The Attorney General’s Department owes an explanation to the GoSL – the Public & the US Government
Posted on January 20th, 2021

The Attorney General of Sri Lanka is the Sri Lankan government’s chief legal adviser, TheAttorney General has now declared that the MCC Compact and the Program Implementation Agreement & Articles of Association of MCA are inconsistent with the written laws & the Constitution of Sri Lanka. This is a complete reversal of the AG’s legal opinion given on 10 October 2018 to the MCC Chief Operating Officer which the US Embassy has been using to justify the MCC Compact. This change in stand has severely impacted diplomatic relations, it has unnecessarily caused friction between the People & the US Government and it is seriously questioning the entity tasked with advising the Government. The AG’s department owes an explanation and an apology.

The Attorney General’s Department has informed the Secretary to the President through a 20paged letter that every document related to the MCC agreement with Sri Lanka is inconsistent and there are legal impediments to its implementation. http://adaderana.lk/news/70874/ag-finds-mcc-compact-inconsistent-with-the-constitution

http://adaderana.lk/news/70874/ag-finds-mcc-compact-inconsistent-with-the-constitution

So in 2021 the AG’s department says the MCC is inconsistent with the Constitution & written laws. But the same AG’s department on 10 October 2018 in a letter to COO, MCC – Jonathan Nash said that the MCC does not violate any law in Sri Lanka.

https://theleader.lk/news/3863-the-mcc-agreement-does-not-violate-any-law-in-sri-lanka-a-certificate-from-the-attorney-general

https://www.shenaliwaduge.com/wp-content/uploads/2021/01/Attorney-General-Opinion_10_10_18-1.pdf

Here are some excerpts of this letter to the MCC, Chief Operating Officer

It is as a result of this official clearance” by the Attorney General in 2018 that the US Embassy, the US ambassador insisted that the MCC Compact was legal and Sri Lanka was making a fuss over nothing. 

In fact, the Sri Lanka Treasury carried the Attorney General’s legal opinion which the US Embassy linked to its website to showcase that their Compact was afterall legal.

http://treasury.gov.lk/article/-/article-viewer-portlet/render/view/mcc-agreement-drafted-with-the-consent-of-ag– MCC Agreement drafted with the consent of the AG (this is no longer available on the Treasury website)

https://lk.usembassy.gov/mcc-fact-sheets_/

(the US embassy links the SL Treasury document referring to AG’s consent)

Of course, many of us who were not legal luminaries but had more common sense, did not accept this version of the Attorney General and we highlighted areas that were not compatible with the constitution which led to successive committees being appointed to review the MCC Agreement. All of these reports in particular the Gunaruwan Committee report clearly showcased violations of the constitution.

Now, almost 3 years later, the same Attorney General’s dept that issued the green light for the MCC, now says the MCC is unconstitutional. 

We must now pause to ask, exactly what the Attorney General’s department are up to.

We are not questioning whether what the AG’s department said in 2018 was right or wrong or what the AG’s department said in 2021 is right or wrong, but the fact that this key department is the conduit that advises the Government and writes into law what the Government does.

This one instance resulting in a major faux pas has even led to embarrassing a foreign country and its diplomatic mission and caused friction between it and the People. 

This is very unprofessional of the department and they need to offer everyone an explanation.

Moving forward the same mistakes are continuing. 

Presently there are 3 sets of Committees set up to review the laws in the country & make amendments.

Committee 1– led by Justice Minister Ali Sabry as Mr L Kiriella MP said  appointed 147 lawyers to various committees to amend laws, amend Notaries Ordinance & Registration of Documents Ordinance. They are still in discussion stage.

Committee 2– Government Task Force appointed by the Government for Property Registration comprises Land Commissioner, Land Title Settlement Department, Survey Department & Registrar General Department & ICTC.

This Committee liaises directly with funding agencies and their proposals are directly passed to the AG’s department for necessary legal writing to be forwarded for Cabinet approval.

Task force is the working committee of all Governments. 

Committee 3– Then there is a 18 member de-regulation commission headed by Lalith Weeratunga and private sector head Krishan Balendra to ‘cut red tape’ and will review all laws, regulations, circular instructions pertaining to government finance, revenue laws, circular instructions, licensing & permit arrangements, investments, approvals& building permits etc. Now private sector are changing state laws to their advantage!

The role of a Government Task Force & foreign funding agencies is key to understanding how drastic changes conflicting with the interests of the country is taking place.This is how Bim Saviya was passed having been approved by the same AG’s department.

In 1998 the AG approved overnight legislation to wipe out the land law of the country to superimpose the Australian land law with Act 21 of 1998 which now has to manage the e-register.They called this Bim Saviya which came into being after liaising with foreign funding bodies. Overnight, this foreign law took away the fundamental rights of the land owners and abolished the rights of farmers and paddy field owners.

Colossal sums of money is being spent on appointing committees to amend laws that operate in the country. For the past 20 years the Bar Association wasted their time recommending amendments, and another committee appointed by President Rajapakse also made amendments.  The Ministry of Justice recently has appointed a committee to look into various land laws whilst the cabinet is separately making amendments with the AG’s department & Land Ministry. Most shocking are the Government reports that say they require 100 years to implement Bim Saviya law, there are no competent officials or lawyers to manage this law – see Title Commissioners Reports of 2018 and 2019 on the web

But in reality the funding bodies put their wish list to the Government Task Force and they liaise with the AG’s dept & Land Ministry to make these wish lists into law.

How we are Trapped

The e-land project was introduced as part of the Ease of Doing Business in Sri Lankavia a cabinet appointed Property Registration Task Force.

Similarly, while other bodies are studying existing laws etc, the Task Force and foreign funding agencies are amending the conveyancing process with electronic systems. All these changes will pass through the AG’s department.

http://www.dailymirror.lk/148557/Govt-to-introduce-online-property-registration-service

AG, please answer

Now that the AG’s dept says MCC is inconsistent with the Constitution, it is the AG’s duty to retake the Bim Saviya Act not only because this was passed in 1998 without scrutiny but because MCC demanded amendments to Bim Saviya which the AG’s Dept conformed to.

Given that the same AG’s dept says the MCC is inconsistent with the constitution, these amendments to Bim Saviya must not only be removed, the entire Act 21 must be thoroughly reviewed again.

AG has to realize that e-registration cannot be made without revision of the colonial statutes? The Land Acquisition Act 9 of 1950 even allows a Government to acquire land to benefit the public – but why is this being repealed?

AG cannot ignore the reports by heads of Ministries– land registrar says 50% of land deeds are frauds but these are getting inserted into the electronic registrar.

AG must realize that an Australian law is going to govern our e-register and this itself is unconstitutional

Law Reform Commission must wake up. Do they not realize that lawyers are being kept busy by being appointed to various committees or given appointments while the funding agencies are wooing the Task Forces and subtly privatizing Sri Lanka’s land for neocolonial objectives – including raping of our forests.

Is there no one to realize that our laws are being changed and amended to suit the demands of the foreign funding bodies and those who want to take advantage of the amended laws for their own gain?

Caveats have been removed by Cabinet – why?

http://www.dailynews.lk/2020/12/16/political/236219/decisions-taken-cabinet-meeting-held-december-14

There are sudden and alarming changes to the conveyancing process  – Notaries  are not necessary as well http://www.dailynews.lk/2019/08/09/features/193580/burden-free-last-willPublic Trustee will do away with Notaries to write Last Wills.

People must demand to stop the e-land registry being done by transferring deeds to title registration (bim saviya) as the constitutionality of this Act also needs to be looked into as this Act was passed by the AG’s department without any Public scrutiny or legal inputs in 1998.They must all explain why the deed system cannot continue with provisions of the Central Bank Financial Act of 2006 incorporated to fortify and protect against any type of land fraud. Why waste colossal sums of money to transfer from deed to Australian title system when loopholes in deed system can be addressed and these can get entered into e-land register.

We need to take a step back and review what is taking place and what is getting approved by the AG’s Department. We need to know before AG approves what suits the country. The Attorney General’s Department need to also play a bigger role by reviewing its faux pas in key decisions taken in the past several years.

The MCC opinion of 2018 and 2021 by AG’s department should not be repeated for any other law.

Shenali D Waduge

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