by Kishali Pinto Jayawardene
Six months ago, Sri Lankans were unpleasantly galvanized by the spectacle of Budddhist monks led by the Chief Incumbent of the Rangiri Dambulla Vihare, Inamaluwe Sumangala Thero marching onto a mosque in Dambulla that they claimed was illegally constructed.
Gentle remonstrations byMuslim villagers with the marching protestors that they had worshipped at the mosque for decades only invoked harsh language from the marchers and the issue spiraled out of control with communalists from both sides fanning the flames.
This was despite the villagers disassociating themselves from the protestors and sober voices such as government minister Janaka Bandara Tennekoon who also hailed from the area declaring that he too was witness to the fact that this had been an old place of worship as recalled from his personal knowledge. Providentially, saner wisdom prevailed after a time and strained tempers died down to all intents and purposes with the mosque resuming its operations.
Symptoms of a much bigger problem
At that time, the problem appeared to be a seemingly innocuous issue regarding the legality or otherwise of a place of worship and was framed within the parameters of a purely religious cum legal question. But what was hidden in this chaos was another equally grave truth. In actual fact, this furore was only a symptom of a much larger problem regarding government policy in designating private lands as sacred areas and ejecting villagers without due recourse to proper legal and regulatory procedures.
This process has little regard to ethnicity or religion as seen by the plight of considerable numbers of Dambulla landowners who have been abruptly informed by the Ministry of Defence and Urban Development that their lands now belong in a ‘sacred area’ and that they should ‘kindly’ hand over possession of their properties by end of this month. In turn, they have been promised paltry amounts of compensation and vaguely promised ‘a portion of land’ elsewhere.
The terror that has struck the hearts of these villagers on receipt of such a letter by the Ministry of Defence (with the consequential question as to whether the evictions would be done by brute force if there is resistance) is palpable.
General trend of deprivation of land rights
These events should, of course, arouse no particular surprise to those well informed among us. Such developments had been taking place for quite a while in regard to lands in the North and East of Sri Lanka where the military had been utilized to take over lands from local owners and as some would remind, without even the basic promise of compensation or alternative land, however paltry that offer may be.
But what is of note to those who prefer to deny that these injustices are occurring around us, is that this pattern is not limited to the so called war affected areas of the country where convenient arguments may abound as to why the government needs to take a strict line in respect of land ownership that has been caught up in the conflict for decades and which may be contested in terms of rights of the original settlers, those who occupied the lands and those who claim ownership through legal documents.
In contrast to those complex questions, coercive patterns of land acquisitions are much clearer here.
These are private lands that have either come down through generations to their current owners or have been bought by them in clearly evidenced deeds of sale but which rights of ownership are sought to be summarily dismissed. As mentioned previously, among these affected Dambulla villagers are Tamils, Sinhalese and Muslims. In one particularly soberingly illustrative tale for the chauvinists among us, one small landowner about to be deprived of the land on which he was born and spent all his adult life is of Sinhalese ethnicity and an adopted son of Tamil parents. These state actions are pervasive and indicative of a general trend whereby basic land rights of ordinary people regardless of ethnicity are being stripped from them.
Need to form a collective rallying point
Certainly, the dire helplessness into which the Dambulla affected landowners have been cast into, is symbolic of current state policy in regard to deprivation of land rights. This is indeed unprecedented in as much as these land acquisitions target not those who are economically well off but those who are the deprived and the marginalized in the first instance, with full knowledge that few would have the resources to fight back.
Where Dambulla is concerned, in a malicious irony that cynics would appreciate, the majority of those affected are Sinhalese farmers and small time businessmen owning small and medium sized tracts of land ranging from twenty to ninety perches, most probably all of whom had voted for this government and this Presidency in the immediate past elections.
In another irony, the mosque which is exempted from this spate of proposed land acquisitions due to, in part, the public outcry that the events in April this year gave rise to, have now become a beacon of light for the Sinhalese villagers whose lands are under threat of immediate acquisition.
While there may be chuckles aplenty at this turn of events (and perhaps justifiably so) what is happening in Dambulla illustrates an extremely dangerous trend that should, along with other like instances across the country, form a collective rallying point demanding change in government policy.
Acquisitions after thirty years have lapsed
In terms of the law, it appears that more than three decades ago, an area had been designated as the ‘Dambulla Raja Maha Vihare Urban Development Area’ by the then Minister of Local Government, Housing and Construction, acting under the Town and Country Planning Ordinance No 13 of 1946. Certain lands had been gazetted as due to be acquired at that time.
However, owing to peoples’ protests, this acquisition process was not proceeded with and the so called ‘urban development area’ was limited in a manner as to affect villagers to the minimal possible extent. Relying on assurances provided by successive governments thereafter that they will not be affected, villagers had built on their lands expending their savings, some had commenced businesses and expanded their properties.
After this lapse of time, reliance on a thirty year old gazette notification to acquire lands, moreover using the highly ambiguous terminology of ‘sacred areas’ appears to be both arbitrary and unjust. The letter requesting villagers to hand over their lands does not mention the section of a relevant statute under which the action is proposed to be taken.
And even though it vaguely mentions that alternative land will be handed out, given the lack of such alternative land being actually identified, there is little faith on the part of those affected that this will indeed compensate for the abandonment of thriving businesses and cultivations. No urgent public purpose has been identified.
Designations of ‘sacred areas’
In any event, the essential question is as to whether lands could be acquired in this manner by the mere designation of an area as a ‘sacred area’? Some months ago, the Rajapaksa administration attempted to bring in an amendment to the Town and Country Planning Ordinance which would have given the relevant Minister unfettered powers to gazette an area as a ‘sacred area’ which would effectively deprive the landowners themselves of powers over such gazetted lands.
The Supreme Court, in judicial thinking similar to the Divineguma Bill, ruled that the amendment should be referred to all Provincial Councils for approval and the amendment was then withdrawn.
Unlike in the Divineguma Bill, there was no flurry on the part of the government to defy the Supreme Court and proceed with the tabling of the amendment to the Town and Country Planning Ordinance in the confident expectation that it would have the two thirds majority needed in Parliament even to override the Supreme Court ruling.
Instead, what appears to be happening is that, in the absence of clear legal provision, as the Dambulla example amply illustrates in practice, hitherto designated urban development areas are being willy nilly designated as ‘sacred areas’ and people are being asked to leave their lands in consequence thereof.
This is clearly an extremely worrying development that impacts on basic justice and fairness. In the relevant targeted areas of Dambulla, no urban development scheme has been drawn up to the knowledge of those affected. In any event, restaurants and tourist spots with free sale of liquor dot the apparently designated ‘sacred area’ at every point, thus logically raising the basic question as to how this area can reasonably be deemed to be such?
Shifting of lines of challenge
For many decades in Sri Lanka, protections against torture, enforced disappearances and extra judicial executions were the traditional challenging lines drawn before governments by citizens. Now, these lines of challenge are shifting and are becoming blurred with newer and equally ominous threats directly impacting on private land rights in a post war development process that seems to have ruthlessly thrown out justice along the way.
As in the case of impunity in respect of accountability for grave human rights violations which crosses ethnic boundaries in this country, these relatively new challenges are of common to all peoples from the North and East to the Central and other provinces, the one common factor being their absence of bargaining power with the politically powerful.
Indubitably, these are all new and potentially disastrous powder kegs waiting for their inevitable point of explosion. courtesy: The Sunday Times