The e-register (e-LR) will be completed very soon and e-register could operate with the law of our country. The advice of the Sri Lankan lawyers has been to revise and amend the law. Sri Lanka only requires laws to maintain the integrity of the register free of fraud for the safety of the owners registered in the e-register. This will not require compulsory investigation of land ownership to the remaining 11 million blocks of land which will be a huge economic burden to the government – Pic by Shehan Gunasekara
Although the public has the right to information on the Foreign Law (Australian Torrens Law masquerading as Bim Saviya) under ‘Right to Information Act 12 of 2016’, there is very little dissemination of knowledge to the public and the lawyers with regard to this law
Parliament has enacted legislative framework for the e-register (e-LR) modelled on the Australian ‘Torrens System’ of title registration (Registration of Titles Act No. 21 of 1998, popularised as Bim Saviya/Title Registration). This has convulsive changes to our land law. The Act 21 of 1998, is more or less a copy paste version of the original statute introduced in 1858 in Australia. It does not include any of the amendments made subsequently by the Australian Government to make the e-register comprehensive compulsory and free from fraud and forgery. MCC confirms that we must follow this law.
‘One law for all’?
If the e-register is governed by the Australian law, the land rights under personal laws and other laws that permit shared interest and servitudes enjoyed by land owners mainly for agricultural purposes will not be accommodated. It is therefore the duty of patriotic and public-spirited politicians, administrators, lawyers and media leaders to vitalise the Sri Lankan law with necessary amendments specifically to prevent fraud to enable effective administration of the e-register.
The main feature of this law is that an owner registered in the e-register, under Bim Saviya has conclusive indefeasible ownership which cannot be questioned by any one or be challenged in a court of law, even if the owner received title by way of a forged deed or even if others were deprived of rights under the personal laws (Section 33 Act 21 of 1998).
Section 73 of Act 21 of 1998 expresses the superiority of the Bim Saviya law states, that the provisions of this law shall have effect notwithstanding any other law. Example if A had a servitude right to a well or plantation such rights cannot be claimed. If A’s signature is forged and A loses his right to his ownership, he has limited rights to regain his ownership.
Bim Saviya compels registration of only one owner for a block of land. The Government has commenced compulsory investigation of ownership of all owners in the country to register owners. All rights of ownership are not recognised to be registered as stated, specifically the complex ownership rights under our customary law/personal laws such as, Ande cultivation right, law of pre-emption, rights to plantation, rights to co-owned chena lands.
Samarasekera report consisting of expert lawyers appointed by President Mahinda Rajapaksa to investigate in to this law concludes that compulsory registration under Bim Saviya is an impossible task and totally unworkable. The Title Commissioner (officer appointed to register owners under the new law Bim Saviya vide 2018 report) after 20 years confirms that 1.9 million blocks could not be converted to Bim Saviya since they were governed by co-ownership rights and customary laws. The Samarasekera report also concluded that the ‘Bim Saviya law can be maintained only if the inheritance laws [Sinhalese, Tamils and Muslims] of our country are made inapplicable.’ Can this be done?
If further convincing is necessary readers are advised to read the World Bank’s ICR report it states Sri Lanka’s titling project is a failure. The project only issued titles for parcels with clear land rights and deliberately shied away from problem parcels and from helping people in the field work out their problems. As a result the project failed to improve the adjudication process. http://documents1.worldbank.org/curated/en/996161474635250504/pdf/000020051-20140617135844.pdf
This situation has caught Sri Lanka between two stools. The country has two systems of law. The vexatious old law that requires immediate revision and Bim Saviya which is economically unaffordable. This has confused and disturbed land owners including the judiciary with many court cases instituted and pending. During court proceedings, the defendants produce conclusive Bim Saviya Certificates to prove ownership, where the Title Commissioner the Government’s adjudicator had gone ahead to conclude ownership, without the knowledge of the law.
Proceeding with Bim Saviya against all legal advice
Fifteen years ago the Bar Association made amendments to Act 21 of 1998; thereafter Samarasekera report concluded that the imposition of compulsory investigation of title will create thousands of land disputes. As compulsory investigation will disturb those who live in peaceful possession.
Contrary to the legal advice given Government continued and as predicted the effort to implement Bim Saviya with a non-legal process failed. The cost of this futile exercise was exorbitant with the government having to visit all land owners making plans and adjudicating rights. For 20 years only 0.72 million blocks were registered in the Bim Saviya register out of 12 million blocks of land. With that conversion indicator it will take over 100 years to implement the law for the e-register.
What happens to the land coming under the MCC project? As per proposal (Annex 1 page 21) there would be only five million people benefitting after 20 years. What happens to the others and how long is the project?
Judicial adjudication of legal ownership rights entrusted to the administration
The post of commissioner of Title Settlement was created to mandatorily investigate ownership of all land owners converting land rights of both private and government land owners to the Bim Saviya law. The law compels the owners to forego their deeds to be exchanged to certificates. All future land transactions (such as sale and gifts, etc.) are to be made on Transaction Forms published in the Gazette 1886/58 dated 31.10.2014, the statutory forms published in the gazette. They have no provision to recite the servitude rights or other shared rights under personal laws as they cannot be included in the register.
The Bim Saviya has provision to destroy notarised land transactions and they are not returned to owners. Section 53 provides to destruction of land transactions, as the register by law has to erase the history of ownership to reflect only the owner and is therefore named as ‘Mirror Title’.
New procedure to reduce court actions under Bim Saviya Section 60 of Act 21 of 1998
Surprisingly a new alien law has come into operation called the statutory ‘Assurance Fund’. Government has to be responsible to pay compensation to owners aggrieved by registration under Bim Saviya. If the owners lose their rights under Bim Saviya; they may not get back their house or land they have lost, they can obtain compensation from the Assurance Fund. A poor substitute for the loss of their fundamental right to access court to seek redress.
The law of Bim Saviya referred to as Torrens Law had operated in Australia for over a century and the Australian Government’s ‘Assurance Fund’ has sufficient funds to compensate owners. (Victoria registry in 1981-87 made a gross profit of Au Dollars 189.5 million New South Wales of Au Dollars 249.5 million of which 50 million was gross profit as the fund is maintained with the fees collected from land owners.)
The phenomenal cost of registering land under Bim Saviya
To register land in Australia under the Torrens Law (Bim Saviya) it cost approximately AUD 180 for a land owner, as owners have to maintain the Assurance Fund. Land registry has already commenced charging fees for registration to build the Assurance Fund. Is this economically viable for a poor country? Sri Lanka Government has to find the funds to establish the Assurance Fund, as the MCC will not grant funds for the establishment of the Assurance Fund or the implementation of Bim Saviya.
USA in several states have rejected the law
Several states in USA had rejected this law as they did not agree that the fundamental rights to access court should be replaced with a law that requires a Government Assurance fund to pay compensation to owners. Throughout its 35 years of existence in USA has at most been only sporadically successful (https://core.ac.uk/download/pdf/151518291.pdf).
Sri Lanka needs to be cautious as over-reliance on funding agencies and their legal advice may not be the best way forward.
According to the MCC draft document the government has been unsuccessful in the implementation of Bim Saviya. MCC however advises to continue with the failed law Bim Saviya with amendments (The MCC Annex 1 – 34)
The suggested amendments are, ironically to re-introduce the rights that are best available under our law and the deed system. Why introduce a law alien to the country and amend the law to return to the existing law?
Other nations have made the same mistake
Sri Lanka has to learn from others’ experience. Several nations have made the mistake and are regretting. To remedy the situation they are repeatedly introducing amendments to their Torrens statutes. Their judiciaries are compelled to encounter unknown legal issues. Malaysia and Singapore have exposed the law where criminals gain land rights. The system is based on the law of Australia in the 19th century and is totally inadequate to deal with the challenges of the 21st century (https://www.accaglobal.com/hk/en/member/member/accounting-business/2019/04/in-focus/land-fraud.html).
Singapore A law which favours forgers: Land fraud in two Torrens jurisdictions (https://ink.library.smu.edu.sg/sol_research/2325/).
Why are successive governments ignoring the advice of Sri Lankan lawyers for the implementation of an effective e-register with the Sri Lankan law
The e-register (e-LR) will be completed very soon and e-register could operate with the law of our country. The advice of the Sri Lankan lawyers has been to revise and amend the law. Sri Lanka only requires laws to maintain the integrity of the register free of fraud for the safety of the owners registered in the e-register. This will not require compulsory investigation of land ownership to the remaining 11 million blocks of land which will be a huge economic burden to the government.
The expert advice from lawyers are given in:
1. Samarasekera Committee Report. A committee appointed by President Mahinda Rajapaksa has given expert advice which will not economically burden the government. They recommend to do away with compulsory conversion recommended by Bim Saviya. Concludes that it is ‘impossible task and totally unworkable’. The Law Reform Commission has also consistently opposed compulsory implementation of the law. The committee recommends that the implementation be initially voluntary.
2. The amendments to the colonial statutes by a committee appointed by the Ministry of Justice to prevent fraud (when Milinda Morogoda was the Minster)
3. Amendments to the Bim Saviya Act 21 1998 by the Bar Association
4. Reports from the Banks of Sri Lanka
If we are compelled to introduce the Australian law at least follow Australian practice
If we are compelled to proceed with Bim Saviya for the 11 million blocks remaining, having failed in the project for 20 years, the Government should not ignore to assess the period required and the cost and should not ignore the years of research made in Australia to improve the Torrens Law made, by the Australian Registrars’ National Electronic Conveyancing Council (ARNECC) and the Property Exchange Australia Ltd. (PEXA) which gives publicity and directions to lawyers and the public
It would be important to observe that Australia has recently recognised the customary laws of the people.
Customary rights were recognised recently on 3 June 1992. High Court of Australia ruled that the lands of this continent were not terra nullius or ‘land belonging to no-one’ when European settlement occurred, and that the people were ‘entitled to their customary rights possession, occupation, use and enjoyment of the lands ‘Mabo v. Queensland’.
(The article is written by a senior lawyer in a paper submitted to the Sri Lanka Study Circle [email@example.com].)