The MCC Committee’s request for public contribution —- Is the Government allergic to local professional advice?
Posted on January 30th, 2020

By– Public Opinion Committee [POC]

The most vital issue regarding the MCC: Should Sri Lanka privatise state lands under  foreign laws?. 

Over the past  4 decades   successive Government policy makers have moved towards introducing land policies and land laws promoted in western countries.  They keep ignoring our own institutions, laws and practices, totally eroding them beyond recognition.   

Digitalising and formalising a country’s land titling system is an extremely difficult task. Itis a minefield of practical difficulties, complicated bylegal culture,  social norms, institutional capabilities and corruption.

It appears the government has readily agreed with the MCC to ensure coordination with the studies and designs made by other donors  namely World Bank, USAID, US Embassy, and other US interests (Annex 1 p33).   Further it agrees that the availability of MCC funds for land privatisation has to depend on the enactment of the Land Special Provision Act (LSPA), where the registration of absolute land grants must be completed through the title registration system, called the Bim Saviya, based on a foreign land law (Annex 1, p30). Annex 1, p28 also refers to Bim Saviya and the preparation of an e-register. This is the result of entering into several agreements that  have required us to legislate foreign laws relating to land, simply to enable us to accept foreign grants. ‘All this for the sake of alleviating poverty’, appears to be how we were pacified.

No mention is made to consider the advice given by the legal fraternity.

Was the Bim Saviya introduced under a new parliamentary procedure ?

No one knows   when  laws are passed by parliament .No one was aware, of when and how, the Act 21 of 1998 –Bim Saviya came into operation.  Bim Saviya is an  Australian law restricting access to court, repealing the Roman Dutch law and the Common law of our country  practiced for over 100 years.    Lawyers and  land owners are totally unaware of the implications of this law .  The committee looking into the MCC may not be aware of the economic burden created  by  this law .

Is the Committee aware of the economic burden and the legal ramifications  of   Bim Saviya  ? [The new law Assurance Fund in lieu of judicial remedies ]

Bim Saviya is a law where  ownership could be obtained by means of an invalid / forged document. Example if A ‘s land is sold to B on a forged invalid transfer  to B.   B’s name once registered in the digital register the law of Bim Saviya protects  the ownership of B. A’s fundamental right to access court is repealed by the law of Bim Saviya.  A’s solution is to obtain compensation from the Government.   The Government therefore under the  Bim Saviya has to set up the statutory Assurance Fund   [ Act 21 of 1998 ] to compensate owners.   The Government must look around to see the  consequences of this law,  in other nations — — for example notwithstanding   UK ‘s   stringent laws to prevent fraud compensation to owners  over  the last 10 years had been  around £55 million under the Assurance Fund  Scheme

Can the Government genuinely make this promise to the land owners ?  

 Sri Lanka’s vulnerability—dependence on foreign funds and advisors 

The  successive governments have completely abdicated their responsibility, to, revise outdated colonial land laws, promote legal education & research among Sri Lanka’s academics and legal fraternity.  Without commencing any  local initiative, merely  permitted  entities like World Bank, USAID and US Actors  to enter the country to introduce Bim Saviya and digitalization.  We have moved on to digitalization commencing with advice from US interest.  For instance, this report prepared by the American Embassy  Colombo – November 2011 https://photos.state.gov/libraries/sri-lanka/577989/pdf/eLand%20Hub%20Project.pdf  .

They had already commenced copying the names of owners from the old register   [  which was in operation without any revision since 1864 ] to the new Digital register ,  when the  Registrar  General of Lands claimed  that 50% of  entries  in the old register were   forged.    

The names of owners are  determined by a  non judicial process for the first time in Sri Lanka ; entrusted to the administration.  Land owners names are  exposed with  their  ID numbers and addresses, without  the international laws to protect owners in a  Digital world 

Is it  not oxymoronic that to alleviate poverty we create  poverty ?

The promise to make  poverty history for the past 60 years with foreign aid and advice  had been a failed effort  in many jurisdictions . The  judiciaries of many countries are faced with challenges;   for which they have given a new legal term  ‘ BIJURAL EFFECT’ . There is ample literature on the  subject —

 1]Malaysia https://www.thestar.com.my/opinion/letters/2007/12/23/at-the-mercy-of-land-scams  .  A  former member of the Malaysian Bar Council   states  ‘Title registration’ [ Bim Saviya]  is a  law   which has wreaked havoc in land transactions and increased the number of land scams in the last  9 years[ Boonsom Boonyanit case the Torrens system, innocent landowners who are victims of fraudsters and scam artists cannot expect to find justice in the law.]       

2 ]Singapore Article –. Whither Torrens  Title in  Singapore ? Written by Barry C CROWN ; Associate Professor, Faculty of Law, National University of Singapore    Torrens system was designed to solve problems  in South Australia in 1858 Will this law be relevant to us today in the 21st century  ‘ ‘   https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/375/Citation/Jo  

 3]England –UK –The helpless Judiciary , orders recovery of damage for land fraud from    lawyers    https://hmlandregistry.blog.gov.uk/2017/02/06/recovering-indemnity-payments/  Can the lawyers practice with such economic burdens    

4] Although Sri Lanka has  commenced with Bim Saviya ,   USA itself has  not considered the law in many states,  they are considering whether  governments would be equipped  to finance  the system. https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2264&context=wmlr

Has the US and UN telescoped  into One  Entity?

After signing the MCC , the implementation of Bim Saviya and digitalsiation will be assigned to a Primary Agent of the Government  called the    MCA Sri  Lanka Ltd  according to Annex 1 page 34 of MCC. The agent shall have operational legal independence and full decision making autonomy with or without consultation.  The agent  becomes responsible for exercising the Sri Lanka Government’s rights and obligations to oversee, manage the Bim Saviya and the digitlistaion project in the Targeted Districts .  

The   Government waives all claims   for all loss, damage, injury or death arising out of activities or omissions of the agent  section 6.8  of the MCC –will have complete legal immunity for all its actions. 

Do we consider the  MCC as a  UN organisation,  giving them the privileges and immunities enjoyed by representatives of the Members of the UN and officials of the Organisations  As  only representatives of the Members of the United Nations and officials of the Organization under UN rules  enjoy   privileges and immunities as are necessary for the independent exercise of their functions  https://legal.un.org/avl/ha/cpiun-cpisa/cpiun-cpisa.html

Perhaps this is a precautionary measure as Bim Saviya erodes   our  institutions, laws and judicial practices. Diplomatic Immunity will protects the MCC and the MCC Sri Lanka  from fraud charges and the inevitable consequences to the  legal process where   lawyers and judges  will be  programed  to accept  cut and paste laws from foreign  countries.    

The Government claims  to have funds to complete Bim Saviya

The Government  whilst  limping along for 12 years , wasting funds on a failed project  has promised  to complete the balance 35 land registries and complete 9.5 Million parcels of land less  100000  undertaken by the MCC in 10 land registries . The  MCC   document  also  refer to the  Government’s poor  performance for 12 years relating to Bim Saviya  completing only  600,000 parcels  from 2007 to 2019, costing nearly 2.5 Million per year  

Can the Government genuinely make this promise? [  MCC No, Section 2.6 (Government resources budget – page 6 of MCC & Annex 1-34). 

Could someone give a road map of how foreign funds and  foreign laws could alleviate poverty 

Any one who had taken a  loan from a bank will know that if you are poor and is unable to produce evidence of wealth banks will not grant loans!

Privatisation of land rights require a land law system that could be understood by the local people, if it is to alleviate poverty.  This is the reason that countries that were successful with digitalisation, spent over 12 years to train academics and staff to enter into the  revolutionary process.

 Can the poor function with 12 digit number given to them in lieu of their deeds.?  

Can they manage transactions on a digital register with the 12 digit number. ?

I am sure even the affluent land owners are not aware of the revolutionary changes. The advice to initiate research programs and to disseminate knowledge was given in the  World Bank report in  in 2007

. http://documents.worldbank.org/curated/en/418081468781158319/pdf/multi0page.pdf.http://documents.worldbank.org/curated/en/750021530107195459/pdf/Improving-the-Quality-of-Land-Administration-in-Sri-Lanka-19-June-2017-final-draft-clean. ]

After neglecting the required process  given in the above reports  for over 12  years,  to embark on further  radical changes with MCC funds will be a grave mistake.  The changes will result in destroying  our paper deeds, destroying  all historical records of our land ownership; owners will be reduced to a paperless deed environment and our current land ownership will be confined to a digital number toxic with corruption reflected in the manual register. Perhaps we will not have   professionals well equipped to handle the foreign systems nor will we have  the  intellectual property rights to manage the   electronic operations in land registries.

I hope the committee will advice the Government to be intellectually independent.  Reference must be made to the  advice given in the 2007 World Bank Report and the   Economic Commission for Europe -Geneva Land Administration Guidelines with  Special Reference to countries such as Sri Lanka. Their advice is for countries to build their own systems according to their  own social, economic and cultural environments.

http://www.unece.org/fileadmin/DAM/hlm/documents/Publications/land.administration.guidelines.e.pdf

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