23 September, 2017

Unmasking The Trinco MOU: Have The PM & India Trapped Sri Lanka?

By Sanja De Silva Jayatilleka

Sanja De Silva Jayatilleka

The Government of Sri Lanka has just signed an MoU with the Government of India (GOI), on a wide range of projects in Trincomalee, extending from Oil Tank farms and Highways, Water management, Agricultural and Livestock development, Industrial and Special Economic Zones to the Trinco Port itself. Minister Malik Samarawickrama and the Foreign Minister of India Sushma Swaraj, were the signatories to the MoU dated 26th April 2017.

What exactly is an MoU? Could such thing pose a danger? This was my first thought on hearing that our PM was going to sign one in Delhi during his visit.

His track record did not inspire trust. Every time he is in an ungodly hurry to sign a piece of paper with other governments, even if it is the self-declared government of Tamil Eelam, we the citizens have reason to get nervous since an enduring feature of the PM’s actions is unilateralism. What was the PM getting us into this time? Should we be worried?

Not being a lawyer, I rushed to the internet. I found out that an MoU, although it is commonly believed to be a non-binding instrument, is not necessarily so.  Apparently, “what matters is the words used in the document itself; it is important to notice that the title (designation) of the instrument is irrelevant”. So, depending on the words contained within the document, even an MoU could amount to a treaty, which is  an international agreement concluded between States in written form and governed by international law” .

The UK government’s guidance on practice and procedures on MoUs and Treaties warns that:

“…in order to ensure that MoUs are not worded in such a way as to amount to treaties, care should be taken to avoid the use of “treaty language”….”  It further exhorts that “Certain words should never be used.”

Well, what do you know! The MoU that was just signed by Sri Lanka with India, has several words that should never be used’ if it is meant to be a ‘non-binding’ document!

Didn’t the PM assure the CPC trade unions that he was not, repeat NOT, going to sign any document with legal implications? I hope an independent lawyer not working for the PM’s office or the government will take this MoU apart and assure the public that this unity government has not imposed a legally binding treaty on an unsuspecting public! Or even a suspecting public, such as the likes of me.

The list of words that “should never be used” but are in fact used in the MoU between India and Sri Lanka, include the following– and I produce those, together with the alternative words that are meant to be used in a non-binding MoU:

At first glance at the MoU between GoSL-GoI, one can see that the two governments are referred to as “Parties” and each of the paragraphs are referred to as “Articles”. All of the words I have shown above in DO NOT USE have been used in this MoU!

It says grandly and tellingly at the end, “In witness, whereof, the following representatives duly authorized by their respective Governments, have signed this MoU”.

“Duly Authorized”? Who authorized the signing of this MoU, where and when? It says “their respective governments”. So did the segment of the SLFP, forming a part of the Unity Government under the able leadership of the President and leader of the SLFP himself, authorize the signing of this very suspect MoU, along with the UNP?

Since to my untrained mind, there is the serious eventuality that we may have signed an agreement which carries with it legal obligations, let me summarize what we have actually agreed to. 

The following are some of the things that are contained in the MoU.

Actually it says “Both the Governments have agreed to complete the following joint projects in Sri Lanka.”

I’d like to know how both Governments have agreed to anything at all, when we the citizens are under the impression that the Prime Minister has only come to an ‘understanding’ with the Government of India and any ‘agreement’, especially on such strategic sectors as Water Management, Ports, Natural Gas and Roads can only be agreed on after the matter is adequately discussed in Parliament, and arguably, where necessary, after a Referendum.

  • Liquefied Natural Gas (LNG) fired 500 megawatt capacity LNG Power
  • An LNG Terminal / Floating Storage Regasification Unit (FSRU) in Kerawalapitiya/Colombo
  • piped gas distribution system; retail outlets for supply of Compressed Natural Gas (CNG) to the transportation sector;
  • Upper Tank Farm in Trincomalee
  • A Port, Petroleum Refinery and other industries in Trincomalee,
  • Roads in Sri Lanka including Mannar-Jaffna and Mannar-Trincomalee Highways and Dambulla-Trincomalee Expressway under Indian investments
  • A Container Terminal in Colombo Port as a Joint Venture
  • water management and promotion of agro-based industries,
  • Any other areas mutually agreed between the Parties

This is not the exhaustive list of all that has been ‘agreed’ on by ‘both governments’ but you get the general idea! 

I wonder if the PM has taken the minimum precautions suggested in the UK Government’s Guidance and Practices Note, since he is so keen on a Westminster system of Government, that “all draft MoUs should be sent to the relevant FCO department for clearance by their legal adviser…, there should be the same level of inter-departmental consultation as for treaties.”

And if he was conscientious enough to do so, are there any Ministers of the various Ministries also culpable? Was this approved in Cabinet? Did our Executive President approve of this and duly authorize the representative, in this case Minister Malik Samarawickrama, to sign this on behalf of the Government?

Did our legal advisors not advise our representatives to check the wording of the MoU to prevent any confusions as to the legal status of the document they were signing? Is this Government capable of governing us competently?

Or is this confusion in the terms used within the MoU, designed to serve the PM’s cherished wish to sell of Trincomalee to pay for the looming economic disaster?

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  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 14
    3

    ……to my untrained mind,………..

    ——but you get the general idea!…

    Ma’am I started reading expecting something authoritative. These caveats leave me feeling that I have wasted time on an amateurish bit of ‘who shot John’.

    • 7
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      Spring Koha

      “Ma’am I started reading expecting something authoritative.”

      Come on old chap I think you were expecting something erotic now it appears you are completely disappointed by lack of eroticism and void of any substance.

      Good luck next time.

    • 9
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      Notwithstanding my earlier comment, it is worth pointing out that the real reason for this article is exposed in the last sentence of the penultimate paragraph

      Is this Government capable of governing us competently?

      Madam Sanja and her ever present puppet master DJ will not rest until the current object of their affection aka The Great Liberator is back in the hot seat. So DJ and his puppet-poodle are chewing at every bone they can get at. (One had to laugh at the lesson on the do’s and don’t’s of writing an MOU!)

      Apropos the real question, which GOSL has really governed ‘competently’? Government is mostly about the possible, and the expedient – that goes for rubbish dumping as it does for suzerainty.

      If you think this government is bad, try to remember the disaster that the previous government of the Great Liberator was like.

      DJ and his busy band will never accept that WE the People must choose our government.

      As always, in our sun-drenched blessed home of the triple gem, things can only get better – as they say in our sleepy village by the lagoon ‘adata vadda, hetta hondai’. Happy May Day everyone!

      • 9
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        Spring Koha

        “DJ and his busy band will never accept that WE the People must choose our government.”

        Dayan the war monger is ever ready to stop the people by any means necessary from choosing their own government.

        Are we preparing to accept and live under a Sri Lankan brand of fascist regime?

    • 0
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      Notwithstanding my earlier comment, it is worth pointing out that the real reason for this article is exposed in the last sentence of the penultimate paragraph

      Is this Government capable of governing us competently?

      Madam Sanja and her ever present puppet master DJ will not rest until the current object of their affection aka The Great Liberator is back in the hot seat. So DJ and his puppet-poodle are chewing at every bone they can get at. (One had to laugh at the lesson on the do’s and don’t’s of writing an MOU!)

      Apropos the real question, which GOSL has really governed ‘competently’? Government is mostly about the possible, and the expedient – that goes for rubbish dumping as it does for suzerainty. If you think this government is bad, try to remember the disaster that the previous government of the Great Liberator was like.

      As always, in our sun-drenched blessed home of the triple gem, things can only get better – as they say in our sleepy village by the lagoon ‘adata vadda, hetta hondai’. Happy May Day everyone!

    • 2
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  • 7
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    There are two sides to this. Some how, Sri lanka can not leave those fuel tanks left unused. Sri lanka can develop with the help of a gulf country or even India or china. china can help it one peral in their string of pearl. but US won’t allow it and object via Indian CIA agents. Indian parliament has lot of agents. Another possibility is to find a impartial companhy which deliver fuel to ships at least ships want to fuel in the mid sea.

    So, modi won’t invole. I don’t think Ranil is that dumb. HE is careful.

    but, Journalists have field day out of it and that cannot be prevented.

    • 6
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      jimsofty the dimwit

      “china can help it one peral in their string of pearl. but US won’t allow it and object via Indian CIA agents.”

      The fuel tanks crisis came to the fore because USA in the 1980s wanted to lease them through Singaporean subsidiary. Hindians prevented the deal through supporting various Tamil Militants. If you thought Hindia would object to the lease on behalf of USA is like Dayan’s strategic analysis.

      Hindians would object to lease being granted to third party simply because they do want to keep the back yard stable, the very reason they destabilised this island in the 1980s. Those reasons remain valid.

      Indians do not like American presence in India. Their Slogan used to be “Uncle Sam go home. When you go take me with you”.

      Most of the sloganeering came from jolna bags carrying Indian youth in hand loom kurta sporting a beard which gave them an intellectual image (they thought), seen in cafe cultural areas, ……. some wearing Gandhi glasses maintained a face that said they had lost something in the past and awaiting for its return,had condemn for materialism, ……. until they received US visas.

      Does this remind you of our so called nationalists, lefties, communists, socialists, fascists, JVP, LSSP, NSSP, CP, SLFP, JHU, … ?

  • 6
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    If Sri lanka is smart, can gang up with a middlee astern country and open a petroleum purification plant and left over material can be used to manufacture other products. that whole area can be developed.

    Sri lanka did Mahaweli scheme. why they can not do this.

    • 4
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      Yes Jimmy, very good comment.

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    Even the Colombo Elite wouldn’t understand what a MOU is, let alone our Dalits in the North, South, East, and the West.

    That is why Dr Ranil is taking them for a ride.

    Talked to a couple of Eastern Uni grads on my way to Trinco from Mullative.

    They are selling Paw Paw on the Niwalaweli Highway, to make a living.

    With Dr Ranil’s MOU with Hindians , these young Muslims will be selling Paw Paw for the rest of their lives.

    Alongside the ex LTTE Kids who are selling Roasted Rata Kadju on the roadside in Myllative.

    • 7
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      KASmaalam K A Sumanasekera

      Where you been since new year?

      Did you eat well, drink well, have jolly good time, and wake up this morning?

      It seems you need more days to recover. Go back to sleep.

      “They are selling Paw Paw on the Niwalaweli Highway, to make a living.”

      Yet you are playing rich man’s sports. What a hypocrite you are.

      • 4
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        KASmaalam K A Sumanasekera

        The red shirts have managed to organise a May day rally/procession in Jaffna.

        Where did they find so many red shirts, bused from other parts of the country?

        What are Gota’s boys doing in Jaffna? Have they stop carrying his b***s?

        In 2010 JVP red shirt MP Sunil Handunnetti and three others were assaulted in Jaffna. When Anura Kumara Dissanayaka was attacked he found refuge in former Tamil MP Padmini’s house.

        What I am unable to understand is that why Gota’s boys keep themselves to themselves these days. Have they switched their loyalty to Ranil? If so why?

        • 0
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          Dear Native..

          What are you smoking these days.

          Didn’t you know that the Red Shirt comrades whom you are referring to, are all your idol, Dr Ranil’s “boys” now.

          BTW, did you read about your other idol, Vellala Sambandan going to to see JO boys to plead for them to give him his Eelaam.

          Wonder what happened after paying all expenses of Dr Ranil and his boys?.

          Just check whether Sambandan had “Appam” and “Kopi” with them…..

  • 3
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    Any one knows that whether an MOU or treaty with our big neighbour is usually enforced unequally to the disadvantage of Sri Lanka. Any one also knows that say a treaty or MOU between, say, Canada and USA is rock solid and enforced to the letter and spirit. A friend of mine once told me that an MOU could be an MOMU (Memorandum of Mis-Understanding). Anyone who reads contemporary history knows that China walked into Tibet once the Panchen Lama signed a treaty in Beijing acknowledging that Tibet was a part of China. This is why our leaders must act with responsibility and it is a good idea that their actions could be reviewed in courts particularly if it affects the sovereignty of the nation.

  • 6
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    Yes of course.
    Via Trincomalee, Sri Lanka will become a vassal/satellite of India, or even another federal state.
    The imagination of this writer is boundless.
    She should be appointed – via the National List – as Minister of External Affairs.

    P.S
    The PM also directed the Minister of External Affairs to postpone, not modify, the implementation of the 2015 UNHRC resolution binding Sri Lanka to a Hybrid Court to inquire into War Crimes, for a further period of two years.
    This writer did not object, & thus was/is in agreement.

  • 0
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  • 7
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    This self-confessed “untrained mind” sounds off mightily on the basis of information admittedly gathered on the internet. It is unfortunate that there is an effort by the half-baked to create disquiet about whatever the government seeks to do when it is simply following the beggarly practices of past governments.

    Road building in Sri Lanka has been a matter that was done by various foreign governments in the past. Past practice was apparently being followed here. It is just that Chinese did it before. Indians are doing it now.

    As regards Trincomalee, there was an existing agreement committing development of some matters by India.
    What was done was not anywhere near as mind-boggling a sacrifice of sovereignty than accomplished by MR in respect of Hambantota and Port City.

    There seems to be a collective and equally feeble effort to create consternation about whatever little beggarly good that the government seeks to achieve which is nowhere as colossal a sacrifice of sovereignty as accomplished by the government. This smokescreen is so thin that an imbecile could see through it.

  • 12
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    Sanja De Silva Jayatilleka,

    “Unmasking The Trinco MOU: Have The PM & India Trapped Sri Lanka?”

    Wouldn’t it be equally true,

    Unmasking The Colombo-Port-city MOU: Have The President Mahinda Rajapakse & China Trapped Sri Lanka?

    Let me take this opportunity to let you know how deeply I appreciate your and your husbands’ ever-present gigantic altruistic concerns for the country.

    Where would we be without the likes of you?

    Perhaps suffering all the dangers of the 21st century; I suppose.

    How comforting it is to dress in modern attire and be mouthing pseudo-modern-concepts while being backward-looking and medieval.

    What a blessing to be born in Lankan eh? Where else would you two find a place?

  • 0
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  • 9
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    Most Sinhalese writers don’t understand the geo-politics of a small country close to a giant one.

    The small one is usually stable as long as it is friendly and cooperates with the bigger beighbour.

    Cooperation may be in military, economic, ecological and other matters that may affect the bigger one.

    Sinhalese cnveniently for gorget the India’s immense help was that ensured the defeat of the Tigers, otherwise we would have two small countries adjacent to India.

    Instead of being grateful they think they used India like curry leaves and now that the cooking is done, they can discard the curry leaves.

    Fools never learn from History: Crimea, Eastern Ukraine, Abkhazia and South Ossetia, Tibet, and Bhutan stand testimony to this concept.

  • 7
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    Dear Lady,
    It is true that you, as a citizen, have rights to criticise actions of the current government. However in a democracy, 51% of people select their leaders to govern the country for a set period even though 49% disagree. In other words, 51% people disagree with you and your husbands ideologies and practices of your party. Understand it and try to respect the democracy rather cry wolf of every policy decision of the democratically elected Gov.

  • 3
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    How MOU is Different from Agreement
    MOU is like a contract, but it does not have to carry the same legal weight. If the wordings used in the MOU are vague and unclear and do not create any binding effect, then the same cannot be enforced. It does not create a valid contract. But if one party do anything on reliance of MOU and sustains any loss he can recover back losses but cannot get enforce the MOU. Both Parties of MOU are bind by estoppel and any of them cannot take adverse stand.

    A memorandum of understanding is an agreement between two parties in the form of a legal document. It is not fully binding in the way that a contract is, but it is stronger and more formal than a traditional gentleman’s agreement. Sometimes, a memorandum of understanding is used as a synonym for a letter of intent, particularly in private law. A letter of intent expresses an interest in performing a service or taking part in an activity, but does not legally obligate either party.

    [Edited out]

    Also you say that the UK Govt dictates to not use MUTUALLY AGREED – which well if you do not understand the clear language of english you would say this is binding – cause a clear sentence like ” if both parties mutually agreed to….” it means BOTH PARTIES HAVE TO AGREE. which then does not make it binding.

    Also you have said the MOU has used words in the do not use list but your example
    “The following are some of the things that are contained in the MoU.

    Actually it says “Both the Governments have agreed to complete the following joint projects in Sri Lanka.”

    so maybe even you talk so much crap you dont even know what you say anymore.

    PLEASE STOP WASTING PEOPLES TIME WITH YOUR OPINIONS – “

    EMPTY VESSELS MAKE THE MOST NOISE “

    [Edited out]

  • 4
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    Our Majesty Ranil has done just what our kings in Kotte in 17th Century did with the Portuguese in order to protect themselves from the Kandyan and Jaffna Kings. The country was later overrun by the Foreigners enslaving the Sinhalese and the Tamils to eternity. Hambantota Port , Colombo Port City to the Chinese and the Trincomalee Harbour with the rest of North and East to India has now been sold in parts in keeping with the Country’s traditional wisdom.

    The overall security and Military facilities guaranteed by the United States of America, we the Citizens of Sri Lanka are fully insured against all risks of Foreign or Local LTTE attacks.

    The Sinhalese Majority is not prepared to concede to the basic political demands or share anything with its Peoples of this land but would gladly endanger its and its Country of birth to any Foreigner as Strange Bed-fellows.

    This age old wisdom prevailed in abrogating all M.O.U. and political Agreements signed between the Sinhalese and Tamil Leaders and ended with a Killing field.

    The world at large and the regional Super powers have ultimately cashed our foolishness and Vanity.

    Finally a Humble request to our Subscribers. When Govt matters are involved it is best if authoritative facts are adduced to withstand any doubts on grounds of ambiguity. Now we have the Right to Information law and all must try to make the best of its use.

    Thanks to all.

  • 2
    3

    Superb analysis of what the SL government does without study of the ruses that are used today to trap inept governments. Congratulations!

    The problem is that our politicos in the highest position are not aware, and more importantly, not being made aware by their advisors, of the traps being laid to get access to the country and its resources.
    For decades we had been told by the experts that the “the war was unwinnable”, and now the differences between MOUs, Agreements and Treaties is being played down as inconsequential by the local advisors.
    One would not be surprised if the same ineptitude does not prevail in countries more important and powerful than this little island.
    No wonder the world is in such a mess!

    • 7
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      CountryFarce

      “Superb analysis of what the SL government does without study of the ruses that are used today to trap inept governments.”

      Why is the analysis superb?

      Did you actually read it? If you did, when did you read it? After singing National Anthem in Sinhala with gusto or after?

      The public racist Sarath Weerasekara made some nationalistic noises. He wanted to sue the state/government for singing Tamil National anthem in official ceremonies/events. Do you know the outcome of his case?

      Please let me know the verdict.

  • 4
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    Now we have another de Silva Jayatillake ( the other one is Dayan ) spreading scare stories. I suppose it’s better to let the oil tanks rot.

  • 4
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    “Not being a lawyer, I rushed to the internet.”

    your hubby claims to have signed lots MoU’s during his time at UN etc ..you didn’t rush to him…..seeking clarification….?.

    perhaps he also signed MoUs without knowing what it means?

  • 5
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    madam you forgot to complete your last sentence…let me complete it for you

    Or is this confusion in the terms used within the MoU, designed to serve the PM’s cherished wish to sell of Trincomalee to pay for the looming economic disaster? “….created by the previous government”

  • 3
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    Sanja De Silva Jayatilleka
    “Every time he is in an ungodly hurry to sign a piece of paper with other governments, “….even if it is the self-declared government of Tamil Eelam”

    for the development of Sri Lanka?

    it’s amazing such a small country still in its infancy is able to contribute to the development of Sri Lanka.

  • 3
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    I have a rather bad memory & not fully aware of the apparent deals made by the previous regime but I wonder if the same scrutiny was done when the Rajapakse regime negotiated all those Chinese ‘investments’ or are we learning from experience?

    Anyway, I think the Jayathilakas are wasting their time with their intellectual arguments in SL. I am sure their talents would be much appreciated in the Trump team. The experience, particularly, of DJ with autocratic Presidents of SL would be invaluable to Trump’s Press & PR team with providing alternate facts. SL is far ahead of America when it comes to fake news & alternate facts, & DJ seems to be a Master in that subject, so together, would make a good team in the US.

  • 0
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    I’m surprised that the TNA hasn’t released a statement on this yet. There is a high probability that the NE will become independent due to the UN intervention that’s underway. (I believe the odds are at 100% in favor of the Tamils, but for arguments sake let’s say “high probability”). Therefore, they should make it clear, that any MOU’s done without the express written consent of the NPC and the TNA will not be honored by a future independent North Eastern government, if the NE becomes independent. There are two arguments for this. One if that since the GOSL is under investigation for crimes against humanity and the citizens of the NE are the victims of those crimes, it is against the principles of natural justice to expect the people of the NE to honor an agreement entered into by those who have committed such heinous crimes against them.

    The other argument is that the GOSL itself is an illegitimate government which came into being through the illegal constitution of 1972. As we know, the British monarchy gained sovereignty of the island through the Kandyan convention and treaties with the Dutch which handed over the sovereignty they had gained from the Vanni Chieftains and the Kingdom of Kotte. This sovereignty has never been relinquished to the people of Sri Lanka, but instead was vested in a new institution – The Monarchy of Ceylon, with George VI serving as King. Upon his demise Elizabeth II became Queen of Ceylon. Per the Soulbury constitution, all bills require royal assent by the Queen of Ceylon to become law. However, the constitution of 1972 did not get royal assent, and is therefore void-ab-initio, and all international treaties entered into by the GOSL from that point onwards, that did not get royal assent are also void-ab-initio.

    Incredibly, the current legal status of the sovereignty of the Island, including of the NE, is that it is vested in our Queen (Elizabeth II) who is in exile in England. Should the necessary conditions arise in the NE (and they will), because of the UN intervention, the Tamil people can appeal to the Queen to serve as their monarch once again, or if it pleases her majesty, agree to the Tamil People becoming a republic, by giving royal assent to a new constitution for the NE. All treaties entered into by the illegal GOSL since 1972 pertaining to the NE, including the Indo-Lanka accord, would be invalidated.

  • 0
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    Unbelievable scenario! I mean, we could have appeased India and let them do some farms and fisheries. But to place our oil tanks and roads on India?!!! Doesn’t Yahapalanaya realize that Donald Trump is now the US president? Yahapalanaya is still in the Obama-Clinton mode! Ranil obviously has no idea of how to work the Art-of-the-Deal. Idiot! Quick, the MOU hasn’t solidified into mandates yet. Somebody approach Trump quick!

  • 0
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    Sri Lanka and India are not parties to ‘Vienna Convention on Law of the Treaties’. This MOU looks like a framework agreement, without details. No need to take it seriously as there is no ratification process involved.

    Foreign Ministers can sign instruments on behalf of their governments or they can authorize others to sign.

    Mrs. Jayatilleka is making a case out of nothing. If India refuses to assist with developing the LNG power, do we go to ICJ? Absurd.

  • 1
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    Reply to Sanjay de Silva.
    Have you forgotten that MR has put this Country into a debt trap, through his avericious loans. ? Is it wrong to sign up JOINT VENTURES with China/India/Japan/US and/or any countfy that wants to sign up? Dont criticise, just because you want to. Evaluate the pros & cons.

  • 0
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    ” I rushed to the internet”

    before that i rushed to the bathroom thinking there was an indian invasion.I saw through the window our police constables had already climbed onto trees with binoculars.

    “even an MoU could amount to a treaty, which is “an international agreement concluded between States in written form and governed by international law”

    thanks for highlighting that.doesn’t the indo lanka accord which has not been fully implemented after 30 years,fall into that category

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