Sri Lanka is an island nation. With rising population, limited land and resources, it is imperative that the land and resources are protected. Under development schemes and foreign investment, Sri Lanka has been forfeiting its land at most times ignoring the environmental and future implications. The COVID-19 situation has clearly shown the importance of protecting one’s land’s fertility with increasing realization of the need to grow food to feed one’s own first.
We discuss the topic of Bim Saviya and MCC with some eminent lawyers.
How was land controlled under Sinhale kingdom and what was the land policy system
Sri Lanka has a written history of over 2500 years. Land was owned by the King and Temples. The land under the King was given to cultivation and various documents give evidence of this – copper sannasa, lekam mitiya, rock inscriptions. The land under Temples were – viharagam, devalagam, nindagam and paraweni. Until 1815 we had the most advanced civilization in irrigated agriculture which include rice, spices and other crops.
How did this system change?
The British Introduced Prevention of Encroachments upon Crown Lands Ordinance No 12 of 1840. This Ordinance declared all lands under Govt if people could not prove their ownership. This was purposely done as the Sinhale populace was living on lands passed down from generation to generation. There was no document of ownership like deeds, grants that the British demanded. Thus, the Sinhale populace was legislatively robbed of their land ownership by an invading country. This eventually resulted in the Kandyan Rebellion of 1848.
What are the major changes the colonials did to native land laws?
In 1815 Sri Lanka became a colony of the British Empire. The colonials began to legislatively take our land. To legislatively do so, the British needed a document to own land. In 1840 the Crown Land Encroachment Ordinance vested 90% of land under the colonials, simply because they said the people did not have documents to prove they owned the land. The British took forest, wasteland, unoccupied, cultivated, uncultivated lands under the Crown. The British began to destroy the natural forest cover of the highlands. This was the catchment area receiving rainfall to the major rivers that served lowland plains were rice and other crops were cultivated. The aim was to destroy our means to sustain our existence.
The British wanted to kill our agriculture and instead grow commercial crops. This is no different to what is taking place now with cash crops. The Crown Land Ordinance cleared all lands to cultivate coffee, then tea, rubber and coconut.
Just as the 1815 agreement was violated after its signing, we can presume that the MCC having similar objectives will also do the same once agreement was signed.
The title registration by colonial British (known as Torrens Law and Bim Saviya in Sri Lanka) began in 1866 and 1897. The real intent was to deny land rights to those who did not have ‘deeds’ just as was done by the British with the Waste Lands Ordinance.
What is the Crown Land Encroachment Ordinance?
Crown Land Encroachment Ordinance 1840 – more than 90% land became vested in the colonial government. Post-independence 82.3% land is still under the State. 40% of the total land area is used for agriculture (of which 28% is used for rice cultivation), 30% is forest & wild life reserves. The balance is used for urban and infrastructure development. http://www.landsettledept.gov.lk/web/index.php/en/programs/land-settlement
What was the situation with land after independence?
As a result of Waste Land Ordinance of 1840 land was divided as State land and Private lands. Most land came under control of the Government. However, at independence the local rulers did not make any attempt to establish a land policy for the optimal utilization of land and water resources for the benefit of the people. Many ordinances came into operation and land administration got institutionally and functionally fragmented to operate to satisfy the ministries and ministers within a complex set of laws rather than to the benefit of the country or the people.
Why didn’t post-independent governments look at changing colonial land laws & statutes to suit the times? Why has no research gone into this?
This is why the foreigners walk in and do the research and make recommendations advantageous to them for which their funding agencies are ready to assist to roll out and governments cannot refuse because of the funding.
From 1931 – 1947 – D S Senanayake was the Minister of Agriculture. His policy was the promotion of schemes in the dry zones to utilize Crown Land where land was held in trust on behalf of the people.
1985 Land Commission Report – gave a clear way forward by formulating a land policy. The presented a policy to make optimal utilization of land and water resources on a sustainable basis for the future. However, lack of coordination and effective action in implementing the policy resulted in neglecting the laws governing lands. This is the root cause of the problem carried forward from colonial times.
How did post-independent Sri Lanka handle law after the British left?
1935 – The colonial government initiated alienating land by enacting Land Development Ordinance No 19 of 1935. By this the Government reduces landless and rural unemployment. This Ordinance drew concern regarding food production and to improve position of the peasant cultivator. The LDO permits were issued with intent to cultivate and develop land but given with certain conditions that requires the person owning to land to cultivate on the land/occupy the land – LDO permits prohibited sale and mortgage.
1958 Paddy Lands Act – Protected the rights of land cultivators, tenant cultivators dramatically changed agrarian service
1972 Land Reform Law No 1 of 1972 – from 1935 lands that had been cultivated including estates from British era were nationalized without administrative planning – 420,000 hectares.
1982 –lands given officially to those who got land from 1935 Ordinance to 5million people under Swarna Bhoomi, Jaya Bhoomi, Ratna Bhoomi & Ranbima programs (1.2m acres of land)
Question: What is the Future of Our Land Rights and Land Laws?
The global capitalist system is such that foreign funds are designed to hunt in poor countries and acquire their resources. For cash-strapped countries the hand out of funds simply by agreeing to give a portion of land for tenure is acceptable without looking into long term implications.
Question: How is Sri Lanka’s land and resource being ‘grabbed’?
MCC – Millennium Challenge Corporation came into the scene days after Easter Sunday bombing claiming to assist Sri Lanka’s transport and land development.
MCC says it is ‘gifting’ Sri Lanka $480m but in exchange Sri Lanka has to hand over its land registries to the US officials. They will then have access to our land registries. Moreover, the MCC agreement grants them immunity. Whatever MCC and its officials do in Sri Lanka will be immune from law.
As a precursor to this, the previous government took a loan of $154m to be paid with interest over 10 years and outsources the cadastral mapping of Sri Lanka to a US company (Trimble Navigation), an exercise that could have been done and should have been done by Sri Lanka’s Survey Department. This US company has taken $154m to do the Land Information System and Aerial Survey Operations.
US via MCC will get Sri Lanka’s land registry, a US company is doing Sri Lanka’s land information and surveying and another company is developing an electronic land hub for a National Land Titling Program for which expressions of interest was advertised by the US embassy https://photos.state.gov/libraries/sri-lanka/577989/pdf/eLand%20Hub%20Project.pdf
While the US influenced World Bank is funding $3.4m to introduce Australian land law (Torrens Law) in Sri Lanka. This law has been renamed Bim Saviya in Sri Lanka and when fully implemented it would repeal our existing deed system, Roman Dutch Law and make all land statutes subordinate to the Australian law.
What is the relevance of Torrens Law (Bim Saviya) to MCC agreement
In 1998 the Sri Lankan President appointed a committee to study Act 21 of 1998. The Committee reported that the forcible registration, removal of deed system was a great disadvantage to land owners. The Bar Association also made amendments to suit the country. But Act 21 of 1998 was passed.
The MCC came into the scene with the previous government immediately announced as a ‘gift’ after Easter Sunday bombings. The contents of the agreement was kept secret but US officials were seen going to offices and land registration and World Bank, US embassy, USAID and many other foreign players involving themselves in Sri Lanka’s internal affairs. It came to a point that the agreement had to be released. The public saw the dangers and made representations to the Maha Sangha, who also realized its bigger dangers. The Gunaruwan Committee clearly established via recommendations not to proceed with the signing of MCC citing numerous reasons that covered even socio-political and demographic dangers to Sri Lanka.
Under the MCC, US is agreeing to take over 10 land registries for 5 years in 7 districts but Sri Lanka has to give the US immunity from all laws of the country. All omissions, commissions and damages caused by US, its officials or its contractors will not be liable for any damages even if they commit a murder in the country. Once MCC is signed the applicable law is international and not Sri Lankan law – inside our own country.
How can the AG/legal draftsman approve such an agreement that is detrimental to Sri Lanka & its sovereignty including the safety of the people?
A Cabinet Memorandum along with the final drafts of the Agreements was submitted on 31.05.2019 to the Cabinet of Ministers answer found in the Ministry of Finance web site http://www.treasury.gov.lk/article/-/article-viewer-portlet/render/view/mcc-agreement-drafted-with-the-consent-of-ag-will-be-presented-in-parliament
How is MCC connected with Bim Saviya & entry of technology to registries?
If the GoSL signs MCC, Sri Lanka is agreeing to all ‘designs’ (as worded in MCC agreement) introduced by USAID, World Bank, US embassy and US ‘Actors” ONLY will be recognized or accepted by MCC. This means MCC will not recognize or accept local research & revision inputs given to establish e-register.
MCC wants the GoSL to privatize all lands owned by the Government BEFORE signing the MCC. The attempt to do so by the previous Govt was foiled. Now different methods are being adopted. If State land in which the farmers and poor are living in and making a livelihood in are privatized, they will receive a digital number without deeds. They can view this ownership via computer but they will have no access to courts as Bim Saviya has removed the rights of land owners to seek judicial remedy.
MCC agreement grants access to US officials to implement Bim Saviya and introduce electronic registration. MCC gives US officials immunity from Sri Lankan laws. So whatever they do to our land registries, Sri Lanka cannot take legal action against the MCC or its Officials.
If Sri Lanka’s land registries are entered into an electronic land registry and the original deeds are all destroyed, what happens if there is a virus attack or a cybercrime?
With no manual records in our possession, or those manual records not having any value, we will only be at the mercy of those implementing these foreign laws and regulations as Sri Lanka accepts to grant MCC ownership of OUR intellectual property rights present and future.
What are Sri Lanka’s lawyers doing about this serious situation regarding our land sovereignty?
Unfortunately, Sri Lanka has not invested in research and reports and to re-look at the colonial statutes we have been following since independence without making changes. Sri Lanka’s lawyers sadly do not like change or to make changes.
Some local lawyers are knowledgeable in colonial land statutes and their relevance/irrelevance or issues in the present context of the open economy but they are rarely consulted or given a platform to express their reservations.
It is also unfortunate that the books on land law are all revised by foreign organizations including changes to the electronic methods. In other countries changes and modernizations are done with training provided to lawyers from their own countries tasked to deal with legal issues emerging. In Sri Lanka, all our confidential information and systems are being open to foreign officials including MCC.
How many land statutes of the colonial rule have continued after independence?
BIM SAVIYA – TORRENS LAW & ELECTRONICS
What does Section 33 of Act 21 of 1998 of the Bim Saviya Act include:
This Section repeals judicial authority to investigate into land disputes. It repeals the law of prescription. It repeals the partition act. It repeals the deed system and substitutes it with forms to do land transactions. It introduces an Assurance Scheme for owners to be compensated.
Were lawyers not consulted by the AG/Legal Draftsman before enacting Act
This Act was hurriedly passed not even giving time to file FR action with the Supreme Court. How can a Government hurriedly bring a foreign land law into enactment without involving relevant stakeholders and even the public? As a result of this MCC is manipulating this to their advantage as provisions in Bim Saviya is advantageous to their overall objectives.
Does Bim Saviya apply to Government lands or Private lands or both?
Bim Saviya is a codified land law. Land coding was introduced to govern private and government land via 1998 Act 21 known as Bim Saviya. The basic principle behind this Act is to survey all land in Sri Lanka, map the land and name the owner and have the ownership registered in a land registry.
This also includes land belonging to Temples – viharagam, devalagam and land under Mahanayakes. However as a result of opposition by the Mahanayake’s these are not entered into the Bim Saviya.
What is wrong with Bim Saviya land registration?
Bim Saviya title registration nullifies the existing land deeds in our possession. The ownership laws of our country relating to land passing from generation to generation will not be valid. People will not have any proof to prove their land rights. It is like a vehicle register. Everything is in the register – full ownership, lessees, mortgages etc. The most dangerous aspect of this Act is that no one can have rights to land unless it is included in the compulsory Bim Saviya Register. The register reflects ownership and is called the ‘Mirror Title’.
Is it true that the land owner does not have access to court once registered under Bim Saviya?
Yes, land owners are governed by Section 33 of Act 21 of 1998. According to this provision, an owners name once registered CANNOT be replaced unless with another notarized land transaction.
Let us assume A land owner forges B land owners signature and sells the land to C – B land owner will have no right to court to retrieve his land rights as C has registered the ownership with a notarised document. Once registered C has indefensible ownership and even judiciary has no right to reverse the entry in the land registry.
The only action B land owner can take is to seek compensation from the Government Assurance Fund which Bim Saviya has created as a statutory fund (but where does the Government get money to put into this fund)
The process to register deeds under title registration has started. How long will it take for the Government to register Sri Lanka’s total land of 9.5million blocks (belonging to both Govt & Private owners) into Bim Saviya Title Register?
The World Bank under Doing Business Index has given funds. But, the Government happy to accept funding has ignored the complexity of registering 9.5million plots of land and names of owners. GoSL did not do a proper financial feasibility study. The project has failed having spent $2.5m for the past 12 years registering just 600,000 plots of land of the 9.5million total.
How is the Bim Saviya Registration done?
The process starts with the FIRST REGISTRATION. This is a forced registration system where government officials comes to the owner to withdraw the deeds to draw a new plan to include names in the Bim Saviya register. This method has been rejected by legal professionals. In other countries registration takes place gradually with future subsequent transactions.
What happens to the old register?
The old registers about 200,000 in number are lying in 45 land registries. These books are in very poor condition. No Government has made arrangements to preserve the books. This is detrimental to the country as we may lose the history of our lands. No one will be able to know how Sri Lanka maintained property rights for over 2600 years.
The names of the owners are copied from the old registers. The registers were neglected for over a century, they have fraudulent transactions, pages are torn or damaged. This is very unfortunate as the electronic register is to be prepared taking what is in the Bim Saviya register. If legally unresolved lands are entered into the Bim Saviya and these details are in turn entered into the electronic register – the electronic register will have fraudulent land ownership which no one can change.
The euphoria about electronic registering of lands in Sri Lanka is like putting a cart before the horse as we have not attended to the fraudulent land aspects before entering frauds into an electronic register. The land registrar himself has said 50% of lands registered are fraudulent. If so, doesn’t it make sense to first deal with these legal cases and resolve them first?
According to MCC, the Government has the funds to complete the Bim Saviya in 35 land registries, is this possible?
MCC agreement agrees to fund 10 land registries only. The remaining 35 land registries has to be funded by the GoSL. We have taken 12 years to do just 600,000 plots out of 9.5million. If funds were available, GoSL would have finished all 45 land registries by now.
More importantly, why are we allowing a foreign country access to 10 of our land records with immunity from our legal process?
What is the legal opinion on Bim Saviya and the MCC?
There are varying legal opinions:-
The Bar Association does not approve this as stated on 5 July 2019
The present CJ was the AG who approved the draft MCC agreement
MCC agreement drafted with the consent of AG will be presented in Parliament–http://www.treasury.gov.lk/article/-/article-viewer-portlet/render/view/mcc-agreement-drafted-with-the-consent-of-ag-will-be-presented-in-parliament published 1st November 2019
MCC promises to introduce technology to land registries – how success will this be?
Data of the e-register is constantly shifted by notaries. The success of any e-register depends on their legal knowledge of the subject. If the government establishes the e-register without the participation of notaries and lawyers, it is bound to be a failure.
MCC insists on introducing Bim Saviya to operate the e-register, is this acceptable to Sri Lanka?
Certainly not. Safe property rights can be established only by following 2 basic paths.
1) Evolutionary Path – to recognize the laws & rules of the society
2) Legislative Path – over reliance on the legislative path which is a foreign path (Bim Saviya) will lead us to depend on foreign companies, foreign professionals to decide on our lands and its usage or ownership in the future. Where is our sovereignty? Even the Parliament will not have powers when international companies and powerful players lobby against the country or even decide to take the country to an international court. Who will pay for all these blunders? Not those making the decisions, but the poor tax payer. They don’t have money to pay so they may have to forsake their lands. Where do they go to in the end?
Why are foreign funding organizations forcing governments to adopt quick fix solutions without looking into long term repercussions?
The fault primarily lies in Sri Lanka not updating its administrative systems.
1. Sri Lanka’s legal education system remains archaic colonial laws
2. There is lack of knowledge, due to the absence of interaction and participation with professionals of other nations
3. When introducing new systems – extensive discussions with others are needed to look into practicalities before rolling out anything new. The e-registration system has not adopted any of the above methods
4. The globalization goals like Doing Business Index is nothing but means for a segment of people to reach higher positions by showcasing their achievements which has no benefit to the country.
Is it correct for a cash-strapped Government to go ahead with a new land and property title registry modernisation and regularisation plan with the assistance of a US firm?
How knowledgeable is Sri Lanka on E-Commerce laws?
Sri Lanka became the 1stcountry in South Asia to sign the UN Electronic Communication Convention on 6 July 2006. Sri Lanka has enacted legislation to facilitate e-commerce and electronic transactions.
Ex: Evidence Special Provisions Act 14 of 1994 / Information & Communication Act No. 27 of 2003 / Payment & Settlement Systems Act No. 28 of 2005 / Electronic Transactions Act No 19 of 2006, Payment Devices Frauds Act No. 30 o 2006 & Computer Crimes Act No 24 of 2007 were enacted to meet the challenges posed by technological evolution.
It is important that businessmen, lawyers, judges, policy makers all become familiar with these provisions and also be mind of international conventions and model laws that deal with problems related to these Acts. How many are aware of these existing acts.
What are the main dangers impacting Sri Lanka if MCC is signed?
Sri Lanka is in trouble because irresponsible introduced a foreign land law (Torrens Law – Bim Saviya) in 1998. With Bim Saviya, at least the control was in Govt hands.
The same irresponsible decision is likely to take place if US-MCC is signed where a foreign country takes over our land registries for 5 years with total diplomatic immunity. But, with MCC total control of our land will fall into foreign hands. Sri Lanka will have no control inside our own country.
The 2ndphase of bim saviya is the electronic land registry which is what MCC is agreeing to do. An owner’s name will be substituted with a 12 digit number. All this is being passed off to meet targets of World Bank Doing Business Index but what is the actual benefit to the country?
MCC has not been signed but Bim Saviya was passed in 1998 – why was there no objections to its implementation?
The Bar Association did make submissions amending which was virtually repealing the Act. The Samarasekera Committee appointed by the Ministry of Justice requested changes from the Land Ministry. But AG/Legal draftsman and Parliament passed Act without looking into these areas.
Presently foreign funding agencies are given access to change our land laws when the process should involve land lawyers and land owners who will be impacted first.
We have had one foreign law passed in 1998 (Bim Saviya) and the impact of that will not be known until entire deed system is removed and replaced with title registration and a 12 digit number. Already, corrupt government officials across the country are manipulating with land deeds for political and personal gain and systematic demographic purposes.
We have taken a loan and given our cadastral mapping to a US company for $154m when our survey department could have done the job and should have done it. The electronic register is also tasked to a foreign US company and they will have all passwords and back office powers not shared with Sri Lanka unless for an exorbitant fee. The Bim Saviya title registrations will get entered into this foreign manned registry without ascertaining the valid land owner as even fraud deeds can get entered and once entered cannot be changed. All mistakes by the foreign parties are immune from any lawsuits. All these damages to our lands and all the changes to our laws for a paltry $480m which is not given to Sri Lanka but under a US managed company to be spent over 5 years which does not say how much has so far been spent or will be spent for foreign consultants and their remunerations and their stay or travel to Sri Lanka for the purpose of rolling out MCC. But a clause in the MCC says that whatever amount requiring to complete the project has to be borne by Sri Lanka, which means Sri Lanka will be paying an unknown amount and with land privatized, how is Sri Lanka going to tax land that does not belong to the State?
Is Sri Lanka benefiting by this – its’ for readers to ponder and wonder why and in whose interest the MCC is really been signed.
Shenali D Waduge