By A Senior Lawyer
(The writer is attached to the Sri Lanka Study Circle)
I refer to the article appearing in the Daily FT on 22 October titled ‘History repeating – Are we going to lose MCC or not?’ by an international development expert.
It is understandable if a non-lawyer does not understand the legal packages included in the MCC to change the land policy of the country and to change the land law of the country to the Australian law to suit the expansion of large-scale industrial farming complex
The Australian law is known as Torrens law or Title registration. The law which took away the rights of the indigenous people of Australia in 1858, where farming and grazing lands were often used and managed communally under customary laws.
Sri Lanka has given a Sinhala name, ‘Bim Saviya,’ to the law, curiously repeated in the MCC. This is a misnomer as this law makes lands untenable for owners, especially farmers, and accessible for sale and mortgage with the elimination of traditional land rights that have existed in the country for 100 years.
Sri Lankan lawyers ignored at inception
The MCC was created after the Government coordinated with the MCC of USA in partnership with the Harvard University’s Centre for Information International Development to introduce a document known as the Sri Lanka Constraints Analysis Report.
During the compact development process efforts were made by the Government to keep the US Embassy, USAID, and other US Government Actors updated on the land interventions under consideration according to the MCC Annex 1-33. It is unpardonable that efforts were not made to keep the brilliant land lawyers and the Sri Lankan actors updated on the land intervention.
They researched and published the following that provided solutions for the functioning of an efficient land market:
1) Amendments to the Bim Saviya Act 21, 1998 by the Bar Association;
2) Samarasekera Committee Report. A committee appointed by President Mahinda Rajapaksa. They concluded that it was an impossible task to forcibly register land under Bim Saviya and this was totally unworkable. The Law Reform Commission has also consistently opposed compulsory implementation of the foreign law;
3) The amendments to the colonial statutes by a committee appointed by the Ministry of Justice to prevent fraud [when Milinda Morogoda was the Minister];
4) Reports from the banks of Sri Lanka by legal officers who are experts in land ownership laws.
The three legal packages included in the MCC Land Project
The first legal package: MCC directs to implement Bim Saviya the Australian law, which the Government failed to implement for the past 20 years. MCC has offered to manage it for five years according to Annex 1 – page 30 and Annex 1—page 31.
MCC of USA and the Harvard University’s Centre for Information International Development; were they not aware; that the implementation of Bim Saviya attempted by the Government failed for 20 years, because they could not register the ownership rights of the poor traditional farmers. Is it correct to exclude from the e register rights of owners essential for paddy cultivation and small farming such as cultivation rights of paddy lands, co-ownership rights, right of pre-emption and rights to waterways. The Bim Saviya law even eliminates all the inheritance laws of the Sinhalese, Tamils and the Muslims according to the Samarasekera Committee report.
Failure of Bim Saviya was also due to the period required to implement Bim Saviya which was estimated to be over 100 years, according to the Performance Report of 2018 issued by the Government. (https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pd.)
Although the Government had consented to the MCC, according to the World Bank’s ICR report, Sri Lanka’s titling project Bim Saviya was a failure as the laws of the country do not fit into the legal framework of Australia that does not recognise rights of our local farmers. (http://documents1.worldbank.org/curated/en/996161474635250504/pdf/000020051-20140617135844.pdf)
The second legal package includes a strict order, that is Government lands must be privatised and be governed by the Title Registration Law, another name for Bim Saviya before signing the MCC. This is for the poor to obtain bank loans. All who support the MCC should refer the books authored by Justice A.R.B. Amerasinghe and Justice Weeramantry to realise the untruth. In Sri Lanka, it is common knowledge that the banks are not interested in ‘ownership deeds,’ banks are interested in the loan applicants’ financial statements, to determine whether they are credit worthy. The banks grant loans for lease hold interest of Government land. The third legal package [Section 3—9 and Annex 1—29] MCC to attend to the preparation of the e register under the law of Bim Saviya. This is presently not necessary as the e-register (e-LR) is almost completed and can be operated without changing to a foreign law, according to the Electronic Transaction Act 19 of 2006 based on the standards established by United Nations Commission on International Trade Law (UNCITRAL), which specifies that deeds are required (Bim Saviya takes away deeds).
Gift of 67 million costs millions more
The Bim Saviya introduces a massive economic burden to the Government. The Government has to set up an ‘Assurance Fund’ to provide monetary compensation to land owners in lieu of judicial remedies as the law repeals the rights of land owners to access court. Can the funding agencies compel nations to reduce their judicial authority?
The E-register is almost complete. Do we need funding from the MCC to introduce a law that will be an economic burden to the Government, to introduce a foreign law which takes a period of 100 years to be implemented or have only five million beneficiaries as given in the MCC for a period of 20 years [MCC Annex 1—20]? I am sure the President and Prime Minster will look into this matter.
Present parliamentarians and Sri Lankans may not be aware that changes to our land law were pushed by the World Bank as far back from 1960s. However, thanks to our legal luminaries like Justice A.R.B. Amerasinghe and erudite and honest politicians like T.B. Ilangaratne, the President of the Law Society, Governor of the Central Bank William Tenekoon, these intentions never translated to realities. They provided local solutions for a functioning land market where the poor could get loans from banks. Their esteemed collaboration to prevent the Australian law is given in Justice Amerasinghe’s book ‘Title Insurance’.