Pity the nation whose people are sheep, and whose shepherds mislead them.
Pity the nation whose leaders are liars, whose sages are silenced,
and whose bigots haunt the airwaves.
Pity the nation – oh, pity the people who allow their rights to erode
and their freedoms to be washed away.
My country, tears of thee, sweet land of liberty
– Extract from a quote by Lawrence Ferlinghetti
I and many others have expressed concerns about the MCC agreement and it has now become a hot bed of political activity as well as political duplicity in Sri Lanka
The signing of the MCC is before the courts of law and an adjudication is expected soon. Meanwhile, President Gotabaya Rajapaksa has appointed a four-member committee to study and report on the agreement.
Former Minister and defeated presidential candidate Sajith Premadasa who, as a member of the previous Government’s Cabinet, approved the signing of the agreement, has now done an about-turn and stated publicly that the new regime should tear the agreement. One wonders whether he would have said this had he won the Presidential Election.
The appointment of a committee to study the agreement is the most logical and appropriate decision and President Rajapaksa needs to be commended for his decision. One hopes that ALL the documents pertaining to this agreement, including all annexures, will be made available to the committee and the rationale of the previous Government to (a) select specific geographic areas for establishing land titles and deeds and (b) select specific road projects, including their geographic locations, as well the reasoning for selecting such projects.
The committee should enquire from all relevant Government institutions and officials who were supposedly associated with points (a) and (b), the basis for their recommendations and decisions, if indeed the decisions were theirs.
Land surveys and titles of State land
On the face of it, the MCC agreement by itself does not appear to pose any contentious issues perhaps with the exception of a matter of political philosophy when it comes to the intent of establishing land surveys and titles of State land.
Sri Lanka may have relatively vast tracts of underutilised State land, but they are already established as State land, unless the intention is to survey the land and identify any encroachments, and determine the actual parameters of the land.
While it is not the intent or the function of MCC to determine the future status of such surveyed State land, the premise for doing such surveys of unproductive land in order to facilitate such surveyed land to return a better yield on investment, raises some concerns that the MCC agreement in fact facilitates a political philosophical decision of a conservative political grouping which has openly backed privatisation and capitalism without much regard for socialist principles where State land is seen as land belonging to the entire nation and not to individuals or groups of individuals.
If the agreement is to be viewed in this context, the decision of the current Government too will be a political decision, where they could either subscribe to the same view as the previous Government or stay with their more identifiable socialist leanings.
This writer does not see any major legal impediments to the current Government signing the MCC agreement based on the agreement approved by the cabinet of the previous Government, unless any associated documents not made public so far and revealing sovereignty impingements surface, but urges that this agreement is viewed from the broader context of (a) how and why specific land areas and road projects were identified and selected and (b) how and why the previous Government and the US Government determined that land surveys and some road projects were the priority areas for the MCC grant of $ 480 million over five years.
Indirect links to three other agreements
In a previous article by this writer (Millennium Challenge Grant: USA and the trust deficit, Daily FT, 12 November, http://www.ft.lk/opinion/Millennium-Challenge-Grant-USA-and-the-trust-deficit/14-685021), concerns were also raised about the indirect links to three other agreements, two of which the US Government has either signed with the previous government or which they wish to sign (SOFA and ACSA), and the amendment to the Sri Lankan Land Act (Land (Restrictions on Alienation) Act No. 38 of 2014.
The Daily FT reported on 8 October that the new amendment to Land Act has received approval from the then Cabinet. This Act reportedly incorporates legal provisions to enable foreigners and companies listed on CSE with more that 50% foreign shareholdings to purchase lands in Sri Lanka. It also gives retrospective effect to land acquisitions carried out prior to 1 April 2018.
"The US is not a trusted source in many parts of the world and they cannot expect Sri Lanka to trust them any more than the countries that do not trust them. As pointed out in an earlier article, there is a trust deficit with the US in many parts of the world, and they, the US, will have to take measures to bridge this deficit if they wish Sri Lanka to move away from its apprehension of the intentions of the US in Sri Lanka"
The writer pointed out that as a consequence of this Amendment, there could be renewed interest for non-nationals buy land in Sri Lanka and for companies with more than a 50% shareholding buy land in Sri Lanka (Amended Land (Restrictions on Alienation) Act No. 38 of 2014: Challenge for Gotabaya and Sajith – Daily FT, 15 October 2019 - http://www.ft.lk/columns/Amended-Land-Restrictions-on-Alienation-Act-No-38-of-2014-Challenge-for-Gotabaya-and-Sajith/4-687602).
It was also pointed out that this Act or the predecessors to it have not been investigated in depth and the objective of selling land to foreigners have not been clearly spelt out by successive governments and that there was any evidence of a cost benefit analysis had been done to justify why land should be sold to foreigners.
If one were to study the MCC agreement in isolation of SOFA, ACSA and the proposed Land Amendment Act as pointed above, one would miss the woods for the trees. This goes for the committee appointed by the President as well.
Considering that the signing or not, of the MCC agreement is a political decision, it is hoped that the Presidential committee will examine and give priority to the political aspects associated with the MCC agreement as well as SOFA, ACSA and the Land Amendment Act.
These agreements and the Land Amendment Act could be the web that could ensnare Sri Lanka and its future generations. Or it may not, and they could all be for the sole benefit of Sri Lanka, a proverbial “free lunch”.
No country would extend such generosity, $ 480 million of it, without expecting nothing. The US government is offering this “gift” as they need Sri Lanka. They need Sri Lanka in order to prevent it being a virtual colony of China. As much as the US, India too would have a similar objective as The US.
Sri Lanka is in the vortex of a power rivalry and will have to play their cards diligently and with great care. The US cannot be its enemy however small and insignificant Sri Lanka may appear in the world map. No doubt Sri Lanka too needs this gift and also the hand of friendship of the USA.
But this friendship cannot come at the expense of the friendship with China, and neither the one with India. The price for the US maybe an amended MCC agreement that is based on a revisitation of the country’s economic and social priorities and a conclusive, binding (on all future governments in the US and in Sri Lanka) withdrawal of the ACSA and SOFA agreements that could be replaced by a security cooperation agreement, the focus of which should be terrorism and threats posed by terrorism. The price for Sri Lanka could be to assuage any concerns the US may have about Chinese influence in Sri Lanka by signing a pact with China that prohibits any form of Chinese Military presence in Sri Lanka.
High level foreign policy setting
The writer has on several occasions advocated a high level foreign policy setting for Sri Lanka based on a compact comprising of China, India and Sri Lanka as such a policy setting compact would avoid frictions that arise on account of periodic leanings towards one country or the other by Sri Lanka governments. Such a compact could focus on economic issues and how all three countries could benefit from each other. India of course could be the guarantor for the US that Sri Lanka will not lean towards China in any unequal sense.
The US is not a trusted source in many parts of the world and they cannot expect Sri Lanka to trust them any more than the countries that do not trust them. As pointed out in an earlier article, there is a trust deficit with the US in many parts of the world, and they, the US, will have to take measures to bridge this deficit if they wish Sri Lanka to move away from its apprehension of the intentions of the US in Sri Lanka.