By Senior Lawyer

It was  heartening to see the Deputy Survey General’s advice  given in the Daily Mirror. He says  the new law  is  that Originals will be of no value,  but I  strongly recommend the owners to retain the original deeds, extracts and the certified copies of their deeds,”  http://www.dailymirror.lk/breaking_news/District-Bim-Saviya-offices-asked-to-report-issues-to-main-office/108-189216

Deeds – should we get rid of them?

This is   crucial  advice  to all land owners and lawyers ,  as the owners need  documents to establish their rights in a court of law. The  law of foreign origin applicable to the e register; it says original documents of ownership will be of no value. The foreign law is referred to as Bim Saviya, this law annuls the fundamental right of a citizen to access court, if affected by fraud. The absence of deeds and paper documents is the main feature in the e register. Act 21 of 1998 [Bim Saviya  in section 53 has   statutory provision    to  destroy notarised conveyancing documents submitted to the land registry [ notarised sales gifts mortgage bonds etc ] without returning them  to owners .  

Questions often asked,  will these laws reduce poverty ? Or will they be beneficial to  fraudsters to steal land from the  poor ? Is Sri Lanka  prepared   overnight to introduce laws and electronic  systems  developed  in nations that have sped in the last three decades with law reforms  to sustain the system and the  integrity of the registry  .  It must be remembered unlike in other  countries ,  we have not revised the old register. Names of owners   are  entered to the e register from the  old  register that   dates back to  1864 . The pages are badly damaged and according to the Registrar   50% of the entries are fraudulent entries.    

The Torrens Law  referred to as Bim Saviya  govern  the e register

This is how  the  Torrens law practiced in developed nations , which we refer to as Bim Saviya found its way   to govern the e register.  Sri Lanka is  not alone,  the conversion to Torrens law   is  happening in several countries, especially in  Commonwealth nations,  the   vacuum left by the British colonialists  tentatively filled  by the Global organisations such as the World Bank.  With  aid  programs  laws working well in other nations and in operation for over  100 years are   haphazardly introduced to our countries repealing the laws practiced for over 100 years  as a ‘one fit for all solution ‘. 

  It is therefore evident that   Sri Lanka  has sufficient literature to follow as Judicial interpretation of the law has commenced in many countries where victims of fraud are demanding their lands to be returned. A day will arrive    when the Judiciary  will be called upon to interpret the  Torrens Law  which   we conveniently refer to as  Bim Saviya [which it self  a misnomer.]   Until then the  advice given by the Deputy survey General is  important as the owners need  documents to establish land rights in a court of law .

Remedy for fraud victims, Government promises to pay compensation

The public in the meantime   look in horror at the development of land law in this manner without publicity , where rights acquired under forged deeds could be justified under Bim Saviya subject to section 59 of Act 21 of 1998

Section 60 of the Act 21 of 1998 provides the    remedy available to land owners who are   affected by fraud.  That   is  to obtain compensation from the Government for the  loss of  rights. The Government has set up a fund to compensate owners called the Assurance Fund .

 Has this important matter   ever been discussed in parliament ? Has the Government considered whether it has funds to reimburse a sum equivalent to the value of land to owners.

 The much hyped Globalisation agenda , tales of   liberal free markets and  logic of mercenary economists  make us believe the  falsestory    that  poverty will end  with  the introduction of   western laws, technology with western design .  It is  proved beyond doubt that this argument is  fake , as the foreign law Bim Saviya was introduced 20 years ago and , has  made us indeed more indebted with increase in levels of poverty not only economically but in  in terms of resources and services.

It is also worthwhile to note the lamentation of  Government officials who are vexed by the operation of Bim Saviya  The  Title Commissioner the officer in charge of Bim Saviya  in his 2017 report states as follows –   ‘only 1.1 millions of land parcels of 12 million  land parcels in Sri Lanka have been surveyed even after  19 years to operate Bim Saviya.  How  pragmatic is it  to supervise 9.5 million blocks of land  and manage an island wide office system for Bim Saviya I believe this is time to probe into the performance of Bim Saviya the current Act  21 of 1998 ‘.https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pdf

E register and Bim Saviya to be administered with legal immunity according to the MCC

 Despite  the 20 year period of   failure and opposition to Bim Saviya  by the people and the Bar Association, successive Governments’ have been lulled  into extending the law to the e register which will be funded by the MCC. The Government’s intention is clearly  stated in the MCC,  they will follow designs by the World Bank , USAID, US Embassy and US Actors .What about the local designs

According to the MCC   the E registry project and Bim Saviya  is  to be handed over to a  private company called the  ‘Agent of the Government’  named  MCC Private Limited for a period of 5 years .   The company and the   US officials engaged  in the land project in 10 land registries   will be  granted  legal  immunity   and will not be responsible for  any crimes of omissions , crimes of commissions or any crimes  committed by them   [please see section 6.8 of the MCC on the internet .]

Public ask many questions as their basic rights to access court is no more ? 

• Why is it that  US citizens are all exempted from Civil and Criminal actions  committed by them  during the  Transport and Land Project. Can we  trust that US citizens  will not commit  crimes ?
• Will we  donate access to  extremely  lucrative rich information about our lands under the MCC program.? 
• Are we not  concerned about ,  data protection   the right to software , hard ware and ability to  work  independently..
• Do we not require intervention  by Sri Lanka lawyers  to  set up the e register  .
• Are we not concerned    to train and provide  local programming experts to land registries prior to embarking  on such a revolutionary venture . 
• why are   conveyancing transactions destroyed under section 53  of  Bim Saviya   [notarised  sales , gifts agreements to sell mortgages ]   .
• what can be done for the  disability of  lawyers and owners who do not own computers and have  internet facility  
• What can be done for a registry without  protection for owners ,  specifically as the law of Bim Saviya does not offer legal solutions to owners for fraud and forgery 

The e register has commneced  with poor publicity and without  protection  to owners. Owners  are not aware of their responsibilities ,  that all unregistered interest have to be rgistered as they will lose their rights,such as rights on  agreemnts to sell, leasees, pending cases  , life interest  and other interest .

. E  regiser requires  protecion from fruad and forgery,   the introduction of  owner identification laws  practiced internationally . They are Biomertric  Bolck chain method  to detect owners . The latest method to protect owners in an E register is the Block Chain solution. simplest form, a block chain can be described  as a data file  with a collection of digital fingerprints and the names of  former owners..

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 The Government must achieve goals through pragmatic approaches ,studying and consulting local experts. Local research and advice contained in  1] Amendments to the Act 21 of 1998 by the  Bar Association, 2]Samarasekera Report , a report made on the advice of the President and 3] the Ordinance  No 3 0f 1907 specifically designed for land title registration which can be used for  e register

References—https://photos.state.gov/libraries/sri-lanka/577989/pdf/eLand%20Hub%20Project.pdf

US Embassy interest  Expressions of Interest (EOIs) are called from consultancy firms to develop an Electronic Land Hub for a National Land Titling Program in Sri Lanka.

Registration of Title –Arthur Samarasekera report

Ordinance  No 3 0f 1907 specifically designed for land title registration which can be used for  e register

World Bank Reports 2002 and  2007

Australian Principles of Property Law [ Torrens Law Bim Saviay ] Samantha Hepburn 

E mail –srilankstudy circle @yahoo.com —-