Shenali D Waduge

Sri Lanka is an island nation. A government is elected only for a term. A government is only temporary custodian and guardian of the State. A State comprises its People and its Resources. These resources are to be enjoyed not only by this generation but future generations as well. Therefore, it is everyone’s moral duty to ensure that future generations enjoy the resources in the same manner as the present one. This means no government can dish out land to a segment of people which not only violates the doctrine of Public Trust but violates the fundamental right of Equality.

In ancient times, the King held the powers of Public Trust to land & resources. Apart from illegal invasions and forceful takeover of lands, the kings did not forfeit the land except for Don Juan Dharmapala, Prince Vijayapala and of course the Kandyan Chieftans who signed 1815 Kandyan Convention.

Two colonial British Ordinances have paved the way for post-independent governments to break the Public Trust doctrine and violate the fundamental rights of the People (present & future generations).

1. Crown Land Encroachment Ordinance of 1840 – vested 90% of our land (natural forests, wasteland, unoccupied, cultivated, uncultivated lands) under the British. The British then began systematically destroying natural forests where rainfall served the crops with intent to destroy our agriculture & grow commercial crops/cash crops.

1. Land Development Ordinance 19 of 1935 – permits given with conditions for the purpose of cultivation. To be given land & continue living on the land, people had to cultivate. LDO permits prohibited sale & mortgage of land.

In 1982, the JR Jayawardena government gave 5million people 1.2million acres of LDO land permits under Swarna Bhoomi, Jaya Bhoomi, Ratna Bhoomi, Ranbima programs.

Post-independent Sri Lanka did not research the statutes & ordinances on land & create a national land policy. In 1985 the Land Commission presented a policy to use land & water resources however ministers chose to do as they liked as a result of the statutes/ordinances distributed among different ministries. The failure to establish a legal mechanism has led to foreigners waltzing in with their research of our land & recommending how we use it to the advantage of their funding agencies.

1. The British began Torrens Law title registration in 1866 and 1897 – implemented in Australia. Torrens Law was introduced to Sri Lanka in 1998 (Act 21 of 1998) as Bim Saviya.

What the 1840 Crown Lands Ordinance did was to continue using Bim Saviya – to confiscate lands if owners did not have ‘deeds’ or title registration. The Act was passed because it came with the carrot of funding inspite of the Committee claiming forceful registration & removal of deed system was disadvantageous to land owners.

US influenced World Bank funded $3.4m to introduce Bim Saviya in Sri Lanka. Implementation of this would repeal existing deed system, Roman Dutch Law & make all land statutes subordinate to Torrens Law (Bim Saviya)

1. Next is the most dangerous MCC $480m project – which is part of the US national strategy combining 3Ds – Defense-Diplomacy-Development & rolled out through ACSA-SOFA-MCC. MCC.

1. Already Sri Lanka took a loan of $154m to be paid to a US company to carry out cadastral mapping of Sri Lanka.

1. US companies are handling our land registries

1. US companies are handling our land information system

1. US companies are surveying our land

1. US companies are developing an electronic land hub for National Land Title Program for which US embassy even advertised for expressions of interest

1. On 28 June 2019, the Yahapalana Government tabled the State Lands (Special Provisions) Bill. The Bill, if enacted would have privatized 84% of land that belonged to the People (State). Sri Lanka would have become perhaps the only State without land. This would have raised the question of sovereignty, national security, key fundamental rights of the masses and plenty more issues that no politician would have been in a legal position to answer or solve. With no land under the State to control or tax, there would have been no reason to hold elections, to have a Government & it would have nullified the need for a Parliament of 225 Politicians.

• Envisaging the chaos further, privatization of Sri Lanka would have even led to the declaration of Tamil Eelam after LTTE diaspora begin to buy over lands in North & East. Already LTTE Diaspora is proposing to settle Sri Lanka’s $52b debt if Eelam is given.

• Entire Sri Lanka would have eventually ended up in the auction house. It was fortunate that President Sirisena stood his ground against it while a court case to everyone’s fortune resulted in the Supreme Court declaring the proposed Bill incompatible with Sri Lanka’s constitution. Pathfinding to MCC via privatizing Sri Lanka’s state land is a key component mentioned in the MCC agreement & promoted by Pathfinder organization as well as other foreign-funded entities going out of their way to promote MCC implementation.

The caretaker Prime Minister who was instrumental in bringing MCC is attempting to use the economic crisis as a ruse to once again forfeit State land, claiming farmers need to have a title possession to get loans. This is not true as farmers have been getting loans without title deed for decades.

Giving a title to already poor farmers will end up in the farmer having to pledge the deed to the bank, the land being forfeited for non-payment & bank auctioning land & foreigners purchasing land or using local front to do so.

This will result in the farmer not only losing the land his family has been living on for generations, but he & family will end up homeless, landless and livelihood-less as well.

With State land reducing in such a manner, a govt loses ability to tax, in such a scenario, the govt has no control over land & no means to even help these homeless & livelihood-less people. Sri Lanka is likely to end up like Hawaiians who have lost their land ownership.

The next important factor associated with Public Trust is that the govt cannot distribute land freehold as the government is only a temporary custodian. Giving land only to a segment of people (farmers) also violates the principle of equality. This implies all the 22million citizens have to be given equal share of state land while also preserving land for future generations. This is an impossible action which simply denotes that the govt cannot alienate land for whatever reason.

Attempts to alienate land outright to a segment must be objected as there is little point in holding the President, Govt, Public Officials/Judges & lawyers accountable by even seizing their assets or imprisoning them or even removing their civic status, as they cannot return the value of the land lost.

Therefore, the most important solution is to PREVENT such actions by a temporary custodian.

A govt must facilitate farmers to farm, giving a title deed is not the solution & will hardly help farmers. Let the government not try to fool the masses any more than they have already.

Shenali D Waduge