Published by the Land-Law Circle

Is the MCC Compact the only document that endangers the security of the Nation?

Should we not analyse our past experiences too to fathom our vulnerability to adopt foreign land statutes and systems when enticed with foreign aid? It is unfortunate that several intellectuals and advisers expect us to read only the MCC document,  forgetting all the other agreements that had made costly mistakes with regard to our land rights. We are compelled to accept inroads to our land rights, simply to accommodate gifts and loans.
 
We had entered into several agreements in the past that required us to legislate foreign laws relating to land, simply to enable us to accept foreign grants. ‘All this for the sake of alleviating poverty’ , was how we were  pacified.  The World Bank suggested that we need to introduce a new law, an Australian law, which required the drawing of cadastral maps for 9 million blocks of land within a time frame of 25 years. 

We could not find the trained professionals and completed about two hundred thousand blocks in the course of the last 20 years.
Now, with the project yet uncompleted, we are stranded without funds, the funding organisations refusing to continue with the funding.  Funding so far given is supposed to be 5 million Dollars given when the dollar rate was Rs 87 and Rs 109
 
The World Bank Reports of 2001 and 2007 give a clear picture as to why they have refused funding.   Presently, Sri Lanka is limping along with laws and procedures unknown to land owners and the legal professionals. On the other hand, we are compelled to complete what we have started as the Constitution does not allow us to obtain redress from court to repeal statutes.
 
Suddenly, some funding has arrived. We are instructed by the funders to privatise ownership of land, leapfrog from manual records to electronic records while half the manual records are corrupted with fraud; and to boot we are saddled with Colonial statutes which remain unrevised since 1863.   
 
The proposed radical changes suggested by funding organisations will destroy our paper deeds, destroy all historical records of our land ownership; we will be reduced to a paperless deed environment and our current land ownership will be confined to a digital number toxic with corruption reflected in the manual register; this corruption will now be totally irreversible in the digital state.

It will be a Herculean task for the judiciary, lawyers and land owners to unravel the past frauds; the frauds that will occur in the future will be outside the scope of the judiciary.  Perhaps the owners are not aware that they cannot obtain redress form court under the new digital laws .
 
For any land development project to be successful a comprehensive and compulsory land registry is a must. If privatisation, as advised by the MCC is implemented, millions of deeds will be entering the spatial domain of  land registries which has seen better days when there were no leaking roofs and sufficient space.  Today, the computers are pushed to corners not affected by leaking roofs.   
 
The Registrar, early this year, had informed his hierarchy of this plight. When deeds are damaged lost or torn he justifies it, even to the judiciary, by adverting to the physical state of the Registry.  [see picture re letters and the manner in which deeds are kept due to lack of buildings]. 
 
Land fraud inevitably is extremely pervasive; deeds are registered even if they are forged or invalid.
 
The data is being taken from the books of the land registry in to computers without first remedying this situation in the Manual register  
 
The poor, who have leasehold rights to their land will, after privatisation, lose the government protection as they will have to keep their deeds in a registry   which has 50% forged deeds  according to the Registrar. The Government will no longer protect their  rights; they  will have to do so personally at their  expense and time.https://www.newsfirst.lk/2019/03/17/50-of-land-deeds-in-sri-lanka-forged-registrar-general/.The.   

The major issue will be that they will not be protected by the simple common law that that they were governed when lands were owned by the government. They will be governed by, Customary Laws such as Kandyan Law, Thesawalamai Law, Muslim Law.
 
To enter into land transactions investors will have to enquire  whether a person is a Muslim Tamil or a Sinhalese [Kandyan or Low Country], a man or a woman as the customary laws did not grant men and women equal rights to property rights.

The World Bank reports of 2001 and 2007 specifically states that Sri Lanka lacks institutions and professionals to move forward. It is was their   considered opinion that  Sri Lanka was not ready  for proceeding with digitalisation and other progressive steps relating to land. The World Bank lists a plethora of issues relevant in 2019 vis a vis the MCC Agreement:
 

1. Land Settlement Department staff lack skills in adjudication, for example, existing information is not sufficiently used, third party interests are not informed (hence disputes are created and rights are not protected);
2. the legal frame work for land titling is inadequate; far too many Ministries deal with the subject—there is no coordination
3. the organizational framework not efficient, effective, or sustainable;
4. no published results, workshops, or stakeholder discussions have reviewed progress of ongoing titling activities, either in terms of implementation experience or socio economic impacts;
5. No coordination between departments resulted in multiple visits which waste government budgets and client’s time;
6. prospects for large-scale financing of systematic titling unlikely;
7. lack of the use of modem and efficient survey and information technology for efficiency and productivity gains in titling;
8. 8.absence of the involvement of private sector capacity and skills to supplement government capacity and skills to speedup title registration and coverage;
9. No motivation to carry out a continuing land related policy reform dialogue;
10. 10 human resource development essential for an efficient long-term land titling program not addressed.

If we have failed to address these issues highlighted by World Bank in 2001 and thereafter in 2007 under what protections are we entering in to further agreements.

The country requires a professional team to look in to the half-done land projects from which we cannot go back, presently requiring large funds and buildings. The most important factor is to investigate the administration’s inability mentioned in the reports, which the World Bank had pointed out as the cause for failure.  
 
The MCC agreement has a ‘warning clause’ that they will exit the Agreement if we do not comply with all their requirements.
 
And another clause states that they will not fund beyond what they have offered; if we expend more it would be our liability.  
 
If we proceed irresponsibly, merely receiving grants, knowing the situation  we have placed ourselves  in the past we will have to bear the  inexorable cost. The land owners will not have any relief to prove their ownership specially in a paperless land registry without any safety measures to protect the rights of owners. There would be no protective hand of the Judiciary to give them relief as the Judicial powers are taken away by Act 21 of 1998.
  
The ground-breaking 1976 presentation by Prof. Weeramantry Equality and Freedom: some Third World Perspectives” at the 1976 Conference in the US of the World Association for the Philosophy of Law & Social Philosophy is the best example to showcase the status of Sri Lanka’s lands. Asia Week described the monograph as the ‘Magna Carta for the Third World”
 
‘Third World nations after independence suddenly found themselves released amidst currents raging so irresistibly, we were suddenly  tossed into this maelstrom, before we  could put our house in order.”
 
He explains that Third World citizens, subject or oppressed people for centuries were released into a world where wealth and technology had raced ahead. Their theoretical equality whether as states or citizens, tended year by year to sound increasingly hollow as economic and political power showed itself on the international scene to be prepared to turn these into empty shibboleths”
 
MCC did not suddenly evolve, seemingly to resolve our land rights , There was an  evolutionary process for the past 60  years, which we have sadly  ignored .  The evolutionary process to offer the carrot of funding first came in 1952 with a report termed ‘The views of the International Bank For Reconstruction  And Development [ 1952 report ] On Insecurity of Land Titles.  This was very similar to the MCC agreement, which needed to privatize lands, repeal all the local laws and introduce the Australia law.  The difference was we had an erudite lawyer who studied this report, worked single handedly for 3 years to stop the invasion, to save Sri Lanka ’s land rights, with laws suitable for the society