{"id":90227,"date":"2019-06-11T17:06:31","date_gmt":"2019-06-12T00:06:31","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=90227"},"modified":"2019-06-12T14:23:37","modified_gmt":"2019-06-12T21:23:37","slug":"sri-lanka-is-moving-fast-to-change-land-laws-with-foreign-advice","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/06\/11\/sri-lanka-is-moving-fast-to-change-land-laws-with-foreign-advice\/","title":{"rendered":"Sri Lanka is moving fast to change land laws with foreign advice"},"content":{"rendered":"

by <\/strong><\/em>K S Gunasekera <\/strong><\/em>a Senior Attorney at Law <\/strong><\/em><\/span><\/h2>\n\n\n

Changing land laws with the entry of\nelectronics is a breakthrough for our country after a century. However academic\nlegal community or lawyers from Sri Lanka are not driving the changes, it is\ndriven by the donors from international organisations, prosperous nations,\nparaprofessionals, technologists and politicians. This is not a very healthy\nscenario legally.<\/p>\n\n\n\n

Ironically, globalisation warrants us to\nintroduce laws practiced in the prosperous nations, according to the\navailability of funds provided by these affluent countries.  We change our\nlaws, merely to reach higher levels in their indices\u2019 example Doing Business\nIndex,  rather than, look into the effect they will have on the future\ngenerations and the professionals of our country. <\/p>\n\n\n\n

On the contrary changing land law is very\nwell managed by their own academic legal professionals in the prosperous\nnations. In, European countries, UK, USA, New Zealand Australia and\nScandinavian countries the Professors of law have achieved high level of\nperformance in this field of change with new legal subjects, hitherto unknown\nto us.  <\/p>\n\n\n\n

A\ngood example is the introduction of Title Registration [Bim Saviya law] a law\n practiced in the prosperous nations for over one hundred  years to\nreplace the land law practiced in Sri Lanka for  over a century. The law\nwas once prevented from being introduced in 1970\u2019s by the intervention of\nJustice A. R. B. Amerasinghe which is discussed in this article . <\/p>\n\n\n\n

The\ndifference is that the invaluable legal knowledge from the legal fraternity\nmakes the difference to determine whether the changes could serve the people of\nthis country. <\/strong>I refer to the article written by Shenali Wduge, which<\/strong> <\/strong>highlights the case of\nBulankulama and six others v. the Ministry of Industrial Development and seven others\n\u2013 SC (FR) Application No. 884\/1999. This case relates to the agreement forexploration\nand mining of the richphosphate deposit in\nEppawala, <\/strong> where our erudite & patriotic judges, channeled the\nhand of God to save the  archaeologically important land, Cultural\nTriangle, Sri Maha Bodhiya, Ruwaweli Seya, Jaya Ganga and Yoda Ela , <\/p>\n\n\n\n

The article makes\nspecial mention of the judgment where Hon Justice A.R.B Amerasinghe\u2019s refers e\nto Mahawansa where land usage in our country was subject to the rule of law\nlaid down by the kings of our country, for the benefit of the people. <\/p>\n\n\n\n

In\nthe said case the legal agreement to remove tons of phosphate for the profit of\none generation was set aside with the advanced legal knowledge of our judges\nfor the benefit of the future generation of our country. The judgment\nreiterates as follows \u2018Indeed, an hypothesis has been advanced that the\nEppawela deposit was not discovered\u201d in 1971, but was known to our rulers and\npeople for thousands of years and shared the thought that the deposit should be\nutilized. The difference between them and us is how this should be done. The\ningenuity of the rulers gone by, it is suggested, had created a stable and\nsustainable agricultural development system harnessing the key natural\nresources available within their natural habitat, including the Eppawela\ndeposit. The natural processes of weathering, microbial activity and\nprecipitation might have released plant nutrients which were carried overland\nby flowing into the rivers as well as permeating into the soil and possibly\nreaching underground aquifers. (see Ivan Amarasinghe, Eppawala; Contribution to\nNutrient Flows in the Ancient Aquatic Ecosystems of Rajrata) \u2018<\/p>\n\n\n\n

As said earlier this\ngreat historian, erudite scholar Hon Justice Amerasinghe had always reflected\non the countries culture and historical background when introducing land laws\nto the country.  <\/p>\n\n\n\n

He intervened when the\nWorld\nBank then referred to as the International Bank for Reconstruction and\nDevelopment [ IBRD,], conducted research relating to our land statutes. \nAccording to their report they were out dated  old colonial statute.\nFurther, the laws  existing  side by side  with different\nsystems of law  with, co-ownership, life interest, servitudes such as\nright to crops  and possessory  rights etc, were reasons \nfor  lands to be unmarketable.  Their   main issue was the\ninability for the banks to grant loans as the lands were not marketable. <\/strong>The\nremedy recommended was to introduce Title registration\u201d to resolve the\nproblem; a law that  was practiced in the  prosperous nations. <\/strong><\/p>\n\n\n\n

Hon Justice <\/strong>Dr A.R.B. Amerasinghe pointed out that Title\nregistration law\u201d has major issues,  it deprives a person of his\nfundamental right to access court if the land is affected by fraud, it repeals  co-ownership\nand possessory rights enjoyed by the people for centuries.   <\/strong><\/p>\n\n\n\n

At that time he had the support of the Hon Minister in\ncharge and the high officials of the Government and the Governor of the Central\nBank to work out a solution; to find a way forward to extend credit facilities\nfrom banks to lands that were unmarketable. <\/strong><\/p>\n\n\n\n

He\nmade a scholarly contribution with his research to the country\u2019s land law by\nformulating a specialized system to facilitate those who did not have\nmarketable title to land to obtain bank loans. He did not allow changes to the way\npeople enjoyed their land rights; that is with coownership rights, possessory\nrights, access to water through lands etc. <\/strong><\/p>\n\n\n\n

He says in his book on \u2018Title Insurance \u2018 that,\nmarketability does not have a universal  definition as pointed out by the\nIBRD,   it is an ethereal  sort of thing enshrouded in the mist\nof conflicting minds. Marketability of land is affected by the manner in which\ncustoms and habits and practices vary from one community to another. A parcel\nof land in Jaffna co-owned with access to wells of another\u2019s land and trees\nsuch as Palmyra were marketable in the area. Lands in Ratnapura will have\ngemming rights and access to pits they were marketable. The people in the area\nwould never say the lands are unmarketable,  and if offered for sale there\nwill be sufficient buyers.<\/strong><\/p>\n\n\n\n

1969 His Excellency the Governor General announced in the\nThrone Speech about the new  legal process adopted by Justice Amerasinghe\nto be introduced in lieu of Title Registration proposed by the World Bank. This\nwas the first step taken to improve land law after a very long period. In his\nbook on Title Insurance he mentions Ordinance No 8 of 1863 drafted by legal\nexperts to be followed to engage in continuous research to establish land Title\nregistration with our own systems.  His research was not continued and\nafter 20 years the World Bank again introduced Title registration repealing all\nthe customary laws of our country by  Act 21 of 1998. <\/strong><\/p>\n\n\n\n

Difference today is that, when funds are <\/strong>received with foreign\nadvice land laws are changed.  There is no legal intervention to introduce\nthe knowledge\nrelating to  our cultural heritage, and  our ancient administrative\nstructures which are  the  higher values that  lie behind the\nlaw. <\/strong>  <\/p>\n\n\n\n

The\nquestion arises as to whether we have lost this bargaining power?  <\/p>\n\n\n\n

Sri\nLanka\u2019s land laws are changing rapidly; some of the new changes are —. <\/p>\n\n\n\n

Land\nprivatization act<\/em><\/strong> –\u2013-<\/em> amend the Land Development Ordinance of 1935 to give full\ncontrol of all Government lands to the recipients, Repeal of Land Reform law\nwhich took control of lands at one time, Land Bank Act<\/strong>,, Title\nregistration Act 21 of 1998 mentioned above, E Register<\/strong> to function with\nthe old colonial statute, Act 6 of 2018 with a law to identify owners with\nphotographs for Trust deeds, Gazette notifications and statutes altering the\nposition of foreigners buying land from time to time.<\/em><\/p>\n\n\n\n

Hope\nthat the younger generation of lawyers will emulate the learned members of the\nlegal  profession who used their legal knowledge; will also commence\nresearch to protect the country\u2019s wealth for the future generations,\nspecifically as technology <\/em>is transforming every segment of the\nlegal ecosystem<\/p>\n","protected":false},"excerpt":{"rendered":"

by K S Gunasekera a Senior Attorney at Law Changing land laws with the entry of electronics is a breakthrough for our country after a century. However academic legal community or lawyers from Sri Lanka are not driving the changes, it is driven by the donors from international organisations, prosperous nations, paraprofessionals, technologists and politicians. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[156],"tags":[],"class_list":["post-90227","post","type-post","status-publish","format-standard","hentry","category-law-order"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90227","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=90227"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/90227\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=90227"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=90227"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=90227"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}