Is Sri Lanka’s Parliament Protecting Sri Lanka’s Land Sovereignty?

With regard to LAND there are critical factors Sri Lanka cannot afford to ignore any longer. We are into 72 years of ‘independence’ but still following colonial statutes and it is nothing we can be too proud about. It is essential to realize that these colonial statutes were drawn up by colonial invaders to suit their administration under which our natives were subservient. True, we gained adult suffrage and education but that too had ulterior motives in developing brown sahibs to continue colonial rule in new colonial form. Nonetheless, for a country to proudly stand up for sovereignty and territorial integrity, it must essential draft its own laws and regulations to suit its governance while of course conforming to ‘international standards’ but keeping national sovereignty respected by all & in tact. It is not simply a reversal or opposite of colonial laws that is required but reforming the laws to suit natives in their present living conditions.

Having understood the gist of this let us first look at the problems in hand

1. Existing Colonial Statutes & Preservation of Land Registry Post independence?

Sri Lanka is still maintaining the 1863 land registry. It is now broken into 45 land registries which cover 9.5million blocks of Sri Lanka’s land area (State & Private) and scattered in different state buildings. Are these books in good condition? Have they got damaged? Is there a national policy that demands their maintenance?

These 45 land registry books are 156 years old. How many have thought of their wear & tear and need to preserve them or to ensure that they are not harmed? Have successive governments taken action to ensure every land registry is prevented from damage and harm and most importantly kept secured? None of these land registries have been completely digitalized. Imagine the state they are in.

However, there is the reconstruction statute and this provision must be used.

• Foreigners doing Sri Lanka’s Land Research/Reports & Recommendations

World Bank & USAID have done more reports on Sri Lanka’s land than Sri Lanka has tasked its academics, students and ministry departments. It is based on their research and recommendations that funding is being requested by Sri Lanka or given. $5million was given by World Bank to digitalize Sri Lanka’s land deeds. Simply giving money is insufficient even World Bank concluded in its own 2001 report which deemed Sri Lanka not ready for digitalization. World Bank gave 15 to 25 years for Sri Lanka to increase tenure security for farmers and land holders, enable efficient land transactions, recover cost over long-term and land administration to be without political, social class or ethnic based. 20 years has passed and none of these objectives have been fulfilled.

This same 2001 World Bank report said the GOSL (RanilW’s Govt) now wants to transform the country’s land administration system from one based on deeds and documents permitting private use of State land to one based on registration of titles” (the 1998 Govt via Bim Saviya began to change deeds to titles and then the 2001 Govt wanted to change deeds to titles with no definition of private which could mean foreign private too)

While we appreciate the efforts of World Bank & USAID to research and publish reports on land in Sri Lanka we must also be mindful of the recommendations that come with the carrot of funding. Why does World Bank want to lift the land market restrictions? Is it to convert our agricultural land to grow some other crop. Sri Lanka has about 1m titles that restrict what can be done with land – why did the UNP Govt and World Bank wish to remove these restrictions and their studies showed that by amending articles in the Land Development Ordinance of 1935 they could do so. The World Bank Reports are well researched and seem to have even identified all the restrictions (State Land Ordinance 1949, Land Reform Law 1972, Land Grants (special provisions) 1979.

Recommendations for improvements to land law in Sri Lanka is based on foreign reports & by foreign research teams and recommendations are by foreigners on what they deem suitable for Sri Lanka. Will foreign recommended laws implemented secure and protect our intellectual property rights?

• Haphazard Decisions based on foreign funding – Changing entire law of the country?

BIM SAVIYA (transferring from Deed Registration to Title Registration)

Australian ‘Torrens System’ of title registration – Registration of Titles Act No. 21 of 1998, known as Bim Saviya which requires compulsory title registration.

In 1998 a sudden change in land took place probably due to funding associated with the proposal that changed Sri Lanka’s land law from deed system to title system. Whose decision was it to bring another foreign law into the colonial laws we were already complying with without much change?

How many are aware that this Act 21 of 1998 has taken away the rights of the Judiciary to adjudicate land frauds and the rights of the people to seek justice for land issues. In lieu of the judiciary a new title Commissioner of Title is created to adjudicate 9.5million blocks of land!

However, the Registrar of Lands says that 50% of Sri Lanka’s land deeds are fraudulent – in such a scenario without resolving this 50% of land cases via courts how correct is it to include fraudulent deeds into electronic form – denying the original owner the right to claim his/her land?

Let’s not forget the Empire State Building in US was ‘sold’ for $2b by a ‘Willie Sutton’ and deed was registered within 90minutes in US electronic register. The registration could be reversed because it was the Empire State Building but will the same happen to others?

Were the lawyers aware that the law of co-ownership and the law of prescription was removed at the Bill stage of Act 21 of 1998?

Have those who introduced Bim Saviya in 1998 thought about the consequences of taken away people’s deeds, where to store them, aspects of hacking and cyber crime when digitalizing records (no system is foul proof) at least with physical records, there are ways to make duplicate copies and keep for owners.

Section 33 of the Act judiciary is given no power to hear cases related to land ownership especially if the grantees ownership is affected by fraud. The grantee will have to seek compensation in lieu of his ownership. The judiciary cannot question the entries in the registry made by the Registrar General.

Under Act 21 a grantee under the new bill could not pass half share of the land  to his or her spouse or child to be a co-owner.

The banks cannot give them loans if the wife becomes a co-owner.  How can he obtain bank loans if a salaried family member was not joined as a co-owner

Given the context of land issues and its association with colonial land statutes how far have successive governments spent on remedying the irregularities and bringing laws and outdated statutes to suit and conform with Sri Lanka’s laws as well as its Constitution?

ONLY Relief we have is the 7 day window to file FR in Supreme Court. Can lawyers afford to rely on the 7 days to study statutes & file complaint? Are the foreign lawyers not taking advantage of this?

• Digitalizing Sri Lanka’s deeds & Land Registry

Digitalizing means reducing physical land registry. Ideally, it is good to have one large building to house all of the 45 land registries and the computer systems with the electronic land deeds with local technical and computer experts. In any emergency the referral option is available.

The Sri Lanka Survey Dept has developed a Land Information System & put each block of land into a 12 digit system.

Without passing the Land Bank Act which was part of the MCC pre-condition, a US outsourced company is now doing cadastral mapping across Sri Lanka. Why has it not been given to the Sri Lankan Survey Dept to do?

According to former Survey General who had been working for the department since 1978 – Rs.5000million had been spent from 2007 to 2018 ($28m)

In 2007 World Bank had given $5m to digitalize deeds

Sadly, only 200,000 of the 9.5m blocks of land has been digitalized from 1998-2019 into 10 land registries. So in 20 years we have digitalized only 200,000 blocks of land for the $5million given by World Bank excluding the maintenance & other costs.

Clearly, $67m allocation for land project by MCC is not enough.

MCC will have to wait 300 years in Sri Lanka to digitalize 9.5million blocks of land!

For any GPS, paperless digital translation to search land title with 12 digit unique number the first requirement is to ensure the Registry has the legal owners. What we have is a set of new systems which are half in operation without first addressing the most important element – who are the legal land owners and register them first to the computerized land registry. What good is a land registration system if we have not first addressed land identification issues?

• Is Sri Lanka ready to digitalize land registry & deeds?

The most important part of the 2001 World Bank project was that World Bank identified Sri Lanka was NOT READY for any type of digitalization. The key issues are important for the team presently studying ONLY the MCC Agreement without looking at the larger and more critical land related issues the policy makers are ignoring.

World Bank says Sri Lanka is NOT READY for any type of digitalization because

1. Land settlement dept staff lacks skills in adjudication
2. Organizational framework for title registries is not efficient, effective or sustainable
3. No published results, workshops or stakeholder discussions have reviewed progress of ongoing titling activities
4. Little coordination between survey & adjudication staff is wasting govt budgets
5. 50% cases incomplete
6. coverage limited to rural areas
7. large-scale financing of systematic titling unlikely
8. lack of modern and efficient survey & information technology in titling
9. absence in involving private sector to supplement government capacity to speed up titling registration
10. no motivation to carry out continuing land related policy reform dialogue
11. human resource development essential for efficient long-term land titling program not addressed

Going Forward

There are millions of books in the land registry which are over 200 years old which nedd to be scanned for digitalization and archiving. What Sri Lanka lacks and what Sri Lanka’s government must invest in are digital engineers and train Sri Lankan citizens instead of having to outsource a nationally-important activity to foreigners – that too for an exorbitant payment often increasing if the terms and conditions are not finalized properly. External contractors shrewdly quote for a feature often hiding other required complimentary future features which are undertaken only if another fee is paid. If not, that project ends up gathering dust with only part work done. New features to be inserted over time have to be given to the same outsourced company as they keep all the passwords and back office access features.

Sadly, it has been foreign-funded international bodies who have been studying Sri Lanka’s land laws and customary practices and prepared extensive reports. World Bank and USAID have studied all of Sri Lanka’s land statutes. Have Sri Lanka’s land and legal fraternity as well as academia done the same and has successive governments funded these initiatives that should have been done locally.

World Bank & USAID spent time and money on reports but have been disappointed with the progress & have abandoned the recommendations. Ironically, it is making use of these misgivings that the MCC project team are now attempting to manipulate to their country’s geopolitical and trade advantage. MCC wants control over 11 land registries? Why? If MCC a US government body takes over these land registries & digitalizes them, only they are privy to the laws and back office. Sri Lanka will have no access without MCC approvals. Any government should regard this aspect a national security threat & risk. Land is the essence of a country’s sovereignty.

Mrs. Kirtimala Gunasekera suggested Sri Lanka adopts systems similar to India & Malaysia

• biometric identification similar to the Bhoomi Project in India where 20m records of land ownership of 6.7m farmers in a state was computerized (with anti-hacking system)
• Electronic land administration system in Malaysia is called e-Tanah – where land registry has a security system to prevent land fraud via thumb impression plus signature.

Saving Sri Lankas’ Land from impulsive legislative changes prompted by foreign funds is what Sri Lanka needs to be mindful of.