by Neville Ladduwahetty Courtesy The Island

President distributing land deeds in Galle recently

The Urumaya Programme, aimed at resolving land ownership issues for over two million Sri Lankans, was officially launched on 5 February in Dambulla by Minister Harin Fernando. During the press briefing the Minister is reported to have stated: The programme’s aim is to provide permanent land ownership solutions. Over 10,000 land licensees currently holding Ran Bhoomi, Jaya Bhoomi, and Swarna Bhoomi licences will be among the first beneficiaries of this programme. These licenses will be converted into freehold deeds, granting them full ownership of their land. This move is expected to significantly improve the lives and livelihoods of millions currently struggling with land ownership uncertainties” (news.lk).

Continuing he stated: Our journey is far from over. Many of our citizens have lost homes, land, and their sense of security. To address this suffering, we have launched a special programme – Urumaya” Through this initiative, we aim to bring about positive change for over two million people in Sri Lanka.    This involves granting freehold land deeds to those who currently hold licenses like Ran Bhoomi, Jaya Bhoomi, and Swarna Bhoomi.     By empowering our people with ownership, we hope to spark a new era of stability and prosperity” (Ibid).

BACKGROUND to the URUMAYA PROGRAMME

Delivering the 2024 Budget proposals, President Wickremesinghe unveiled the ‘Urumaya’ programme, wherein he noted that the land slots distributed among farmers under the licences of the Land Development Ordinance in 1935 would be handed back to farmers” (The Morning, February 18, 2024).

Although around 100 years have passed, the ownership of these farmlands has not been handed back to the farmers who own them. We are handing over the lands to farmers who lost the ownership of their traditional lands during the British colonial era. We expect to commence this task in 2024 and complete it within another few years. Two million families will get the ownership of land and farmland. I allocate Rs. 2 billion for this purpose,” (Ibid).

VIOLATION of the CONSTITUTION

The granting of freehold land deeds to over two million people in Sri Lanka raises several constitutional issues. The most fundamental issue is whether the government has the authority to grant freehold titles to lands and its resources to some, while such authority belongs to the Republic of Sri Lanka and ALL its Peoples as an integral component of their sovereignty.

For instance, the Preamble to the Constitution, which some consider to be of little significance, while others consider it to be the very embodiment of the core values of the Constitution states: The PEOPLE OF SRI LANKA having, by their Mandate freely expressed and granted …. entrusted and empowered their Representatives …to draft, adopt and operate a new Republican Constitution…whilst ratifying the immutable republican principles of REPRESENTATIVE DEMOCRACY, and assuring to all peoples FREEDOM, EQUALITY, JUSTICE, FUNDAMENTAL HUMAN RIGHTS…”.

Arising from these core principles, Article 3 states: In the Republic of Sri Lanka sovereignty is in the People and is inalienable ….”  The fact that Sri Lanka is a Republic is what makes its assets part of the sovereignty of all the People.    Furthermore, since it is the PEOPLE of Sri Lanka that have entrusted and empowered their Representatives to carry out functions on their behalf, such Representatives do not have the right to grant part of the People’s sovereign rights and/or its resources that are inalienable, to a select few. However, it is imperative that a strategy is developed to address the issue at hand without violating provisions of the Constitution.

OPINION of the SUPREME COURT
SUPREME COURT JUDGMENTS RELATING to LAND
S.C. 884/99 BULANKULAMA AND OTHERS v. SECRETARY, MINISTRY OFINDUSTRIAL DEVELOPMENT AND OTHERS (EPPAWALA CASE AMERASINGHE. J.

Jurisdiction

The Constitution declares that sovereignty is in the People and is inalienable. (Article 3).   Being a representative democracy, the powers of the People are exercised through persons who are for the time being entrusted with certain functions. The Constitution states that the legislative power of the People shall be exercised by Parliament, the executive power of the People shall be exercised by the President of Sri Lanka, and the judicial power of the People shall be exercised, inter alia, through the Courts created and established by the Constitution (Article 4)”.

The organs of State are guardians to whom the people have committed the care and preservation of the resources of the people. This accords not only with the scheme of government set out in the Constitution but also with the high and enlightened conceptions of the duties of our rulers, in the efficient management of resources in the process of development, which the Mahavamsa, 68.8-13, set forth”.

Other Lordships of the Supreme Court have also commented on the fact that certain Constitutional procedures need to be followed when granting or disposing of State Lands or other resources that belong to the People in the Republic.    It is the unilateral action taken under the Urumaya Programme without following due process as called for in the Constitution, that makes this Program illegal.

A Brief Guide on Land Rights in Sri Lanka” states:

State Land is alienated: • By Permit • By Grant • By the President

State land is all land that the State is lawfully entitled to, or land which may be disposed of by the State together with any building standing thereon, and with all rights, interests and privileges attached thereto. This also includes lands of various Corporations and Boards. State land is administered at national, provincial, district and divisional levels by the relevant government officials” (Centre for Policy Alternatives, 2014).

By Permit:

Permits are issued to particular categories specified in the relevant laws such as low-income earners and those who are landless.   Permit holders can use the land as specified in the permit including as a residence and/or for cultivation purposes.     Permit holders are required to pay a nominal monthly rental to the State. Permits can be issued as an annual permit or also known as ‘LDO permit’ when issued under the Land Development Ordinance” (Ibid).

By Grant

(Swarnabhoomi, Jayabhoomi, R a n a b h o o m i, Ranbima – Permit-holders can convert their permit into a grant or a deed, if they meet specific conditions” (Ibid).

By the President

The President can grant or lease State land at a nominal price or rent it for charitable, educational, religious, scientific or any other purpose” (Ibid).

Therefore, according to the Brief Guide” State Land cannot be converted to freehold deeds that grant them full ownership of their land under the Urumaya Program without conforming to the above guidelines.

Since State-Owned Enterprises also form part of the sovereignty of the People, the intended proposal to privatise them, also faces the same restrictions. It is reported that the Mahanayake Theras of Malwatte, Asgiriya, Ramanna and Amarapura chapters have in a letter addressed to the President appealed to him to exercise caution about the sale of national assets such as state-owned enterprises” (The Sunday Times, 18 February, 2024).

PROPOSED STRATEGY

The reason for granting freehold deeds is to enable current Permit holders to use the asset as collateral to raise a loan since existing provisions cited above are considered too restrictive.     Therefore, it is pertinent to consider what the existing restrictions are and consider what refinements could be made to existing provisions in order to mitigate the administrative impediments as much as possible while conforming to Constitutional provisions.

The strategy adopted by current Permit holders of State-Owned Assets is to form themselves into a Cooperative. Each member of the Cooperative pays a monthly stipend.  These are forwarded monthly by each Corporative to the Development Co-Op Society for use by its members to secure loans relating to Paribooga Loan (livelihood) and/or Housing Loan.  The process involved to secure a loan is quite rigorous and involves an evaluation of the capability of the member to honour required loan commitments by the Grama Niladhari and members of the Development Co-Op Society. This procedure has enabled members of the Cooperatives to secure loans in the range of Rs. 800,000/= to one million.

The granting of freehold title to current Permit holders, amounts to converting State land on which the asset is cited into Private land. This is a violation of the collective sovereignty of the People. Therefore, existing provisions granted to Permit holders should be revised in a manner where the Permit has a legitimacy equivalent to a title deed for all administrative purposes, except for the land on which the asset is cited.

Furthermore, if Permit holders are entitled to nominate a beneficiary, the interests of the original Permit holder would continue as it would be if the asset has a freehold title. If on the other hand, the original Permit holder did not have a beneficiary of choice, the asset would revert back to the State.    Such possibilities should be explored with caution instead of rushing to grant title deeds to People that may have the potential to disappoint them if they find that the deeds they received are not legal.

 CONCLUSION

The intention of the President to correct an injustice by handing back traditional lands belonging to farmers that were taken over 100 years ago during British Colonial Rule, is indeed noteworthy.  However, there is a need to be conscious of the present context. That context is that Sri Lanka is a Republic and Article 3 of the Constitution states: In the Republic of Sri Lanka sovereignty is in the people and is inalienable”. That being the case, Sri Lanka’s lands, its assets and resources belong to the People. Furthermore, since nearly all Sri Lankans have endured injustices of one kind or another, it is Illegal to correct the injustices committed against some, at the expense of the rest. This is what the Urumaya Programme is all about.

Therefore, it is incumbent on the part of the President and others associated with the Urumaya Program to act cautiously and revisit the legality of the Urumaya Programme before it is too late. If they proceed regardless, there is a strong possibility that beneficiaries of the Urumaya Programme may have to face disappointment later if it is found to be illegal. A similar note of caution has been issued by the Mahanayake Theras of Malwatte, Asgiriya, Ramanna and Amarapura chapters regarding State-Owned Enterprises.