Why has SL wasted over $ 50 mn on ‘Bim Saviya’ Title Registration Act?.
Posted on October 18th, 2022
Shenali D Waduge
- Study Circle Legal team points out that ‘Bim Saviya’ is an economic burden to the GoSL
The Government, and the Central Bank of Sri lanka (CBSL) must rethink before investing foreign funds on a programme that has failed, and will require over 50 years to complete.
The article ‘Bim Saviya’ Title Registration Act’s 24-year reign of chaos” published last week in The Morning covered points highlighted by three attorneys in April 1998, after taking part in a study tour to Australia, prior to the GoSL enacting the Title Registration Act in March 1998. https://www.lankaweb.com/news/items/2022/10/12/bim-saviya-title-registration-acts-24-year-reign-of-chaos/
Thereafter, the Study Circle Legal Team were asked to present their observations on the Bim Saviya”. The observations and research given in this article reveals that the Government needs to repeal Act No. 21 of 1998, which is an economic burden to the country.
The observations of the legal team are based on the following factors:
1) The Government’s policy is to introduce a mandatory register as given in the Cabinet Memorandum, Cabinet Memorandum 20/2100/322/007 on 24 December 2020
2) A study of reports by committees appointed by the President and the Ministry of Justice, and a study of the statutes introducing mandatory registration and electronics in other jurisdictions, specifically South Africa, referred to in the Cabinet Memorandum as a country that operates a mandatory register with the existing deed system
When the requirement of the Government and other political actors was to convert the existing land register to a mandatory register to facilitate searching owners electronically from a one-stop-shop” in order to be in a higher position in the Doing Business Index, the Government introduced the Australian land law by Act 21 of 1998.
Is this not questionable?
Was this initiated to receive funds? If so, how much has been received already? Who drafted the Act, which was hastily passed by the then-Government?
Why does the Government request for massive funding from the Millennium Challenge Corporation (MCC) in spite of this Act’s failure for 20 years (the US had not introduced the Australian law; instead its has the deed recording system).
The GoSL, in particular, the Ministry of Land and the Governor of the Central Bank, must realise that foreign funding should not be solicited or used for failed projects – and Bim Saviya” is one such failed project. Since its enactment in 1998 the expected mandatory register was not prepared despite investing millions of dollars. A register with a mere 750,000 lands had been completed, out of 12.5 million required to be registered. This is a waste of foreign exchange.
Why has ‘Bim Saviya’ failed?
The hurriedly passed Title Registration Act was defective. The operating system contains impractical costly procedures based on a foreign law – the Australian Torrens Title Registration. This system is alien to Sri Lanka, and unsuited to meet our historical and community system of ownership. How we have used our land is totally different to Australia.
Why is the Act impractical?
- Government officials must visit owners at a massive transport cost
- The impractical amount of time that it would take to visit over 12.5 million land owners
- The Survey General must register ownership and the plan
- In 20 years of rolling out this Act, only 5% have completed the above process. Over 11 million land parcels have yet to be surveyed and registered
- The Title Commissioner’s report showcases the difficulties that exist
Why can’t Sri Lanka prepare a mandatory land register without ‘Bim Saviya’?
Sri Lanka could amend the existing Registration Law Ordinance 23 of 1927 and make mandatory registering of ownership with plans according to the surveying system of Sri Lanka. This is the system practised in the US, the UK, and South Africa, as owners undoubtedly wish to register their lands and will want to uphold that right. This will save the cost and time of visiting 12 million landowners.
The Registrar General of Lands wrote to the Senior Advisor to the Prime Minister Ranil Wickremesinghe on 6 April 2016 laying out this practical solution – Reference RG/TRB/03/278[2] PM Advisor ref JCR/SEC/PMO.
Who required the land register to be made mandatory?
The mandatory land register was part of the Doing Business Index (DBI). The DBI required Sri Lanka to register all its land and owners to make it easier to purchase land and mortgage. The excuse was to make Sri Lanka on par with the other developed nations, however, the real reason was for investors to have access to land.
The advantage for landowners was that when their land was officially registered under their name, and thus the opportunity for fraud would be curtailed.
What is the opinion of the World Bank and AusAid funding regarding the ‘Bim Saviya’ Act?
The Australian Government did assure Australian dollars (AUD) 350,000 for Stage 1 legislative framework, however the Australian consultant opined that the Torrens law was unsuited for Sri Lanka. This meant AusAid would not have allocated funds, even though the Act was hurriedly passed in 1998.
The World Bank, too, found the Act No. 21 of 1998 defective, as expressed by Director Jessica Mott in her report. https://documents1.worldbank.org/curated/en/293851468308634964/pdf/ICR0000190].pdf..
The World Bank funding was to enable research to improve the existing register. However, the GoSL passed the Act even while the World Bank and BASL were discussing the research aspects of the land laws. This was another example of the GoSL acting on its own or against advice, or having been advised by wrong parties.
What has the failed ‘Bim Saviya’ cost the GoSL so far?
Act 21 of 1998 was hurriedly passed. It has been prodding on for over 20 years, but has registered only 750,000 land parcels out of over 12.5 million owners. The cost of this futile exercise has been $ 2.5 million per year – thus, in over 20 years Sri Lanka has spent over $ 50 million to register just 750,000 parcels of land. At the rate of 350,000 registrations per year to complete 12.5 million land registrations, Sri Lanka will be taking over 100 years to complete the project. This clearly shows what a futile exercise it is, as by the time a parcel gets registered, the owner may have already departed!
The GoSL needs to take stock of this situation, carry out a cost assessment of the project, and cease the allocation of funds for a futile project.
The former President tasked the Ministry of Justice to appoint a team of learned lawyers to look into the land law – what was their opinion?
The increasing number of complaints by landowners and lawyers resulted in the GoSL appointing two committees. Both committees concluded that Act No. 21 of 1998 was unsuitable to prepare a conclusive mandatory register. The committee concluded that the register under Act No. 21 cannot accommodate the rights of co-ownership, ande-cultivation, customary rights on inheritance, and trust deeds and rights of religious institutions (Buddhist temples, kovils, etc.). They concluded that the name of the Act should also be changed to Voluntary Title Registration Act if we are to maintain the legislation. However, this will not fulfil the requirement of the Doing Business Index, or the policy of the Government given in the Cabinet Memorandum.
How has the issue affected landowners in Sri Lanka?
The prevailing land law in Australia following colonial occupation was introduced to Sri Lanka as Bim Saviya”. However, even after 150 years, the indigenous people of Australia are struggling to gain their ownership rights to land under the title registration system. The Mabo case is an example of winning justice for land by the indigenous people repealing the law.
Similarly, in Sri Lanka, landowners are also struggling under Bim Saviya” as:
- The Urban Development Authority (UDA) and the Local Authorities are not accepting the plans drawn under Bim Saviya” as per the Surveyor General’s report
- As land fraud has new avenues with Act No. 21 under Bim Saviya”, which has placed statutory limitations on judicial intervention, it is not easy to reallocate lands from fraudsters. Therefore, landowners need to be extremely vigilant with Bim Saviya”
The owners only receive a certificate in lieu of their deeds without any of the protective laws that exist in Australia to protect landowners from cybercrimes or fraud. The courts are thus under pressure, as the Bim Saviya” does not have legal remedies for fraud.
In conclusion, the solutions from the legal team include:
- The Bim Saviya” or Act No. 21 of 1998 is not beneficial to Sri Lanka
- Sri Lanka will get nowhere in the Doing Business Index with two voluntary registers where digitalised facilities cannot be introduced to search for owners from a one-stop-shop. Therefore, it is best to continue registering the existing deeds, instead of re-surveying and issuing title registrations, and registering them afresh into a new e-land register
- When the register is made mandatory, owners will register without the Government being forced to visit 12 million owners
- Act No. 21 of 1998, or Bim Saviya” requires the removal of the history or pedigree chain of owners. It is a warning to land owners to retain their deeds, as some banks wish to check the deeds. Eventually, in the event of a fraud or cyber attack, the deeds end up the only means to prove ownership
- Bim Saviya” denies owners access to their rights in court in the event of land fraud
- On 24 December 2020, a Cabinet memorandum was issued as a solution to establish a mandatory register. The Cabinet requested lawyers to research how procedures adopted in South Africa function with laws in Sri Lanka. This required amendment to Section 7 of Ordinance 23 of 1927 to convert the register to a mandatory register. Paper deeds are included in the Electronic Transaction Act 19 of 2006. This Act specifically requires the Information and Communication Technology Agency of Sri Lanka (ICTA) to retain paper documents in case of issues like cyberattacks, hacking of land registers, or their data
- A major lacunae in the old registration law (Section 7 of Ordinance 23 of 1927) was that it didn’t have provision to reject forged invalid deeds. This has facilitated fraud. The Registrar of South Africa has quasi-judicial powers to maintain the integrity of the register. Similar options should be pursued by Sri Lanka alongside biometric solutions as applied in banks and passport offices to prevent fraud
The problem is clear. The solutions have been given by lawyers, yet the GoSL continues to prod forward with a failed land project requesting funds that will take over a century to complete at the current rate. It is an unnecessary waste of funds when the country has other solutions.
More Research papers from lawyers –Protecting owners with the existing register— published in the Negombo Law Journal https://www.lankaweb.com/news/items/2020/08/03/the-sri-lankan-e-register-should-be-governed-by-a-law-suitable-to-sri-lanka-
Shenali D Waduge