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
- 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.
- 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.
- 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.
- 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.
- 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.
