By Raj Gonsalkorale

The test of the success of this title registration system (Bim Saviya) has to be judged by what has been achieved since the time the Act was introduced in 1998. Implementation began in 2007. Information available to date says so far only 0.72 million blocks have been registered in the Bim Saviya Register out of 12 Million blocks of land. This registration is less than 5% of the total number of blocks identified. It has taken 12 years to achieve this. How long will it take to complete it?

Much has been written and is being written about the Bim Saviya or the land registration system based on the Australian Torrens title law. While there may be issues relating to land titles including fraudulent titles, for all intents and purposes, Bim Saviya is more about land commercialism rather than about land productivity or land used or needed for dwelling purposes. Bim Saviya registration process has failed as it is an impractical one that requires officials to visit all land blocks, at least once if not more than that.

Sri Lankans may not be aware that changes to the land registration system in Sri Lanka was pushed by the World Bank as far back as the 1970s, and possibly even before. Thanks to legal luminaries like Hon Justice A.R.B. Amerasinghe, and erudite and upright politicians like Mr T B Ilangaratne, who as the subject cabinet minister vetoed the revision of land registration pushed by the World bank, these intentions never translated to realities. It is understood that a World bank delegation revisited this in 1994, and managed to get a Parliamentary Act passed in 1998 in a hurry and without debate. Thus Bim Saviya was born. Implementation had begun in 2007. It is difficult to come to terms with a notion that the World Bank and associated foreign agencies were interested in land registration in Sri Lanka for the sole benefit of Sri Lanka. These agencies, as their countries are wont to do, undertakes projects in other countries primarily to seek an advantage for themselves. The World Bank aids and abets powerful countries to establish a particular world order of their design by advocating projects that supports such a design.

Privatisation of State land and making available such privatised land and land that is already privately owned, for sale to foreign entities has been such a strategic design so that in turn, the political fortunes of a country could well and truly be tied to such a design.

This Act goes against the grain of Sri Lankan culture and its community understandings. It has no way of dealing with what is very traditionally Sri Lankan like anda goviya” or tenant farmer or sharecroppers, shared water resources and land paths. This is probably why Bim Saviya has failed.

There is a fundamental concept that should govern land and land management. Land should not be regarded as a tool for man to exploit and to trade for profit. Land is the composite of life itself. Diminish land and the consequence is that it diminishes life itself. Land is the whole, not part of the whole, human beings are only part of the whole along with other animal and plant life, and natural resources.

This was recognised by ancient civilisations, the indigenous people (or Veddah’s) of Sri Lanka, and by the indigenous people of Australia and in other countries including the Native Americans. They did not destroy land for profit, they nurtured it for survival. Those who invaded Australia destroyed much of this valuable land and introduced their Torrens titles replacing the concept of community guardianship of land. The very same Torrens titles are now attempting to colonise and destroy the traditions of Sri Lanka.

It is interesting to note the turning point in land titles in Australia. The following is quoted from the Sydney University web site (https://www.sydney.edu.au/news-opinion/news/2017/06/02/five-things-you-should-know-about-the-mabo-decision.html#:~:text=On%203%20June%201992%2C%20the,and%20can%20still%20exist%20today).

Quote” On 3 June 1992, the High Court of Australia decided that terra nullius should not have been applied to Australia. This decision – known as the Mabo decision – recognised that Aboriginal and Torres Strait Islander peoples have rights to the land – rights that existed before the British arrived and can still exist today.

The Mabo decision was a turning point for the recognition of Aboriginal and Torres Strait Islander peoples’ rights, because it acknowledged their unique connection with the land. It also led to the Australian Parliament passing the Native Title Act in 1993.

1. Terra nullius nullified

Until 1992, land laws claimed that Australia was terra nullius or ‘land belonging to no one’. Effectively, these laws denied the fact that Indigenous peoples had prior occupation and connection to the land.

2. The man behind the fight

The Mabo decision was named after Torres Strait Islander Eddie ‘Koiki’ Mabo who led the fight to change land laws to recognise Indigenous connection and traditional ownership of land in Australia. He worked on the Mabo case for 10 years, but unfortunately passed away just months before he could learn the High Court’s decision on his legal battle.

3. Our alumni played a role

Three University of Sydney law alumni were members of the High Court of Australia which made this decision: Sir William Deane, AC, KBE, QC, Mary Gaudron, QC (first female Justice of the High Court of Australia) and Sir Anthony Mason, AC, KBE, QC, who was Chief Justice at the time.

4. Creation of the Native Title Act

The 1992 Mabo decision led to the Native Title Act (1993) which created a framework that recognises Aboriginal and Torres Strait Islander peoples have rights to, and interests in, certain land because of their traditional laws and customs. It allows access to land for living, traditional purposes, hunting or fishing and/or to teach laws and customs on the land.

5. Recognition of land ownership today

Today, native title has been recognised over more than one million square kilometres of Australian land and water (approximately 15% of Australian territorial land and waters). There are currently 629 registered Indigenous Land Use Agreements – a voluntary agreement between a native title group and others about the use of land and waters – in place -unquote

Sri Lankans should note that this historic decision paved the way for recognising what was termed a turning point for the recognition of Aboriginal and Torres Strait Islander peoples’ rights, because it acknowledged their unique connection with the land”. Sri Lankans should also note that it is another Australian land title termed Torrens Title” that was introduced to Sri Lanka via Bim Saviya that did not recognise the traditional and unique connection with land”

Sri Lankans, barring a few concerned individuals, probably have not questioned this dichotomy, and how a land registration system that does not recognise what is truly Sri Lankan, had been introduced to replace what is Sri Lankan.

Any type of law or registration system relating to land should have regard to the history, culture and traditions of Sri Lanka, and not be based on a foreign system, particularly where such a system had managed to destroy the life giving vitality of land. Any system that does not recognise the concept of community guardianship rather community ownership or individual ownership, should not be entertained in Sri Lanka. It is community guardianship of land that must underpin land management in Sri Lanka

Given the above concept, the first and very basic point that should be considered by advocates of Bim Saviya is that land utilisation has no relationship or a dependency on land registration as envisaged by Bim Saviya. When it suits, many are quick to recount that Sri Lanka had been referred to as the granary of the East during the reign of King Parakramabahu I. There is no mention about land registration or titles or deeds during his time as having been pre requisites for the massive food production during his time.

Even in contemporary times, agricultural land utilisation will be greater if there is water, if there is a better distribution system for the produce, if there is value adding of agriculture products, and very fundamentally, if the grower gets a better price, consistently, for what is being grown. None of these have anything to do with land registration or titles or deeds.

The ethos of Bimsaviya to promote land utilisation is even against another fundamental principle that should be part of land management. The principle in land management should be to use less and produce more, not the other way around.

Agriculture research should underpin efficiency and effectiveness in land management where rather than opening land for more production, existing underperforming land holdings should be made more productive through agriculture research. The long goal of land reform should be to increase forest cover by allowing some land to become forests and by stopping deforestation.  Bimsaviya is likely to increase deforestation and further decrease the country’s forest cover.

It is also well to remember that the future of the rubber industry as well as the tea industry has question marks and large tracts that are currently planted with tea and rubber, especially rubber, may be available for other agriculture use. This has to be factored in any land management strategy as it would make additional land for specific agriculture products unnecessary. These lands no doubt are already registered under laws that existed before Bimsaviya and have titles and deeds.

So in the first instance Bim Saviya advocates should separate better land utilisation” through the Bim Saviya registration system as there is no relationship between the two.

It could address some of the other drawbacks mentioned as problems and examine whether Bim Saviya is able to address these problems. Judging by the record on title registration, clearly, Bim Saviya has not succeeded.

Bim Saviya is not an indigenous document as it is based on the Australian Torrens title law and introduced at the behest of the world bank, and supported with funds and manpower by USAID. Amongst the outcomes stated, the following is worth special attention Secured and clean title ownership is a critical factor in property sales. Bim Saviya will enhance the higher potential in terms of market value of property. and also Its provides solution to land disputes”. This statement appears to be real intent and motive of Bimsaviya as several other subsequent developments seem to indicate, with the latest being the MCC agreement.

As maximising utilisation of land has no link to a registration process as has been pointed out, the use of this erroneous outcome slogan has to be to provide opportunities for exploitation of land simply as a tradeable commodity. The creation of a land bank, selling land to foreign nationals, removal of restriction on extent of land ownership, seem to revoke the intents of land reform introduced since 1956 by SWRD Bandaranaike and Phillip Gunawardena and in the seventies by Sirimavo Bandaranaike.

Background

The Land settlement departments website states the following as the reasons why the Bim Saviya or the Registration of Title Act No.21 was introduced by the Parliament in 1998 (http://www.landsettledept.gov.lk).

• Land disputes
• Land cases
• Breach of peace among the communities
• Fraudulent land transactions
• Decrease of productivity in lands
• Non- receipt of income to the Government due to the absence of proper land management.

With a view to eliminating these unfavourable conditions and to use lands for the development purpose, a system of issuing title certificates for lands together with a plan showing correct boundaries of respective land was started with the enactment of the Registration of Title Act No.21 of 1998 by the Parliament. This Act confirms the state ownership and the private ownership of land and the possibility of identifying suitable lands for development of the country is another benefit gained for this Act” unquote.

The test of the success of this title registration system has to be judged by what has been achieved since the time the Act was introduced in 1998. Information available to date says so far only 0.72 million blocks have been registered in the Bim Saviya Register out of 12 Million blocks of land.

This registration is less than 5% of the total number of blocks identified. This cannot be termed a success by any measure. In fact, the following confirms it

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 

The way forward

It is possible that laws and processes that existed for land management and registration prior to Bimsaviya may have needed some adjustments as they were enacted many years ago. However, any changes to the laws that were formulated recognising Sri Lankan historical and cultural practices, should be changed within the context of such practices. Land management laws based on an alien culture such as the Torrens title system, is not suited for Sri Lanka. Besides the unsuitability, the complexities associated in applying the system in Sri Lanka has been evident judging from reports

Given the failure of the Bim Saviya program, questions naturally arise as to why it is being promoted by foreign agencies (World Bank, USAID) and proposed agreements (MCC) without any consultations with Sri Lankan legal experts and reports. It is ironic that the MCC agreement should include the management of the eRegister and as per Section 3.9 of the agreement, all intellectual property rights of the e registry to be given to MCC when Sri Lankan expert reports state that it is nearly complete and it can be managed locally without difficulty. A senior lawyer from the Sri Lanka Study Circle has noted the following  

1] Samarasekera Committee Report.  A committee appointed by President Mahinda Rajapakse. They recommend to do away with compulsory conversion to a foreign law. It 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.

It is understood that the eRegister is almost ready to be operated with the law of the country. It is time to seize the opportunity to take advantage of the situation to research and revise the existing 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.

It is also understood that Sri Lanka does not have a proper building to house the land registry and to securely safe guard title documents. It is a priority to have such a building and equip it with the necessary storage conditions and other equipment to manage the eRegistration process. It should be noted that the law which introduced electronics to Sri Lanka, namely the Electronic Transaction Act 19 of 2006 Section 23 specifically required paper needs for the eRegister. Bim Saviya in fact violates this law.

Sri Lanka also has ample expertise to manage the eRegistration process and an institution like the Moratuwa University, the hub of Sri Lanka’s IT expertise, could be partnered with to build the IT infrastructure, implement the eRegister and build capacity amongst the land registry staff to manage this process. Funding for such a project could easily be sought from an institution like the Asian Development Bank.

The failure of Bim Saviya as outlined and yet, the eagerness of interests via the MCC agreement to manage the eRegister raises valid questions about the intent of these projects. These have been articulated in many writings and to quote a few, the following

Articles written by Kamanthi Wickremasinghe (MCC and the Land Project: A Gordian Knot in the making –http://www.dailymirror.lk/news-features/MCC-and-the-Land-Project-A-Gordian-Knot-in-the-making/131-183058, Shenali Waduge (Sri Lanka’s Land Sovereignty being usurped by MCC & Bim Saviya- https://www.sinhalanet.net/sri-lankas-land-sovereignty-being-usurped-by-mcc-bim-saviya, and One law for all Bim Saviya E-Register: More problems than solutions by a Senior Lawyer from the Sri Lanka Study Circle (http://www.dailymirror.lk/news-features/One-law-for-all-Bim-Saviya-E-Register-More-problems-than-solutions/131-196730).

A foreign interest in what has been found to be ineffective, and in the case of the eRegister, an interest in managing the deed registration process for 5 years, with full intellectual rights, despite Sri Lanka’s ability to manage it, have all cast concerns over the real intent of these projects, in particular the MCC agreement.

A pre requisite in the MCC agreement is reportedly the passage of the the Land Special Provisions Act, which provides for absolute land grants to be included in the title registration system, aka Bimsaviya. The MCC Annex 1—31[b] is conditional that the eRegister should be governed by this law which is familiar to them and not any historical Sri Lankan law that Sri Lankans are familiar with. A legitimate question that needs to be asked is why the MCC Agreement is insistent on introducing Bim Saviya to operate the eRegister.

Whenever land registration crops up, the MCC agreement seems to be lurking behind it. It is understood that an explicit or implicit requirement of the agreement is the full implementation of the Australian law based Torrens title registration process. An offer to manage the land project component of the agreement for 5 years with a budget of USD 67 million has been included and it is conditional on registration via Bim Saviya which is based on the Torrens titles. If only less than 1% of land plots have been registered in 12 years, one does not have to be an Einstein to work out how many allotments would be registered in 20 years. One could suspect that MCC would be there for the long term as it will take decades for the land blocks to be registered.

The Government appointed a new official called Commissioner of Title. The department under him has several officials responsible to determine   ownership of each block by visiting homes of 12 million people and compulsorily taking over all the deeds [ Judicial function handed over to the administration]. See Commissioners report of 2018 – impossible task he says as the law does not  fit in to the legal frame work of this country  https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pdf

Bim Saviya is an inefficient, ineffective process which is inconsistent with the traditional customs and practices in Sri Lanka. It is an impractical registration process which would take decades if not more to resolve land registrations, if indeed a resolution is possible. It is strongly suggested that the government considers the following courses of action

1. Rescind the Act and appoint a committee of legal experts to revise laws that existed prior to 1998 to address any shortcomings and formulate a land registration Act that is consistent with Sri Lankan customs, practices and conventions.
2. While this is being done, an extraordinary gazette notification to be issued by His Excellency the President to identify the key requirements for the eRegistration process. Among other legal and administrative requirements, evidence of ownership and verification of identity, along with a provision for a land holder or even the land registry to challenge a deed in a court of law if fraud is suspected, could be included in such a gazette notification.
3. Take immediate steps to house land titles in a safe and secure building and recruit adequate number of competent staff who have basic computer skills.
4. Enter into a partnership with the Moratuwa University to manage the eRegistration process for 3 years. During this period, the capacity of registration staff to manage the eRegistration system should be built so that they will manage it after the 3-year period. Utilisation of local resources will be consistent with His Excellency’s directive pertaining to maximising local resource input into Sri Lankan commercial activities.
5. Consider the involvement of any foreign entity, or a local arm of such an entity, unnecessary for the land registration process.

Bim Saviya serves no purpose for Sri Lanka as has been more than amply demonstrated by legal, banking and land management experts. It has no benefit for Sri Lanka. It is time Sri Lanka cut its losses and moved on to something that is beneficial, something that is Sri Lankan and something that will serve its interests, and not any foreign interests. Digitalising records and completing the eRegister is a priority and this certainly should not take decades to complete and Sri Lanka has enough local expertise to do this.

President Rajapaksa should consider this important activity as a priority amongst objectives contained in his Presidential Manifesto Vistas of Prosperity & Splendor”, with the use of local resources and expertise to build the country’s capacity to be as self-sufficient as possible in all spheres of economic activity. The eRegistration process falls clearly within the ambit of use of local resources to implement it. In regard to land utilisation, and in relation to agriculture, the principle of maximising utilisation with less rather than more, should underpin the government’s policy on land management. Agriculture research, crop diversification, distribution improvements, insurance schemes to safeguard cultivators in times of droughts, floods, value adding initiatives that will yield better returns for growers are some of the activities that can maximise land utilisation.

In respect of use of State land for other commercial or industrial purposes, it is difficult to understand how Bim Saviya or what is envisaged under the MCC Agreement could produce better utilisation results, unless the real intention of the MCC project is to use the land banks in the eRegister, registered under Bim Saviya with Torrens titles, to privatise State land and sell them to locals and foreigners.