Sri Lankan Lawyers Deliberately Kept Out?
Posted on October 28th, 2020

by Senior Lawyer – Sri  Lanka Study Circle 

[I refer to the article  appearing in the  Daily FT on the 22nd  titled ‘ History repeating – Are we going to lose MCC or not by  an international development expert– ]  

It is understandable if   a  non-lawyer does not  understand the   Legal Packages  included  in the MCC   to change the land policy of the country and to change    the  land law of the country to the Australian law to suit  the expansion  of large-scale industrial farming complex    

 The Australian law is known as the  Torrens law or Title registration.  The law which took away the rights of the indigenous people of Australia  in 1858,  where farming and grazing lands were  often used and managed communally under customary laws.   Sri Lanka has  given a Sinhala  name Bim Saviya to the law, curiously repeated in the  MCC. This is a  misnomer as this  law  makes lands untenable for owners, specially farmers and  accessible for sale and mortgage with the elimination of traditional land rights  that had existed in the country for 100 years.

Sri Lankan Lawyers Ignored at Inception.

The MCC was created after the Government coordinated with   the   MCC of  USA  in partnership with    the Harvard  University’s Centre  for Information International Development to introduce a document known as the   Sri Lanka Constraints Analysis Report.  

During the compact development process   efforts were made by the Government to keep the US  Embassy , USAID, and other US Government  Actors updated on the land interventions under consideration according to the MCC  Annex 1—33.   It is unpardonable that  efforts were  not made to keep the   BRILLIANT LAND LAWYERS and the SRI LANKAN  ACTORS updated on the land intervention.  They researched and published the following that   provided  solutions for the  functioning of an efficient  land market —-1] Amendments to the Bim Saviya Act 21   1998 by the  Bar Association  2] Samarasekera Committee Report .  A committee appointed by President Mahinda Rajapakse.  They   concluded  that  it  is an   impossible task to forcibly register land under Bim Saviya and this  was totally unworkable. The Law Reform Commission has also consistently opposed compulsory implementation of the foreign law.      3]  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]    4] Reports from the Banks of Sri Lanka  by legal officers who are experts in land ownership laws. 

The three legal packages included in the MCC Land Project

                                       1st Legal package .    MCC directs  to   implement Bim Saviya the Australian law, which the government failed to implement for the past 20 years. MCC has   offered to manage it for 5 years  according to Annex 1 –page 30 and Annex 1—page 31.

    MCC of  USA and the Harvard  University’s Centre  for Information International Development;  were they not aware; that the    implementation of Bim Saviya  attempted by the Government failed for 20 years, because  they could not  register the ownership rights of the poor traditional farmers.   Is it correct to exclude from the e register  rights of owners  essential for paddy cultivation and small farming such as,   Ande cultivation rights  of paddy lands ,Co-ownership  rights , right of Pre-emption   and Rights to waterways.   The Bim Saviya law   even eliminates all the inheritance laws  of the Sinhalese, Tamils and the Muslims according to the   Samarasekera Committee report.

                                       Failure of Bim Saviya  was also due to  the period required  to implement  Bim Saviya which was estimated to be  over  100 years,  according to the  Performance Report of 2018 issued by the  government.  ttps://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pd.

                                        Although the government had consented to the MCC,  according to the World Bank’s ICR report,  Sri Lanka’s titling project Bim Saviya   was  a failure as the laws of the country does not fit into the legal framework of Australia that does not recognise rights of our local farmers.

.http://documents1.worldbank.org/curated/en/996161474635250504/pdf/000020051-20140617135844.pdf

                                        2nd legal packge  Includes a strict order,  that is  government lands must be   privatised and be governed by the Title registration law another name for Bim Saviya  before signing the MCC .  This is for the poor to obtain bank loans.  All who support the MCC  should refer the  books authored by Hon Justice A.R.B Amerasinghe and Justice Weeramanthry  to realise the untruth In Sri Lanka, it  is common knowledge that the banks are not interested in ‘ownership deeds’, Banks are  interested in the loan applicants’   financial statements,   to determine whether they are credit worthy. The banks  grant loans for lease hold interest of government land. 

                                      3rd legal package  [Section 3—9   and Annex 1—29]   MCC to attend to the preparation of the e register under the law of Bim Saviya .  This is  presently not necessary as the e-register (e-LR) is almost  completed and  can be  operated without changing to a foreign law,  according to the Electronic Transaction Act 19 of 2006  based on the standards established by United Nations Commission on International Trade Law (UNCITRAL) .      which specifies that deeds are required [ Bim Saviya  takes away deeds ]

Gift 67 Million Cost Millions More  

The Bim Saviya introduces a massive economic burden to   the   Government?  The   government has to set up an ‘Assurance Fund’  to provide monetary compensation to land owners in lieu of judicial remedies as the  law repeals  the rights of land  owners to access court. Can the funding agencies   compel nations to   reduce their  judicial authority ?   

The E register is almost complete.   Do we need funding   from the MCC , to introduce a law that will be an economic burden to the government, to introduce a foreign law which takes a period of 100 years to be implemented or have only 5 million beneficiaries as given in the MCC for a period of 20 years[ MCC Annex 1—20] . I am sure the Hon President and the Hon Prime Minster  will look into this matter. Present parliamentarians   and  Sri Lankans may not be aware that changes  to our  land law was pushed by the World Bank as far back from  1960s.  However,  thanks to  our  legal luminaries like Hon Justice A.R.B. Amerasinghe and erudite and honest politicians like Mr T B Ilangaratne , the President of the Law society, Governor of the Central Bank Mr William Tenekoon, these intentions never translated to realities. They provided local solutions for  a  functioning land  market  where the poor could get loans from banks. Their   esteem  collaboration to prevent the Australian law is given  in Hon Justice  Amerasinghe’s book– Title Insurance.   

(srilankastudycircle@yahoo.comcom)

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