{"id":91528,"date":"2019-07-19T20:22:46","date_gmt":"2019-07-20T02:22:46","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=91528"},"modified":"2019-07-19T13:19:57","modified_gmt":"2019-07-19T20:19:57","slug":"changing-sri-lankas-land-laws-legal-fraternity-academics-must-play-a-bigger-role","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/07\/19\/changing-sri-lankas-land-laws-legal-fraternity-academics-must-play-a-bigger-role\/","title":{"rendered":"Changing Sri Lanka\u2019s Land Laws: Legal fraternity & Academics must play a bigger role"},"content":{"rendered":"\n
\"\"<\/figure>\n\n\n\n

A wave of controversial\nagreements none of which anyone has seen are being drafted by foreigners and\nenvoys are making open statements on them. US envoy recently claimed Sri Lanka\u2019s\nland administration is poor & so MCC is recommending changes. MCC is an arm\nof the US government. Why has Sri Lanka\u2019s legal fraternity not raised the issue\nof foreign interference in Sri Lanka\u2019s internal affairs?<\/p>\n\n\n\n

Citizens of Sri\nLanka enjoying free education owe something back to the Nation and Sri Lanka is\nin a miserable situation for the lack of the legal fraternity exerting the need\nto play a role in the governance of the country. The legal fraternity &\nacademics must now wake up to the reality that land law and the land policy is being\nchanged simply because a country is handing out some money.      <\/p>\n\n\n\n

How aware are Sri\nLanka\u2019s lawyers of new laws being introduced to the country by foreign lawyers?\nThese new laws and electronic systems designed by foreigners claim to manage our\nland transactions but something our legal circles are all not aware of.  <\/p>\n\n\n\n

The role of our\nlawyers have sadly got restricted to running to court every time a statute is\nsuddenly presented in Parliament giving them just 7 days to not only read the\nStatute but to file arguments against it. <\/p>\n\n\n\n

The Land Special\nProvision Bill is a good example. The Bill was presented without any lawyer\nhaving seen the statute. A Government minister thought it a big deal that the\nBill was drafted by foreign economists with a few inputs by locals associated\nwith them. However, how can a Bill that is meant to change the land policy and\nland law of Sri Lanka be kept hidden from the citizens?<\/p>\n\n\n\n

There have been\ncases where Government has been cunning enough to pass Bills when Courts are\nabout to face vacation or on a Friday which omits the weekends from the 7 days\nreducing citizens right to file petition to 5 days. Politicians cannot be\nallowed to get away by passing dangerous Bills that are a threat to the\nsovereignty of Sri Lanka and the land rights of future generations. <\/p>\n\n\n\n

Prof. Suri\nRatnapala Emeritus Prof of the University of Queensland, Australia was invited\nby the GOSL and claimed that both 1972 & 1978 Constitutions allowed\nexisting laws to continue even if they were inconsistent with the constitution\n& were not to be challenged. http:\/\/www.dailymirror.lk\/article\/the-Constitution-s-tricky-issues-Prof-Suri-Ratnapala-118457.html<\/a><\/p>\n\n\n\n

Let us wake up to\nsome realities. Can our lawyers in this situation permit foreign hands to\nchange the land policy and the land laws without their knowledge?<\/p>\n\n\n\n

A senior lawyer\nwhen consulted pointed out .that as far back as 1970\u2019s the World Bank made it\npretty clear it was soon going to set standards for land reforms departing from\nthe colonial statutes that existed. They wanted to introduce Title\nRegistration, repealing the Common law and the deed system that was practiced\nin the country for 100 years.<\/p>\n\n\n\n

Very fortunately\ntimely legal solutions were suggested by Hon Justice Amerasinghe with help of\nthe Governor of the Central Bank and the Government at that time. This law\ncalled Title Registration was introduced 20 years later without any further\nconsultation with lawyers, when we had a draft of a better statute. <\/p>\n\n\n\n

Today, we are all\nseemingly shocked about the Millennium Challenge Corporation proposal. However,\nthe proposal is an outcome of numerous reports by World Bank & USAID that\nstudied Sri Lanka\u2019s land laws, colonial statutes and devised their solutions\nobviously based on what was advantageous to them<\/p>\n\n\n\n

Where were Sri\nLanka\u2019s policy makers and legal academics when all this research and reports\nwere being done by foreign parties. How did they visit all the official places\nsuch as land registries survey departments in Colombo and outstations to make\nthese reports \u2013 why didn\u2019t the State apparatus wonder what they were up to and\nthey were studying our systems over several years! The outcome of their\nresearch are these reports<\/p>\n\n\n\n

World Bank Group\n(2012) Doing Business \u2013 Measuring Business Regulations http:\/\/www.doingbusiness.org\/data\/exploreeconomies\/sri-lanka#registering-property<\/a> (accessed 10 March 2015)<\/p>\n\n\n\n

World Bank (2007)\nImplementation Completion and Results Report (IDA-34960), Report no. ICR\n0000190, The World Bank, USA<\/p>\n\n\n\n

World Bank (2008)\nLand Reforms in Sri Lanka: A Poverty and Social Impact Analysis, http:\/\/siteresources.worldbank.org\/INTPSIA\/Resources\/490023-1120841262639\/PPP171_WB_SriLanka_Report_30-05-08.pdf<\/a><\/p>\n\n\n\n

Why did we not improve\nthe land administration and the land law before they could intervene &\ndemand the changes? <\/p>\n\n\n\n

Why did we remain\nwith the statutes which were a colonial legacy? The academics in law had not\nplayed a role in Sri Lanka\u2019s legal status relating to land statutes \u2013 which is\na must.<\/p>\n\n\n\n

If our legal\nfraternity were on the ball they would have seen the changes coming & would\nhave known the dangers of all the statutes passed & raised the concerns\nbefore the Bills became enacted.<\/p>\n\n\n\n

Presently the Land\nBank Statute and Port City Act is prepared and is to be passed. The Land Bank\nAct was approved by AG & Legal Draftsmen \u2013 According to Act 21of 1998 can\nthere be 2 land bank registers? Why didn\u2019t lawyers come forward to raise this\nwhen the proposal was first made? Obviously none of them knew about the\ndangerous clauses.<\/p>\n\n\n\n

How many lawyers\nhave studied the Port City Act? Have they demanded that Government share these with\nthe legal fraternity of Sri Lanka?<\/p>\n\n\n\n

How aware are our\nlawyers about the Land bank Act which is approved by the AG and the Legal\nDraftsman. According to Act 21 can a new register is to be prepared under the\nLand Bank Act ? The register under Act 21 is final and occlusive, the Act specifically\nexcludes any other statutes <\/p>\n\n\n\n

In 1998 a top down\nlegislation modeled on the Australian Torrens system was introduced by Act No\n21 of 1998 known as Bim Saviya. How did this law that repealed the entire\nCommon law that was practiced in this country for 100 years pass through the\nAG\u2018s department and the Legal Draftsman Department. Was it debated in Parliament?\nCan our lawyers practice the law of Australia to maintain property rights in\nSri Lanka? <\/p>\n\n\n\n

A senior lawyer\npointed out that the Act 21 had confused the lawyers. The act has  repealed the entire Common law and the\njudicial precedence which existed for over 100 years relating to land law.  <\/p>\n\n\n\n

Did our lawyers\ndraft this statute or was it drafted by foreigners with the help of locals\nworking for these foreigners? Unfortunately, this new law is questionably\nunconstitutional because it does not permit land owners their fundamental right\nto access court for grievances. The judicial powers to hear land cases have\nbeen repealed as well as laws such co-ownership law and law of prescription.<\/p>\n\n\n\n

The legal\nfraternity did not take lessons from this and it is no surprise that the 2nd<\/sup> dangerous\nact was drafted some 20 years later with the Land Privatization Act which the\npresent government claims was drafted with assistance of local teams but by\nforeigners.<\/p>\n\n\n\n

It is also revealed\nthat the re-engineering process suggested to this Act by the Bar Association\nwas not accepted. The electronic systems introduced that follows with the\nre-engineering process of Act 21 was attended to by an appointee made after an\nadvertisement initiated by the foreign Embassy pushing the MCC & making\nvery controversial public statements. <\/p>\n\n\n\n

All this is taking\nplace in the midst of land fraud which is presently extremely pervasive as the\nnew law was superimposed upon the old laws that have plenty of loopholes t commit\nforgery of deeds.  <\/p>\n\n\n\n

The Registrar General\u2019s Department states that almost 40 \u2013\n50% of the land deeds in Sri Lanka are forged documents.  Foreign experts reiterated that before\nelectronics was introduced this matter has to be cleared as land transactions\nwill be registered within one day or few hours and this will be ideal for\nfraudsters. What are our lawyers doing about this?<\/p>\n\n\n\n

The act 21 has also repealed the deed\nsystem and the owner today ends up with a computer print-out for his ownership\ndocument without deeds. Soon the government grantees will have the same law\napplying with a computer print-out for their ownership.<\/p>\n\n\n\n

Rights of the\ngrantees under the  land privatization\nbill with operation of Act 21 of 1998 <\/p>\n\n\n\n

The judiciary is made\nsubordinate to the executive, by this Act Section 33 of the Act where judiciary\nis given no power to hear cases related to land ownership especially if the\ngrantees ownership is affected by fraud. The grantee will have to seek\ncompensation in lieu of his ownership. The judiciary cannot question the\nentries in the registry made by the Registrar General.<\/p>\n\n\n\n

Soon the grantees\nrights will have to be moved to the new register by the Commissioner of Title (new\ntitle)<\/p>\n\n\n\n

How did an the Act\npass fthe judicial process to the executive to determine owners of our\ncountry\u2019s 10 million blocks of land?. The new office known as the Commissioner\nof Title. The adjudication of ownership is made by untrained officials. <\/p>\n\n\n\n

Under Act 21 a\ngrantee under the new bill could not pass half share of the land  to his or her spouse or child to be a co-owner.\n<\/p>\n\n\n\n

The banks cannot\ngive them loans if the wife becomes a co-owner. \nHow can he obtain bank loans if a salaried family member was not  joined as a co-owner  <\/p>\n\n\n\n

Were the lawyers\naware that the law of co-ownership and the law of prescription was removed at\nthe Bill stage of Act 21 of 1998?<\/p>\n\n\n\n

When land is\nprivatized the question of injustice to women surfaces. As personal ethnic laws\napply to them (Thesawalamai, Muslim & Kandyan Laws ) Earlier when the lands\nbelonged  to the Government all ethnic\ngroups were Governed by one law .  Only\nissue was the superior inheritance right of a son which could have been\nrepealed easily.  Women\u2019s land rights\nwithout equality constitutes a violation of the principle of \u2018equality\u2019 assured\nto citizens in the constitution.<\/p>\n\n\n\n

Do we have lawyers\naware of the future scenario once the Land Bank Act & Port City Act becomes\noperational? Can lawyers afford to rely on the 7 days to study statutes &\nfile complaint? Are the foreign lawyers not taking advantage of this?<\/p>\n\n\n\n

These\nare the  news items published in the\npapers for lawyers to study  https:\/\/www.google.com\/search?q=port+city+english+law+will+aplly&oq=port+city+english+law+will+aplly+&aqs=chrome..69i57.11636j0j8&sourceid=chrome&ie=UTF-8<\/a><\/p>\n\n\n\n

1]A\nfully transparent Request for Proposals has been made from reputed UK based law\nfirms to evaluate the draft CIFC law and the selected British law firm is being\ninvolved in drafting the detail rules regulations of the CIFC in accordance\nwith the common law and in line with the constitution, he revealed. <\/p>\n\n\n\n

2]This will take place before land is leased on 99-year\nbasis to the project company.<\/p>\n\n\n\n

3]  senior\nofficial of the Ministry of National Policies and Economic Affairs said the\nzone will have its own legal, regulatory, tax and business infrastructure. And,\nthis is where constitutional law experts see the problem. In Sri Lanka, unless\nyou change the Constitution, you cannot have a separate law even in a newly\ncreated area of the country,\u201d one President\u2019s Counsel told the Business Times,\nnoting that arbitration decisions and judicial rulings on commercial matters\nshould be made under the existing Sri Lankan law.\u201d<\/p>\n\n\n\n

Sri Lanka although\npushed by donor agencies to make over-night changes to land law, must tread\ncautiously.<\/p>\n\n\n\n

The European\nEconomic Committee have created the European Economic Area in 1994 to prevent\ntheir countries being exploited by land grab etc but these countries are\nattempting to what they are protective of in their countries to other\ncountries! Should Sri Lanka also not have its own protective clauses in place?<\/p>\n\n\n\n

Our ancient state\nland statutes already have enough of protective measures in place. The problem\nis that governments are getting influenced by money inducements &\ndiplomatic arm-twisting.<\/p>\n\n\n\n

Sri Lanka has\nstagnated with old colonial laws to manage the activates of the 21st<\/sup>\ncentury with entry of electronics.This is where the vacuum of practicing\nlawyers, surveyors, legal academics, environmentalists are felt because there\nis no united front pooling their expertise to safeguard every inch of Sri\nLanka\u2019s land & resources. This vacuum has resulted in external forces\nmanipulating the politicians to their advantage with no legal avenues to block\nthem. We cannot go on like this in particular since we are at a very crucial\njuncture where the likelihood of statutes being passed which will apply foreign\nlaws inside our own island nation looks more than a possibility questioning the\nrisk to Sri Lanka\u2019s sovereignty.<\/p>\n\n\n\n

Had the BASL\ndemanded a greater strategic role together with associated entities these\ndangers could have been avoided but it is not too late. We cannot be satisfied\nwith BASL simply issuing statements. Their role has to be far more pragmatic\n& pro-active. <\/p>\n\n\n\n

The frequent\nreferences made by senior lawyers  raising the greatness of late Justice Dr A R B\nAmerasinghe who delivered the landmark Eppawela Phosphate verdict and the\nyeomen service by late Hon. Justice Christy Weeramantry should be the bible for\nall lawyers that are bound to protect the sovereignty & territorial\nintegrity of Sri Lanka as Justice Amerasinghe did in his brilliant verdict\nquoting the Mahavansa & the great deeds of our nobel Sinhala Kings. Land\ncannot be a commodity. Land must remain for future generations & this must\nbe enshrined in the constitution & the legal fraternity are beholden to\nuphold this.<\/p>\n\n\n\n

Government must request from the affectionate wellwishers and donors for funding to set up Research Group. All statutes relating to our lands must be made available for the legal entities and academic supervision like in the prosperous nations like USA, UK Australia etc. The laws must be known to the public. There must be regional dialog as the donors are presently working in the entire Asian region and the 53 Commonwealth countries with their agendas.<\/p>\n\n\n\n

Shenali D Waduge<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

A wave of controversial agreements none of which anyone has seen are being drafted by foreigners and envoys are making open statements on them. US envoy recently claimed Sri Lanka\u2019s land administration is poor & so MCC is recommending changes. MCC is an arm of the US government. Why has Sri Lanka\u2019s legal fraternity not […]<\/p>\n","protected":false},"author":1498,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[47],"tags":[],"class_list":["post-91528","post","type-post","status-publish","format-standard","hentry","category-shenali-waduge"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/91528","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\/1498"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=91528"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/91528\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=91528"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=91528"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=91528"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}