MCC or foreigners cannot be given Sri Lanka’s land without rule of law laid down by Sri Lanka’s Supreme Court
By Shenali D Waduge
Sri Lanka’s sovereignty & territorial integrity is being questioned by a secretive deal between US & the Ranil Wickremasinghe Government pertaining to the Millennium Challenge Corporation & an ‘economic corridor” that will create a railway line from Colombo to Trincomalee leasing 1.2m acres of land for 200years. This agreement is taking place together with a series of drastic legislative changes that include privatizing of all state land and the ability of foreigners to buy an unlimited number of land in Sri Lanka. All this does not spell anything good for the nation or its citizens & calls to mind the landmark Eppawela phosphate judgement which set a judicial precedence by Sri Lanka’s Supreme Court nullifying the project (SC (FR) Application No. 884/1999). The judgment by Justice Amarasinghe highlighted how erudite & patriotic judges saved Sri Lanka’s land that was historically & archaeologically important Cultural Triangle, Sri Maha Bodhiya, Ruwaweli Seya, Jaya Ganga and Yoda Ela. This same land area & beyond is covered by the MCC proposal but the 2000 judicial precedence is more than enough for erudite lawyers to come forward & nullify this detrimental project along the same legal arguments that resulted in the landmark judgment – that land usage is subject to the rule of law laid down by the history of our country. The Eppawela judgement – the Supreme Court saved Ruvanvelisaya, Sri Mahabodhi Yoda Ela Jaya Ganga and all archaeological sites of Annuradhapura and the same judicial precedence remains applicable to MCC deal as well.
What is Millennium Challenge Corporation?
The MCC has approval of both Republicans & Democrats and is funded by the US govt to compliment what the CIA, NED (National Endowment for Democracy) and USAID do. MCC head is the US Secretary of State while other Board Members include US Secretary of the Treasury (MCC Vice Chairman), US Trade Representative, Administrator of USAID, CEO of MCC & 4 private sector members appointed by US President on advice & consent of US Senate.
In short the plan is to turn Sri Lanka into another colony, an American military base in the Indian Ocean (now called the Indo-Pacific Ocean)
What is this MCC “Economic Corridor” & “Electrified Railway Line”
200miles long stretch of land from Colombo to Trincomalee via Dambulla comprising 1.2m acres of mineral-rich & ancient heritage lands. The lease is to be Rs.24 per month per acre (USD400m).
Whose law will apply in this ‘corridor’ not Sri Lankan law but American law for the next 200 years.
The corridor will automatically divide North & South and take part of Anuradhapura and Kurunegala into the North.
Japan (referred to by the US think tank Council of Foreign Relations as “The anchor of the U.S. security alliance in Asia” is chipping in by sponsoring 2 electric fences from Colombo to Trincomalee to create the world’s 1st electric border wall. It will be an electric Berlin Wall. People will need passes or passports to travel! Is this what TNA & Wigneswaran and Tamils want – will they be happy now? Now it becomes easier to understand the hysteria to remove the military from the North including all army camps! An island that was never invaded but traitors handed to the enemy each time is being repeated for the 4th time by Ranil-Sirisena Government. The wall is similar to the demilitarized zone separating North Korea from South Korea.
The October ‘coup’ when President Sirisena unceremoniously sacked PM Ranil declared on 28 October 2018 that he did so to prevent the PM from passing the ‘State Land Bank’ Bill and the ‘Land (Special Provisions’) Bill which had been presented to the Cabinet. The MCC project was stalled.
One day when this govt is no more we will know the illegal Bills that have been passed via the Speaker who should be ashamed of his conduct as Speaker. There has been silence from President Sirisena since. Has he caved in and consented?
Sri Lanka’s Attorney General is tasked to only look into the Constitutionality of what is submitted to him.
Sri Lanka’s Legal Draftsman is only tasked to word it in the necessary legal language.
Neither looks into the judicial precedence for such Bills.
Does anyone look into case law or judicial precedence before signing such dangerous Bill – NO. Which is why the MCC proposal which is going as a ‘compact’ agreement is in reality Sri Lanka agreeing to carry out all that the US wants Sri Lanka to do on behalf of the US
What are the Statutes being changed to facilitate this by the Ranil-Sirisena govt?
State Land Bank Bill – will register all State lands & powers to a Land Reform Commission and enable public institutions to lease lands by repealing Part 4 – 6 of the Land Reform Act No 1 of 1972 (removes foreign ownership limit of 50acres).
Land (Special Provisions) Bill – Grants title deed to Sri Lankan citizens on ‘Government Grant’ and allow them to mortgage their land to banks and banks are allowed to sell of such State lands to private individuals including foreigners. This Act is to be operational for only 7 years which means they target to acquire all lands under ‘government grant’ into foreign ownership. This fits perfectly into the vision to put farmers into jeans. At the end of 7 years Sri Lanka will have no agricultural lands for self-sustenance.
Land laws are being changed – foreigners can now own land more than the limit of 50acres.
80% of Sri Lanka’s land being state owned is being privatized.
Land deeds are given wholesale so that when land privatization bill passes, people will automatically sell land when facing economic hardships.
MCC officials (repeat MCC officials working with the Global Land Alliance helped by Rangajeewa Ratnayake of University of Moratuwa and Suresh Shanaka) are drafting all new land laws to facilitate America’s wishes.
Sri Lanka is being slowly turned into a US-colony– MCC, SOFA, Acquisition & Cross Service Agreement, privatizing land, US company surveying land & creating electronic database of who owns what and free lands, US surveying of Sri Lanka’s hidden mineral and other resources, US troop presence in Sri Lanka with permission to land anything without civil aviation, police, army inspection. The US ship floating in the East and Repealing of PTA replaced with a CTA which is more about imprisoning anyone going against Ranil Govt. Islamic terror is US’s best friend to land & occupy nations, is it a surprise that 21/4 took place on Easter Sunday where world Catholics would insist US eliminate Islamic terrorists personally. Is it a surprise that FBI, UK Metropolitan police are in Sri Lanka? Did they come throughout 30 years of LTTE (ironically Church helped LTTE) Islamic terror & Islamization keep the country busy & diverted with Islamic fundamentalism supplied by US’s top ally in the Middle East. An international airport in Polonnaruwa now makes sense!
What can Sri Lanka do to preserve its sovereignty, its territorial integrity & heritage do?
The ‘economic corridor’ has conveniently included the ‘Eppawela’ phosphate which another US company tried to take over since 1980s. This area the US has been eyeing contains ilmenite, thorium, monazite, rare earth metals cerium and lanthanum. (Imagine Ranil-Sirisena agreeing to give this to US for Rs.24 per month for 200 years)
The venture was prevented by a landmark Supreme Court judgement.
Justice Amerasinghe, Justice Wadugodapitiya & Justice Gunasekera
UNANIMOUS Judgement delivered on 2 June 2000 by Justice A R B Amerasinghe
Landmark Eppawela Phosphate case – SC (FR) Application No. 884/1999 / Bulankulama v Ministry of Industrial Development
A 1992 proposal under then UNP govt after years of negotiations resulted in a $425m phosphate mining contract given in 1997 to 2 foreign companies for 30 years. Tomen Corporation Japan & US company Freeport McMoran via partner IMC Agrico (who would be signatory while Freeport negotiates terms). IMC Agrico was to have 65% holding, Tomen 25% and Sri Lanka (LPL) just 10% holding interest. The deal included a processing plan, deep water dock at Trincomalee linked to Eppawela via a specially built railway line.
The plant was to be built on 450 acres of land in 3 years with an extra 300 acres of beach front kept in reserve. The plant would produce up to 600,000 metric tons of hi-grade Di-Ammonium Phosphate.
LPL was to transfer its license under Mines & Minerals Act 33 of 1992 to company ‘Sarabhumi’ and McMoran was to operate under this license though not signatory to the venture and thus not liable for anything legally. McMoran was well known for corruption and environmental & human rights abuses in other countries. Why was McMoran given approval to export 13.6m tonnes of raw rock phosphate during first 8years earning $400m & paying Sri Lanka just 5% of earnings?
The 7 petitioners who filed FR in 1999 argued that the Eppawela deposit area was agricultural land, it was of historical & archaeological value, Jaya Ganga/Yoda Ela schemes were national engineering marvels to be preserved, over 20 new & ancient irrigation tanks & 100km of small irrigation canals were in danger of being destroyed, environmental pollution of land would breed mosquitos & other diseases.
Public Trust Doctrine
The counsel for the Government claimed that the Government & not the Court is the ‘trustee’ of natural resources of Sri Lanka. The Court issued a brilliant reprisal by claiming that all organs of the state are only ‘guardians’ to whom the People have committed the care and preservation of the resources on behalf of the People and is clearly set out in the Constitution.
Thus as per public trust doctrine, natural resources of the people were held only in Trust by the government. The organs of the state are only guardians expected to preserve and take care of the resources on behalf of the People.
While the State may have right to ‘exploit’ the resources, the State is bound to protect the environment. While the State have power to make decisions & approve projects, the proposed agreements cannot evade or adjust laws in biased manner. The Eppawela Phosphate venture was seen to be given with bias no different to the MCC deal. In both cases the Public had been ousted from involvement and thus an infringement of fundamental rights under Article 12(1) of Sri Lanka’s Constitution.
Justice Amarasinghe declared that as per Article 126 of the Constitution the Supreme Court had sole & exclusive jurisdiction to hear & determine any question related to the infringement or imminent infringement by Executive or Legislative action of the People’s fundamental right.
The landmark judgement quoted sustainable development referring to the Stockholm & Rio De Janeiro Declarations.
The judgement quoted the Mahavamsa to highlight the importance of a country’s natural resources
“the king thus addressed his officers. In my Kingdom are many paddy fields cultivated by means of rain water, but few indeed are those which are cultivated by perennial streams and great tanks. By rocks, and by many thick forests, by grate marshes is the land covered. In such a country, let not even a small quantity of water obtained by rain, go to the sea, without benefitting man. Paddy fields should be formed in every place, excluding those only that produce gems, gold, and other precious things. It does not become persons in our situation to live enjoying our own ease, and unmindful of the people ….. “
He quoted, the Vice President of the ICC Judge C G Weeramantry in a 1997 Danube Case (Hungary vs Slovakia) referred to the ancient irrigation works of Sri Lanka too
“Just as development was the aim of this system, it was accompanied by a systematic philosophy of conservation dating back to at least the third century B.C. The ancient chronicles record that when the King (Devanampiya Tissa) 247-207 B.C. was on a hunting trip (around 223 B.C.) the Arahat Mahinda, son of the Emperor Asoka of India, preached to him a sermon which converted the King.
Here are excerpts from that sermon: “O great King, the birds of the air and the beasts have as equal a right to live and move about in any part of the land as thou. The land belongs to the people and all living beings; thou art only the guardian of it ….”
Judge Weeramantry referred to the ‘imperative of balancing the needs of the present generation with those of posterity”. He referred to the irrigation works of ancient Sri Lanka, the philosophy behind not permitting even a drop of water to flow into the sea without benefitting mankind and pointed out that sustainable development happened because of such conscious practice.
Judge Weeramantry said “The notion of not causing harm to others and hence sic utere tuo ut alienum non laedas was a central notion of Buddhism. It translated well into environmental attitudes. “Alienum’ in this context would be extended by Buddhism to future generations as well, and to other component elements of the natural order beyond man himself, for the Buddhist concept of duty had an enormously long reach”.
Judge Amarasinghe citing dilemmas in development vs environment returns to King Devanampiyatissa to stress that the leaders are only the ‘guardians’ and not the ‘owners’ and explained that the task of the law is to convert this wisdom into practice by laws.
Article 27(14) states “the State shall protect, preserve and improve the environment for the benefit of the community”
Equal protection under law as per Article 12 makes duties inseparable from obligations. It is the duty of every person to protect nature & conserve it.
The issue is not whether the Court or the Government is the trustee or whether there is a breach of trust but whether the rights of the petitioners guaranteed by Articles 12(1), 14(1) (g) and 14(1) (h) of the Constitution have been violated.
Judge Amarasinghe says that the human development paradigm needs to be placed within the context to ensure future sustainability of the mineral resources, water & soil conservation ecosystems of the Eppawela region & the North Central Province & Sri Lanka in general & cultural heritage.
Judge Amerasinghe says decisions must safeguard the health & safety of people.
With the judgement Eppawela investment proposal did not go through.
The Judgement & Judicial Precedence relevant to MCC
Sri Lanka’s Supreme Court held that an imminent infringement of fundamental rights of the Petitioners as guaranteed under Articles 12(1), 14(1)(g) and 14(1)(h) of the Constitution had taken place & ordered the State parties to refrain from entering into any contract until they had carried out a comprehensive exploration & study of the location, quantity & quality of the phosphate deposit in consultation with the National Academy of Science & National Science Foundation & approvals are sought from the Central Environmental Authority.
Every argument & every word in the Eppawela Phosphate judgement is applicable to the Millennium Challenge Corporation. Thus the judicial precedence set in this landmark case cannot be ignored simply by saying that AG or legal draftsmen has approved the proposal because neither of them have the mandate to look into judicial precedence & rule of law set for land in carrying out the job handed to them by the legislative.
How can national land policy & legislation of land policy be given to foreigners?
How can foreign entities dictate how land is disposed or used by a sovereign country?
How can a government sign agreements to deliver large extents of land to foreigners without any regulations and kept secret from the public (removing the limits that were originally set)
The constitution clearly establishes that the sovereignty is inalienable & with the People not a government elected for a term of office?
The detrimental nature of these land sales and land proposals by the Ranil-W government were highlighted by the President himself addressing the Nation in October 2018. He said that if Land Special Act is passed lands of this motherland would be bought outright by foreigners. This was confirmed by Minister Mangala Samaraweera following the Easter Sunday attack when he said MCC will take over land administration process in 8 districts, upgrading 10 land registries, prepare Parcel Fabric Map of all state and private land to facilitate activities of the Survey Dept (A US company has been contracted to survey our land – it’s like giving the rogue to decide where & what to steal)
The MCC proposal is taking shape following a series of sinister procedures & unethical practices. National land policy & land laws are being introduced by foreign funding organizations. The land policy emerging is based on acceptance of externally imposed plans by donors of which MCC is one.
Justice Amerasinghe’s judgement draws many barriers for a government greedy to sell anything and everything before facing an election defeat.
This judgement should be unearthed by Sri Lanka’s Bar Association & patriotic lawyers need to use these citations to stop the Millennium Challenge Corporation & its economic corridor that is ceding Sri Lanka’s sovereignty. No government has any right to give land or resources to another country even in the name of development that will not end up in forsaking our land but divide Sri Lanka into 2 separate entities.
The Eppawala case judgement that also highlights a railway track to Trinco aligns with the map surfacing regarding the MCC economic corridor. Is this new proposal a roundabout way to take over the area that was denied via the 2000 Supreme Court judgement? Where are the lawyers? Why are they not putting two and two together?
Books written by late Justice A R B Amerasinghe
- The legal heritage of Sri Lanka
- The Protection of Culture, Cultural Heritage and Cultural Property
