By Sri Lanka Study Circle

This is a response to the article by Shenali Waduge on MCC and relating it to the claim by a MP that the MCC will be signed but subject to Sri Lankan Law. Unfortunately, the statement from this MP has come AFTER the article showing how foreign laws will prevail after signing MCC. It makes a mockery of the MPs statement.  [Daily Mirror article The proposed Millennium Challenge Corporation (MCC) agreement will be signed only after studying and subjecting it into Sri Lankan law, a government MP told Parliament .http://www.dailymirror.lk/breaking_news/MCC-will-only-be-signed-subject-to-SL-laws-Govt-MP/108-197496]

Public are alarmed  and they raise questions —

1]  Excellent intelligent question,  by  Mr Sanjeeva Weerawansa was published. He asked the most relevant question —  – Does anyone know what the Bim Saviya program is? They’re walking around my neighbourhood demanding copies of the title and survey plan to issue a new digitalized title. So do we now have a digital land registry? If that’s already done why does MCC have $80M to build one?!

2] If you read the MCC you will find the answer. In the pretext of  introducing e registration, which is already done; International  law and a foreign law are   coming into the country.    Sinhala name is  given to the law and is referred to as ‘ Bim Saviya’ which is known internationally as the  Torrens law or Title registration.   In USA the law is referred to as the Torrens law and many states have rejected the law.  USA rightfully believes that a country does not require to change the law to introduce technology

3] It is laughable that the Sinhala inappropriate name  Bim Saviya is given to the Australian law. it is also  laughable that the MCC uses this name.

4] The main feature  of this detrimental law is  ——It repeals the fundamental right to access court That is if a land owner is affected by fraud or forgery, he cannot claim his land back.  – It is undeniable that this law  inherently and necessarily includes a risk for all owners who will have no deeds in the future.   Deeds are replaced with certificates.   Once an owner is registered by virtue of an illegal deed,  previous owner’s record is deleted, that is the  history of ownership cannot be found.   How did the law makers eliminate deeds from the e register when the Electronic  Transaction Act states in section 23 deeds must be available for owners for all land transactions. 

5] Alarming  news for owners —   Once  defrauded the  remedy is to obtain  financial compensation from an Assurance Fund maintained by the Government  ,  Can the government compensate owners? Will the MCC give the funds ? Is this economically viable ?

6] The counter argument is that Bim saviya is an old law? Yes, World Bank introduced the design says the MCC.  The government tried to introduce the law for  20 years and failed .  It is a failed law. 

Why did it fail .  Government Officer in charge explains — —- Extract From Commissioner Title   Performance Report of 2018https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pdf  –‘’How far it is pragmatic to supervise and manage an island wide office system centrally to change the land law. Therefore an  urgency arises to re-evaluate the entire Bim Saviya program  as well as the viability of this  law ‘’

Impossibility of the task  is also given in the Samarasekera Report expert lawyers  Committee appointed by President Mahinda Rajapakse when the Bar Association pointed out the detrimental effects of this law .  Refer —Book- Title Insurance- By Hon  Justice A.R.B. Amerasinghe..  

7]  Even the MCC says it is a failed law They are aware that the  ownership rights of local landowners cannot  be included into the  ‘law-and –order’  framework of  Australia^..

^{They are recommending amendments .  MP’s  need to be aware of this – why should they request such amendments? .}

Can any one guess  the period   require  to implement this law it may take over a century ? 

Annex 1-21 of MCC says for 20 years the MCC will have only  5 million beneficiaries.    .  Government says it needs over 100 years see Commissioner Title Report   of 2018 given above .   

I am sure   MP’s,  most of them who are  lawyers will understand that an e register does not require a country to change the laws familiar to owners and lawyers.  Please refer the Samarasekera report and the amendments made by the Bar Association  before accepting amendments recommended by MCC to push this law into our country. After MCC admitting it is failed law in Annex 1 –31  

The e register like in any other nation only requires  simple laws for  the  identification of the owners before land transactions are executed in order to prevent fraud.  This has been already provided  under   the Financial Transactions Reporting Act, No. 6 of 2006.”  of  Sri Lanka http://fiusrilanka.gov.lk/docs/ACTs/FTRA/Financial_Transactions_Reporting_Act_2006-6_(English).pdf.   Hope the MP’s will propose the necessary laws

Sri Lanka need to be cautious as over-reliance on funding agencies and their legal advice  have shocked nations –What happened Papua New Guinea?  A victim Kaputin charged that the right to access court being withdrawn  was deliberately introduced in PNG by the Australian colonial administration in order to protect foreigners’ land titles [ By John ugambwa*]http://www.paclii.org/journals/fJSPL/vol05/2.shtml

What happened in Malaysia — Malaysia–Adorna Properties v Boonsom Boonyanit [2001] 1 MLJ 241.The  first judgment on this law country learnt the seriousness of this law.  Adorna Properties the company that registered the name with a forged land deed was awarded the land. 

Wise word of Dr A.R.B Amerasinghe in his book ‘ Title Insurance’—-   ‘’ their  immediate object was the repeal of every law and the abolition of every institution which impede the easy transfer of land  as they consider lands should be easily saleable as a watch. [ economist call this access to land]   According to Hon Justice Amerasinghe  we require an acceptable law   for our society  as our assumption is that  land should be readily available for maximum use and not to be bought and sold as a watch’’ Just for a paltry $480m Sri Lanka’s Ministers should not fall into this US trap and moreover put Sri Lanka & its citizens into jeopardy 

By Sri Lanka Study Circle