How legal are agreements signed secretly with foreign countries by Sri Lanka’s Government?
By Shenali D Waduge
This article is based on 2 important articles by Mr. Neville Ladduwahetty and Ms. K S Gunasekera, a senior attorney at law. While Mr. Ladduwahetty highlights the need for Parliament to approve any agreement with Foreign States or Foreign Private Parties with a 2/3 majority while Mrs. Gunasekera highlights the dangers of land privatization and computerization with drastic changes to existing customary laws without imputs of the legal fraternity in Sri Lanka who are tasked to protect Sri Lanka’s land as well as the rights of the People. It is good for all to realize or imagine a future scenario where land & resources fall into foreign hands & ask whether politicians, political parties, lawyers etc will really be relevant – will they have a livelihood in time to come by the treacheries they are now committing in secret?
What we gather from these articles and newspaper reports is that the Ranil-Sirisena Government is
- Nation’s assets are being signed off to foreign countries unlikely to be returned for 200 years
- Signing agreements with foreign countries in secret
- Handing over Ports to foreign countries in secret
- Signing to create a ‘corridor’ that would divide Sri Lanka by a railway track with an electric fence from Colombo Port to Trinco Port
- Secretly signed agreements are a threat to national security
- Land laws are getting changed by foreigners (western donor nations, NGOs, western politicians with their Sri Lankan lackeys) without any input from Sri Lankan lawyers/academics astute in land laws.
Sri Lanka is a sovereign country – why should we follow foreign laws when we have our own indigenous systems that were changed only after 1505? Mrs. Gunasekera cites the Title Registration (Bim Saviya Law) which is practiced in prosperous nations but was stopped from implementation by Justice A R B Ameresinghe in 1970s. The World Bank (then called International Bank for Reconstruction & Development) wanted to bring the Bim Saviya Law as a means to take over lands that had co-ownership, life interest, access to water through lands, servitude clauses (used for agriculture only) etc and such lands were not marketable to be sold so the solution was bim saviya which Justice Ameresinghe objected on the grounds that it prevented a person his fundamental right to access court if land was affected by fraud and that the new law repealed co-ownership and possessory rights that people enjoyed for centuries. Thankfully, the erudite Judge was supported by erudite Minister and officials as well as the Governor of the Central Bank. The Governor General in 1969 in his Throne Speech declared that the new legal process by Justice Ameresinghe will apply and not the Title Registration (Bim Saviya) proposed by the World Bank! But the World Bank obviously lay in wait and got the then Government to repeal the customary laws of Sri Lanka by Act 21 of 1998 & introduce Title Registration.
Why do Governments just think only of the foreign funds & foreigners who want to change our land laws to grab our land and completely ignore the cultural heritage and our ancient administrative structures which Mrs. Gunasekera claims is the ‘higher value that lie behind the law’.
Justice A R B Ameresinghe is a Judge all Sri Lankans must salute & honor for his landmark Eppawala Case ruling that set a precedence in law to legally state that the land and resources belonged to the People and the Future People of Sri Lanka.
She also raises the dangers of the land privatization act that will amend the Land Development Ordinance of 1935 and pave way for foreigners to take full control of government lands, she also cites foreign legal minds behind repealing of Land Reform Law and creation of a Land Bank and an E-registrar which will make it easier for any manipulation electronically too!
She appeals to the younger generation of lawyers to follow the footsteps of erudite lawyers of the caliber of Justice Ameresinghe and it is now time that they came forward to research and protect the country’s wealth or their relevance will also fade away just as the relevance of politicians when all land & resources fall into foreign hands.
Do we really know what other resources belonging to the People of Sri Lanka that Governments have sold or signed over to foreigners in secret?
Did the voters give a government the right to sign national assets in secret?
The voters gave only a term for a government. A 5 year fixed-term doesn’t allow any government to sign off national assets especially in secret and without the rest of Parliament even aware of such.
What has the Constitution assured the People – why do we have a Government or Parliament?
If the constitution is not just a decorative item, as per our understanding Article 3 of the Constitution clearly establishes that ‘sovereignty is in the People and is inalienable’. It should also imply that everything bestowed in the country – rivers, ports, harbours, natural assets/resources also belong to the People.
Now this key line in Article 3 has to have more importance than lines of any amendments made over years.
Therefore, a Government is only holding powers that the People have outsourced to them by Article 4 for a fixed term and that means anything that the Government signs in particular with foreign parties must be endorsed by the People because any commitments made by the Government & the foreign Government is made in the name of the People of Sri Lanka.
This means that the President, the Parliament & the Judiciary are all only outsourced the task to protect the sovereignty of the People & the land the People live in.
None of these 3 pillars have any right to clip the powers or transfer the powers of the People to another pillar without asking the people and this is a question that is haunting the People about the 19a which clipped the President’s powers without asking the people simply relying on an ‘interpretation’ and ignoring the power in the meaning of Article 3 and devolving of the powers of Article 3 to Article 4. Can article 4 take stand-alone decisions without seeking permission of Article 3? Can Parliament transfer powers of the President to itself – NO. Who is more power the Executive or the Parliament? – the President because the executive powers of the people are outsourced by the People to the President and not Parliament.
However, Parliament being outsourced the legislative powers of the People requires international treaties/agreements to have approvals of both President & Parliament.
If the Parliament itself doesn’t know what agreements are being signed it means the small group within the Government pushing these secret agreements are violating the sovereignty of the people.
We can conclude that these agreements have no legal standing if they are signed in secret. There is an unwritten social contract between the Executive-Legislative-Judiciary with the People of Sri Lanka and all 3 pillars cannot ignore this.
Mr. Ladduwahetty in his article cites agreements with foreign states must seek approvals of Parliament with a 2/3 majority & quotes Article 157
“Where Parliament by resolution passed by not less than two-third of the whole number of Members of Parliament voting in its favour, approves as being essential for the development of the national economy, any Treaty or Agreement between the Government of Sri Lanka….’’
Mr. Ladduwahetty include free trade agreements & any other with private entities of foreign states to have full force of Sri Lanka’s law so that the sovereignty of Sri Lanka (People & People’s Assets) are protected and not only the interests of the foreign investors!
Indeed, this is a must in view of Sri Lanka now left with only a minimum amount of resources left and if these too are signed off in secret, where does that leave Sri Lanka & its People?
Many of those signing these agreements in secret do not think of the long term impact of other resources being sold similarly in secret & wonder what would happen to Sri Lanka’s status as a sovereign nation when every inch of its assets fall into foreign hands except for the People.
Mr. Ladduwahetty has commended the Opposition to oppose the secret agreements & propose that Parliament should be involved but the Opposition simply cannot just make one statement simply to say it has made a statement against secret agreements – it must take this to the People and rally the People against it and if signed to nullify it. No government can give land that belongs to the people to a foreign country in secret.
What is the future of the People thereafter, when everything except for the space they live in falls into foreign hands? Have governments & officials drafting or agreeing to sign drafts of proposals sent by foreign countries thought about this scenario? Can these political parties come before the people to even contest an election when there is nothing left for them to legislate over on behalf of the People?
The fears of the consequences of secret agreements covering Acquisition & Cross Service Agreement, Status of Forces Agreement, Millennium Challenge Corporation Compact Agreement that entails privatizing of 80% of Sri Lanka’s land/computerized land bank which will be accessible to foreigners to decide what land is for sale & how strategic it is for them will completely eliminate Sri Lanka’s sovereignty.
Will politicians and political parties be relevant if Sri Lanka’s ports, harbours, airports, lands all are owned by foreigners?
We would not need elections if there is nothing for the Executive, Parliament or Judiciary to attend to on behalf of the People.
Sri Lanka is moving fast to change land laws with foreign advice – K S Gunsekera
Legality of agreements with foreign countries – Neville Ladduwahetty
http://www.lankaweb.com/news/items/2019/06/11/legality-of-agreements-with-foreign-countries/
MCC or foreigners cannot be given Sri Lanka’s land without rule of law laid down by Sri Lanka’s Supreme Court – Shenali D Waduge
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