Why you should worry about MCC Sri Lanka

On April 25, 2019, the MCC Board of Directors approved the five-year Sri Lanka Compact. It was days after Easter Sunday mass murder. The controversy of this bilateral-corporation agreement should worry all Sri Lankans.

  1. MCC has to be signed & passed by Parliament of Sri Lanka making MCCa domestic law similar to 13thamendment (Section 6.4) & impossible to remove. If Compact is only for 5 years why pass it in Parliament?
  2. Foreign Personnel & Service Firms given entry/work visas(Section 8.3) – how many for how long & who is paying them & what component of funding will go to them not given
  3. MCC granted FULL IMMUNITY(Section 6.8)
  4. GoSL delegates all of MCC Compact activity administration to a Private Company(Section 2.6) – its board comprises GoSL Secretaries (can public sector senior officials be employed in a private sector capacity WHILE working for the public?
  5. But, GoSL undertakes responsibility & accountability for all that this Private Company– MCA Sri Lanka does(Section 3.2)
  6. MCA-Sri Lanka is a private company set up in Sri Lanka to function as GoSL’s “PRIMARY AGENT” responsible for “exercising the Govt’s rights & obligations to oversee, manage & implement the Program and Projects”. Is this legally/constitutionally allowed?
  7.  MCA-Sri Lanka ‘shall have operational and legal independence and full decision-making autonomy’ including ‘the ability, WITHOUT consultation with, or the CONSENT or approval ofANY OTHER PARTY, too (how can Public servants be given full autonomy to make decisions as they like. Isn’t this major conflict of interest)
  •  Enter into contracts in its own name (MCA-Sri Lanka)
  • Sue & be sued

Establish an account with a financial in its own name (MCA-Sri Lanka) and hold MCC Funding in that account.

  • Expend MCC Funding
  • Engage contractors, consultants and/or grantees, including without limitation, procurement & fiscal agents.
  • Competitively engage one or more auditors to conduct audits of its accounts.

Program Implementation Agreement will provide further details of the scope of MCA-Sri Lanka.

MCA-Sri Lanka Board of Directors & “Management Unit”

Board of Directors (11 voting members 2 non-voting observers) – each Board Member can be represented by an “alternate” but be an ‘Additional-Secretary” or equivalent.

2 non-voting observers are CEO of MCA-Sri Lanka & MCC Resident Country Director.

  1. A representative from the President’s Office
  2. A representative from the Prime Minister’s Office
  3. Secretary to the Ministry of Finance
  4. Secretary to the Ministry of Transport & Civil Aviation
  5. Secretary to the Ministry of Lands & Parliamentary Reforms
  6. Secretary to the Ministry of Megapolis & Western Development
  7. Secretary to the Ministry of Highways & Road Development & Petroleum Development
  8. Secretary to the Ministry of Women & Children’s Affairs & Development of Dry Zone
  9. One Private Sector Representative
  • Two Civil Society Representatives

Management Unit – comprises CEO & comprise ‘directors and officers as agreed upon’ and supported by appropriate additional staff – a number not given.

Any additional staff must have MCC approval (the GoSL ends up taking orders from a foreign corporation)

  1. MCA-Sri Lanka has to prepare Stake Holder Engagement Plan consistent with International Finance Corporation Performance Standard for the Assessment and Management of Environmental and Social Risks and Impacts and satisfy stakeholder committee structures by MCC’s Guidelines for Accountable Entities & Implementation Structures.

https://www.mcc.gov/content/uploads/2017/05/mcc-oceo-guidelinesforae.pdf

  1. MCA-Sri Lanka private company is given access to all of Sri Lanka’s state records (how can a country’s information be given to a foreign corporation?)

 10.MCA-Sri Lanka though comprising the board of Govt Secretaries must take permission from MCC to engage any entity of the GoSL “Implementing Entity Agreement”. “Fiscal Agent” “Procurement Agent” all appointed meeting criteria of MCC. (Annex 1 – 37)

11.MCC funding dependent on GoSL implementing Bim Saviya (transferring deeds to title registration) & Land Special Provisions Act (converting State land permits & grans to absolute freehold rights-ALL land in Sri Lanka to be privatized) Parcel Fabric Map base for GoSL to complete inventory of State Lands in the same district to help GoSL to determine “which State Lands are underutilized and available for investment” (Annex 1 – 28-29)

12. Parliament passes MCC Compact but MCC funds to do Parcel Fabric Map of only 28% of land (7 targeted districts– Anuradhapura / Kandy/ Kegalle/ Kurunegala/ Matale/ Polonnaruwa/ Trincomalee/) (10 land registries out of 35 land registries) MCC will also fund the scanning & digitizing of valuation of property files in these 7 districts. The valuation will be linked to the property registration system and digital fabric map using a unique parcel identification number. This is a violation of the fundamental rights of the citizens as the Parliament is passing an Act that is pending for only 7 districts (28% of land) 

13.GoSL has to undertake the transfer of the remaining 35 land registries via bim-saviya from deed to title registration at its cost. Has the GoSL costed this – where do they get money for this when they will have no land to tax after privatization?

14.MCC will fund State Land Inventory – mapping and inventory of State Lands vested in State institutions in those 7 districts(eSlims – Electronic State Land Inventory Management System) “a basis for the State to determine the rights of citizens who are occupying State Lands and gather available documentation for the citizens claim to the land for future adjudication”(Annex 1-29)

15.GoSL undertakes to provide MCA-Sri Lanka all data by Commissioner General of Land, as custodian of State Lands in Sri Lanka for entry into eSlims (Annex 1-29)

16.GoSL took a loan & paid US firm $154m to the cadastral mapping of Sri Lanka in 2017 (1 of 5 activities under MCC Land Project)  – Is this part of MCC or is it falling under GoSL cost. Exactly how much is GoSL incurring against this $480m to be given in chunks across 5 years? How much as GoSL spent so far given $154m has been paid to this US firm?

17.US embassy advertised for the company to do e-Land Registry (1 of 5 activities of MCC Land Project)

18.GoSL undertakes to do

  1. Bim Saviya (private deeds to title transfer) – only 600,000 out of 8million private properties has been transferred since 2006 under 1998 Title Registration Act (Bim Saviya)
  2. converting permits & grants of State Land to ‘absolute land grants’ registered as freehold rights through Land Special Provisions Act (the previous Govt failed to pass this Act)

 MCC Funding is a condition to enacting Registration of Titles Act 1998 & passing LSPA

 19.MCC Land Project allocated funding is $67,

 Parcel Fabric Map & State Land Inventory                 $23,400,000.00

Deeds Registry Improvement                                     $11,400,000.00

Land Valuation System Improvement                          $6,500,000.00

Land Grants Registration/Deed Conversion                 $19,300,000.00

Land Policy & Legal Governance                                $6,700,000.00

TOTAL                                                                   $67,300,000.00

 (Article II-39)

 20.MCC will fund the hiring of staff for policy research group – Land Policy & Legal Governance Improvement Activity (5thLand Project Activity of MCC) GoSL to provide the location for LPLG Group in State location – Annex 1-31 (does hiring staff include paying salaries & does GoSL have to foot maintenance cost of location)

Note: MCC funding is dependent on 

  • implementation of the Bim Saviya program transferring the deed system to title registration.
  • State Land Privatization Act (Privatizing all State Land) 

21.MCC requires GoSL to “maintain” the land information technology (“IT”) systems and provide budget funding for the maintenance & updating of software & hardware of each year during Compact Term (5years)

22.MCC requires GoSL to “maintain in place all legislation” required to implement the Land Project

23.MCC requires GoSL to ‘make sufficient resources available to ensure that registration of land parcels’ occurs in a timely manner

  1. MCC requires GoSL to provide all data necessary to MCC for monitoring and evaluations of the outcomes of the Land Project.

25.Though there is a “Monitoring & Evaluation Plan” which must follow MCC’s “Policy for Monitoring & Evaluation of Compacts & Threshold Programs” (MCC M&E Policy) M&E Plan can be modified without requiring amendments via MCC website (which means 24×7 someone will need to be monitoring MCC website for changes)

 26.A 2 a) Program Description says MCC will offer ‘greater economic growth & poverty reduction” but Land Project Constraints Analysis says ‘private sectors find difficulty in accessing land for investment purposes’ ‘the OBJECTIVE of the land project is to increase the availability of information on private land and under-utilized State Lands in order to increase land market activity”. The 5 land activities aim to address this problem. This is again highlighted in

 27. If State land is to be privatized – does the State land have land to tax?

28. When Land Ministry and Central Bank units are already in place for Research Activity – why is a group of external parties allowed access to State confidential records?

29. Has GoSL factored in the danger of giving the US all our intellectual property rights for past-present & future? This hype about digitizing – artificial-intelligence where all BackOffice is controlled by the US eventually means (Section 3.9)

Case Study MCC Madagascar 

http://admin.theiguides.org/Media/Documents/USAID_Land_Tenure_Madagascar_Profile.pdf

Just think about the dangers for Sri Lanka now & in the future.

 In 2016, the International Criminal Court broadened its mandate to include land grabbing as a “crime against humanity”, which it will now prosecute. 

 Shenali D Waduge



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