

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These declarations have to be made through a notice published in the Gazette as well as, at least, in three newspapers in Sinhala, English and Tamil languages. Such declarations will also have to be displayed as notices in conspicuous places in the area in respect of which the declarations have been made.

The Fisheries Committees for a given Fisheries Management Area comprises fishermen who have formed themselves into a committee and registered by the Director-General of Fisheries and Aquatic Resources the notification of which has to be published in the Gazette. After the registration is published, the committee will be a body corporate with a perpetual succession. It will have a common seal and can sue and be sued by the name in which it is registered.

According to Section3334, every fisheries committee has to prepare, maintain and revise a list of all fishermen engaged in fisheries operations in the area including those that reside in the area.

A fisheries committee can engage in the following functions.

*Formulating a fisheries programme for the area and implementing it, *Assisting members to obtain boats, fishing gear and other equipment that could be used in fishing operations, *Carry out social infrastructure and welfare activities with a view to improving the living standards of the fishing community of their area, *Engage in any other activity that is approved by the Director-General as being beneficial to the fishing community of their area.

According to Section 27, it is an offence to use any explosives to harm, kill or catch any fish and to use any toxic or poisonous substance to capture, kill or debilitate any species of fish. This section also prohibits the pollution of any water body that may harm any 34

Refer the section, Fisheries and Aquatic Resources Act, No2 of 1996, section 33

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fish. This provision is wide enough to take action against those who engage in these destructive practices as well as to take action against any negligence that would cause harm to aquatic animals.

8. Laws Pertaining to inputs 8.1 Forest Conservation Ordinance35 The intention of this act, among other things, is to conserve forest resources and to consolidate the law pertaining to the utilization of forest produce.

The term “forest produce” is defined under Section 78 of the enactment and, according to that, it includes the following things found in or brought from a forest: (a) Trees and leaves, flowers and fruits, seeds, roots, juice, timber, charcoal, caoutchouc, catechu, wood oil, resin, natural varnish, bark, lac, gum, and myro balans, (b) Plants not being trees, including grass, creepers, reeds, and moss, and all parts or produce of such plants, (c) Tusks, horns, shed horns, and edible birds’ nests, and (d) Peat, surface soil, rocks and minerals, including limestone, coral, laterite, bitumen, bituminous shale, asphalt, minerals, oils and all products of mines or quarries;

The term “forest” has a very wide meaning in this ordinance and is defined in Section 78 as “ any land at the disposal of the state” and hence include not only those areas declared under this ordinance but include all such land that has not been declared under any other laws of Sri Lanka. The Fauna and Flora Protection Ordinance, National Heritage Wildness Areas Act, Fisheries and Aquatic Resources Act and the Pastureland Act can also declare different types of protected areas.

35

Act No 65 of 2009

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Three types of protected areas can be declared under this act and the provisions regulate and control the activities that are allowed inside state land not designated under any other law but come under the purview of the Forest Conservation Ordinance.

The different parts of various species of plants, such as leaves, fruit, nuts, seeds, yams and tubers that are not cultivated but collected from forests have contributed greatly in the nutrition of different communities, not only of those communities who live adjacent to forests, but also those living much further away. According to the regulations of the Forest Conservation Ordinance, “Forest Produce” is divided into “Major Forest Produce” and “Minor Forest Produce” for regulating their collection and transportation.

“Major Forest Produce” means timber and firewood, roots and trees, charcoal, tusks, shed horns, seeds of Nux Vomica, and the barks of Cassia and Rhizopora. Minor Forest Produce means all forest produces other than the “Major Forest Produces”.

The highest degree of protection under this ordinance has been conferred on Conservation Forests. In these areas, entry is restricted to those engaged in non-extractive uses such as observation, study and recreation. No collection of forest produce is allowed in these. In areas declared as Village Forests, the communities designated in the declaration are allowed to collect all Minor Forest Produce without any kind of permission. In areas declared as Reserved Forests (also called Forest Reserves), the use, collection and transportation of forest produce is regulated by Forest Regulations No 1 of 1979, published in Gazette Extraordinary No 68/14 of 26th of December 1979.

According to these regulations, permission is needed to: a) keep or be in possession of any forest produce b) remove or transport any forest produced and c) engage in fishing

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In addition, these regulations allow a person to get a permit to cultivate any annual crop in a designated area that is to be cleared by him or that has been already cleared.

In areas that are not declared as a protected area but fall under the Forest Department’s jurisdiction, activities are controlled by the provision of Section 2036. In addition, the collection and transporting of forest produce is regulated by Forest Rules No 1 of 1979, published in Gazette Extraordinary No 68/14 of 26th of December 1979. The activities include: a) keeping or being in possession of any forest produce and b) removing or transporting any forest produce

The pasturing of cattle or the cutting of grass is usually allowed without any permit, except in instances where a specific area may be demarcated where such activities have been prohibited.

9. Laws Pertaining to Consumer Rights 9.1 Consumer Affairs Authority Act, No 9 of 2003 The preamble of the act states, “whereas it is the policy of the Government of Sri Lanka to provide for the better protection of the consumers through the regulation of the trade and the prices of goods and services and to protect traders and manufacturers against unfair trade practices and restrictive trade practices”. It further states that “the government of Sri Lanka is further desirous of promoting competitive pricing wherever possible and ensure healthy competition among traders and manufacturers of goods and services”. These guidelines prove that the act is not only for the protection of the rights of the consumers, but also for the protection of the rights of the traders and the manufacturers.

It is clearly stated in the preamble that there will be a. When that statement “creation of healthy competition among traders” is interpreted in connection with food security, it can 36

Refer the section.

33

be said that such healthy competition would guarantee that sufficient goods (in this context food) will be available to the consumers at an affordable price. This act also takes measures to prevent unfair trade practices, such as preventing a particular trader from engaging in a similar business once he has terminated his employment in a particular company which carries on the same kind of business.

The guarantee that the competitive prices would be promoted by the government creates a situation in which traders price their goods competitively. This protects consumers by preventing a monopoly from arising. Demand and supply compel traders to have prices similar to that of other companies.

According to Section 75 (the section on interpretation), a “consumer” means “any actual or potential user of any goods or services made available for a consideration by any trader or manufacturer”. Goods have been defined as “any food, drink, pharmaceutical, fuel and all other merchandise”. The interpretation ensures that the provisions of this act become directly relevant to the right to food security. Many of its provisions guarantee that the consumers will have access to food and food security.

The term “price” has been defined as “a charge of any description”. In addition, a “manufacturer” has been defined as any person who – (a) Makes any articles or any goods; (b) Assembles or joins any article or any goods whether by chemical process or otherwise; or (c) Adapts for sale any article or any goods.

The term “services” too has been defined in many respects. Interpretations which are relevant to “food” and related rights are as follows: •

The construction, production, manufacture, supply, storage, maintenance, repair, treatment, cleaning, processing or alteration of goods 34

•

Services in connection with the import, export or distribution of goods.

It is submitted that these interpretations certify that the rights related to food in connection with supply, storage, cleaning, processing, alteration, import and export will all be governed by the provisions of this act, thereby granting the consumers and traders and manufactures the rights and privileges while enforcing on them the duties that are to be fulfilled under the act.

The term “trader” has been defined as any person who –

(a) Sells or supplies goods wholesale to other persons, (b) Sells or supplies goods at retail rates to consumers, (c) Imports goods for the purpose of sale or supply and (d) Provides services for a consideration.

A consumer cannot argue or claim that his right to food security has been violated when the trader refuses to sell the goods at wholesale price, if the consumer has only requested a quantity that would be considered as a retail quantity. This has also been guaranteed by specific provisions in this act. This is an interpretation that protects the rights of the traders.

A person who would be importing goods for sale or supply would also be considered as a trader for the purposes of this act. Hence, imported food items would also fall into this category.

According to Section 937 of the Act, the relevant authority has the power to undertake any study regarding the sale or supply of any class of goods as would ensure the availability 37

Section 9 The Authority may – (a) undertake such studies in respect of the sale or supply of any class of goods and services as would ensure the availability to the consumer of such goods and services of satisfactory quality at reasonable prices and in adequate quantities

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to the consumer such goods and services of satisfactory quality at reasonable prices and in adequate quantities. The term goods and services, also includes food products and related services. Hence, this is a provision which guarantees adequate supply of food whose quality is satisfactory. This in turn guarantees the right to food safety, because the food needs to be of satisfactory quality.

Section 1038 also states the activities that can be undertaken by the authority for the protection of the consumer. Section 10 (4) plays a special importance in relation to food safety39, according to which any person who changes the labels or descriptions of a good could be liable for an offence under this act. It could also be interpreted that information like the expiry dates, the ingredients, the date of manufacture; the manufacturer’s name etc that appears on a food packet cannot be changed. This is a direct way of protecting the consumers’ rights to have access to safe food.

Guaranteeing the right of the customers to have access to safe food would be rendered nugatory if the prices of the goods which are being sold in the market are not controlled.

(b) promote, assist and encourage the State or other organisations including organisations of consumers, for the purpose described in paragraph (a) (c) assist and encourage associations of traders to enter into agreements with the Authority for purposes described in Section 14.

38 Section 10: The Authority may for the protection of the Consumer – Section 10 (1) (a) Issue general directions to manufacturers or traders in respect of labelling, price marking, packeting, sale or manufacture of any goods: and (b) Issue special directions to any class of manufacturers or traders, specifying – (i) The time during which and the places at which such goods may be sold: and (ii) Any other conditions as to the manufacturing, importing, marketing, storing, selling and stocking of any goods.

Section 10 (2) Every direction issued by the Authority under subsection (1) shall be published in the Gazette and at least one Sinhala, one Tamil and one English newspaper.

Section 10 (3) Any manufacturer or trader who fails to comply with any direction issued under subsection (1) shall be guilty of an offence under this Act. Section 10 (4) any person who removes, alters, obliterates, erases or defaces any label, description or price mark on any goods in respect of which a direction under subsection (1) has been issued or sells or offers for sale any such goods from or on which the label, description or price mark has been removed, altered, obliterated, erased or defaced shall be guilty of an offence under this Act. 39 Any person who removes, alters, obliterates, erases or defaces any label, description or price mark on any goods in respect of which a direction under subsection (1) has been issued, or sells or offers for sale any such goods from or on which the label, description or price mark has been removed. altered, obliterated, erased or defaced, shall be guilty of an offence under this Act.

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An essential aspect of right to food safety also includes the right that a consumer has in having access to food. Accessibility would, among other things, also be dependent on the prices that have been decided. Hence, the consumer would necessarily have the right to purchase the good at the price which is marked on the good, without having to pay a higher price. This right too has been guaranteed by the Consumer Affairs Authority Act. By virtue of Section 11, any attempt to sell any good above the marked price has been prevented.

Section 14 (1) (a)40 states that the authority may at times decide the maximum price for which a good may be sold. It is important to note the kind of situations when this can be done. Sri Lanka is a country which is mainly dependent on its agricultural products. That is the reason for analysing the right to food safety also from the point of view of farmers’ rights. When depending on an agricultural economy, it is also understandable that there would be circumstances in which the crops are damaged due to bad weather which could cause a reduction in its supply. According to the principles of economics, the price of the agricultural crops could rise because of the shortfall. However, if the prices of the goods rise uncontrollably, that would affect the bottom tier consumers in a negative manner, thereby hindering their right to have access to food. In order to have control over such circumstances, the authority can determine a “maximum price” or a “price ceiling” for the goods. This would guarantee that the suppliers will not raise prices according to their whims and fancies.

“No trader who has in his possession, or custody, or under his control, any goods for purpose of trade within Sri Lanka, shall refuse to sell such goods”, according to Section 15 (1)41. However there are exceptions to this. According to Section 15 (2) (b)42, if the

40

Section 14 (1) (a) The authority may enter into such written agreements as it may deem necessary, with any manufacturer or trader or with any association of manufacturers or traders to provide for – (a) The maximum price above which any goods shall not be sold.

41 Section 15 (1) – No trader who has in possession or custody or under his control any goods for purpose of trade within Sri Lanka, shall refuse to sell such goods.

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trader is carrying on business solely as a wholesale trader, he may refuse to sell goods if the customer demands such goods on a retail basis. The only other situation where a trader could refuse to sell the goods is where the goods have been retained for the consumption of the trader and his family.

Section 1743 of the Consumer Affairs Authority Act also guarantees the availability of goods for the purchase of consumers in another way. This section states that no trader shall be engaged in “hoarding” of goods and “storing” in a manner that exceeds his trading needs. This, therefore, prevents the traders from keeping goods in stores and controlling the availability of goods in the market which could negatively affect the purchasing ability of the consumers. Hence, this section too could be interpreted as one that guarantees the availability of food and its accessibility. One could also argue that by preventing the traders from unnecessarily storing the goods, the protection of food safety is also guaranteed.

Pricing of the goods is another important aspect with regard to guaranteeing accessibility, availability etc. Section 2644 of the act protects the rights of consumers in this respect by requiring all traders to display the prices of the goods and keep a complete list of prices

42

Section 15 (2) – in any prosecution of any trader for the contravention of the provisions of subsection (1) it shall be a sufficient defence for the accused to prove that (b) He carried on business in the goods as a wholesale trader only. And that the sale of the quantity demanded by the buyer would have been contrary to the normal practice of a wholesale business.

43 Section 17– (1) no trader shall conceal in his place of business or any other place, any goods in such quantity as is in excess of the normal trading requirements of such trader.

(2) No trader shall have in his possession or custody or under his control in his place of business or any other place, any goods in such quantity in excess of – (a) The quantity required for his personal consumption and of the members of his household: or (b) The requirements of the normal trading activities of such trader.

(3) No person other than a trader shall have in his possession or custody or under his control any goods in such quantity in excess of the normal personal requirements of such person.

44 Section 26 (1) Every trader shall exhibit conspicuously in his place of business, a notice specifying the maximum retail or wholesale price, as the case may be, of goods available for sale, in his place of business other than the price of any goods, the price of which is marked on the goods itself or on the wrapper or pack containing it or marked in any other manner as may be required by any law.

(2) A complete list of the price of goods available for sale shall be kept within the place of business at all times for inspection whenever required.

38

of all goods that are sold in his premises at all times. This provision was implemented recently. Traders who do not display the price lists would be committing an offence under this act. Availability of food and its accessibility depend on pricing as well. The prices of essential goods and food items should be decided considering their affordability.

Section 26 guarantees this aspect.

Section 2845 spells out certain specifications that should be followed when selling a good and providing a receipt for the sale. It states that: Every trader who sells any goods shall on demand, issue to the purchaser thereof, a receipt setting out (a) the date of the sale; (b) the quantity of goods sold; (c) the price paid for such quantity; (d) nature of the transaction, that is to say, whether the sale was wholesale or retail; and (e) any other requirements that may be imposed under any law relating to the issue of receipts by a trader.

According to this section, it will allow the consumer to protect his/her rights if there is a discrepancy between the goods that were sold to him and the description that appears on the receipt.

The quality of the goods that are sold is also dependent on what the consumer believes the good to be. Such a belief usually arises from the description that is attached to a good.

In describing and in selling goods, the traders are not expected to act in a misleading or a deceptive manner. This is stated in Section 3046 of the act. In this case, if a trader misleads a consumer as regards the quality, quantity or any other important matter of a

45

Section 28 is set out in full in the content.

Section 30 - No trader shall in the course of a trade or a business, engage in any type of conduct that is misleading or deceptive or is likely to mislead or deceive the consumer or any other trader.

46

39

food item, the trader would necessarily be engaging in an offence against the provisions of this act. This has further been fleshed out in Section 3147. False representation, making false statements regarding the quality of the good etc would be considered offences under the provisions of this act. An analysis of all the provisions of the Consumer Affairs Authority Act proves that the sections guarantee not only the availability of food, but also food quality, food quantity, food security and food pricing.

10. Laws Pertaining to Land 10.1

State Lands Ordinance

The purpose of this ordinance is to make provision for the grant and disposition of state lands in Sri Lanka; for the management and control of such lands and the foreshore; for the regulation of the use of the water of lakes and public streams; and for other matters incidental to or connected with the matters aforesaid.

According to Section 2, the President in the name and behalf of the Republic can make grants on state land which could be absolute or provisional grants or authorize the sale, lease or disposal of state land in any other suitable manner. In addition, the President may approve a special grant or lease of state land at a nominal price or a nominal rent or gratuitously for any charitable or scientific purposes or for any other purposes which has been approved by the President.

47

Section 31 – any trader who in the course of a trade or business, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services – (a) Falsely represents that goods and services are of a particular standard, quality or grade or that goods are of a particular style or model (b) Falsely represents that goods are new (c) Represents that goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits they do not have, (d) Represents that such trader has a sponsorship, approval or affiliation he does not have (e) Makes false or misleading statements concerning the existence of, or amounts of price reduction or price increase. (f) Makes false or misleading statements concerning the need for any goods, services, replacements or repairs or (g) Makes false statements concerning the existence or effect of any warranty or guarantee shall be guilty of an offence under this Act.

40

All three policies have food security and food sovereignty as a policy principle and they have been approved by the Cabinet of Ministers. According to Article 33, gratuitous grant of land, or for a nominal fee, is possible in order to enhance and ensure food security and food sovereignty. 48

In addition, according to provisions of Section 14, the President may mitigate or release any of the terms, covenants and conditions set out in any lease, permit or license issued under this ordinance. The President can also grant extensions of time, allowed to the grantee for the performance of any act, condition or covenant, for any period49.

According to Section 47, the local authority, can with the sanction of the minister in charge of local government affairs, lease any land vested under the authority of this ordinance for any purpose as declared under the Land Development Ordinance. This type of grant is treated as if the said land has been given out under the provisions of the Land Development Ordinance.

10.2

Land Reform Law

The purpose of this law was to establish a Land Reform Commission with the following objectives: (a) To ensure that no person shall own agricultural land in excess of the ceiling; and (b) To take over agricultural land owned by any person in excess of the ceiling and to utilize such land in a manner which will result in an increase in its productivity and in the employment generated from such land.

Section 3 of this law puts a ceiling on land holding. According to 3 (1) (a), any land in excess of it (ceiling) should be vested under the Land Reforms Commission or be held by a person under lease from the Land Reforms Commission50.

48

Article 33 has to be cited Section 15 of the Ordinance 50 Section 3 (2) 49

41

According to Section 5, any person who becomes an owner of land in excess of the ceiling shall also be subjected to the provisions of Section 3 and that any land that is in excess will be held by the Land Reforms Commission. According to Section 6, if the land is an agricultural land that has been vested under the Commission, the Commission has absolute title to such land. According to Section 7, if a land has been co-owned by two or more persons, each co-owner is deemed to be the owner of his share in a distinct and separate entirety.

The purpose of this law was to distribute land in a fair and equitable manner among that not in possession of any land of their own. It was also expected to maintain and enhance the productivity of such land, including agricultural productivity.

10.3

Land Development Ordinance

The purpose of this ordinance was to bring about a Systematic Development and Alienation of State Land in Sri Lanka.

The definition of “land� for the purposes of this ordinance includes any title to any land or any interest in the crops that is grown on or that is intended to be grown on such land.

The purpose of this ordinance was to grant land to people through the office of the Land Commissioner under Section 3 (1)51. This was expected to develop the land, increase the productivity of agriculture, dairy farming and other activities. Grants or leasing out could be done on an annual basis or given out for longer periods as per the agreement / permit issued by the Land Commissioner. According to Section 3552, the Land Commissioner may authorize the government agent to include conditions that could be applied in individual cases or to classes of cases in particular areas. According to Section 3753, such 51

(1) A land commissioner may be appointed who shall be responsible,(a) for the due performance of the duties and functions assigned to him as land commissioner under this Ordinance(b) for the general supervision and control of all Government Agents and land officers in the administration of State Land and in the exercise and discharge of the powers and duties conferred and imposed upon them by this Ordinance.

52 The Land Commissioner may authorize the Government Agent to include in a grant special conditions applicable to individual cases or to classes of cases in particular areas.

53 The conditions included in any grant shall, as from the date of such grant, run with the land and shall bind the original and all owners thereof and all persons whomsoever who acquire any title thereto

42

conditions, and any other conditions, will bind the owners and other persons who acquire the land. These conditions include naming the type of agricultural activities or crop practices or specific types of crops that can or cannot be permitted to be grown.

10.4

Land Acquisition Act

According to the preamble of the Land Acquisition Act, it was enacted for the purpose of “making provisions for the acquisition of lands and servitudes for public purposes and to provide for matters connected with or incidental to such provision54.” Section 6555 of the act states that public purpose “includes a purpose which, under this Act or any other written law, is deemed to be a public purpose”. This section can have a very broad interpretation which means that the relevant authority could even acquire property for the purposes of agriculture and cultivation of food products. And, this will have a direct and a favourable impact on the food security of Sri Lanka.

11. Laws Pertaining to fertilisers and pesticides 11.1

Fertiliser Act

The purpose of this act is to regulate the sale of fertilisers and to prevent adulteration. It was drafted to replace the Fertilizers Ordinance. All fertiliser material that are known as chemical fertilizers and organic fertilizers and any other materials that can be used as fertiliser, soil conditioner or as a supplement to a fertiliser are included in its jurisdiction.

The First Schedule of the act gives a list of all such things and substances that fall under the category of fertilisers and the Second Schedule gives the definitions of terms under which the fertiliser can be sold. The Second Schedule has prevented the misuse of a name, or the misnaming of the fertiliser substance, or a product or a compound fertiliser.

According to Section 6, any person who sells any fertiliser specified in the First Schedule, regardless of the trade name, should inform the purchaser the name under which this fertiliser is being sold and the particulars of nature, substance and the quality

54 55

See the preamble of the Act. Interpretation Section

43

of the fertiliser. Such information should also include the amount of an ingredient or ingredients contained in the fertiliser in relation to the Sections mentioned in the First Schedule. The same section makes it mandatory that such information should be made available to the buyer, either on or before delivery or within a reasonable time, and that such statement should be given in writing. According to Section 8 any purchaser of a fertiliser can apply to the fertiliser inspector of the area, appointed under Section 356 of this act, to get a sample of a fertiliser sold to him. It should be accompanied by a prescribed fee and a copy of the statement under Section 6 that has been provided to the purchaser. Any person who fails to comply with Section 6 or gives a misstatement or wrong information is committing an offence under Section 11. According to Section 14 any fertiliser inspector can take samples of any fertiliser that has been prepared for sale or any other consignment.

11.2

Regulation of Fertilisers

The purpose of the Fertiliser Act is to regulate the import, manufacture, formulation and distribution of fertilisers in the country. The term fertiliser, as per Section 29, means any substance, containing one or more recognised plant nutrients, which is used for its plant nutrient and which is designed for use, or claimed to have value, in promoting plant growth but does not include unmanipulated animal and vegetable manures. According to Section 2 every person who wants to import, manufacture and engage in formulation of fertilisers can to do so only after obtaining a license issued by the Director of the National Fertiliser Secretariat. A license should contain the terms and conditions that are provided under the Schedule of this act.

According to Section 7, the duration of the license is for twelve months from the date of its issue and, according to Section 8, could be renewed from year to year. The Director has, according to Section 12, powers to enter any place where fertilisers are 56

For the purposes of this Act there may be appointed , by name or by office, the necessary number of –(a) persons to be or act as Deputy Chief Fertilizer Analysts (b) persons to be or to act as Fertilizer Analysts, (c) persons to be or to act as Fertilizer Inspectors, and (d) Other officers and servants

44

manufactured, formulated, stored or distributed and to inspect any equipment, storage facilities, raw materials and the finished product. He/she can take samples for analysis of any such material or product, seize and detain any adulterated fertiliser and also require any license holder to provide him/her with any other relevant information. According to Section 13, the sale and distribution of fertiliser in package form has been regulated.

Section 14 is important as it prohibits a distributor from refusing to distribute fertiliser in his possession. According to Section 15, it is an offence to distribute any adulterated fertiliser and no transporter can knowingly or connive to distribute any adulterated fertiliser. According to Section 16, the Director of the National Fertilizer Secretariat can empower an officer under Section 5 to seize and detain any adulterated fertiliser. And such seized material can be kept or stored in the very place or buildings where it was seized from or could be removed to any other place or storage. The sample of such fertiliser has to be analysed by an approved analyst and reported to the Director57.

According to Section 18, no person other than an importer, manufacturer, formulator or distributor of fertiliser can keep a stock in excess of the requirements of his lands for one year.

11.3

Control of Pesticides Act

The purpose of this Act is to provide for the Licensing of Pesticides •

to regulate the Import, Packing, Labeling, Storage, Formulation, Transport, Sale and Use thereof;

•

for the appointment of a Licensing Authority for Pesticides;

•

for the Establishment of a Pesticide formulary Committee and

•

for matters connected therewith or incidental thereto.

According to Section 2, this act applies to all active ingredients and pesticide formulations as well as to all other substances that are included in a pesticide 57

Section 17

45

formulation. According to Section 3, a person with knowledge of toxicology and biological subjects associated with pest control shall be appointed as the Registrar of Pesticides and shall be responsible to the Director General of Agriculture58.

Any person who wants to import, distribute and sell pesticides shall do so only upon receiving a license. According to Section 6, the application shall contain inter alia the potency, effect and the shelf life of the pesticide, adequate toxicological data, the trade name proposed, reports of the efficacy of the pesticide and information concerning the safety of the pesticide if such information has been requested by the Registrar. According to Section 8, the Registrar shall issue a license and the label of the pesticide should contain among other things the common names of the active ingredients, a statement of the composition of the pesticide and adequate directions in the manner in which it should be used and adequate warning and precautionary symbols and statements of first aid and antidote information. This label should also contain information about the period of time which should elapse between the last application of the pesticide and the harvesting of the crop.

According to Section 15, it is an offence to sell any adulterated decomposed or deteriorated pesticide or to sell it packed in containers which are deteriorated or damaged rendering them dangerous in storage or use. Section 16 prohibits storing, transporting, selling or offering for sale any pesticide in close proximity with foodstuff, or in any other manner that would result in any contamination of any foodstuff.

According to Section 21 the Director General of Agriculture shall nominate officers to ascertain whether this act is being adhered to, or violated by, license holders. Such authorized officers can enter any premises and take samples, and according to Section 22, provide such samples to the seller or his agent and authorised analyst and the Registrar of Pesticides. According to Section 25 a court, upon conviction of an offender, can make an

58

The Director General of Agriculture is appointed under Section 3 of the Department of Agriculture Ordinance No 37 of 1921.

46

order to seize and forfeit to the state any article in respect of which an offence has been committed.

11.4 Agrarian Development Act59 This act is to has provisions relating to •

Landlords and Tenant Cultivators of Paddy Lands,

•

utilization of Agricultural Lands in accordance with Agricultural Policies;

•

the Establishment of Agrarian Development Councils,

•

the establishment of Agrarian Tribunals,

•

the repeal of the Agrarian Services Act, No 58 of 1979; and

•

matters connected therewith or incidental thereto.

According to Section 22, any owner, cultivator or occupier of any agricultural land is responsible for its efficient management. He/she must follow the best practices suited for the land in accordance with standards of cultivation. These standards are spelled out by this act and regulations with a view to improving the productivity and maintaining efficient standards of production. This includes not only the cultivation of crops but also extends to the keeping of livestock and inland fish. Regulations can be made to describe the crops to be cultivated, the types of livestock to be reared or the fish that could be bred and reared, in accordance with the situation and the natural resources of the land, with a view to efficiently manage the land.

According to Section 28, the Commissioner General of Agrarian Services can decide whether an extent of land is a paddy land. Section 29 empowers him/her to identify paddy lands that yield sufficient paddy and also lands from which sufficient production can be obtained when cultivated with other crops. This could be done by appointing Productivity Committees for Administrative Districts or for different parts of Administrative Districts as he/she may deem fit. According to Section 30, paddy lands recognised for their maximum yields from paddy cultivation shall be cultivated with paddy during every 59

No 46 of 2000

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season of paddy cultivation. If paddy cannot be cultivated in such land due to a natural or other cause then an agricultural crop, which is not a perennial crop, may be cultivated but only after a written permission from the Commissioner General.

In case of paddy lands that give satisfactory production when another crop, other than paddy, is farmed such land can be cultivated with a half-yearly crop with the permission of the Commissioner General. A long-term crop can also be farmed in such land upon prior written approval of the Commissioner General. Section 31 empowers any authorised officer to inspect an agricultural land to ascertain whether it has been used for an authorised purpose, to see whether it is being filled up or is about to be filled up with other material or to see whether any structure is being built or whether such land is being used or prepared for any other purpose other than the cultivation of a crop.

According to Section 32, anyone who fills up any area of paddy land, without obtaining written permission from the Commissioner General, or attempts to fill it or uses any paddy land for purposes other than agricultural purposes, makes any construction, removes soil from a paddy land or attempts to do so is committing an offence. Similar provisions exist in Section 33 to prevent the filling up of paddy lands.

Section 2 gives rights to persons who cultivate paddy lands as tenant cultivators. It makes it mandatory for a owner to offer it to the tenant cultivator as the first choice, if he intends to sell his land. If a tenant cultivator is willing to purchase such extent of such paddy land, but the price offered by the owner is excessive, he may inform the Agrarian Development Council who may thereafter in consultation with the owner determine the reasonable price with regard to the market value of paddy lands in the area; and also fix a time limit within which such transfer should be completed.

Any transfer of a paddy land by an owner, in contravention to this section, can be made null and void by the Commissioner General after holding an inquiry and any person who is in possession of such land can be evicted. A tenant cultivator can, under Section 3, by a 48

written notice to the Farmers’ Organization and the Agrarian Development Council transfer or cede his right to an extent of land. According to Section 5, the maximum extent of paddy land that can be cultivated by a tenant cultivator is five acres. However, the Minister can by a Regulation determine the extent of paddy land which can be cultivated by a tenant cultivator within any given district. A tenant cultivator, who is in possession of a greater extent of paddy land than provisioned, can select the extent of paddy land which he is entitled to cultivate and should vacate the excess land. Upon the vacation that extent of land shall be cultivated by the landlord.

According to Section 6, any person to whom an extent of paddy land is leased out or given under oral or written consent shall be deemed as a tenant cultivator.

12. Analysis of Basic International Provisions Article 11 of the International Covenant on Economic Social and Cultural Rights states that “Everyone has the right to an adequate standard of living for himself and his family, including adequate food, clothing and housing. Everyone has the right to be free from hunger”. It can be stated that the Sri Lankan Constitution guarantees this particular right through the Directive Principles of State Policy that have been listed out in Chapter VI of the Constitution.

Sri Lanka is also bound by other provisions of the International Covenants to which Sri Lanka has become a party. For example, Article 24 of the Convention of the Rights of the Child requires the state parties to guarantee food rights to children. Article 24 (2) (c) states that the government shall pursue the full implementation of the right to “combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution”. Sri Lanka signed the Convention on the 26 January, 1990 and ratified it on 12 July, 199160. However, it has not been acceded to as 60

Information regarding signing, ratifying etc of international covenants by state parties available at:

49

yet. In Sri Lanka, the mere signing and the ratification of an International Treaty would not bring about the rights unless an internal enactment explicitly establishes those rights.

Hence, this is an area which cries out for recommendations.

When analyzing constitutional provisions on food rights, a common feature that can be noticed is the lack of the right to food as a fundamental right. In many instances, this is listed as a fundamental policy or that the state should consider in making policies, and not incorporate it as a fundamental right. The reason behind this could be the fear that the state would then have to provide food to those who cannot afford to buy or grow their own food.

On 12 December, 2011, a Declaration from the South Asia Regional Peoples Convention on Food Sovereignty was made in Calcutta, India. Sri Lanka was also present when this Declaration was made. It was made while discussing the “status of food security in South Asia�61. The conference highlighted unwillingness of state parties to address the structural imbalances that exist in relation to the establishment of the right to food security. It recognized the following threats as impediments that exist in relation to the right to food security: (i) non-implementation of state obligations in relation to right to food (ii) insensitivity among state parties and lack of knowledge of citizens (iii) the issue of not addressing structural imbalances and lack of care given to vulnerable groups (iv) Failure of the state to implement genuine reforms in agriculture, forestry and fishery sources (v) Lack of grassroots governance methods (vi) Existence of gender discrimination.

http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en 61 Information available at http://www.sacw.net/article2469.html

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Reforms have not yet been implemented to rectify these issues. Gender discrimination and failure to implement genuine reforms are evident in the Sri Lankan context, even in the aftermath of the war.

13. Recommendations for Food Security in Sri Lanka 13.1 Using Directive Principles of State Policy to Guarantee the Right to Food

Safety Bringing about a constitutional amendment, whereby the right to food or the right to food safety is guaranteed, would be a difficult task to accomplish. That would be difficult due to the consequences of incorporating the right as a fundamental right. Hence, the recommendations that follow looks at what can be done with the existing laws, statutes, international covenants and other governmental policies.

Chapter VI of The Constitution of the Democratic Socialist Republic of Sri Lanka lays down the Directive Principle of State Policy62 and Fundamental Duties. Article 27 (1)63 of the Constitution requires the Parliament, President and the Cabinet of Ministers to take DPSP into consideration when enacting laws. It is understandable that a just and free society cannot be established unless the basic human rights are guaranteed. This leads us to the need for the provision of the right to food safety.

Article 27 (2) (c) states that one objective of the state should be to provide “adequate food�. It goes without saying that for food to be adequate it should be in a sanitary condition and should also complete the nutritional requirements of a human being. The Food Act specifically lays down sections regarding the safe sale, importation, packaging, sanitary conditions of the food etc64.

62

Hereinafter referred to as DPSP The Directive Principles of State Policy herein contained shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society.

64 See the Sections of the Food Act No 26 of 1980 63

51

In addition, Article 27 (2) (e) states that there should be equitable distribution of “material resources” and “social product”65. This could be interpreted also as a guarantee of the rights of the farmers and other types of food producers, to use seeds and other materials which could be utilized, to produce food; and also a guarantee that such “social product” is made available to the consumer. It could further be stated that it should not only be available, but also equally distributed among the members of the society.

In making policy decisions regarding the right to food safety, another aspect that has to be given due consideration is whether this right is available to all citizens across the country irrespective of where they reside. This becomes important because most of the rights are only invoked by those that live in the cities and because, more often than not, the facilities seem to be concentrated and centralized. Article 27 (2) (f) provides for such circumstances by stating that “production, distribution and exchange” should not be “concentrated and centralized in the state, state agencies or in the hands of a privileged few”. This article also requires for such production, distribution and exchange to be “dispersed among, and owned by, all the people of Sri Lanka”. This can be interpreted as another provision which guarantees the right to food safety, both in terms of production and consumption.

However, Article 29 of the Constitution states that the DPSPs “do not confer or impose legal rights or obligations, and are not enforceable in any court or tribunal”. This can lead to the argument that the citizens of the country cannot refer to the DPSPs when attempting to enforce their rights. However, this argument does not extend to cover the obligations that the state has to perform on behalf of its citizens.

According to an Indian judgment, The State of Madras v Srimathi Champakam Dorairajan66, “directive principles of state policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights”. The above view has been reiterated in 65

Article 27 (2) (e) - “the equitable distribution among all citizens of the material resources of the community and the social product, so as best to subserve the common good”.

66 [1951] SCR 525

52

a few other Indian cases as well. This lays the foundation to the argument that the directive principles are to be taken seriously, even though they are not enforceable, in order to achieve the full implementation of fundamental rights.

In this context, Article 27 of the Constitution can be construed to mean that the Legislature and the Executive are formally expected to have regard to, and formulate, the laws in accordance with the DPSP. Hence, the legislature’s duty to incorporate the DPSP into laws that are enacted is by no means removed by the Constitution. It is a fundamental duty of the Parliament, the President and the Cabinet of Ministers and is not equal to the claiming of a right by the people. Although, people are unable to invoke the provisions of Chapter VI of the Constitution as a right, those provisions impose compelling obligations on the Legislature and the Executive which cannot be deviated from merely by taking cover under Article 29 of the Constitution.

Hence, it can be argued that the right to food safety is thereby guaranteed, as it is an obligation of the state as undertaken by virtue of the provisions of Chapter VI. This view has also been upheld by the Thirteenth Amendment to the Constitution67. Article 27 (2), read in conjunction with Article 27 (1), means that the Legislature and the Executive are expected to comply with the DPSP when legislating, because “the state is pledged to establish in Sri Lanka a democratic, socialist society” the objectives of which are mentioned in Chapter VI. Since the “label” given to Sri Lanka describes itself as the “Democratic Socialist Republic of Sri Lanka” it would then be absurd to argue that any deviation from the DPSP is appreciated, as that would harm the very core objective of the pledge made to the people in the Constitution.

67

[1987] 2 SLR 312 at p.327 “True the principles of state policy are not enforceable in a court of law but that shortcoming does not detract from their value as projecting the aims and aspirations of democratic government. The directive principles require to be implemented by legislation”.

53

13.2

Using Provisions of the Fundamental Rights Chapter to Guarantee

the Right to Food Safety The Fundamental Rights Chapter68 in the Sri Lankan Constitution does not specifically lay down any provision regarding the provision of food, food security or adequate living standards of the people. However, that argument cannot be used as an excuse for the nonprovision of basic guidelines for the provision of food security.

Article 12 (1) states that “all persons are equal before the law and are entitled to equal protection of the law�. This is an article which has been used in many fundamental rights cases in order to establish new rights and interpretations in favour of the protection of human rights.

Equal protection of the law should not be used on different levels of standards as it is expected to apply to all the citizens of the country irrespective of their race, religion, language, caste, sex, political opinion, place of birth or even the place of residence.

Hence, it is justifiable to argue that if the people living in a particular area have access to food in a way that is not guaranteed to those who live in another area, it can be used as an example of inequality.

There may not be complete equality as regards distribution of resources due to various other determinants, such as natural resources, employment conditions and environmental determinants. However, what is meant in this situation, as equality being applicable to the citizens by means of law, is that the law should take measures to guarantee that all citizens have access and rights to adequate food and food safety. If one part of the population is entitled to such rights, it would be unequal for the rest of the society not to have the same rights. Hence, it is recommended that these rights are made available to the country as a whole irrespective of the natural resource allocation.

68

Chapter III of the Constitution

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On that basis, it can be argued that the citizens of Sri Lanka can claim their right to food safety under Article 12 (1) in situations where that right has been applied differently due to actions of the administration or the executive.

Article 12 (1) has been used in various cases as a ground for obtaining the fundamental rights of people. It has been interpreted in cases to encompass rights of varying characters69. Hence, it is possible to interpret this article as encompassing the rights of all the citizens to claim equal rights in relation to food security.

14. Further Recommendations In terms of most of the laws that exist in Sri Lanka, it cannot be stated that they require change in order to have food security. However, a general recommendation that can be given regarding all the laws is that more rigorous enforcement of the laws needs to be exercised. Although the definition of food in the Food Act is wide enough to cover the new changes in the field of food, and although other acts such as the Consumer Affairs Authority Act have comprehensive provisions, their implementation lacks strength.

Hence, there can be situations in which the law can be considered insufficient to attain food security when actually that is not the case.

As was mentioned earlier, there are anti-hoarding laws in the Consumer Affairs Authority Act. However, in reality when price hikes are about to take place, there is a tendency among most of the traders to keep hidden stocks until the price hike is implemented. This issue is less applicable to goods which have price tags on them. But Sri Lanka, being dependent mostly on the agricultural economy, the prices of unpacked food products such 69

In Hettiarachci v Mahaweli Authority of Sri Lanka and Others [2000] 3 SLR 334 the right to equality has been interpreted in relation to the punishment carried out on an employee for refusing to permit the use of a public property for a political purpose. In Jayarathne v Fernando & Others [2000] 3 SLR 69 the cancellation of allocation of authority has been held as an infringement of right to equality. In Gunawardene v Ceylon Petroleum Corporation and Others [2001] 1 SLR 231, Article 12 (1) has been held to be applicable to the granting of dealership to petroleum products. In M. N. D. Perera v Balapatabendi, Secretary to the President and Others [2005] 1 SLR 185 Article 12 (1) has been stated as giving rights to a person to attend the function of Prime Minister’s taking of oaths as well. Hence, it is clear that this Article has a broad application and there is nothing to prevent this Article from being analysed in a manner whereby the right to food security is protected as well.

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as rice, dhal, onion and potatoes are determined according to weight. When traders hear news about a pending a price hike, they tend to keep stocks of unmarked or unpacked goods, refusing to sell until the price hike is implemented. This can be considered a violation of the rights of the consumers, because food availability is one main aspect of food security. Hence, it is recommended that strict implementation of the laws is needed.

A Committee should be appointed to look in to such circumstances in order to prevent the violations of the rights of the consumers.

In the Sri Lankan markets there are situations where traders attempt to display their goods in such a way as to pass off as another product. Due to the similarity between the packages of the original product and their imitations with similar labeling, consumers are tricked into buying a product that they do not actually wish to purchase. Hence, it is also recommended that awareness raising programmes regarding access to food, food availability, food purchasing and food pricing should be effectively implemented. This is a policy decision that can be implemented for the establishment of the right to food security.

With regard to fisheries, new laws should be drafted to declare closed seasons regarding certain types of fish during their breeding seasons. Fishermen should also be made aware of these laws prior to their implementation. Such off-shore closed seasons should be declared taking into consideration the ecology, biology and the way that different types of fish have been living in different parts of the sea.

It is also recommended that areas are demarcated as pasture lands, under the Pasture Land Act, in order to maintain and increase the productivity of the animal husbandry industry. The Pasteur Land Act needs to be amended to make it mandatory to get an environment and social assessment if an area declared as Pasture Land is to be revoked from that status.

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It is recommended that the Draft of the Plant Breeders Rights Act considers the following in enacting the legislation: (a) Protection to be afforded to traditional plant varieties and a system to pay adequate remuneration to the fund if a commercially viable variety is bred using the traditional varieties, varieties bred by public institutions etc. (b) Adequate remuneration to be paid to the fund if a commercially viable variety is bred using the wild relative of a crop plant found in Sri Lanka.

The Draft Seed and Planting Materials Act states that the act expects to protect the rights of users and handlers of seeds and planting materials. Section 20 of this draft act says that nothing in this act shall apply to any seed and planting material grown by a person for planting or sowing purposes without a commercial intention within his own premises.

Even though the purpose of this draft is to expand the protection given to the rights of users and handlers of seeds and other planting materials, because of the use of the special term “without a commercial intention� in Section 20, it can be argued that the rights awarded by the present Seeds Act has been restricted by the draft. Because of this, it can be suggested that it is better to insert Section 20 of the present Seeds Act to the draft as it already covers a wider range of rights of the farmers than Section 20 of the draft act. It is further recommended that more attention be given to underutilized crop varieties, especially those which can withstand adverse climatic and soil conditions to enhance food security by diversification of food sources.

Factsheet No 34, of the United Nations Office of the High Commissioner for Human Rights, suggests that the right to food security can be guaranteed better if the state parties give recognition to that right as a justiciable right. Current constitutional provisions available in Sri Lanka are not justiciable or enforceable as they are not considered fundamental rights. The right mentioned in the Directive Principles of State policy merely gives recognition to it as a policy that shall guide the state in making legislations.

However, the citizens of the country cannot claim this as a right. Hence, it is 57

recommended that attempts be made to upgrade the right to food security to make it justiciable.

Food and Agriculture Organization of the United Nations Organization has taken measures to guide the states in the implementation of the right to food security in the national context. The decision to do so was taken in 2004. It is recommended that a Committee be appointed to work in close connection with the Food and Agriculture Organization so that measures regarding the upliftment of the right to food security can be achieved.

According to the aforementioned factsheet, more women suffer from hunger and the number of women who die due to starvation is twice the number of men. Hence, it is also suggested that special measures be taken to look into women’s dietary needs, access to food and food availability. In post conflict Sri Lanka, this matter should be given priority in view of the increase in the number of female-headed households.

Article 14 of the Convention on the Elimination of All Forms of Discrimination Against Women specifically suggests that women should be given equal rights in enjoyment of food. This gives special recognition to the fact that women in the rural areas too should be given opportunities in accessing and enjoying the right to food. As Sri Lanka is also a party to CEDAW, it is recommended that women in the post-conflict society and the women of female-headed households should be given special attention in attempting to implement the right to food security across the country.

It is necessary to adopt laws where children are concerned. In order to realise their rights, an act on the Rights of the Child, in line with the Convention on the Rights of the Child, should be introduced in Sri Lanka. This would impart special protection to children in terms of health, right to food and access to food.

15. Conclusions and Way Forward 58

A review of relevant policies, laws and their respective regulations and their implementation shows that Sri Lanka has the relevant policy mechanism, laws and the basic regulations under the enactments to implement and attain food security and food sovereignty. However, it should be emphasized that there are several shortcomings which, if addressed, could make implementation more efficient and effective. Similarly, there are still areas where some new regulations will be helpful and needed in furthering the purposes. The National Agricultural Policy and the National Nutritional Policy have both emphasized the attainment of food security and food sovereignty as policy principles70. All decision-making should be done in conformity with these principles.

Furthermore, it is encouraging to observe that the Directive Principles of State Policy under Article 27 (1)71 has acknowledged the need for food security in a roundabout way.

It is very clear that the existing legal framework and the policy framework can, with enough resources and motivation, can help attain the interlocking goals of food security and food sovereignty. Hence, it is clear that the mechanism that is in place could become more effective if the recommendations to enhance their strength and capacity are implemented. They are aimed at bringing about a smooth functioning of the system and to overcome the current shortages that have been shown in the report. A new Food Security Act, in the lines of the policy principles, is not needed as the existing provisions and some of the suggested improvements will adequately and comprehensively address the issues. Furthermore, the passing of a new act will have a negative effect as it may need to either create a new institution for its implementation. Or, it may overburden the already existing structures if the task of carrying out the provisions of such an act is vested in an already existing institution.

In the present context of Sri Lanka, sharing of tasks among different institutions with a coordination mechanism, to both implement and formulate policy, is the best way forward as it does not need any extra time and resources-- for passing of new legislation,

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Vide National Agricultural Policy and the National Nutritional Policy Vide The 1978 Constitution of Sri Lanka

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establishment of a new institution or a new mechanism. Rather, working through the existing mechanisms will be more effective and efficient in view of their knowledge and experience.

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16. Annex 1 Subsequent to the Consultation …

Mahinda Chinthana At the Consultation held in Kathmandu, Nepal in July 2013 it was suggested by Mr. Thilak Kariyawasam that the Sri Lankan statement on food security should also contain an analysis of the Government Policy adopted by the government headed by President Mahinda Rajapakse. The current government policy is based on the document popularly known as “Mahinda Chinthana”72 which was released as a mandate prior to the President assuming his duties of the post as President of Sri Lanka. Subsequently, in 2010, the policy was amended and it was titled ‘Mahinda Chinthana – Vision for the Future’.73

The policy contains not only recommendations for the development of the agricultural sector, but also recommendations for the development of the general standard of nutrition among the citizens of the country. Professor Ranjith Premalal De Silva has stated, during an interview74, held in 2010 that the recommendations made regarding the development of agriculture in Mahinda Chinthana have been implemented and that as a result the ‘overall living standards of the rural peasantry improved dramatically’. Although this can be substantiated by comparing the statistics of the Annual Reports of 2010 and 2011, which show an increase of the employment rates in the agricultural sector, the situation has changed in 2012. The percentage of employment in the agricultural sector in 2010 is recorded as 32.7 per cent in 2010 while it is recorded as 32.9 per cent in 2011. It has declined to 31 per cent in 2012 which is a matter that Sri Lanka needs to take into serious consideration as the employment rates in the agricultural sector can have a major impact on the food security of a country dependant on agricultural products.

In the policy document, it is further stated that steps would be taken ‘to provide all expectant mothers who cannot afford a nutritional meal, a basket of nutritional food items as required by them, free of charge’75. Despite the claims made by many parties that Sri

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Accessed at http://www.president.gov.lk/pdfs/MahindaChinthanaEnglish.pdf Accessed at http://www.asiantribune.com/sites/asiantribune.com/files/Mahinda_Chinthana.pdf 74 Accessed at http://www.sundayobserver.lk/2010/01/17/spe05.asp 75 http://www.president.gov.lk/pdfs/MahindaChinthanaEnglish.pdf at p. 6 73

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Lanka has a well-defined food policy, it contains lacunas in certain respects as regards implementation. However, in respect of maternal and child nutrition there have been positive changes as has also been highlighted by the article titled Maternal and Child Nutrition: The Sri Lankan Perspective76. However, it is regrettable to observe that some of these developments are not attributable to the countrywide policy of Mahinda Chinthana, as sufficient statistical data on the same cannot be easily retrieved to assess its contribution or impact. Though not attributable to the original policy document, the developed status of maternal and child care can be attributed to the nation-wide social welfare policies that have been adopted by the government.77

The initial policy document also states that a monthly allowance of Rs.200 would be given for each child below the age of five for the purpose of purchasing milk. The genuine nature of such promises remains to be questioned in the current context in Sri Lanka. Although providing such an allowance for the aforementioned purposes would have been in line with Article 27 (2) (c) of the 2nd Republican Constitution of Sri Lanka, 1978, the government has recently faced issues regarding the safety of milk powder available in the market for public consumption.78 Let alone providing the families with a subsidy for the purchase of milk powder, there were difficulties in making adequate amounts of milk powder and / or liquid milk available in the market.

It needs to be appreciated in this context that immediate steps were taken to assess the quality of the milk powder available in the market while the government carried out a separate campaign of promoting the use of liquid milk. The only ‘glitch’ that one may point to in this regard is the high price of milk powder and liquid milk which directly and negatively impact on the food security of the country.

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Indian J Med Res 130, De Silve A., Mahamithawa A.A.S.B. and Piyasena C. (a study published in 2009) Ibid.

78 For a more detailed analysis in this regards, please see Plate of Rice with a Touch of Rights, Medawatte D, accessible at http://www.lawandsocietytrust.org/PDF/resource/Touch%20of%20Rights.pdf 77

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Under the title, ‘A Prosperous Village’, Mahinda Chinthana also claims to be able to provide drinking water without any restrictions. In most parts of the country there is clean drinking water that is available and such availability is only threatened in times of severe droughts or pollution caused by factories. In the recent event of ‘Rathupaswala’ water crisis, that arose as a result of the release of toxic waste by a factory, the government, albeit after several deaths of citizens, took steps to provide drinking water in tanks to the affected areas. Hence, it can also be validly stated that when food security is threatened, there are certain positive steps that are taken immediately to remedy the situation.

Nonetheless, as is the case in every country in the world, political promises are not carried out or implemented in full in Sri Lanka as well. This is one of the fears that the researchers feel in directly recommending the introduction of an Act for the promotion of Food Security in Sri Lanka. While it would be considered a welcome change and would amount to a codification of the laws which are scattered across many acts of Parliament and policy documents, steps should also be taken to implement the already existing laws which are quite capable of promoting and protecting food security in Sri Lanka. Hence, it can validly be stated that the problem lies not in the law but in the implementation of the law.

Some of the other aspects which can contribute to food security that have been mentioned in Mahinda Chinthana are as follows: 1. Irrigation water for paddy fields 2. Cooperative market centre to provide the village needs cheaper and conveniently 3. Paddy stores, fertiliser stores and rice mills.

Special measures have been taken in Sri Lanka to cultivate abandoned lands and that has taken place as a result of the implementation of some of the policies contained in Mahinda Chinthana. Special measures have been adopted to cultivate lands in formerly war torn areas of the Northern Province. As was suggested during the consultation, as a country which has recently seen the end of a thirty-year war, Sri Lanka should take steps 63

for the development of the former war-torn areas and the establishment of food security in such areas takes prominence in this regard. It would not only secure food production and provide food security to Sri Lanka as a whole, but would provide employment opportunities to war affected families in their ancestral properties. This would also contribute to the mental healing of such individuals. ‘Hadabima Authority’79which is established under the Ministry of Agriculture Development and Agrarian Services of Sri Lanka80has taken steps to cultivate uncultivated lands in Vavuniya, Mullaithivu, Kilinochchi, Mannar and Anuradhapura.81 ‘Api Wawamu Rata Nagumu’ Programme82 The objectives of the programme have been stated as below: •

Increase the production of essential food crops.

•

Enhance contribution of agriculture to the GNP.

•

Ensure food and nutrition security of the people.

•

Improve consumption pattern of the people

•

Reduction of foreign exchange spent on food imports annually

•

Dissemination of modern and appropriate technologies.

•

Increase youth involvement in agriculture.

•

Promotion of environment-friendly and local/traditional agricultural methods83

As this report contains an analysis of the acts of Parliament and other major policy documents at the outset, no need was felt for the incorporation of policies that were introduced as integral parts of political mandates or agendas. However, at the Consultation held in Kathmandu, Nepal, Mr. Thilak Kariyawasam and parliamentarian Mr. Buddhika Pathirana highlighted the importance of government policies which have been introduced as a part of the governmental mandate.

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Also known as Sri Lanka’s Green Lands Development Central Authority Accessible at http://www.hadabima.gov.lk/ 81 http://www.colombopage.com/archive_12A/Sep30_1349013572CH.php 82 This can be roughly translated as ‘Let’s Grow Crops and Develop the Country’ 83 Please see the Ministry of Agriculture website for more details. Accessible http://www.agrimin.gov.lk/web/index.php/en/project/12-project/164-api-wawamu-rata-nagamu 80

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at

Among the proposed activities of the ‘Api Wawamu Rata Nagamu’ campaign a high priority is given to: •

Home gardening

•

Increasing the food production

•

Production and utilisation of organic manure

The Department of Agriculture, in keeping with the aforementioned policy decisions, now supplies services of providing seeds of various plants categorised as essential. These seeds are sold to the public at a reasonable price with the view of promoting home gardening and for the purpose of encouraging the general public to use home-grown plants in their day – to – day meals.

In addition to the aspects mentioned above, the programme also contains a mandate for further development of agriculture. The following aspects are highlighted in this regard: •

Establishment of an authority for production and popularisation of organic fertiliser

•

Promotion and dissemination of environment – friendly agro – technologies

•

Marketing

•

Promotion of seeds and planting material production

•

Dissemination of post – harvest technology

•

Coordination of inputs and services

•

Optimum use and conservation of natural resources

•

Organising farmers and ensuring active contribution

It is noteworthy that the policies adopted by the government for the promotion of food security not only attempt to remedy the existing lacunas at a macro level but also attempt to do so at a micro level as well. At the macro level, government policies that are mentioned above endeavor to develop national food security and availability and reach higher standards as a nation. At the micro level, attempts have been made to improve the 65

individual’s ability to purchase food, grow food and, in general, to increase the availability of food.84

‘Divi Naguma’ Programme This is yet another government scheme that was implemented in Sri Lanka for the upliftment, among other things, of the general living standards of the citizen. This initiative was taken under the guidance of the Ministry of Economic Development. It has been stated by the minister concerned, Honourable Basil Rajapakse, that fifty poor families from 14,008 Grama Seva Divisions in the island will be selected for a programme of poverty alleviation which is directly connected to food security of individuals of the country85.

As per the Millennium Development Goals86undertaken by the Sri Lankan Government, poverty alleviation is a task that should be performed for the development of the country.

It has been restated by the Minister of Economic Development that the selected families will rise up from being poverty stricken by 2016. Such policy decisions will, on being implemented effectively, contribute to the status of food security of the country immensely.

Despite the controversies that arose against the Divi Naguma Bill, the programme which was implemented under the said programme has done much for the development of general living standards and employment of many. Under the project undertaken by the Divi Naguma Department, effective mechanisms for poverty alleviation commenced on the 3 January, 201487. This was done as per the provisions of the act which was implemented on 11 Janauary, 2013. It has been implemented by a Gazette Notification which was released on the same day. As per the relevant Gazette Notification88 the Divi 84

See in general in this regard Multiple Facets of Food (In)Security in Sri Lanka: An Input to Food Policy

By Samarathunga P.A., Policy Options to Achieve Food Security in South Asia at p. 51 85 See in general in this regard http://med.gov.lk/english/?p=15728 86 Analysed in detail elsewhere in this report 87 See http://www.colombopage.com/archive_13B/Dec25_1387992945CH.php 88 See the Gazette released on the 30th of September 2012

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Neguma combines Sri Lanka Samurdhi Authority, The Upcountry Development Authority, and Southern Development Authority. The purpose for the establishment of the Divi Naguma authority is mainly community development which is inclusive of the development of food security.

17. Where to from here‌ As was statistically revealed at the consultation, and as per the statistics provided in this report, Sri Lanka holds a high status as regards food availability and food security when compared with other Asian countries of the region. However, it is accepted that further changes need to be introduced for the protection and promotion of food security in Sri Lanka.

While it is accepted that a codification of laws in the form of a separate act for the promotion of food security should be the ultimate goal of each country, it is also submitted that such an introduction would serve no purpose if active and effective steps are not taken for the implementation of such laws. It was suggested at the consultation that countries which do not have a separate legislation on food security should strive to enact one and undoubtedly Sri Lanka falls in to this category. While such an enactment would be a welcome rain to the status of food security in Sri Lanka, in the interim period, steps should be taken to implement the already existing laws and policies.

AS WAS HIGHLIGHTED IN THE FINAL SEGMENT OF THIS REPORT, IN ADDITION TO THE NATIONAL POLICIES AND ACTS OF PARLIAMENT, SRI LANKA HAS THE ADDED BENEFIT OF HAVING ANOTHER POLICY DOCUMENT, ALBEIT POLITICALLY MOTIVATED. NOW THE TIME HAS DAWNED FOR THE IMPLEMENTATION OF SUCH POLICIES AND ACTS OF PARLIAMENT AS AN INTERIM STEP. ALTHOUGH SOME OF THESE POLICIES AND PROVISIONS ARE ALREADY IMPLEMENTED, A LOT MORE REMAINS TO BE DONE IN THE SPHERE OF EFFECTIVE IMPLEMENTATION IN SRI LANKA. THE CODIFICATION OF LAWS AND AN INTRODUCTION OF AN ACT OF PARLIAMENT FOR THE PROMOTION OF FOOD SECURITY WOULD BE A WELCOME CHANGE TO SRI LANKA AS WAS SUGGESTED BY MANY SCHOLARS, ACADEMIC, ACTIVISTS

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AND POLITICIANS AT THE CONSULTATION. NEVERTHELESS, IT REMAINS TO BE STATED THAT AN EFFECTIVE, WELL-THOUGHT-OUT IMPLEMENTATION MECHANISM SHOULD BE INTRODUCED ALONG WITH SUCH NEW LAWS.

List of Resource Persons 1. Dr. R.S.Y. De Siva 2. Dr. Lionel Weerakoon 3. Mr. Thilak Kariyawasam 4. Mr. Hemantha Abeywardana 5. Mr. Mathugama Senevi Ruwan 6. Mr. Sarath Fernando 7. Mr. K. Thiranagama 8. Mr. Chinthaka Rajapaksha 9. Ms. Chandra Hewa Gilligan 10. Mr. N Kuruppu Arachchi 11. Mr. Deleepa Witharana

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Legislations 1. Constitution of the Democratic Socialist Republic of Sri Lanka, 1978 2. Food Act, No 26 of 1980 3. Seed act, No 22 of 2003 4. Draft Seed and Planting Materials Act, 2011 5. Consumer affairs Authority Act, No 9 of 2003 6. Protection of new Plant Varieties (Breeders’ Rights and farmers’ Rights) Act Drafts of 2006,2007 and 2012 7. Pasture Lands (Reservation and Development) Act, No4 of 1983 8. Fisheries and Aquatic Resources Act, No 2 of 1996 9. Forest Conservation Ordinance (amendment) Act No 65 of 2009 10. National Nutrition Policy of Sri Lanka, gazette extraordinary No 1639/5 of 02.02.2010 11. National agriculture Policy, Ministry of Agriculture, Sri Lanka 12. National Livestock Development Policy, Ministry of Livestock Development 13. Forest Regulations No 01 of 1979, published in Gazette Extraordinary No 68/14 of 26 of Dec.1979 14. Forest Rules No 01 of 1979 published in Gazette Extraordinary No 68/14 of 26th of Dec. 1979 15. State Lands Ordinance, No 7 of 1947 amended by No 13 of 1949 16. Land Reform Law, No1 of 1972 amended by no 39 of 1975 17. Land Development Ordinance No 19 of 1935 amended by Law No 43 of 1973 18. Land Acquisition Act, No 9 Of 1950 amended by No 8 of 1979 19. Fertilizer Act, No 39 of 1961 20. Regulation of Fertilizer Act, No 68 of 1988 21. Control of Pesticides Act, no 33 of 1980 22. Agrarian Development Act, 46 of 2000

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International Conventions and Declarations 1. International Covenant on Economic, Social and Cultural Rights 2. Convention on the Rights of the Child 3. Convention on the Elimination of All Forms of Discrimination against Women 4. Declaration from the South Asia Regional Peoples Convention on Food Sovereignty

Web Sites 1. http://www.cetim.ch/en/documents/Br-alim-A4-ang.pdf 2. http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV11&chapter=4&lang=en 3. http://www.sacw.net/article2469.html 4. http://www.statistics.gov.lk/page.asp?page=Poverty 5. http://www.undp.lk/Shared%20Documents/Millennium%20Development%20 Goals%20Country%20Report-Final.pdf 6. http://data.worldbank.org/country/Bangladesh 7. http://hdr.undp.org/external/mpi/Bhutan-OPHI-CountryBrief-2011.pdf

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