By Neville Ladduwahetty Courtesy The Island

It has been reported that the State Land (Special Provisions) Bill, tabled in Parliament on 28 June, sought approval for passing necessary provisions for awarding the sole right to state land held by citizens.

The government is reported to have said that the Bill will benefit the people who have only been residing in lands with a permit and unable to submit it as collateral in obtaining a bank loan. The Bill also aims at allowing the people have been living on permit lands since the 1920s to obtain the absolute right to their lands and also to pass them to their children”. 

Changes to Sri Lanka’s land laws introduced through the State Land (Special Provisions) Bill is one of the key programms conducted by the grant of $480 million given through the Millenium Challenge Corporation (MCC)”.

THE BILL

The Bill is “AN ACT TO GRANT ABSOLUTE TITLE TO STATE LAND HELD BY CITIZENS WHO ARE HOLDERS OF GRANTS OR INSTRUMENTS OF DISPOSITION; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH OR INCIDENTAL THERETO”.

The Act is to be in operation for seven years.

According Part I Section 3, the provisions of the Act shall apply to persons who are holders of (i) a grant under the Land Development Ordinance; (ii) an instrument of disposition under Land Grants (Special Provisions) Act; (iii) an instrument of disposition under Crown Lands Ordinance for agricultural purposes provided that they have held the Land “for more than ten years immediately prior to the appointed date of this Act.

However, according to Section 4, the Act shall not apply to Land (i) over one thousand five hundred and twenty-four meters above mean sea level; (ii) declared as development areas; (iii) within reservations or protected areas; (iv) vested in any Local Authority; (v) declared by the Minister; (vi) any settlement programme.

According to Part II, applications for eligibility would be reviewed by a Committee made up of fifteen Secretaries of related Ministries and five ex-officio Members such as the Land Commissioner who shall be the Chairman of the Committee, the Surveyor General, the Registrar General of Lands and nominees of the President and the Prime Minister. The Committee would be assisted by administrative arrangements such as Sub-Committees and Boards to review objections that are normal to finalizing the report of the Committee for submission to the Minister for Lands who in turn is expected to forward it to the President for issuance of the Absolute Land Grants.

IMPACT of the BILL

The procedure outlined above enables the identification of persons who are entitled to receive Absolute Land Grants. Since it applies only to recipients of Lands already granted under existing provisions of Land Development Ordinance, Land Grants (Special Provisions) Act and Crown Lands Ordinance, records as to how many would be eligible to apply for Absolute Land Grants are available to the government.

Of this total, a certain proportion would have benefitted from existing schemes, while others could find the asset a burden due to personal reasons. Therefore, while the proposed Bill would benefit both groups, the latter group would likely be inclined to sell the asset and be relieved of the burden. Since such an opportunity does not exist under existing provisions, the Bill would prove to be a pleasant windfall to the latter group because an Absolute Land Grant would now entitle them to use the Land Grant as collateral to raise a loan or sell it outright.

Of the two groups, if the group that finds the asset a burden is proportionately larger than the group that benefitted from the asset, there is a strong possibility for investors to exploit the situation. The argument advanced in favour of the Bill is that access to Land by investors would enable hitherto unproductive Land to be made productive. However, a counter argument that is compelling is that since State Land belongs to the Republic and therefore to the People, the Bill would privilege those that are granted Absolute Title at the expense of others and therefore would be discriminatory (Article 12). However, the most compelling counter argument is that it would violate the sovereignty of the People (Article 3; an entrenched Article whose amendment requires a special majority) because ALL LAND and ALL its RESOURCES BELONG to ALL the PEOPLE of SRI LANKA as part of their sovereignty that is inalienable, and that governments hold Land in TRUST as determined by the Supreme Court in several instances.

Therefore, Land cannot be granted to anyone outright without a two-third approval of Parliament and approval by the People at a Referendum. Until such approvals are secured it is imperative that unproductive Land is leased to investors on the same basis that currently exists.

SUPREME COURT JUDGMENTS RELATING to LAND

S.C. 884/99 BULANKULAMA AND OTHERS v. SECRETARY, MINISTRY OFINDUSTRIAL DEVELOPMENT AND OTHERS (EPPAWELA CASE

AMERASINGHE. J.

Jurisdiction

“The Constitution declares that sovereignty is in the People and is inalienable. (Article 3). Being a representative democracy, the powers of the People are exercised through persons who are for the time being entrusted with certain functions. The Constitution states that the legislative power of the People shall be exercised by Parliament, the executive power of the People shall be exercised by the P resident of Sri Lanka, and the judicial power of the People shall be exercised, inter alia, through the Courts created and established by the Constitution (Article 4)”.

“The organs of State are guardians to whom the people have committed the care and preservation of the resources of the people. This accords not only with the scheme of government set out in the Constitution but also with the high and enlightened conceptions of the duties of our rulers, in the efficient management of resources in the process of development, which the Mahavamsa, 68.8-13, set forth”.

S.C. Appeal No. 21/13 S.C. Spl. LA 203/12 CA/PHC/Appeal No. 37/2001 HC/CP Certi. 42/97

SRIPAVAN. J.

“Paragraph 1.3 above, deals with alienation or disposition of “State Land” within a province upon an advice made by such Provincial Council. It cannot be construed that the advice tendered by the Provincial Council binds the President. However, it must be emphasized that if the President after an opinion or advice given, decides to dispose of the State Land, such disposal has to be in compliance with the laws enacted by Parliament” (p. 10).

“Shirani A. Bandaranayake, J. too in the Determination of the Bill titled “Land Ownership” [S.D. No. 26/2003 – 36/2003 Determination dated10th December 2003] noted as follows: “With the passing of the Thirteenth Amendment to the Constitution, such Constitutional power vested with the President was qualified by virtue of paragraph 1:3 of Appendix II to the Ninth Schedule to the Constitution. By such provision the authority for alienation or disposition of the State land within a province to any citizen or to any organization was yet vested with the President…….. In effect, even after the establishment of Provincial Councils in 1987, State land continued to be vested in the Republic and disposition could be carried out only in accordance with Article 33(d) of the Constitution read with 1:3 of Appendix II to the Ninth Schedule to the Constitution” (p. 11).

CONCLUSION

If, as stated by Amerasinghe. J. “The organs of State are guardians to whom the people have committed the care and preservation of the resources of the people…” and State Land is vested in the Republic as determined by other Justices cited above, it is crystal clear that State Land is an inalienable right of the sovereignty of the People. In view of this undeniable and uncontestable fact, it is a violation of the inalienable rights of all the People for any government to legislate granting Absolute Land Grants to some of the People, an asset that belongs to all without due process of two-third approval of Parliament and approval of the People at a Referendum.

Whether the need to initiate a Bill for approval by Parliament was motivated by the agenda of the Millennium Challenge Corporation Compact or not, is not the issue. The issue is that an Act that affects an asset that is an integral part of the sovereignty of ALL the People and held in trust by elected representatives of governments should not be passed by a simple majority but ONLY by a special majority of two-third approval of Parliament and approval by the People at a Referendum.

Neville Ladduwahetty

July 16, 2019.