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

Excellent analysis Shenali , yes   we have very eminent personalities going out of their way to hold panel discussions and promote MCC parroting how lucky Sri Lanka is to benefit from this ‘gift’.

Do they know  the legal implications of the Land Project?    Do they at least know that they are promoting a foreign law which takes away their   inalienable fundamental right to access court enshrined in the constitution.  After signing the MCC, the land rights will be sans  the land laws of this country,  mainly beneficial for agriculture and the MCC   will  have an irrevocable government grant of intellectual property rights according Annex 1—30,   Annex 1 –31 and  Section 3.9 .

The  MCC Land Project  includes  two major components  given as– 1  and 2

1] to make the Government  landless  by introducing a statute which is called the Lands Special Provisions Act.  A statute to  change the land policy of the country. All who support the MCC  should refer to the books authored by Hon Justice A.R.B Amerasinghe.  In Sri Lanka,  the  leaseholders  of  government land were always granted permission to improve their lands  by obtaining  bank loans. The banks are not interested in ownership deeds relating to state land,  they  require financial statements of the loan applicants to determine whether they are credit worthy. The banks will not give loans   to the poor, merely because they have received a deed from the government.   [ If further proof is required it is best to refer to  the legal officers of all banks and the lawyers in the  Title Insurance field who are extremely knowledgeable].

 2]  to introduce the Australian law to govern the land rights of the people.   A major issue concerning this   law is that it deprives access to  court, specifically when owners are deprived of their land rights  by  means of fraudulent deeds. It repeals the   traditional laws associated with agriculture.

Document drafted with foreigners to introduce MCC

The public is  helpless,  public was  not given any opportunity, when the Government decided to make a revolutionary change to the land policy and the land law of the country.  The Government had  secretly  conducted the analysis of our land laws and land policy to draft Sri Lanka Constraints Analysis Report   with   the  MCC of USA  in partnership and    the Harvard  University’s Centre  for Information International Development for the Development of  Millennium Challenge Compact is the result of  Sri Lanka Constraints Analysis Report  https://assets.mcc.gov/content/uploads/constraints-analysis-sri-lanka.pdf ]Sri Lanka Constraints Analysis Report and the MCC  had been drafted by foreign officials who had not  read the following Local and  International reports which state that the  law recommended for the land project  MCC has failed.

a]  World Bank’s ICR report — Sri Lanka’s titling project is a failure. http://documents1.worldbank.org/curated/en/996161474635250504/pdf/000020051-20140617135844.pdf

 b] Performance Report of 2018  by the  Government official administering  the Australian law states that it will take over 100 years to complete . https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pdf 

MCC Annex  1—31, however, agrees that the   implementation of this law failed  because it was not economically viable for  Sri Lanka . In addition includes Annex 1 –21 .  Beneficiaries of  the land project is said to be only 5 million for 20 years according to the MCC. [How long will they occupy our country to implement the Australian law] ?

Why  did the Government  not consult the Sri Lankan experts and lawyers who had made reports  

MCC has also taken the privilege to include amendments to the law –Annex 1—34 . How can Howard university and the MCC continue to   include amendments without discussing with the legal experts of this country and without studying the following reports ? Experts reports

1] Samarasekera Committee Report .  A committee appointed by President Mahinda Rajapakse.. They recommend  to   do away with compulsory  conversion to a foreign law.     Concludes that  it  is an   impossible task and totally unworkable. The Law Reform Commission has also consistently opposed compulsory implementation of the foreign law.      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  by legal officers who are experts in land ownership laws.

Public not informed

People are taken by surprise   Mr Sanjeeva Weerawansa  being surprised when his deeds were  requested to be destroyed, asks a valid 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  e  land registry? If that’s already done  why does MCC give  $80M to build one?   

Answer is –Yes Sanjeeva the Registrar informs that the e register is almost ready to be operated with the law of the country. Therefore It is a time seize the opportunity to take advantage of the situation to research and revise the exiting deed registration system to  govern the e register with the Common law of the country.  The laws of this country have to be revised only to prevent land fraud; that is to include the owner identification and verification laws  to the notarial process and the registry and this will not require foreign funding . How did a law, to take away the deeds of land owners come into operation,   when the law which introduced electronics to Sri Lanka,  namely the Electronic Transaction  Act 19 of 2006 Section 23 specifically required paper  deeds for the  e register ?

Questions to be answered by  eminent personalities going out of their way to hold panel discussions and promote MCC   

1]  How can the poor farmers  use their lands for agriculture and paddy cultivation,  after signing the MCC, when   land laws of the country  which  promote agriculture and paddy cultivation,  such as co-ownership,  servitude rights such as paths to waterways path to wells sharing of trees and products etc are all repealed.[ Expert lawyers committee appointed by President Mahinda Rajapakse  had pointed out that  all our inheritance law will be repealed ]

2]  What is the future of the poor land owners,  when the law  repeals the fundamental right to access court for land disputes specifically when lands are forged and taken by large companies.      We have to learn from the mistakes of other nations. Malaysia is a country where by top down legislation the World Bank funded the introduction of   the Australian law very similar to Sri Lanka repealing the Common law. The apex court  judgment [ Boonsom Boonyanit  vs  Andora Properties ] thereafter had created a loophole in the law, causing many legit landowners to lose their lands through unscrupulous means via forged documents.  Even Australia has withdrawn this law as it deprives the people of their traditional rights.  The  Mabo Case is  a significant legal case in Australia that recognised the land rights of the indigenous people . The case was successful in overturning the myth that at the time of colonisation Australia was ‘terra nullus’ or land belonging to no one.  

3] Why had  the Government  agreed  to take over a huge economic burden to entertain this law  which requires  the Government to maintain an ‘Assurance Fund’ to pay   land owners compensation in lieu of the due process of law.  If such an economic burden can be undertaken by the Government, then why do we need funds from the MCC?

What is alarming   is that 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.   https://core.ac.uk/download/pdf/151518291.pdf