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MCC inconsistent with Constitution

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AG agrees with Prof. Gunaruwan report

By Shamindra Ferdinando

Attorney General Dappula de Livera, PC, has informed President Gotabaya Rajapaksa that the Millennium Challenge Corporation (MCC) Compact, Project Implementation Agreement, as well as Articles of Association of MCA (Millennium Challenge Act), Sri Lanka, are violative of cerain provisions of the Constitution.

The AG has said so in a 20-page report sent to Dr. P.B. Jayasundera, Secretary to the President.

The President’s Office on Sept. 3, 2020, sought the AG’s opinion on the MCC Compact and related matters in the wake of the Cabinet-appointed Prof. Gunaruwan Committee strongly advising against going ahead with the US initiative. The US sought Sri Lanka’s consent for the Acquisition and Cross Servicing Agreement (ACSA), Status of Forces Agreement (SOFA) and MCC. The previous government finalised ACSA in early August 2017.

Dr. Jayasundera made available the Gunaruwan report to the AG.

The outgoing US administration in Dec 2020 announced Sri Lanka had been left out of the MCC project.

AG’s Coordinating Officer State Counsel Nishara Jayaratne confirmed the MCC et al were inconsistent with the Constitution and other laws.

The Island,

 however, learns that the AG’s Department on two previous occasions, in letters dated Oct 10, 2018 and June 10, 2019, addressed to Jonathan G. Nash, Chief Operating Officer, MCC, and Director General, External Resources Department, respectively, asserted that the Compact and the Programme Implementation Agreement (PIA) were in line with the Sri Lankan law.

The first letter was sent during Jayantha Jayasuriya’s tenure as the AG and the second under incumbent AG without his approval, sources said. Dappula de Livera succeeded Jayasuriya in April 2019 about a week after the April 21 Easter Sunday carnage. Jayasuriya is the incumbent Chief Justice.

Prof. Gunaruwan’s Committee soon after the last presidential election in Nov 2019 failed to obtain the AG’s Department opinion in spite of making representations through the Prime Minister’s Office.

In the run-up to 2019 parliamentary election, then Finance Minister Mangala Samaraweera said the Attorney General had approved the US project though the Sri Lanka Podujana Peramuna (SLPP) called it a sell-out.

The following is the text of the letter dated Oct 10, 2018 captioned ‘Legal Status of Proposed MCC Compact signed by Sanjay Rajaratnam, PC, Senior Additional Solicitor General, addressed to Jonathan G. Nash, Chief Operating Officer, MCC:

“I refer to your communication dated 27th September, 2018 in respect of the above captioned matter. In this regard, I am made to understand that the delegation from the Government of Sri Lanka was able to have fruitful discussion with the Millennium Challenge Corporation Team in resolving some of the outstanding issues.

“Having gleaned through the proposed Millennium Challenge Compact, the draft Program Implementation Agreement (PIA) as well as the Points of Discussion (without prejudice) between the negotiating parties which has been made available to me, I wish to at the very outset opine that no existing laws of Sri Lanka inhibit the Compact and the PIA being implemented in Sri Lanka. If I may elucidate further, the covenants of the Compact and the PIA do not infringe any existing domestic law or any previous undertakings given by the Government of Sri Lanka. It is acknowledged that the Compact imposes legal obligations on both parties to the Agreement

“Further, consequent to the negotiations and discussions had between parties, it is proposed that the Government of Sri Lanka would seek the passage of a law in Parliament to establish the MCA- Sri Lanka as a non-profit Company limited by guarantee under the Companies Act No.07 of 2007 to implement the provisions of the Compact. It is envisaged that the proposed enactment would encompass the Compact and the PIA as Annexures, which would form an integral part of this enactment.

“Thus, I am of the view that the passage of the said enactment by Parliament would result in the Compact and the PIA, having the parity of status of a domestic law in Sri Lanka.

“In the Context of the above, it is requisite that Section 7.1 of Article 7 of the Compact referring to the provisions on Entry Into Force, would be revised with the deletion of the sentence pertaining to the Compact prevailing over the domestic laws of Sri Lanka.

“However, in order to assuage any concerns with regard to the implementation of the Compact, by an unlikely event of a legislation in the future which may impinge or infringe the said compact, upon notification by the Ministry of Finance and Mass Media (the relevant Ministry) of this fact, a legal opinion would be tendered that the proposed legislation if proceeded with would violate the covenants of the Compact. This would enable the relevant Ministry to forward its observations to the Cabinet of Ministers and Parliament, that the Attorney-General has opined that the proposed Bill if enacted would violate the Compact.

“In the circumstances, I believe that the aforementioned matters would confirm the legal status of the Compact and its entry into force.”

“Copies were sent to Ms. Caroline Nguyen, Managing Director- Europe, Asia Pacific and Latin America Millennium Challenge Corporation and J. Charitha Ratwatte, Head of Policy Development and Chief of Party MCC- Sri Lanka Project.”



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Lord Naseby asks why Adele not prosecuted in UK for child recruitment

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Lord Naseby President of the UK all party British-Sri Lanka Parliamentary group has questioned the failure on the part of the UK to prosecute senior LTTE leader Adela Balasingham, wife of the outfit’s late theoretician Anton Balasingham. Lord Naseby said that Adele, who had been involved with the LTTE for several decades, was responsible for recruitment and deployment of child soldiers.

The following is the text of the statement issued by Lord Naseby in response to the UK statement at the Human Rights Council by Lord Tariq Ahmad on Feb 25:

“I am astounded how the UK or any other Member of the Core Group can possibly welcome the High Commissioner’s so called ‘detailed and most comprehensive report on Sri Lanka’ when it is riddled with totally unsubstantiated allegations and statements completely ignoring the huge effort to restore infrastructure and rehouse displaced Tamils and Muslims, who lost their homes due to the Tamil Tigers.

“Furthermore, I question how the UK Government knowingly and apparently consciously withheld vital evidence from the despatches of the UK military attaché Col. Gash. Evidence I obtained from a Freedom of Information request, resisted by the Foreign Office at every stage for over 2 years. These dispatches from an experienced and dedicated senior British officer in the field makes it clear that the Sri Lankan armed forces at every level acted and behaved appropriately, trying hard not to harm any Tamil civilians who were held by the Tamil Tigers as hostages in a human shield.

“This conscious decision totally undermines the UK‘s standing as an objective Leader of the Core Group; made even worse by the impunity for not prosecuting the LTTE leader living in the UK, largely responsible for recruiting, training and deploying over 5,000 Child Soldiers – a real War Crime. It is time that the UK Government acknowledges and respects the recommendations of the Paranagama Commission, which involved several international expert advisers, including from the UK – Sir Desmond de Silva QC, Sir Geoffrey Nice QC, Rodney Dixon QC and Major General John Holmes. Sri Lanka and the UK should be honouring the recommendations of the Paranagama Commission, which provides real evidence over all the years of the conflict, rather than just focussing on uncorroborated claims during a few months in 2009, only when the war concluded.

“Furthermore, the criticism of the way Covid has been handled with no burials for anyone based entirely on scientific advice at a time when there was no advice from WHO shows no understanding. Following the scientific advice from WHO and Sri Lanka’s scientists, burials are now permitted. The UN ignores the fact that only about 400 people on a population of 22m have sadly died in Sri Lanka, whereas no less than 120,000+ have died in the UK with a population of 66 million. By any yardstick Sri Lanka has been more successful at saving lives than any member of the Core Group.

“It seems to me that the Core Group needs to have more faith in the reconciliation structures already on the ground such as the Office of Missing Persons and the Office of Reparations. If the UN Core Group really wants to help, then why cannot the UK, Canada and Germany release to Sri Lanka the names of all asylum seekers since the war so that they can be checked against the list of Missing Persons and be removed from the master list?

“During the period of the Sirisena/Wickremesinghe government, draft legislation for a Truth & Reconciliation Commission was prepared and the current government should be given the time and space, whilst also handling the pandemic, to introduce its own TRC mechanism. Britain should stand in solidarity with the people of Sri Lanka as a unique TRC is developed and is implemented. Reconciliation cannot be externally forced on to the people of Sri Lanka. It must come from within and I would also urge the diaspora communities living in the Core Group countries to also trust, engage with and contribute towards Sri Lanka’s reconciliation processes.

It is for Sri Lanka to decide how much help they seek from outside but for me I doubt the need or the efficacy of the UNHRC being able to help in an enhanced monitoring role as proposed.”

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SJB finds fault with recommendations of political victimisation PCoI

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By Saman Indrajith

The SJB yesterday found fault with the Presidential Commission of Inquiry that investigated incidents of political victimization for arrogating to itself the powers of the judiciary.

Addressing the media at the Opposition Leader’s office, Chief Opposition Whip and Kandy District SJB MP Lakshman Kiriella said: “The Presidential Commission of Inquiry (PCoI) probing the incidents of political victimisation has usurped the powers of courts.

MP Kiriella said that PCoI or any one including the Executive should not encroach on the powers of the judiciary. The MPs had a right to stand against it. “We have a constitutional right to prevent this. As per the provisions of the Article 4 of the Constitution people have given their sovereign powers of exercising judicial power to Parliament. It is by parliament through the courts or any other tribunal accepted by the law the judicial powers are exercised. A presidential commission of inquiry has not been given powers of courts. The PCoI headed by retired Justice Upali Abeyratne arrogated to itself the powers of courts as per the recommendations the commission made in its report,” Kiriella said.

He said that the PCoI had recommended that cases pending before in the Magistrate and High Courts be stopped. “Victims have been turned into complainants and complainants into offenders. The PCoI has made recommendations to acquit those implicated in numerous offences. The commission has recommended that some of those who violated the laws be acquitted and compensated. A PCoI has no such powers. We have expressed our opposition to this. We actually have submitted a petition to the Chief Justice on Tuesday against the PCoI hijacking the powers of the court.”

The MP said that PCoI’s usurping of court powers was a serious matter that should be rectified immediately. “We have utmost faith in the judiciary of this country. Courts have maintained their independence very bravely in the face of many challenges. You may recall that when there was a constitutional coup in 2018 October, the court did not succumb to political pressure

and declared the ouster of our government unconstitutional. If the PCoIs are allowed to usurp the powers of judiciary then the public would lose their faith in courts.”

SJB MPs J.C. Alawathuwala and Harin Fernando also addressed the press.

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NMRA approves emergency use of Russia’s Sputnik V COVID-19 vaccine here

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Laboratory technologists welcome the move

By Rathindra Kuruwita

State Minister of Production, Supply and Regulation of Pharmaceuticals Prof. Channa Jayasumana yesterday announced that the National Medical Regulatory Authority of Sri Lanka had approved the Emergency use of Russia’s Sputnik V COVID-19 vaccine.

Earlier this month leading British medical publication, The Lancet, stated that the interim results from a phase 3 trial of the Sputnik V COVID-19 vaccine had shown a consistent strong protective effect across all participant age groups.

Lancet said: “The vaccine uses a heterologous recombinant adenovirus approach using adenovirus 26 (Ad26) and adenovirus 5 (Ad5) as vectors for the expression of the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) spike protein. The use of two varying serotypes, which are given 21 days apart, is intended to overcome any pre-existing adenovirus immunity in the population. Among the major COVID vaccines in development to date, only Gam-COVID-Vac uses this approach; others, such as the Oxford–AstraZeneca vaccine, use the same material for both doses. The earlier vaccine for Ebola virus also developed at Gamaleya National Research Centre for Epidemiology and Microbiology (Moscow, Russia), was similar, with Ad5 and vesicular stomatitis virus as the carrier viruses, and the general principle of prime boost with two different vectors has been widely used experimentally.”

President of the College of Medical Laboratory Science, Ravi Kumudesh yesterday said that they were happy about the decision as the country needed an mRNA vaccine.

“Sputnik-V is an mRNA vaccine and we have so far ignored mRNA vaccines. Covidshield vaccine is a more traditional vaccine and it will not be effective against coronavirus variants. This is what reports from France and South Africa suggests. That’s why we have insisted on an mRNA vaccine from the start. Pfizer or Moderna mRNA vaccines need to be stored in extremely cold temperatures and thus not feasible here. But Sputnik-V doesn’t have that problem. I am not saying bring Sputnik-V and start injecting people from next week. But our dependence on covidshield is more dangerous.”

Kumudesh said that the SPC had said it was willing to work with Russians to produce Sputnik-V here and that it was a commendable decision. Sri Lanka had the expertise to produce vaccines and that if such an initiative came about it would also be an opportunity to take in talented scientists into the Ministry of Health.

 

 

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