{"id":109107,"date":"2020-11-27T17:10:32","date_gmt":"2020-11-28T00:10:32","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=109107"},"modified":"2020-11-27T17:10:32","modified_gmt":"2020-11-28T00:10:32","slug":"is-there-a-secret-agenda-behind-indifference-to-land-management-policy-reform-in-sri-lanka-open-letter-to-the-minister-of-justice-ali-sabry","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/11\/27\/is-there-a-secret-agenda-behind-indifference-to-land-management-policy-reform-in-sri-lanka-open-letter-to-the-minister-of-justice-ali-sabry\/","title":{"rendered":"Is there a secret agenda behind indifference to land management policy reform in Sri Lanka? -Open letter to the Minister of Justice Ali Sabry"},"content":{"rendered":"

By Raj Gonsalkorale<\/em><\/span><\/h2>\n\n\n

Dear\nMinister<\/p>\n\n\n\n

Many\neminent lawyers and even more concerned citizens have written on the need for a\ncomprehensive land policy for the country. The writer articulated this in an\narticle published in the Daily FT (Sri Lanka desperately needs a strategic, transparent and\ncomprehensive State land management policy-<\/em><\/strong>http:\/\/www.ft.lk\/columns\/Sri-Lanka-desperately-needs-a-strategic-transparent-and-comprehensive-State-land-management-policy\/4-709028<\/a>).\nThe writer even sent a letter to the minister on the 18th<\/sup> of\nNovember 2020 which has not been acknowledged.<\/p>\n\n\n\n

To illustrate a cart before the horse\nsituation, the\nMinister of Agriculture stated in Parliament yesterday that his ministry will\nsubmit a National Agriculture policy for the country within a year. While\nwelcoming this, a question has to be raised as to how there could be such a\npolicy without a comprehensive land management policy being introduced first.\nAn agriculture policy and others such as a water management policy has to be\npart of a broader land management policy.<\/p>\n\n\n\n

It\nis heartening that the minister has set up 5 sub committees for development of\nstrategies to address laws delays in the areas of infrastructure development,\nDigitization and court automation, criminal law reforms, civil law reforms and\ncommercial law reforms. This is no doubt long overdue. <\/p>\n\n\n\n

However,\nit is somewhat perplexing why an existing institution within the Ministry of\nJustice, Law Commission of Sri Lanka, established under the Law Commission Act\nNo. 03 of 1969, and being the main government institution which recommends\nlegal reforms has not been asked to look into the reform areas assigned to the\nfive sub committees appointed by the Minister of Justice. The website of the Law Commission identifies its role and functions as\nfollows. It says that t<\/em>he\nmain objective of the Law Commission is to promote the reforms of the law, and\nits functions are, the codification of law, the\nelimination of anomalies, take and keep under review the law, both substantive\nand procedural with a view to its systematic development and reform. the\nrepeal of obsolete and unnecessary enactments, the simplification and\nmodernization of the law, to receive and consider any proposals for the reform\nof the law, to prepare and submit to the Minister, from time to time,\nprogrammes for the examination of different branches of the law with a view to\nreform, to obtain such information as to the legal systems of other countries,\nto keep under constant review the exercise by bodies, other than parliament, of\nthe power to legislate by subsidiary legislation with a view to ensuring that\nthey conform to well established principles and to the rule of law, to\nformulate programmes for rationalizing and simplifying legal procedures\nincluding procedures of an administrative character connected with litigation,\nand to<\/em> formulate programmes\nfor  the codification of the law in Sinhala, Tamil and English.<\/p>\n\n\n\n

The\nappointment of five sub-committees by the Minister to undertake reform\nrecommendations appear to be well within the functions of the Law Commission\nunless it is an entity that requires reform as well. The need for law reform\nseems quite evident. One cannot but get the feeling that successive ministers\nof Justice have evaded this urgent need and a heavy and expensive price has\nbeen paid by the general public as a consequence.<\/p>\n\n\n\n

The\nlegal maxim Justice delayed<\/strong> is justice\ndenied<\/strong>” usually refers to legal redress or equitable relief to an\ninjured party is available, but is not forthcoming in a timely fashion, and\ntherefore it is effectively the same as having no remedy at all\u201d. It appears\nthat in Sri Lanka, there has been a denial of justice not only on account of\ndelays, but due to fault lines in a legal system that is outdated, full of\nholes, is inefficient and ineffective. <\/p>\n\n\n\n

It is\nhoped that the effort of the minister does not end up as work of some previous\ncommittees that were appointed to present findings and recommendations. There\nhad been no follow up and recommendations implemented. A senior lawyer pointed\nout that for example, the amendment to the Notaries ordinance and the amendment\nto the Power of Attorney Ordinance, recommended by two committees in 2010\nappointed by the Ministry of Justice has not been passed to date. This lawyer\nstated that without the amendments, with all the loopholes available in the\ncolonial statutes, Sri Lanka has moved on to the eRegister with perhaps invalid\ndeeds being registered in a day, a great advantage to fraudsters. <\/p>\n\n\n\n

In\nthis context, the Ministers attention is drawn publicly (as the private\ncommunication was not  acknowledged) to\nan area that requires urgent attention, the reform of land laws that has not\nbeen subject to the process announced by the Minister. As was pointed out in\nthe letter to the Minister, there are major issues concerning the Bim Saviya\ntitling system based on the Land Registration law introduced in 1997 and\nimplemented in 2007, and the issues related to the electronic registration\nsystem for such titles. This vital area has not been included in the review\nannounced. <\/p>\n\n\n\n

In\nthe letter to the Minister and in several articles published by eminent\nlawyers, it was pointed out that (a) the fact that less than 5% of the 12\nmillion land allotments have been registered since 2007 was proof that Bim\nSaviya was not working, and (b) the reason why it is not working was the\nunsuitability of the Bim Saviya for Sri Lanka as it is based on an alien\nsystem, the Australian Torrens Title system. This system has not worked for the\nindigenous people of Australia, and it would not work for Sri Lanka, as this\nsystem does not recognise the country context when it comes to land and land\nrights. The now famous and ground breaking Mabo decision by the High Court of\nAustralia is evidence that it had not worked for the original inhabitants of\nAustralia.<\/p>\n\n\n\n

The\nMinisters attention was also drawn to a recent gazette notification issued by\nthe Lands Ministry in regard to what has been described as Residual State\nland\u201d, and transferring the management of these lands to Provincial and\ndistrict Secretaries. What is referred to as Residual State land\u201d, is not well\nunderstood and there is suspicion of an ulterior motive behind this gazette\nnotification as this definition can lead to large scale abuse and encroachment\ninto forests and Wild Life sanctuaries and reclassifying them as residual State\nland\u201d and disposing them to individuals for commercial purposes.<\/p>\n\n\n\n

It\nhas been reported that 82% of land in Sri Lanka is State land. Possibly why it\nhas been difficult to issue titles for State land maybe due to absence of cadastral,\nor in the least, proper land surveys and identification of boundaries if indeed\ntitles are needed for State land, for such land to be registered under Bim\nSaviya. <\/p>\n\n\n\n

There\nare two issues that raises suspicion of an ulterior motive. Firstly, the\nabsence of a Cadastral or as a minimum, well defined boundaries with land\nsurvey maps for State land, which results in encroachment into forests and wild\nlife protection lands and increasing the residual land\u201d extent which the can\nthen be disposed of in the guise of cultivation, and sold to locals and\nforeigners. <\/p>\n\n\n\n

Secondly,\nthe purpose of issuing titles for State. Why are titled required for State land\nunless it is to privatise and sell them to locals and foreigners in the guise\nof development\u201d? If increasing productivity of some State land is the motive, no\ndoubt this can be done collectively by the inhabitants around such land, and\nalso where feasible, by entering into joint ventures with the private sector in\nSri Lanka with the government retaining full ownership of the land.  \n<\/p>\n\n\n\n

What\nis needed for State land are proper surveys and identification of boundaries in\norder to make sure forests, wild life parks, nature reserves etc. are safe from\nencroachers. Titles for such land is secondary and in fact not needed as this\nland has and should remain in State ownership for perpetuity. Knowing the\ndangers of not having such a policy, Sri Lankans should not give countenance to\nanother Hambantota fiasco where a Port and Land has been given to a foreign\ncountry on a 99-year lease.<\/p>\n\n\n\n

In the context of land management policy reform, the Ministers\nattention was drawn to the fact that  land titling and eRegistration issues had not\nbeen included in the Cabinet paper referred to and the announcement of the 5\nsub committees.<\/p>\n\n\n\n

The Minister was urged, even at this  late stage, to nominate a sixth sub-committee\ncomprising of retired Supreme Court of High Court judges and eminent lawyers\ndrawn from the Academia and others with expertise in land titling and\nregistration to examine <\/p>\n\n\n\n

  1. The Bim Saviya and its relevance and\nsuitability for Sri Lanka<\/li>
  2. Changes needed to laws that existed\nprior to the introduction of Bim Saviya in 1997<\/li>
  3. The need for land laws to regard and\nrespect the traditional customs and practices<\/li>
  4. Management of the eRegister and\nreasons as to why it cannot be done by an institution like the Moratuwa\nUniversity<\/li>
  5. The classification of State land a\nresidual land, and until the proposed sub-committee has submitted their report\nwith recommendations and a decision is made on them, to withdraw the gazette\nnotification recently issued<\/li><\/ol>\n\n\n\n

    Finally, based on the findings of\nthis sub-committee, the Minister, along with other relevant ministers and\nministries, and considering the national interest of the country, the\nOpposition as well, develop a strategic, transparent and comprehensive State land management\npolicy which could be presented to the Parliament, discussed, debated and\npassed as the law of the country in regard to Land Management in Sri Lanka. Such\na law supported hopefully by all political parties would give the long term certainty\nthat is needed for the country in land management and preclude the necessity\nfor future governments to make changes to the essential elements contained in such\na comprehensive law.<\/p>\n\n\n\n

    It is hoped that the Minister will consider this appeal and take\nappropriate action and earn a deserved reputation as a cabinet minister with\nguts and resolve who had the foresight to address a long felt need that could\notherwise fracture and destroy the small parcel of land we call Sri Lanka.<\/p>\n","protected":false},"excerpt":{"rendered":"

    By Raj Gonsalkorale Dear Minister Many eminent lawyers and even more concerned citizens have written on the need for a comprehensive land policy for the country. The writer articulated this in an article published in the Daily FT (Sri Lanka desperately needs a strategic, transparent and comprehensive State land management policy-http:\/\/www.ft.lk\/columns\/Sri-Lanka-desperately-needs-a-strategic-transparent-and-comprehensive-State-land-management-policy\/4-709028). The writer even sent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[172],"tags":[],"class_list":["post-109107","post","type-post","status-publish","format-standard","hentry","category-raj-gonsalkorale"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/109107","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=109107"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/109107\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=109107"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=109107"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=109107"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}