by K S Gunasekera a Senior Attorney at Law

Changing land laws with the entry of electronics is a breakthrough for our country after a century. However academic legal community or lawyers from Sri Lanka are not driving the changes, it is driven by the donors from international organisations, prosperous nations, paraprofessionals, technologists and politicians. This is not a very healthy scenario legally.

Ironically, globalisation warrants us to introduce laws practiced in the prosperous nations, according to the availability of funds provided by these affluent countries.  We change our laws, merely to reach higher levels in their indices’ example Doing Business Index,  rather than, look into the effect they will have on the future generations and the professionals of our country.

On the contrary changing land law is very well managed by their own academic legal professionals in the prosperous nations. In, European countries, UK, USA, New Zealand Australia and Scandinavian countries the Professors of law have achieved high level of performance in this field of change with new legal subjects, hitherto unknown to us. 

A good example is the introduction of Title Registration [Bim Saviya law] a law  practiced in the prosperous nations for over one hundred  years to replace the land law practiced in Sri Lanka for  over a century. The law was once prevented from being introduced in 1970’s by the intervention of Justice A. R. B. Amerasinghe which is discussed in this article .

The difference is that the invaluable legal knowledge from the legal fraternity makes the difference to determine whether the changes could serve the people of this country. I refer to the article written by Shenali Wduge, which highlights the case of Bulankulama and six others v. the Ministry of Industrial Development and seven others – SC (FR) Application No. 884/1999. This case relates to the agreement forexploration and mining of the richphosphate deposit in Eppawala,  where our erudite & patriotic judges, channeled the hand of God to save the  archaeologically important land, Cultural Triangle, Sri Maha Bodhiya, Ruwaweli Seya, Jaya Ganga and Yoda Ela ,

The article makes special mention of the judgment where Hon Justice A.R.B Amerasinghe’s refers e to Mahawansa where land usage in our country was subject to the rule of law laid down by the kings of our country, for the benefit of the people.

In the said case the legal agreement to remove tons of phosphate for the profit of one generation was set aside with the advanced legal knowledge of our judges for the benefit of the future generation of our country. The judgment reiterates as follows ‘Indeed, an hypothesis has been advanced that the Eppawela deposit was not discovered” in 1971, but was known to our rulers and people for thousands of years and shared the thought that the deposit should be utilized. The difference between them and us is how this should be done. The ingenuity of the rulers gone by, it is suggested, had created a stable and sustainable agricultural development system harnessing the key natural resources available within their natural habitat, including the Eppawela deposit. The natural processes of weathering, microbial activity and precipitation might have released plant nutrients which were carried overland by flowing into the rivers as well as permeating into the soil and possibly reaching underground aquifers. (see Ivan Amarasinghe, Eppawala; Contribution to Nutrient Flows in the Ancient Aquatic Ecosystems of Rajrata) ‘

As said earlier this great historian, erudite scholar Hon Justice Amerasinghe had always reflected on the countries culture and historical background when introducing land laws to the country.  

He intervened when the World Bank then referred to as the International Bank for Reconstruction and Development [ IBRD,], conducted research relating to our land statutes.  According to their report they were out dated  old colonial statute. Further, the laws  existing  side by side  with different systems of law  with, co-ownership, life interest, servitudes such as right to crops  and possessory  rights etc, were reasons  for  lands to be unmarketable.  Their   main issue was the inability for the banks to grant loans as the lands were not marketable. The remedy recommended was to introduce Title registration” to resolve the problem; a law that  was practiced in the  prosperous nations.

Hon Justice Dr A.R.B. Amerasinghe pointed out that Title registration law” has major issues,  it deprives a person of his fundamental right to access court if the land is affected by fraud, it repeals  co-ownership and possessory rights enjoyed by the people for centuries.  

At that time he had the support of the Hon Minister in charge and the high officials of the Government and the Governor of the Central Bank to work out a solution; to find a way forward to extend credit facilities from banks to lands that were unmarketable.

He made a scholarly contribution with his research to the country’s land law by formulating a specialized system to facilitate those who did not have marketable title to land to obtain bank loans. He did not allow changes to the way people enjoyed their land rights; that is with coownership rights, possessory rights, access to water through lands etc.

He says in his book on ‘Title Insurance ‘ that, marketability does not have a universal  definition as pointed out by the IBRD,   it is an ethereal  sort of thing enshrouded in the mist of conflicting minds. Marketability of land is affected by the manner in which customs and habits and practices vary from one community to another. A parcel of land in Jaffna co-owned with access to wells of another’s land and trees such as Palmyra were marketable in the area. Lands in Ratnapura will have gemming rights and access to pits they were marketable. The people in the area would never say the lands are unmarketable,  and if offered for sale there will be sufficient buyers.

1969 His Excellency the Governor General announced in the Throne Speech about the new  legal process adopted by Justice Amerasinghe to be introduced in lieu of Title Registration proposed by the World Bank. This was the first step taken to improve land law after a very long period. In his book on Title Insurance he mentions Ordinance No 8 of 1863 drafted by legal experts to be followed to engage in continuous research to establish land Title registration with our own systems.  His research was not continued and after 20 years the World Bank again introduced Title registration repealing all the customary laws of our country by  Act 21 of 1998.

Difference today is that, when funds are received with foreign advice land laws are changed.  There is no legal intervention to introduce the knowledge relating to  our cultural heritage, and  our ancient administrative structures which are  the  higher values that  lie behind the law.   

The question arises as to whether we have lost this bargaining power? 

Sri Lanka’s land laws are changing rapidly; some of the new changes are —.

Land privatization act ––- amend the Land Development Ordinance of 1935 to give full control of all Government lands to the recipients, Repeal of Land Reform law which took control of lands at one time, Land Bank Act,, Title registration Act 21 of 1998 mentioned above, E Register to function with the old colonial statute, Act 6 of 2018 with a law to identify owners with photographs for Trust deeds, Gazette notifications and statutes altering the position of foreigners buying land from time to time.

Hope that the younger generation of lawyers will emulate the learned members of the legal  profession who used their legal knowledge; will also commence research to protect the country’s wealth for the future generations, specifically as technology is transforming every segment of the legal ecosystem