MCC inconsistent with Constitution
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.
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.”
SJB, JVP move SC against Finance Secy. for contempt of court
The main Opposition, Samagi Jana Balavegaya (SJB), and the Janatha Vimukthi Peramuna (JVP) yesterday (21) moved Supreme Court against Treasury Secretary Mahinda Siriwardana over his failure to provide funds required by the Election Commission to conduct the Local Government polls, ignoring an interim order issued by the apex court, on 03 March.
Ranjith Madduma Bandara, MP, is the petitioner for the SJB and Vijitha Herath, MP, moved court on behalf of the JVP, the leading party in the Jathika Jana Balawegaya (JJB).
Two Opposition parties declared action against Siriwardana the day after the Freedom People’s Alliance (FPA) issued a seven-day ultimatum to the Finance Secretary to release the funds.
EC Chairman Nimal Punchihewa is on record as having said that in spite of SC directive he didn’t receive fresh funding.
The petitioners sought the issuance of summons on Siriwardana for contempt of court over failure to carry out its interim orders, given on 03 March.
The petitioners want the Finance Secretary punished in terms of Article 105 (3) of the Constitution.
The SJB stated that Siriwardana had refrained from carrying out the March directives, on the basis of a Cabinet decision, taken on 13 Feb., 2023. The SJB also pointed out that the offensive conduct of the Treasury Secretary, inter alia, causes grave prejudice to the esteemed authority of the Supreme Court and in turn disturb the public confidence in the authority of the highest Court in the country. (SF)
Minister indicates reduction in fuel prices in April
Power and Energy Minister Kanchana Wijesekara told Parliament yesterday that fuel prices would be reduced considerably according to the fuel price formula at the next fuel price revision, due in April.
The Minister said that the government would be able to procure fuel shipments, at lower prices, during competitive bidding, with the receipt of the IMF bailout.
There had been practical issues, and problems, in opening Letters of Credit, and obtaining credit facilities, in the recent past, as Sri Lanka could not give a guarantee to fuel suppliers, Minister Wijesekara said.
“We could not open LCs and obtain credit facilities when procuring fuel. After the IMF bailout, we will be able to procure fuel at lower prices during competitive biddings. We will be able to obtain a long-term credit facility as well. Fuel prices in the global market seem to have declined and the rupee has also gained strength against the US Dollar. Having considered all these factors, fuel prices will be reduced by a considerable margin which could be felt by the people,” he said.
IGP tells CID not to brook any interference from any quarter while they probe ’Harak Kata’ and ‘Kudu Salindu’
By Norman Palihawadane
IGP CD Wickramaratne has directed the CID to maintain a special log of names and details of any attempts by external parties to influene the ongoing investigations on notorious drug traffickers Nandun Chinthaka Wickramaratne aka Harak Kata and Salindu Malshika aka Kudu Salindu.
The suspects are currently under the custody of the CID.
The IGP issued the orders to the DIG CID and its director during a meeting of senior police officers on Monday, police headquarters said.
Sources said that the IGP has further instructed not to allow statements from the detainees to be taken by any police team other than the team currently investigating the suspects.
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