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Fri, 22 August 2014 22:44:54
Sri Lanka new land policy in North queried by citizens group
28 Oct, 2011 07:26:45
Oct 28, 2011 (LBO) - A citizens group has raised concerns about a new process of resolving and proving ownership of land in former war zones, outside established procedures and the court system.
In July 2011, Sri Lanka's Commissioner General of Lands had issued a circular Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces.

"Access to land in the North and the east has been one of the most controversial and politically sensitive issues in Sri Lanka," Friday Forum, a citizens group said in a discussion paper on the subject.

"Yet this complex subject is now being dealt with in an ad hoc single government circular of the Land Commissioner General based on cabinet approval."

"This country has well-established laws on the management of State lands and clear principles on ownership and entitlement to private lands.

"The document does not indicate why a new policy has been developed outside of the accepted legal framework."

The Friday forum is a group of citizens which includes academics, retired public and private sector officials and economists.

There have been increasing concerns about growing lawlessnes and a general deficit of of rule of law and justice in Sri Lanka.

Many people who have been caught up in a 30-year war have lost documents, while others have fled the area and new people have encroached.

Some people were on state lands.

Separatist Tamil Tigers who controlled parts of the North and East for several decades have also illegally distributed to land to some people.

"It is not at all clear how the latter will be treated when they are displaced from the lands they are occupying," the Friday Forum noted.

"The Circular indicates that “instructions in this regard will be issued later."

There is a risk of creating another set of displaced persons and risk to peace building unless the problem is effectively dealt with, the Friday Forum said.

Or will the policy create another category of displaced persons from the conflict-affected areas reinforcing feelings of exclusion and discrimination and placing at risk other initiatives on reconciliation and peace building.

There were also new procedures set for claims on state land, where an annual permit will be issued, which will be made permanent.

"This procedure is different to that adopted under present legislation regulating distribution of State lands, and also empowers bureaucratic decision making with the participation of the military," The Friday Forum said.

"It involves the introduction of a new system of land distribution with strong military involvement.

"It is not clear whether the government officials concerned and army officers have the expertise and capacity to determine complex issues of land rights, ownership and access to land, and that decision making will be free of political bias of what seems a very centralized system of decision making.

"The involvement of the army in what is essentially an aspect of civil governance is a serious matter of concern."

The issue is further complicated by in that land is a subject devolved to provincial councils under Sri Lanka's constitution.

The full Friday Forum statement is reproduced below

FRIDAY FORUM Position Paper / Discussion Draft for Public Debate

The Friday Forum published a statement some time ago expressing its concerns on evictions of low-income urban communities under schemes to develop Colombo as an attractive metropolitan city in Asia. A document signed by the Land Commissioner General (Circular No. 2011/04/ of 22nd July 2011) on “Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces” underlines once again the importance of ensuring that property claims and access to land and housing in communities are accommodated with equity and fairness when prioritizing national development and ensuring productive use of land in the public interest. This is important when government development policies are formulated, and also purport to deal with claims of people in respect of both State land and private lands in the conflict affected areas of the North and East.

Access to land in the North and the east has been one of the most controversial and politically sensitive issues in Sri Lanka. Yet this complex subject is now being dealt with in an ad hoc single government circular of the Land Commissioner General based on cabinet approval of a policy formulated by the Ministry of Lands and Land Development, relating to “resolving land disputes in the Northern and Eastern Provinces consequent to the conflict.” The circular purports to give instructions to government officials in regard to management of State lands and obtain information on claims of private ownership where no documents are available.

This country has well-established laws on the management of State lands and clear principles on ownership and entitlement to private lands. The document does not indicate why a new policy has been developed outside of the accepted legal framework.

1. The Policy Framework of the Circular

(a) The process of alienating State lands (presumably under the existing Acts) is to be suspended temporarily except if lands are required for:

(i) purposes of national security

(ii) for special development projects of the State

(b) Priority is to be given to returning State lands to people displaced or expelled from the conflict areas if they had been resident on their lands before displacement. Persons who had encroached on State land prior to a given date in 1995 are also to be treated in the same way if they had continued to reside in their properties.

(c) any distribution of land by “the terrorist organization” canceling earlier State land grants is to be treated as illegal.
However the circular mentions that other types of claims of ownership in respect of “land illegally occupied” will be considered by the committee established to investigate claims. It is not clear what is meant by illegal occupation in other situations and whether this covers both State lands and private lands.

These key elements of the policy raise important issues. Are “lands required for national security” areas which will continue to be designated “High Security Zones,” encouraging a permanent military presence in them? Is such a proposal consistent with commitments to normalization and establishment of civilian government in these areas?

Of particular importance is the preferential treatment of persons evicted because of the conflict situation, and the exclusion of those who received land from the LTTE, in the procedures for confirming title to lands. It is not at all clear how the latter will be treated when they are displaced from the lands they are occupying. The Circular indicates that “instructions in this regard will be issued later.” Will these displaced persons be considered as a vulnerable group, to be provided for in the allocation of new lands? Or will the policy create another category of displaced persons from the conflict-affected areas reinforcing feelings of exclusion and discrimination and placing at risk other initiatives on reconciliation and peace building.

2. Damage or destruction of documents

The Circular provides for the procedure to be followed by the Divisional Secretary or Assistant Government Agent - central government officials - in cases where documents have been damaged or destroyed. There is provision for accepting certain types of documents even though they are not recorded with the official land ownership documenting agencies. When no documents are available at all, the procedure regarding making applications outlined below has to be followed.

3. Protecting and clarifying rights where there are no documents

The Circular establishes a public administration procedure for achieving clarity in land title, an area that has been left to the familiar dispute resolution systems – the courts or regular tribunals. Under the new Circular wide powers are to be exercised by the Divisional Secretary and Assistant Government Agent – public servants of the Central government. The Provincial Land Commissioner and his staff become merely a conduit for receiving information/documents and following up on the action that is authorized by the Central government officials. It is not clear whether the procedures conform to the provisions of the Constitution which place land within the list of devolved subjects.

All land owners whether grantees of State land or owners of private land who do not have documents to support their claims are required to complete ownership application forms. These too must be submitted to the central government officials. The procedure is described as an aspect of the general initiative to register ownership of lands under the Title Registration Act. The circular does not indicate how claims to private lands and undisputed claims to State lands will be dealt with where there is no documentation. It appears that instructions with regard to these lands will be issued later.

4. Procedure for investigating and determining claims to State lands

Determination of claims will be the responsibility of several “Committees of Inquiry.” A “first” Committee of Inquiry will be chaired by and include central government officials. (Divisional Secretary is mentioned – is he/she a provincial authority?) This Committee will have a member of the armed forces – the area Civil Co-ordinating Officer. The first Committee will conduct an inquiry and “prepare a preliminary selection list.” This list must be certified by an “Observation Committee” – which the Circular claims is formed to ensure that actions of the first Committee of Inquiry are taken in a transparent manner. This Observation Committee is appointed by the Divisional Secretary and must have at least two or more members of the Civil Committee formed by the Sri Lanka Police or by the three armed forces. A Conciliator, “a person held in high esteem by the people as an impartial person” must serve on the Observation Committee. The choice of this person appears to be an official rather than a community decision.

The preliminary list of owners has to be submitted to and approved by a Divisional Co-ordination Committee and these lists will be published. (What is the Divisional Co-ordination Committee? It is not clear from the Circular.)

A second committee of inquiry will hear appeals and objections into the preliminary selection made by the first committee and they will give a final decision. This committee too will consist of high level central government officials (District Secretary/Government Agent), Provincial Land Commissioner and Deputy Land Commissioner, and representatives of relevant Security Commander – Committee Member (area Civil Co-ordinating Officer). The Observation Committee will also assist this Committee. Any “knotty problems” for which the Committee has no solutions will be resolved by a process of mediation in the case of State land, (Special Mediation Boards) and a process of arbitration to be finalized later.

An “annual permit” will be issued in respect of claims to State land that are accepted and this will be made permanent after one year. Instructions in this regard are to be issued later.

This procedure is different to that adopted under present legislation regulating distribution of State lands, and also empowers bureaucratic decision making with the participation of the military. It involves the introduction of a new system of land distribution with strong military involvement. It is not clear whether the government officials concerned and army officers have the expertise and capacity to determine complex issues of land rights, ownership and access to land, and that decision making will be free of political bias of what seems a very centralized system of decision making. The involvement of the army in what is essentially an aspect of civil governance is a serious matter of concern.

5. Private Land Ownership in Conflict Affected Areas of the North and East

Transactions in regard to land, according to private law have to be executed by notarial deeds which may or may not be registered. Title is therefore dependent on deeds, and documents such as wills, and court orders on proof of wills. People in the North and East may have lost documents or have no notarial deeds. Their title and claims to private lands may be based on informal arrangements or written documents that are not legal. Title may also have passed according to complicated rules of inheritance under the local personal law, Tesawalamai (in the Northern Province), or Mukkuwa customary practices in the Eastern Province. People may not have death certificates of deceased kin, or maybe unwilling to obtain death certificates for missing family members who, they hope will return. The Circular merely requires persons claiming private ownership to make applications, like claimants of State land, to the relevant “first Committee.” The procedures to be followed are to be clarified later. It is not clear why they have been required to make applications in respect of their lands at this time. The complex nature of private land ownership claims suggest that the bureaucratic procedures outlined in the current circular, will be more problematic if applied in these cases.

An important aspect of private land ownership is the principle of prescription. This principle enables a person who is in de facto possession of land to claim ownership after 10 years of undisturbed and uninterrupted possession held against (adverse to) the interests of the owner with paper title. The period can be postponed in the case of certain situations such as the status of childhood (minority) or absence overseas. These circumstances are considered disabilities that prevent claims for acquiring title by prescription. The exceptions do not cover situations of internal armed conflict. Consequently there may be persons who may claim prescriptive title on the basis of possession for over 10 years.

Prescriptive title based on 10-year ownership is not dependent on the possession of a deed, though people sometimes register a deed of declaration setting out their prescriptive claims. Fraudulent deeds may also have been registered due to corruption of lawyers as well as officials. All these issues will have to be addressed in dealing with claims to private ownership of land in the North and East. It is not clear whether these complex issues too will be dealt with according to these new ad hoc bureaucratic procedures. Since the officials are required to await further instructions regarding these claims, there is a serious risk that these matters too will be decided through new bureaucratic procedures, rather than the usual fora - courts of law.

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READER COMMENT(S)
8. fb Oct 31
@Analyst.
Nationalism and linguistic-nation states were largely an European invention of the latter part of the 19th century. Italy, Germany etc. So was un-natural law-making by national assemblies.

Before that - even during that time- migration was common. People just got up and went somewhere else. Presumably - this is subject to correction by some expert in Middle Eastern history - the Middle East learned to enact such laws from Europe. A large part of the Middle East and North Africa was essentially nomadic, so it is difficult to imagine the existence of such laws in the natural course of things.

When law making by assembly (parliament) is combined with anti-foreign nationalism, ethno-religious fascism and linguistic hegemony and attendant discrimination, a recipe is set for disaster. This was the experience in both (Eastern) Europe and Sri Lanka.

Europe has got over the problem and largely left it behind. No country can even join the EU now with anti foreign land laws for example. That is why Sri Lankans go and settle in Western Europe, Australia, New Zealand and North America.

However, just getting up and going to another country is a bit unthinkable now. The US perhaps is closest to classical liberalism. 13 percent of the population are immigrant even now.

Its constitution applies to anyone in its territory including 'illegal aliens'. That is why US rulers are anxious to keep 'terrorists' out of the country in Guantanamo Bay or with intelligence agencies of Libya. Otherwise liberal US citizens and their lawyers will invoke the constitution to help terror suspects and make them to be treated like human beings.

After the Europeans left, some of these countries used the tools given by them to oppress - foreigners first and their own people next. As economist Mises observed once quoting the play The Road to Damascus.

"Liberty! Liberty, give us, in order that we may suppress."

7. analyst Oct 31
@Voting Rights: comment was about calling Middle East countries Taliban states; not whether SL shud follow them or not.

Bahrain is not part of the Arab spring now going into summer. In 2007 they had same issues - it is more factional rather than freedom based. Same thing is prevealent in Malaysia and Maldives.

Oman is a peaceful country and the problems it had were more to do with external influences than internal issues. Again there is no uprising but if u can find a country that has people without grievences plz state. Norway - one of the most peaceful countries in the world had a tragic situation. A Sweedish minister was stabbed in the mall (last year was it?) Someone somewhere always has issues.

Qatar is another peaceful country with a beautiful vision and moving towards prosperity.

Saudi Arabia is the one that applies Sharia lAw strictly but it has shown signs of change. Although women have been given the right to vote information says it will be in 4 years time at the next election!!

The point was ownership of land not being an issue in these countries. And that they are not Taliban states as part of Afghanistan and Iraq is.

Most of the ME is open to a certain level - Dubai on one extreame and Sauidi on the other, and many young men and women are western educated.

However the land is not freely available for foreigners. In fact very few foreigners are allowed citizenship in these countries.

Their motto is " u come work live and make money but when time comes please go back to where u came from". maybe SL can learn something from this :)

6. Voting Rights Oct 30
Analyst you have said it yourself. Is it Bahrain, Qatar and Oman that we have to follow after supposedly gaining independence from Britain? Not very good examples.

The only thing to recommend them is that they are better than Libya or Afghanistan or whatever. Bahrain is already having problems. Oman did some smart thing and just managed to head off trouble. However unless they continue to reform, the people will rise up. Saudi just gave women the right to vote. Why do we follow these people?

In Sri Lanka the foreign land ownership issue is all humbug anyway. Any amount of locally incorporated foreign firms can buy land. In any case there is only a 100 percent tax on it. Foreigners can still buy provided they pay the tax.

It all show that this is a lot of humbug. When you get immersed in humbug and deception you will not even know the difference between oppression and liberty.

Discrimination against foreigners is just the start as we saw after independence. The rest follows suit. When you die you will not take this land with you.

5. analyst Oct 30
Errr... "What is happening to this country? What is happening to our people? Is this the Middle East? A Taliban state or what?"

Land ownership in ME is restricted, but are these countries Taliban States? Not necessarily. While the Arab Spring is runniong riot in several countries, no one will call Libiya or Egypt or Tunesia Taliban States. Even at the height of demonstrations there was nothing TALIBANISH about the way people were dressed and their common appearance.

There was nothing fundamental and radical in Egypt last November. Also there are many other countires like Bahrain, Qatar, Oman Kuwait where people live normally though land acquisition is restricted. Sri Lanka must do and decide what is best for her ; not what is best for the world or what others seem to think what is best for its people.

4. Jew Oct 29
Foreigners are also like Sri Lankans who are buying land in UK, the USA etc. They are also humans, not some inferior race.

- "The big risk in allowing private land to be bought by foreigners on Free Hold terms is that prime real estate will be snapped up by foreigners at low prices (as is happening now along the coastline) and the low income Sri Lankans will sell their land at low values, bust it up very soon and be back in the poverty trap with no regular income or land.-

This is a typical self-serving ultra nationalist comment which is economically false by the sentence itself and has been used by ultra-nationalists in the past to cheat the the sellers of land.

Why would a (poor) person Sri Lankan sell to a foreigner? Obviously because he pays a higher price than a stingy domestic nationalist, who wants to corner the market. Any new buyers regardless of whether he was local or foreign would add to demand and put the price up. Ultra nationalism dehumanizes, creates conflict, generates irrational hate, and ultimately harms to so-called special domestic natives. The land issue is a clear example of that.

It destroys the liberty of the person who wants to sell the land to a person of his choice. This is against foreigners but it does not end there. I have seen people saying don't sell to a Muslim, don't sell to a Tamil.

What is happening to this country? What is happening to our people? Is this the Middle East? A Taliban state or what?

3. Jew Oct 29
During the militarization and nationalist mongering of the superior German Aryan race, everybody who questioned the national-socialist regime was a Jew or a Jewish sympathizer.

It followed a pattern. Step 01 was a whisper campaign/character assassination. At the time there was no internet but it was done in other ways.

Then they are arrested on false accusations by the Gestapo. Initially the judges released them. Like the JVP activities and media people are released. However there was police record then. This paved the way for violence to unleashed upon them by the society. This was called the Geselschaft-Gemeinschaft routine, a play on the social theory. And so on...

2. Bun Key Choon Oct 29
Hope the Friday group is not a bunch of jobless LTTE sympathisers
1. Amal Weerasinghe Oct 29
With the post-war economic boom, we now need a solid Land Law that will ensure national interests are protected in the long run. Ideally all land allocations to foreign investors (whether State Land or Private Land) should be on Lease Hold terms only on 35-50 year terms. This way the actual ownership of land will remain with the State or private Sri Lankans while bringing in FDIs.

The big risk in allowing private land to be bought by foreigners on Free Hold terms is that prime real estate will be snapped up by foreigners at low prices (as is happening now along the coastline) and the low income Sri Lankans will sell their land at low values, bust it up very soon and be back in the poverty trap with no regular income or land.

The lease route will ensure that we continue to attract FDIs while also ensuring that Sri Lankan's gain annuity income that will increase with time.

The Maldives has adopted his land policy very successfully and all resort islands are owned by Maldivians and often leased out for 25-30 years to international resort chains at excellent annual rentals - often at least USD1-2Million per annum. This has ensured that Maldivian wealth continues to rise with time along with the rise in the commercial value of their islands and lease contracts.

Opening up land (especially private land) to foreign buyers on free hold will also potentially result in a price bubble in prime areas - like beach front. This will eventually result in a land-less mass of Sri Lankans who can not afford land in our own country!

Hope the UDA and the Government will consider these options before foreigners buy us all our best properties - this is happening along the on coastal belt already.