MCC Review Committee CANNOT be above the Law or the Judiciary
There are 3 pillars of governance in Sri Lanka while the constitution is very clear that the sovereignty is inalienable from the People of the Country. Therefore, the President, Parliament & Judiciary all are empowered by the people and they only enjoy powers delegated to them by the People to function on behalf of the People and not in their personal interest or their political party interests. In short it means that the decisions by the 3 pillars must conform to the interests of the Nation and the Majority of People who live in the Nation. Several times the previous government made attempts to pass the Land Special Provisions Act and FR petitions to Supreme Court resulted in verdict claiming that the consent of the Provincial Councils was required. MCC Review Committee is restricted by this Court verdict because MCC Agreement 1-33 states that MCC funding is subject to privatizing State land.
On 28 June 2019 State Lands (Special Provisions) Bill was tabled in Parliament.
Petitions were filed in the Supreme Court challenging that the Bill violated provisions of Article 12 (1) of the Constitution
The Supreme Court determined that State Land (Special Provisions) Bill should be included in the Order Paper ONLY AFTER the President has sought opinion from the Provincial Councils as per provisions of Article 154. However the Wickremasinghe Govt had violated Article 154 by including Bill in Order Paper without seeking consent of Provincial Councils.
Respecting the court decision, in August 2019 GoSL withdrew the controversial State Land (Special Provisions) Bill in Parliament citing that Annex 1-34 could not be followed.
The Wickremasinghe Govt said that it intended to give 2.5m land deeds to people privatizing state land. 2.5m owners cannot take the rights away from 21million people plus future generations.
Failing to pass the State Land (Special Provisions) Bill the Wickremasinghe Govt tried another stunt by bringing Ruhunu Development Corporation Bill which too was included in the Order Paper. The Bill proposes to vest the PM with powers to declare any extent of land in districts of Moneragala, Hambantota, Matara & Galle as economic development zones through a simple gazette notification and allowed the Ruhunu Economic Development Corporation the powers to lease or rent the lands to any person or company for economic development projects. The subtle manner that the Bill was trying to usurp state land was obvious.
This too was challenged in Supreme Court which determined that proper procedure was not followed as Sections 16 & 17 of the draft Bill were subjects that came under Provincial Councils and should have PC approvals before seeking Parliament approval. http://www.lankaweb.com/news/items/2019/09/01/sri-lanka-ruhunu-economic-development-corporation-slredc-bill-detrimental-to-the-country/
In November 2019 the Government Medical Officers Association (GMOA) filed a Fundamental Rights petition in the Supreme Court seeking an interim order staying all approvals and decisions issued by anyone in respect of the Millennium Challenge Corporation (MCC) compact, Status of Forces Agreement (SOFA) and, Acquisition and Cross Servicing Agreement (ACSA).
GMOA claimed its FR guaranteed under Articles 12(1) and/or 14(1)(h) of the Constitution had been infringed & continued to be infringed by the Cabinet of Ministers granting approval for MCC USA.
The GMOA further said that if the MCC is signed or executed in Sri Lanka it would erode & impinge the fundamental tenet of Sovereignty of Sri Lanka which the constitution provides “Free, Sovereign & Independent’.
Usurping Judicial Powers
- Unconstitutionality in removal of judicial powers under Section 6.8 (page 16) of the MCC Agreement for 6years.
- Judiciary will have no powers to adjudicate too – Since MCC is going forward with Bim Saviya the provision in the Bim Saviya Act No. 21 of 1998 Section 33 says – Entries in the land registry (digital register) – shall not be questioned by a court of law.
- Who will shoulder legal & economic burden of new Assurance Fund replacing judicial remedies in event fraudulent deed is entered into digital land registry and fraudulent owner becomes owner as per digital land registry & real owner is to get compensation from Government while the nothing happens to the fraudulent owner who can even sell fraudulently obtained land while tax payers has to unnecessarily pay an original owner simply because the Govt had foolishly removed judicial role in remedy.
Usurping Parliament’s Powers
- The peoples‟ power vested in Parliament being handed over to a private company to act as ‘primary agent’ – MCA – Sri Lanka for 6 years. MCC Sri Lanka will be created ONLY after signing MCC (Annex 1 page 34 of MCC) with legal independence & full decision making autonomy exercising role played by GoSL & will oversee/manage Bim Saviya & digitalization in targeted districts.
- MCA Sri Lanka is to be given immunity on par with UN/Diplomats by GoSL for loss, damage, injury or death (Section 6.8 – page 16 MCC Agreement)
- Land is a key component of a nation’s sovereignty & national security – how can a govt privatize land leaving room for foreign ownership, dictated by foreign laws & immunities to foreigners & even locals on account of judiciary’s powers getting clipped
- MCC Annex 111 even has provision to evaluate how much lands had been sold & mortgaged – is Sri Lanka’s success being measured on how soon it has privatized & sold its land?
National Security Issues related to MCC agreement
To get foreign funding Sri Lanka is asked to privatize all state land
- Disbursement of MCC funds for land depends on enactment of Land Special Provision Act (LSPA)
- All state land to be registered with absolute land grants completed under a foreign title registration system (Bim Saviya) passed secretly in 1998 repealing Roman Dutch law & Common Law practiced for over 100 years.
- All lands to be electronically available via e-registrar.
- Foolishly entering foreign agreements committing to rolling out foreign laws relating to land simply because it comes with a grant & bogus claims to eliminate poverty when in reality it will cause bigger problems that GoSL cannot solve as it has abdicated its powers into foreign hands.
The MCC clauses and other undisclosed letters mentioned in the agreement cannot be taken lightly or given to a Committee to determine on behalf of the entire nation & future generations. We are talking about an agreement with a country that has militarily intervened in nations, dropped atomic bombs, cluster munitions, carried out regime change and interfered even in sovereign elections and is bulldozing their way into countries to grab land & resources. No Committee can simply stick to the wording of an agreement completely ignoring the background of the signatory party.
Even in giving a house on rent, the house owner does a thorough background check on the person he/she is leasing his premise to.
Shenali D Waduge