One law for all – e Register with Bim Saviya [Australian Torrens law].
Posted on August 29th, 2020

By Senior Lawyer Sri Lanka Study Circle [ srilankastudycircle@yahoo.com ]

Parliament has enacted legislative framework for the e register [ e  LR ] modeled on the  Australian ‘Torrens System’ of title registration (Registration of Titles Act No. 21 of 1998, popularised as Bim Saviya / Title Registration ).  This has convulsive    changes to our land law. The Act 21 of 1998 ,  is more or less a copy paste version of the original statute introduced in   1858 in Australia.  It  does not include any of the  amendments made subsequently  by  the Australian Government to make the e register comprehensive compulsory and free of fraud . 

Although the public   have a right to information under the                               ’ ‘Right to Information  Act 12 of 2016’ , there is very little dissemination of knowledge to the public and the lawyers with regard to this law.  If  the  e register is  governed by the Australian law,  the   land rights under  the personal laws ,   other laws  that permit  shared interest and  servitudes enjoyed by land owners mainly for agricultural purposes  will not be accommodated .   

It is therefore the duty of patriotic and public-spirited politicians, administrators, lawyers and media leaders to vitalise  the  Sri Lankan law with necessary amendments specifically to prevent fraud to enable effective administration of the  e register  .

 ‘ One law for all’ ? .

 An   owner  registered in the e register, under Bim Saviya has  conclusive indefeasible ownership [ Section 33  Act 21 of  1998 ]which cannot be questioned in a court of law   and cannot be challenged in a court of law,  even  if the owner received title by way of a forged deed or  even if the owner did  not receive  rights under the  personal laws.  Section 73  Act 21 of 1998 expresses the superiority of the Bim Saviya law states ‘ the provisions of this law shall have effect notwithstanding any other law. ‘ 

The    Samarasekera report  consisting of expert lawyers appointed by President Mahinda Rajapakse  to investigate in to this law   declares that the

 ‘ Bim Saviya law can be maintained only if the customary and statutory inheritance laws of our country  are made inapplicable.’ Can this be done?

Bim Saviya   compels   registration of only  one owner for a block of land and  will not register  complex ownership rights  under our  customary law or personal laws , Ande cultivation right  ,  law of preemption  , rights to plantation, rights to chena lands  etc . Samarasekera report concludes that compulsory registration under Bim Saviya    is   an impossible task and totally unworkable’.  The Title Commissioner  [ officer appointed to register owners under the new law Bim Saviya ]after 20 years  confirms the view states in the 2018 report that    1.9 million blocks   could not be   converted to Bim Saviya  since they were governed by coownership rights and customary laws  

If further convincing is necessary readers are advised to read the World Bank’s ICR report it states   Sri Lanka’s titling project is a failure. The project only issued titles for parcels with clear land rights and deliberately shied away from problem parcels and from helping people in the field work out their problems . As a result the project failed to improve the adjudication process. http://documents1.worldbank.org/curated/en/996161474635250504/pdf/000020051-20140617135844.pdf

This situation has caught Sri Lanka between two stools. The country has two systems of law . The vexatious old law that requires immediate  revision  and   Bim Saviya which is economically unaffordable .   This has confused and disturbed land owners  including the judiciary with many court cases instituted and pending.  During   court proceedings  ,  the defendants produce conclusive Bim Saviya Certificates to prove ownership, where the Title Commissioner the Government’s  adjudicator  had gone ahead to  conclude ownership , without the   knowledge of the law .    

Proceeding with Bim Saviya against all legal advice  

Fifteen years ago the Bar Association  made amendments to Act 21 of 1998  thereafter   Samarasekera report   concluded   that the imposition of compulsory investigation of title will create thousands of land disputes. .

Contrary to the  legal advice given  Government   continued and as predicted  the effort to implement Bim Saviya  with a non legal process failed.  The  cost of this futile exercise was exorbitant with the  government having to  visit  all land owners  making plans and adjudicating rights .  For  20 years only 0.72 Million blocks were registered  in the Bim Saviya register out of 12 Million blocks of land.  With that conversion indicator  it will take over 100 years to implement the law  for the e register.

What happens to the land coming under the MCC  project?  As per proposal       [ Annex 1 page 21]  there would be only 5 Million  people benefitting after 20 years .What happens to the others  and how long is the project ?.

Judicial    adjudication of  legal ownership rights entrusted to the  administration

The post of  commissioner of Title Settlement was  created to mandatorily    investigate  ownership of all land owners converting   land rights of  both private  and government land owners to the Bim Saviya law.  The law   compels the owners to   forego their  deeds to be exchanged to  certificates All  future land   transactions[such as sale and gifts etc]  are  to be made on Transaction Forms published in the  Gazette 1886/58   dated 31.10. 2014 , The statutory  forms published in the gazette  have no  provision to recite the servitude rights or other shared rights under personal laws as they  cannot be included in the  register .  The Bim Saviya has provision to destroy notarised land transactions and they are not returned to owners.  Section 53 provides to destruction of  land transactions,   as the register  by law has to erase the history of  ownership  to reflect only the owner and is therefore named as  ‘ Mirror Title’’.     .

New procedure to reduce court actions under Bim Saviya Section 60 of Act 21 of 1998  

Surprisingly a new   alien law has come into operation called the  statutory ‘Assurance Fund’ .  Government has to be responsible    to pay compensation to owners  aggrieved by registration under  Bim Saviya . If the owners lose their rights under Bim Saviya ;  they may not  get back their  house or land they have lost , they can  obtain compensation from the Assurance Fund.   A poor substitute for the loss of their   fundamental right to access  court to seek redress.

The law of Bim Saviya  referred to as Torrens law  had operated in Australian   for over a century and the Australia’s  Government’s ‘ Assurance Fund’   has sufficient funds to compensate owners . [  Victoria registry in  1981 -87 made a gross profit of Au Dollars 189.5 million New South wales of Au Dollars  249.5 Million of which 50 Million was gross profit  as the    fund is  maintained with the  fees collected from land owners.]

The phenomenal cost of registering land under Bim Saviya

 To register land in Australia under the Torrens law [ Bim Saviya ] it cost approximately 180 AUD for a  land owner, as owners have to maintain the  Assurance fund.    Land registry has  already commenced charging fees for registration to build the  Assurance fund.  Is this economically viable for a poor country?.  Sri Lanka  Government has to find the funds to establish the Assurance Fund  , as the MCC  will not grant funds for the establishment of the Assurance fund or the implementation of Bim Saviya .  

USA in Several States have rejected the law

 Several states in USA had  rejected this law as they did not agree that   the  fundamental rights to access court  should be  replaced with a law that requires a  Government Assurance fund to pay  compensation to owners.   Throughout its thirty-five years of existence in USA  has at most been only sporadically successful  https://core.ac.uk/download/pdf/151518291.pdf

Sri Lanka need to be  cautious as   over-reliance   on funding agencies and their legal advice may not be the best way forward .   

According to the MCC draft document the  government has been unsuccessful  in the implementation of  Bim Saviya.    MCC however advises  to   continue with the failed law  Bim Saviya  with amendments [The MCC  Annex 1 —34]  

The suggested amendments  are ,  ironically to re introduce the rights that are best available under our law and the deed system .   Why introduce a law alien to the country and amend the law to return to the existing law ?.

Other nations have made the same mistake

Sri Lanka has to learn from others experience.  Several nations have made the mistake and  is regretting . To remedy the situation they are repeatedly   introducing   amendments to their Torrens statutes. Their judiciaries are compelled   to encounter unknown legal issues.  Malaysian and Singapore has exposed the law where   criminals gain land rights .    The system is based on the law of  Australia in the 19th century and is totally inadequate to deal with the challenged of the  21st century https://www.accaglobal.com/hk/en/member/member/accounting-business/2019/04/in-focus/land-fraud.html

Singapore A law which favours forgers: Land fraud in two Torrens jurisdictions  https://ink.library.smu.edu.sg/sol_research/2325/

Why are successive governments  ignoring the advice of  Sri  Lankan Lawyers  for the implementation of an effective e register  with the Sri Lankan law

The e register [ e  LR ]  will be   completed very soon and e register could operate with the law of our country.   The  advice of the Sri Lankan lawyers has been  to revise and amend the law. Sri Lanka requires laws to maintain the integrity of the register free of fraud  for the  safety of the owners  registered in the e register .   

The expert advice from lawyers are given in ——-

 1] Samarasekera Committee Report .  A committee appointed by President Mahinda Rajapakse   has given  expert advice which will not economically burden the  government. They recommend  to   do away with compulsory  conversion recommended by Bim Saviya.  Concludes that  it  is   impossible task and totally unworkable’. The Law Reform Commission has also consistently opposed compulsory implementation of the law.   The committee recommends that the implementation be initially voluntary.     2]  The amendments to the colonial statutes   by a committee appointed by the Ministry of Justice to prevent fraud [when Mr Milinda  Morogoda was the Minster]   3] Amendments to the Bim Saviya Act 21   1998 by the  Bar Association 4] Reports from the Banks of Sri Lanka  

If we are compelled to introduce the   Australian law  at least follow Australian Practice

If we are compelled to proceed with  Bim Saviya  for the 11 Million blocks remaining ,  having failed in the project for  20 years, the Government should not ignore to assess the period required and the cost   and should not ignore  the years of research  made in  Australia to improve the Torrens law made,  by the    Australian Registrars’ National Electronic Conveyancing Council (ARNECC)  and  the  Property Exchange Australia Ltd (PEXA) which gives publicity and directions to lawyers and the public

It would be also important to observe that Australia has recognized the  customary laws of the people.

 Customary rights were recognised recently on the  3rd of  June 1992. , High Court of Australia  ruled  that the lands of this continent were not terra nullius or ‘land belonging to no-one’ when European settlement occurred, and that the  people were ‘entitled to their customary rights possession, occupation, use and enjoyment of  the lands  Mabo v. Queensland  .

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