By Raj Gonsalkorale

Dear Minister

Many eminent lawyers and even more concerned citizens have written on the need for a comprehensive land policy for the country. The writer articulated this in an article published in the Daily FT (Sri Lanka desperately needs a strategic, transparent and comprehensive State land management policy-http://www.ft.lk/columns/Sri-Lanka-desperately-needs-a-strategic-transparent-and-comprehensive-State-land-management-policy/4-709028). The writer even sent a letter to the minister on the 18^th of November 2020 which has not been acknowledged.

To illustrate a cart before the horse situation, the Minister of Agriculture stated in Parliament yesterday that his ministry will submit a National Agriculture policy for the country within a year. While welcoming this, a question has to be raised as to how there could be such a policy without a comprehensive land management policy being introduced first. An agriculture policy and others such as a water management policy has to be part of a broader land management policy.

It is heartening that the minister has set up 5 sub committees for development of strategies to address laws delays in the areas of infrastructure development, Digitization and court automation, criminal law reforms, civil law reforms and commercial law reforms. This is no doubt long overdue.

However, it is somewhat perplexing why an existing institution within the Ministry of Justice, Law Commission of Sri Lanka, established under the Law Commission Act No. 03 of 1969, and being the main government institution which recommends legal reforms has not been asked to look into the reform areas assigned to the five sub committees appointed by the Minister of Justice. The website of the Law Commission identifies its role and functions as follows. It says that the main objective of the Law Commission is to promote the reforms of the law, and its functions are, the codification of law, the elimination of anomalies, take and keep under review the law, both substantive and procedural with a view to its systematic development and reform. the repeal of obsolete and unnecessary enactments, the simplification and modernization of the law, to receive and consider any proposals for the reform of the law, to prepare and submit to the Minister, from time to time, programmes for the examination of different branches of the law with a view to reform, to obtain such information as to the legal systems of other countries, to keep under constant review the exercise by bodies, other than parliament, of the power to legislate by subsidiary legislation with a view to ensuring that they conform to well established principles and to the rule of law, to formulate programmes for rationalizing and simplifying legal procedures including procedures of an administrative character connected with litigation, and to formulate programmes for  the codification of the law in Sinhala, Tamil and English.

The appointment of five sub-committees by the Minister to undertake reform recommendations appear to be well within the functions of the Law Commission unless it is an entity that requires reform as well. The need for law reform seems quite evident. One cannot but get the feeling that successive ministers of Justice have evaded this urgent need and a heavy and expensive price has been paid by the general public as a consequence.

The legal maxim Justice delayed is justice denied” usually refers to legal redress or equitable relief to an injured party is available, but is not forthcoming in a timely fashion, and therefore it is effectively the same as having no remedy at all”. It appears that in Sri Lanka, there has been a denial of justice not only on account of delays, but due to fault lines in a legal system that is outdated, full of holes, is inefficient and ineffective.

It is hoped that the effort of the minister does not end up as work of some previous committees that were appointed to present findings and recommendations. There had been no follow up and recommendations implemented. A senior lawyer pointed out that for example, the amendment to the Notaries ordinance and the amendment to the Power of Attorney Ordinance, recommended by two committees in 2010 appointed by the Ministry of Justice has not been passed to date. This lawyer stated that without the amendments, with all the loopholes available in the colonial statutes, Sri Lanka has moved on to the eRegister with perhaps invalid deeds being registered in a day, a great advantage to fraudsters. 

In this context, the Ministers attention is drawn publicly (as the private communication was not  acknowledged) to an area that requires urgent attention, the reform of land laws that has not been subject to the process announced by the Minister. As was pointed out in the letter to the Minister, there are major issues concerning the Bim Saviya titling system based on the Land Registration law introduced in 1997 and implemented in 2007, and the issues related to the electronic registration system for such titles. This vital area has not been included in the review announced.

In the letter to the Minister and in several articles published by eminent lawyers, it was pointed out that (a) the fact that less than 5% of the 12 million land allotments have been registered since 2007 was proof that Bim Saviya was not working, and (b) the reason why it is not working was the unsuitability of the Bim Saviya for Sri Lanka as it is based on an alien system, the Australian Torrens Title system. This system has not worked for the indigenous people of Australia, and it would not work for Sri Lanka, as this system does not recognise the country context when it comes to land and land rights. The now famous and ground breaking Mabo decision by the High Court of Australia is evidence that it had not worked for the original inhabitants of Australia.

The Ministers attention was also drawn to a recent gazette notification issued by the Lands Ministry in regard to what has been described as Residual State land”, and transferring the management of these lands to Provincial and district Secretaries. What is referred to as Residual State land”, is not well understood and there is suspicion of an ulterior motive behind this gazette notification as this definition can lead to large scale abuse and encroachment into forests and Wild Life sanctuaries and reclassifying them as residual State land” and disposing them to individuals for commercial purposes.

It has been reported that 82% of land in Sri Lanka is State land. Possibly why it has been difficult to issue titles for State land maybe due to absence of cadastral, or in the least, proper land surveys and identification of boundaries if indeed titles are needed for State land, for such land to be registered under Bim Saviya.

There are two issues that raises suspicion of an ulterior motive. Firstly, the absence of a Cadastral or as a minimum, well defined boundaries with land survey maps for State land, which results in encroachment into forests and wild life protection lands and increasing the residual land” extent which the can then be disposed of in the guise of cultivation, and sold to locals and foreigners.

Secondly, the purpose of issuing titles for State. Why are titled required for State land unless it is to privatise and sell them to locals and foreigners in the guise of development”? If increasing productivity of some State land is the motive, no doubt this can be done collectively by the inhabitants around such land, and also where feasible, by entering into joint ventures with the private sector in Sri Lanka with the government retaining full ownership of the land.  

What is needed for State land are proper surveys and identification of boundaries in order to make sure forests, wild life parks, nature reserves etc. are safe from encroachers. Titles for such land is secondary and in fact not needed as this land has and should remain in State ownership for perpetuity. Knowing the dangers of not having such a policy, Sri Lankans should not give countenance to another Hambantota fiasco where a Port and Land has been given to a foreign country on a 99-year lease.

In the context of land management policy reform, the Ministers attention was drawn to the fact that  land titling and eRegistration issues had not been included in the Cabinet paper referred to and the announcement of the 5 sub committees.

The Minister was urged, even at this  late stage, to nominate a sixth sub-committee comprising of retired Supreme Court of High Court judges and eminent lawyers drawn from the Academia and others with expertise in land titling and registration to examine

1. The Bim Saviya and its relevance and suitability for Sri Lanka
2. Changes needed to laws that existed prior to the introduction of Bim Saviya in 1997
3. The need for land laws to regard and respect the traditional customs and practices
4. Management of the eRegister and reasons as to why it cannot be done by an institution like the Moratuwa University
5. The classification of State land a residual land, and until the proposed sub-committee has submitted their report with recommendations and a decision is made on them, to withdraw the gazette notification recently issued

Finally, based on the findings of this sub-committee, the Minister, along with other relevant ministers and ministries, and considering the national interest of the country, the Opposition as well, develop a strategic, transparent and comprehensive State land management policy which could be presented to the Parliament, discussed, debated and passed as the law of the country in regard to Land Management in Sri Lanka. Such a law supported hopefully by all political parties would give the long term certainty that is needed for the country in land management and preclude the necessity for future governments to make changes to the essential elements contained in such a comprehensive law.

It is hoped that the Minister will consider this appeal and take appropriate action and earn a deserved reputation as a cabinet minister with guts and resolve who had the foresight to address a long felt need that could otherwise fracture and destroy the small parcel of land we call Sri Lanka.