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By Senior Lawyer
It was heartening to see the Deputy Survey General’s advice given in the Daily Mirror. He says the new law is that “originals will be of no value, but I strongly recommend that owners retain the original deeds, extracts and certified copies of their deeds” http://www.dailymirror.lk/breaking_news/District-Bim-Saviya-offices-asked-to-report-issues-to-main-office/108-189216.
Deeds – Should we get rid of them?
This is crucial advice to all land owners and lawyers, as the owners need documents to establish their rights in a court of law. The law of foreign origin applicable to the e register; it says original documents of ownership will be of no value.
The foreign law is referred to as Bim Saviya, this law annuls the fundamental right of a citizen to access court, if affected by fraud. The absence of deeds and paper documents is the main feature in the e register. Act 21 of 1998 (Bim Saviya) in section 53 has statutory provision to destroy notarised conveyancing documents submitted to the land registry (notarised sales, gifts, mortgage, bonds, etc.) without returning them to owners.
Questions often asked, will these laws reduce poverty? Or will they be beneficial to fraudsters to steal land from the poor? Is Sri Lanka prepared overnight to introduce laws and electronic systems developed in nations that have sped in the last three decades with law reforms to sustain the system and the integrity of the registry? It must be remembered unlike in other countries, we have not revised the old register. Names of owners are entered in the e register from the old register that dates back to 1864. The pages are badly damaged and according to the registrar, 50% of the entries are fraudulent entries.
Torrens law referred to as Bim Saviya governs the e register
This is how the Torrens law practiced in developed nations, which we refer to as Bim Saviya, found its way to govern the e register. Sri Lanka is not alone, the conversion to Torrens law is happening in several countries, especially in Commonwealth nations, the vacuum left by the British colonialists tentatively filled by global organisations such as the World Bank.
With aid programs, laws working well in other nations and in operation for over 100 years are haphazardly introduced to our countries repealing the laws practiced for over 100 years as a ‘one fit for all solution’.
It is therefore evident that Sri Lanka has sufficient literature to follow as judicial interpretation of the law has commenced in many countries where victims of fraud are demanding their lands to be returned. A day will arrive when the Judiciary will be called upon to interpret the Torrens law which we conveniently refer to as Bim Saviya (which itself is a misnomer). Until then the advice given by the Deputy Surveyor General is important as the owners need documents to establish land rights in a court of law.
Remedy for fraud victims: Government promises to pay compensation
The public in the meantime looks on in horror at the development of land law in this manner without publicity, where rights acquired under forged deeds could be justified under Bim Saviya subject to Section 59 of Act 21 of 1998.
Section 60 of the Act 21 of 1998 provides the remedy available to land owners who are affected by fraud. That is to obtain compensation from the Government for the loss of rights. The Government has set up a fund to compensate owners called the Assurance Fund.
Has this important matter ever been discussed in Parliament? Has the Government considered whether it has funds to reimburse a sum equivalent to the value of land to owners?
The much-hyped globalisation agenda, tales of liberal free markets and logic of mercenary economists make us believe the false story that poverty will end with the introduction of Western laws and technology with Western design. It is proved beyond doubt that this argument is fake, as the foreign law Bim Saviya was introduced 20 years ago and has made us indeed more indebted with increase in levels of poverty not only economically but also in terms of resources and services.
It is also worthwhile to note the lamentation of Government officials who are vexed by the operation of Bim Saviya. The officer in charge of Bim Saviya in his 2017 report states as follows: “Only 1.1 million of land parcels of 12 million land parcels in Sri Lanka have been surveyed even after 19 years to operate Bim Saviya. How pragmatic is it to supervise 9.5 million blocks of land and manage an islandwide office system for Bim Saviya? I believe this is time to probe into the performance of Bim Saviya, the current Act 21 of 1998.” (https://www.parliament.lk/uploads/documents/paperspresented/performance-report-land-title-settlement-department-2018.pdf)
E register and Bim Saviya to be administered with legal immunity according to MCC
Despite the 20-year period of failure and opposition to Bim Saviya by the people and the Bar Association, successive governments have been lulled into extending the law to the e register which will be funded by the MCC. The Government’s intention is clearly stated in the MCC, they will follow designs by the World Bank, USAID, US Embassy and US actors. What about the local designs?
According to the MCC the e registry project and Bim Saviya is to be handed over to a private company called the ‘Agent of the Government’ named MCC Ltd. for a period of five years. The company and the US officials engaged in the land project in 10 land registries will be granted legal immunity and will not be responsible for any crimes of omissions, crimes of commissions or any crimes committed by them (please see section 6.8 of the MCC on the internet).
Public ask many questions as their basic rights to access court is no more
E register requires protection from fraud and forgery. The introduction of owner identification laws practiced internationally are biometric block chain method to detect owners. The latest method to protect owners in an e register is the block chain solution. A block chain can be described as a data file with a collection of digital fingerprints with the names of former owners.
The Government must achieve goals through pragmatic approaches, studying and consulting local experts. Local research and advice contained in 1] Amendments to the Act 21 of 1998 by the Bar Association, 2] Samarasekera Report , a report made on the advice of the President, and 3] Ordinance No. 3 of 1907 specifically designed for land title registration which can be used for e register.
References
The writer can be reached via email srilankastudy circle @yahoo.com
