Interpreting Forest Act for the benefit of the US?
By Dr. Ranjen Fernando
Rohan Pethiyagoda's article titled ‘Not barter but asset for conservation’ in The Sunday Times of September 21, reiterates his publicized contention that the US government in providing this opportunity to cancel a part of our debt, simulates a philanthropist who gains the same self-satisfaction as he would acquire by giving Rs. 10 to a beggar.

But this is not the explanation given by the US government itself which when introducing the Tropical Forest Conservation Act ( which is an amendment to the US Foreign Assistance Act of 1961) "FINDS" that “Tropical Forests provide a wide range of benefits to human kind by harbouring a major share of Biological and Terrestrial Resources which are the basis for developing pharmaceutical products”.
Whatever other means that Mr. Pethiyagoda may elucidate to interpret the US motive, the preamble to the Act itself ( which he has discreetly refrained from quoting publicly = Sec 802) reveals the reasons that prompted the US govt. to enact this legislation. He cannot deny facts.

US objectives
So, whatever submissions Mr. Pethiyagoda makes on the basis of his own interpretations, the reader has to be conscious of the objective of the US, as clearly and definitively spelt out by the whole Act.

He further attempts to justify his view on the basis that the country should take the opportunities available to enhance the value of its natural resources and use their potential. I certainly do not contest this view but what I continue to emphasize is that such enhancement of value and potential should maximally benefit our country and its people and not a country that is attempting to legitimize bio-piracy by getting us to accept the TFCA and enter into an Agreement on that basis.

Since I have already publicized those controversial and ambiguous Sections and Clauses of the Act, which Mr. Pethiyagoda refrained from publicizing, I will (lest our readers feel slighted that I underestimate their powers of comprehension ! ) on this occasion, deal only with those unsubstantiated interpretations through which Mr. Pethiyagoda attempts to justify his cause.

1. Mr. Pethiyagoda denies the existence of any relationship or the possibility of the Enterprises of America Board (EAB) (which is a 100% American Board owing its allegiance to the President of the USA) having any "controlling influence or policy defining influence ..."over the TFCA .

Having previously dismissed my fears in this respect, being only due to my incapacity to understand English, he now changes his stance and says that the EAB will not have "influence" but will only be a "watchdog" and throws a red-herring saying that such control would be exercised only if the grant from the Funds are “being used to support a political party.... and/or to prevent a person with a criminal record being nominated to the Board”. Where is this stipulated in the Act?

There is no such clause in the Act and this is Mr.Pethiyagods's own interpretation of the powers bestowed on the EAB by Section 811 of the Act. But Section 811 (c) 2 lists 5 ( A to E ) criteria which have to be satisfied and the Secretary of State of USA be advised accordingly before the members of the Administering Board take office. ...hence the ultimate decision regarding the suitability of a nominee to the Board lies with the Secretary of State - as advised by the EAB ---is this not means of influencing and controlling prospective decisions of the Board?

Role of EAB
If this is not one of the roles of the EAB and the selection of the Board is also not based on this format can Mr. Pethiyagoda quote any other Section of the Act, which deals with its role and this assignment?

Canons of interpreting an Act require that one should not put one's own words into the Act in the process of interpretation --- but this is exactly what Mr. Pethiyagoda is doing.

2. Another instance of such a myopic interpretation is where he states that carrying out the list of six activities "is not mandatory ...Sri Lanka can choose from among these and select a list of objects it wants". Where in the Act is this liberty to select what we want and reject the others? Which Clause? Which section?

With what special authority or power is Mr. Pethiyagoda making such naïve statements? He is clearly attempting to create an aura of nonchalance among the public by making statements which cannot be substantiated by the body of the Act.
Mr. Pethiyagoda while not attempting to deny my contention regarding the infringement of sovereignty, as envisaged by activity No. 5 of the list of 6 activities for which grants may be provided from the Fund, says that this Section ".....could be excluded altogether ...or used to fund sustainable propagation of ayurvedic herbs rather than harvesting them ..."

Here again is an instance where Mr. Pethiyagoda is violating all canons of interpretation by adding his own words into the Act. Nowhere in the Act are there provisions for such piecemeal exclusions or granting such privileges.
This raises the very basic question as to who the author of this Act is ? Is it Mr. Rohan Pethiyagoda or is it the government of the USA or does he have the mandate from the US government to amend, change, add, subtract and alter a piece of American legislature? Is this his role as 'Advisor to the Minister' - a position he expounds?

4. Another query that he is yet to answer is as to why the Board of 5 members shall always have a majority of non-governmental representatives... if it were not for the objective of undermining the government? His suggestion involving "political parties"and "those with criminal records" is an irrelevant and puerile digression, which is a gross indictment on our government too.

5. Mr. Pethiyagoda repeatedly reverts to finding solace in the submission that the Fund will only provide "grants ". What he fails to explain is that the scope of those activities permitted by the grants include "resource and ecosystem management...use of diverse animal and plant species... research and identification of medicinal uses..." These are broad-based activities in the current biological management systems and they provide access to facilitate trading, patenting, genetically modifying and engaging in several other permitted activities and exercising Intellectual Property Rights and even GATT.

As to why Mr. Pethiygoda prefers to be blinded by blinkers in not foreseeing this aspect is another explanation that he owes the public. The public are fully aware that when interpreting any Act or law this needs to be done in the context of the whole Act and its "Long title" (not isolated Clauses or Sections) and furthermore in conjunction with other related legislation.

Unfortunately Mr. Pethiyagoda fails to consider this necessity in his responses and rather than countering the controversial issues in my previous submissions he ventures onto his own interpretations of the Act with the hope of distracting public attention from those issues which he cannot explain. However, I am confident that our educated and intelligent public would be more discerning in their conclusions.

6. Mr. Pethiyagoda pronounces that the Kyoto Protocol will benefit only those countries that will be growing forests and not those countries that already have natural forests. May I acquaint Mr. Pethiyagoda that the Kyoto Protocol is not finalized yet (the terms are still being negotiated)) but the USA has perhaps made this pre-emptive suggestion (that only Mr. Pethiyagoda is aware of already ) for two reasons - in the event that the USA ratifies this protocol at some future day they would then benefit from it in two ways i.e. a.) they would be growing timber producing forests which they could harness for their requirement of timber and b) they would be entitled to the benefits of the Protocol as a country that provides " “carbon sinks" through their planted forests.

Simultaneously they would be depriving all the tropical countries that already have millions of hectares of forest, which will continue to act as carbon sinks but would not be entitled to the benefits of the Protocol, if it is adopted as pre-empted by USA!!
I wonder whether Mr. Pethiyagoda could provide any other plausible explanation (NOT AN INTERPRETATION !!) to the pronouncement that he has made.

The Tropical Forest Conservation Act adopted by any country would be an asset only to the United States of America which will accrue the significant bulk of the benefits of the conservation measures advocated in it. But as Mr. Pethiyagoda himself concedes, it would be tantamount to committing treason against our motherland if anyone were to barter away our rights and privileges for 13 Million US Dollars.
Unfortunately for us Sri Lanka is not short of such persons.

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