By Kirthimala Gunasekera   Attorney at Law

Legislation is one of the most important instruments of government in organising society and protecting citizens. It determines amongst others the rights and responsibilities of individuals and authorities to whom the legislation applies.

If legislative changes to our land laws were to be made with foreign grants, it is imperative that there should be legal scrutiny, research and revision of the existing statutes by legal professionals  from Sri Lanka.  The new statutes must support the land policy and should have a legal framework to support the governess  of land and natural resources. A  dialog  with  the people of the  country is required as local cultures relating to land cannot be ignored.  Then only the   benefit  will reach the citizens.   These were the teachings  of Hon Justice Amerasinghe and Hon Justice Christy Weeramanthry,  which were well expressed in  their  excellent books that provide invaluable reading ,  Title Insurance and Equality and Freedom  and Some Third World Perspectives. 

New World Order to advice developing countries

14 August 1941  was an important  date, a date  on which a new world order began, where goals for the world after the war  were set out by the Americans and the British  in a historical document called the famous Atlantic charter .

The Atlantic Charter set out a vision for the post war world;  the United States was to support the United Kingdom in the war, and  United Kingdom  in turn had to agree to grant independence to the colonies.

 Immediately following the Atlantic charter Britain unhinged itself from the colonies followed by the  Breton Woods Conference  to regulate the international monetary and financial order after the conclusion of the war. In 1944 agreements were signed to set up the International Bank for Reconstruction and Development [ IBRD] presently referred to as the World Bank  and the International Monetary Fund.  This is the new world order which moves the world towards  globalisation recommending that  laws from  prosperous nations should be introduced as a ‘one fit for all ‘ to all countries, with top down legislation without any investigation. 

Thereafter  UN has set up several organizations to govern all aspects of our property rights .   The organizations   directly involved in  our land laws are  FAO ,  the World Bank, Global Land Tool Network [GLTN] ,International Federation of Surveyors [FIG] and the Millennium Challenge Corporation [MCC] all of which have entered Sri Lanka  to research revise and  introduce legislation .

The  main aim of these organisations  is to introduce new land laws purportedly to  reduce poverty and for the country to reach a better position in the indices that they have created such as  the   ‘Ease of Doing Business Index’ and ‘Property Rights Index.’ 

Good example,   is  the  introduction of  electronics to the land registry   to move in to a better position  in the Doing Business Index in a hurry  without the  introduction of  the recognised international laws that protect owners  from fraud and forgery .  Daily Mirror on the 11^th of April 2018 published that we are aiming for quick wins to move up the 2019 Ease of Doing Business rankings of the World Bank,   and we  will be introducing E registration.   Will the electronic register be free of fraud and forgery when it operates with the archaic laws without the internationally recognised laws ?  

Introduction of laws with  external advice,  undoubtedly  is a result of being suddenly tossed into this maelstrom after centuries of colonialism, says  Justice Weeramanthry in his book.  He says  we  have not yet achieved intellectual and economic freedom, although we achieved political freedom.

The successive Governments of Sri Lanka  have recognised this   mechanism which  receive their vitality from this  new colonial power.   Those who drafted the  recent  bill  ‘ Land Privatisation Act ‘ being foreign economist may not have  known the legal impediments for private owners  created by the previous set of external  advisors who introduced a foreign law repealing the common law and the deed system that governed our land rights for over a century .  The Bim Saviya as it is referred to is an Australian law that was  introduced  by the World Bank which had  deprived  the private land owners  of  their  fundamental right   to access court if  the  ownership is affected by fraud .  Private land owners cannot transfer  shares to their wives and children nor can a husband and wife apply for a joint loan to a bank.  Further the poor farmers  were governed by a uniform land  law, after privatisation they will be governed by the ethnic  laws that  deprive women of their  rights.    It is  far better for the poor farmers to have  support for their agriculture than owning land under  such laws.         

What is dangerous is that, successive Governments failed   to recognise the  local effort  to remedy the situation.     The legislation  prepared by the Ministry of Justice and the Bar Association relating to ‘Prevention of Land Fraud’  and the ‘amendments to the Bim Saviya’  had  not even been considered and is over  9 years.  Whilst statutes such as Bim Saviya, Electronic methods  and Land Privatisation bill  introduced by the foreign organisations seem to be receiving attention, to be rushed through without allowing any room for discussion.

Although the recommendations of the Bar Association was  not acceptable to the  Government, the Reengineering process for  Bim Saviya   commenced with the advice of  a  company that was selected by   an advertisement   made by a foreign embassy, selection too was made by them.  Today the entire electronic process  is based on the  re-engineering process recommended by them.

Vision of our lawyers and brilliant civil servants in the past ensured country did not freely accept grants to introduce statutes

In  1952  the International Bank For Reconstruction and Development [present World Bank] made their first research report about the land ownership of Ceylon.  It was a report termed “Insecurity of Land Title’.

Based on  this report on or about 1969  major changes were recommended  to the land law of the country.    The advisors   required the Government   to  introduce the Australian land law known as Title Registration to remedy the ownership rights of the people.    [ Book on Title Insurance Dr A.R.B.Amerasinghe ] This was the first time the World Bank then known as International Bank For Reconstruction and Development    required the law now called Bim Saviya to be introduced

The model answer to our ownership rights  by the International Bank For Reconstruction and Development   was not acceptable to  Hon Justice Amerasinghe who intervened at that time he was the General Manager and the Chief Law Officer of the Insurance Corporation.    He expressed his view that  in the process of compelling people to obtain perfect titles, local culture was ignored: Hundreds of thousands of families lived in peace sharing their undivided inheritances.  To drive them by legal statutes unknown to the country   would cause needless rifts and social unrest in the cultural climate of Sri Lanka.

 In January 1965 Mr William Tennekoon then the Senior Deputy Governor of the Central Bank of Ceylon also joined the discussion, submitted a memo to the Permanent Secretary to the Ministry of Internal and External Trade and Supply Mr William Tennekoon’s report  published in the book ‘Title Insurance’ written by  Justice Amerasinghe   is a great eye opener for all.  Mr Tennekoon pointed out that these schemes  must be introduced with consultation with AG and other legal bodies as it affects the laws of  Ceylon.   

Great success was achieved  with this intellectual team to find better solutions than introduce title registration. The Government agreed with Hon  Justice Amerasinghe, the Law Society and Mr William Tennekoon  that legislation proposed by the World Bank was not acceptable to the country. It is truly disheartening that such a mechanism  is not in place today when foreign funding is offered to amend our land law.

This collaboration  of academics and politicians is presently seen in prosperous nations.  Much of the success of prosperous countries is attributed to this co-operation between the practical and academic worlds.  These nations have charters signed to protect the  lands for the future generations. .    Organisation called ‘Meeting on Officials on Land Administration’ (MOLA), to facilitate co-operation between land administration institutions in European countries is a good example . Their   politicians provide stimulation and leadership to  professionals.

Presently we continue with new world order.  The  FAO ,  World Bank, Global Land Tool Network [GLTN] ,International Federation of Surveyors [FIG] and  new organisation from USA called the Millennium Challenge Corporation [MCC]  have made several reports  relating to the state of  our land law   —

Are we ready?

1] without a legal arm to revise –  working with centuries- old colonial statutes Their reports  point out that our land laws are archaic.   This is sadly  true as we have   remained  with the land statutes  enacted by the British Governors in 1840, 1907, 1927 up-to-date,  to face the challenges of the 21^st century, with total absence of anticipatory planning,  which alone could have assisted towards solutions for our agriculture and land ownership,  2] with 7 days only available  to rush to court,  when  bills are drafted with  foreign intervention.  3]  to accept the provision in the constitution that we cannot contest any of the statutes. 4] to execute leases without registering –[All leases should be registered under  The State Land act 8 of 1947 and the Act 21 of 1998]   This  allows a copy to be available for the public. The Government should follow the rule of  law and have all leases available for the next generation to examine, as the leases  extend to curtail their legal rights to  land  6]  land books,  recordings  of   100 years   in 45 land registries will they  be destroyed ? Like in other countries there are no plans to archive the books after  E registration sets in.   Are we allowing this to happen?. We will be rudderless without the history of our lands.

Our next course of action is to set up a structure to prevent and retard the erosion of our land rights in this manner . The funding if given by foreigners should be used,  to develop  research programs in the legal and agriculture fields and    to retrieve the cooperation between the practical and  academic world as in the early days.