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 26^th 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?