{"id":92745,"date":"2019-09-01T09:01:28","date_gmt":"2019-09-01T16:01:28","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=92745"},"modified":"2019-09-01T09:01:28","modified_gmt":"2019-09-01T16:01:28","slug":"vision-of-our-lawyers-and-brilliant-civil-servants-in-the-past-ensured-country-did-not-freely-accept-statutes-introduced-from-afar-to-change-our-land-policies-and-laws","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2019\/09\/01\/vision-of-our-lawyers-and-brilliant-civil-servants-in-the-past-ensured-country-did-not-freely-accept-statutes-introduced-from-afar-to-change-our-land-policies-and-laws\/","title":{"rendered":"Vision of our lawyers and brilliant civil servants in the past ensured country did not freely accept statutes introduced from afar to change our land policies and laws."},"content":{"rendered":"

By Kirthimala Gunasekera \u00a0\u00a0Attorney at Law<\/strong><\/em><\/span><\/h2>\n\n\n

Legislation is one of the most important instruments\nof government in organising society and protecting citizens. It determines\namongst others the rights and responsibilities of individuals and authorities\nto whom the legislation applies.<\/p>\n\n\n\n

If legislative changes to our land laws were to be\nmade with foreign grants, it is imperative that there should be legal scrutiny,\nresearch and revision of the existing statutes by legal professionals\n from Sri Lanka.  The new statutes must support the land policy and\nshould have a legal framework to support the governess  of land and\nnatural resources. A  dialog  with  the people of the\n country is required as local cultures relating to land cannot be\nignored.  Then only the   benefit  will reach the citizens.\n  These were the teachings  of Hon Justice Amerasinghe and Hon\nJustice Christy Weeramanthry,  which were\nwell expressed in  their  excellent books that provide invaluable\nreading ,  Title Insurance<\/strong> and Equality and\nFreedom  and Some Third World Perspectives. <\/strong><\/p>\n\n\n\n

New World Order to advice developing countries<\/strong><\/p>\n\n\n\n

14 August 1941  was an important  date, a\ndate  on which a new world order began, where goals for the world after the war  were set out by the Americans and the\nBritish  in a historical document called the famous Atlantic\ncharter .<\/strong><\/p>\n\n\n\n

The Atlantic Charter set out a vision for the post war\nworld;  the United States was to support\nthe United Kingdom in the war, and  United Kingdom  in turn had to agree to grant independence to\nthe colonies.<\/p>\n\n\n\n

 Immediately\nfollowing the Atlantic charter Britain unhinged itself from the colonies\nfollowed by the  Breton Woods\nConference  to regulate the international\nmonetary and financial order after the conclusion of the war. In 1944\nagreements were signed to set up the International Bank for Reconstruction and\nDevelopment [ IBRD] presently referred to as the World Bank  and the International Monetary Fund.  This is the new world order which moves the\nworld towards  globalisation recommending\nthat  laws from  prosperous nations should be introduced as a\n\u2018one fit for all \u2018 to all countries, with top down legislation without any\ninvestigation.  <\/p>\n\n\n\n

Thereafter  UN has set up several\norganizations to govern all aspects of our property rights .   The\norganizations   directly involved in  our land laws are  FAO ,  the World Bank, Global Land Tool\nNetwork [GLTN] ,International Federation of Surveyors [FIG] and the Millennium\nChallenge Corporation [MCC] all of which have entered Sri Lanka  to\nresearch revise and  introduce legislation .<\/p>\n\n\n\n

The  main aim of these organisations  is to\nintroduce new land laws purportedly to  reduce poverty and for the country\nto reach a better position in the indices that they have created such as  the   \u2018Ease of Doing Business Index\u2019\nand \u2018Property Rights Index.\u2019 <\/p>\n\n\n\n

Good example,   is  the\n introduction of  electronics to the land registry   to\nmove in to a better position  in the\nDoing Business Index in a hurry  without\nthe  introduction of  the recognised international laws that protect owners\n from fraud and forgery .  Daily\nMirror on the 11th<\/sup> of April 2018 published that we are aiming for quick wins to move up the 2019 Ease of Doing\nBusiness rankings of the World Bank,   and we  will be\nintroducing E registration.   Will the electronic register be free of\nfraud and forgery when it operates with the archaic laws without the\ninternationally recognised laws ?  <\/p>\n\n\n\n

Introduction of laws with  external advice,\n undoubtedly  is a\nresult of being suddenly tossed into this maelstrom after centuries of\ncolonialism, says  Justice Weeramanthry in his book.  He says \nwe  have not yet achieved intellectual and economic freedom, although we\nachieved political freedom.<\/p>\n\n\n\n

The successive Governments of Sri Lanka  have\nrecognised this   mechanism which  receive their vitality from\nthis  new colonial power.   Those who drafted the  recent\n bill  \u2018 Land Privatisation Act \u2018 being foreign economist may not\nhave  known the legal impediments for private owners  created by the\nprevious set of external  advisors who introduced a foreign law repealing\nthe common law and the deed system that governed our land rights for over a\ncentury .  The Bim Saviya as it is referred to is an Australian law that\nwas  introduced  by the World Bank which\nhad  deprived  the private land\nowners  of  their  fundamental\nright   to access court if  the  ownership is affected by\nfraud .  Private land owners cannot transfer  shares to their wives\nand children nor can a husband and wife apply for a joint loan to a bank.  Further the poor farmers  were governed by a uniform land  law, after privatisation they will be governed\nby the ethnic  laws that  deprive women of their \nrights.    It is  far better for the poor farmers to\nhave  support for their agriculture than owning land under  such laws.    \n    <\/strong><\/p>\n\n\n\n

What is dangerous is that, successive Governments\nfailed   to recognise the  local effort  to remedy the situation.     The legislation  prepared by the Ministry of Justice and the\nBar Association relating to \u2018Prevention of Land Fraud\u2019  and the \u2018amendments\nto the Bim Saviya\u2019  had  not even\nbeen considered and is over  9 years.  Whilst statutes such as Bim\nSaviya, Electronic methods  and Land Privatisation bill  introduced\nby the foreign organisations seem to be receiving attention, to be rushed\nthrough without allowing any room for discussion.<\/p>\n\n\n\n

Although the recommendations of the Bar Association\nwas  not acceptable to the  Government, the Reengineering process for\n Bim Saviya   commenced with the advice of  a  company\nthat was selected by   an advertisement   made by a foreign\nembassy, selection too was made by them.  Today the entire electronic\nprocess  is based on the  re-engineering process recommended by them.<\/p>\n\n\n\n

Vision of\nour lawyers and brilliant civil servants in the past ensured country did not\nfreely accept grants to introduce statutes <\/strong><\/p>\n\n\n\n

In  1952  the International Bank For\nReconstruction and Development [present World Bank] made their first\nresearch report about the land ownership of Ceylon.  It was a report termed\n“Insecurity of Land Title\u2019.<\/p>\n\n\n\n

Based on  this report on or about 1969 \nmajor changes were recommended  to the\nland law of the country.    The advisors \n required the Government\n  to  introduce the Australian land law known as Title\nRegistration to remedy the ownership rights of the people.    [ Book on Title Insurance Dr A.R.B.Amerasinghe ]\nThis was the first time the World Bank then known as International Bank For Reconstruction and Development    required the law now called Bim Saviya to be\nintroduced <\/p>\n\n\n\n

The model answer to our ownership rights  by the International Bank For Reconstruction and\nDevelopment   was not\nacceptable to  Hon Justice Amerasinghe\nwho intervened at that time he was the General Manager and the Chief Law\nOfficer of the Insurance Corporation.    He expressed his view\nthat  in the process of compelling people to obtain perfect titles, local\nculture was ignored: Hundreds of thousands of families lived in peace sharing their\nundivided inheritances.  To drive them by legal statutes unknown to the\ncountry   would cause needless rifts and social unrest\nin the cultural climate of Sri Lanka.<\/p>\n\n\n\n

 In January 1965\nMr William Tennekoon then the Senior Deputy Governor of the Central Bank of\nCeylon also joined the discussion, submitted a memo to the Permanent Secretary\nto the Ministry of Internal and External Trade and Supply Mr William\nTennekoon\u2019s report  published in the book \u2018Title Insurance\u2019 written by\n Justice Amerasinghe   is a great eye opener for all.  Mr\nTennekoon pointed out that these schemes  must be introduced with\nconsultation with AG and other legal bodies as it affects the laws of\n Ceylon.   <\/p>\n\n\n\n

Great success was achieved  with this\nintellectual team to find better solutions than introduce title registration. The\nGovernment agreed with Hon  Justice Amerasinghe, the Law Society and Mr\nWilliam Tennekoon  that legislation proposed by the World Bank was not\nacceptable to the country. It is truly disheartening that such a mechanism\n is not in place today when foreign funding is offered to amend our land\nlaw. <\/p>\n\n\n\n

This collaboration  of academics and politicians\nis presently seen in prosperous nations.  Much of the success of\nprosperous countries is attributed to this co-operation between the practical\nand academic worlds.  These nations have charters signed to protect\nthe  lands for the future generations. .    Organisation\ncalled \u2018Meeting on Officials on Land\nAdministration\u2019 (MOLA), to\nfacilitate co-operation between land administration institutions in European\ncountries is a good example . Their   politicians provide stimulation and\nleadership to  professionals.<\/p>\n\n\n\n

Presently we continue with new world order.  The  FAO\n,  World Bank, Global Land Tool Network [GLTN] ,International Federation\nof Surveyors [FIG] and  new organisation\nfrom USA called the Millennium Challenge Corporation [MCC]  have made\nseveral reports  relating to the state of  our land law  <\/strong> —<\/strong><\/p>\n\n\n\n

Are we ready?<\/strong><\/p>\n\n\n\n

1]<\/strong> without\na legal arm to revise –  working with centuries- old colonial\nstatutes Their reports  point out that our land laws are\narchaic.   This is sadly  true as we have  \nremained  with the land statutes  enacted by the British Governors in\n1840, 1907, 1927 up-to-date,  to face the challenges of the 21st<\/sup> century,\nwith total absence of anticipatory planning,  which alone could have\nassisted towards solutions for our agriculture and land ownership,  2] <\/strong>with 7\ndays only available  to rush to court,  when  bills are drafted\nwith  foreign intervention.  3]<\/strong>  to accept the provision\nin the constitution that we cannot contest any of the statutes. 4]<\/strong> to execute leases without\nregistering \u2013[All leases should be registered under  The State Land act 8\nof 1947 and the Act 21 of 1998]   This\n allows a copy to be available for the public. The Government should\nfollow the rule of  law and have all leases available for the next\ngeneration to examine, as the leases  extend to curtail their legal rights to\n land  6]<\/strong>  land\nbooks,  recordings  of   100 years   in 45 land registries will they  be destroyed ? Like in other countries there\nare no plans to archive the books after  E registration sets in.   Are we allowing this to happen?. We will be\nrudderless without the history of our lands. <\/p>\n\n\n\n

Our next course of action is to set up a structure to\nprevent and retard the erosion of our land rights in this manner . The funding\nif given by foreigners should be used,  to develop  research programs in the legal and agriculture\nfields and    to retrieve the cooperation between the practical\nand  academic world as in the early days. \n <\/p>\n","protected":false},"excerpt":{"rendered":"

By Kirthimala Gunasekera \u00a0\u00a0Attorney at Law Legislation is one of the most important instruments of government in organising society and protecting citizens. It determines amongst others the rights and responsibilities of individuals and authorities to whom the legislation applies. If legislative changes to our land laws were to be made with foreign grants, it is […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[],"class_list":["post-92745","post","type-post","status-publish","format-standard","hentry","category-politics"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/92745","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=92745"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/92745\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=92745"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=92745"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=92745"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}