Friday Forum on NE land allocation

Friday Forum position paper/discussion draft for public debate

The Friday Forum published a statement some time ago expressing its concerns on evictions of low-income urban communities under schemes to develop Colombo as an attractive metropolitan city in Asia.

A document signed by the Land Commissioner General (Circular No. 2011/04/ of 22 July 2011) on ‘Regulating the Activities Regarding Management of Lands in the Northern and Eastern Provinces’ underlines once again the importance of ensuring that property claims and access to land and housing in communities are accommodated with equity and fairness when prioritising national development and ensuring productive use of land in the public interest.

This is important when Government development policies are formulated, and also purport to deal with claims of people in respect of both State land and private lands in the conflict affected areas of the north and east.

Access to land in the north and the east has been one of the most controversial and politically sensitive issues in Sri Lanka. Yet this complex subject is now being dealt with in an ad hoc single Government circular of the Land Commissioner General based on cabinet approval of a policy formulated by the Ministry of Lands and Land Development, relating to ‘resolving land disputes in the Northern and Eastern Provinces consequent to the conflict’.

The circular purports to give instructions to Government officials in regard to management of State lands and obtain information on claims of private ownership where no documents are available.

This country has well-established laws on the management of State lands and clear principles on ownership and entitlement to private lands. The document does not indicate why a new policy has been developed outside of the accepted legal framework.

1. The Policy Framework of the Circular

The process of alienating State lands (presumably under the existing Acts) is to be suspended temporarily except if lands are required for:

(i) purposes of national security

(ii)    for special development projects of the State    

Priority is to be given to returning State lands to people displaced or expelled from the conflict areas if they had been resident on their lands before displacement. Persons who had encroached on State land prior to a given date in 1995 are also to be treated in the same way if they had continued to reside in their properties. any distribution of land by “the terrorist organisation” cancelling earlier State land grants is to be treated as illegal.

However the circular mentions that other types of claims of ownership in respect     of “land illegally occupied” will be considered by the committee established to investigate claims. It is not clear what is meant by illegal occupation in other situations and whether this covers both State lands and private lands.

These key elements of the policy raise important issues. Are “lands required for national security” areas which will continue to be designated “High Security Zones,” encouraging a permanent military presence in them? Is such a proposal consistent with commitments to normalisation and establishment of civilian government in these areas?

Of particular importance is the preferential treatment of persons evicted because of the conflict situation, and the exclusion of those who received land from the LTTE, in the procedures for confirming title to lands. It is not at all clear how the latter will be treated when they are displaced from the lands they are occupying.

The Circular indicates that “instructions in this regard will be issued later.” Will these displaced persons be considered as a vulnerable group, to be provided for in the allocation of new lands? Or will the policy create another category of displaced persons from the conflict-affected areas reinforcing feelings of exclusion and discrimination and placing at risk other initiatives on reconciliation and peace building.

2. Damage or destruction of documents

The Circular provides for the procedure to be followed by the Divisional Secretary or Assistant Government Agent – central government officials – in cases where documents have been damaged or destroyed.

There is provision for accepting certain types of documents even though they are not recorded with the official land ownership documenting agencies. When no documents are available at all, the procedure regarding making applications outlined below has to be followed.

3. Protecting and clarifying rights where there are no documents

The Circular establishes a public administration procedure for achieving clarity in land title, an area that has been left to the familiar dispute resolution systems – the courts or regular tribunals. Under the new Circular wide powers are to be exercised by the Divisional Secretary and Assistant Government Agent – public servants of the Central government.

The Provincial Land Commissioner and his staff become merely a conduit for receiving information/documents and following up on the action that is authorised by the Central government officials. It is not clear whether the procedures conform to the provisions of the Constitution which place land within the list of devolved subjects.

All land owners whether grantees of State land or owners of private land who do not have documents to support their claims are required to complete ownership application forms. These too must be submitted to the central government officials.

The procedure is described as an aspect of the general initiative to register ownership of lands under the Title Registration Act. The circular does not indicate how claims to private lands and undisputed claims to State lands will be dealt with where there is no documentation. It appears that instructions with regard to these lands will be issued later.

4. Procedure for investigating and determining claims to State lands

Determination of claims will be the responsibility of several “Committees of Inquiry.” A “first” Committee of Inquiry will be chaired by and include central government officials. (Divisional Secretary is mentioned – is he/she a provincial authority?)

This Committee will have a member of the armed forces – the area Civil Co-ordinating Officer. The first Committee will conduct an inquiry and “prepare a preliminary selection list.” This list must be certified by an “Observation Committee” – which the Circular claims is formed to ensure that actions of the first Committee of Inquiry are taken in a transparent manner.

This Observation Committee is appointed by the Divisional Secretary and must have at least two or more members of the Civil Committee formed by the Sri Lanka Police or by the three armed forces. A Conciliator, “a person held in high esteem by the people as an impartial person” must serve on the Observation Committee. The choice of this person appears to be an official rather than a community decision.

The preliminary list of owners has to be submitted to and approved by a Divisional Co-ordination Committee and these lists will be published. (What is the Divisional Co-ordination Committee? It is not clear from the Circular.)

A second committee of inquiry will hear appeals and objections into the preliminary selection made by the first committee and they will give a final decision. This committee too will consist of high level central government officials (District Secretary/Government Agent), Provincial Land Commissioner and Deputy Land Commissioner, and representatives of relevant Security Commander – Committee Member (area Civil Co-ordinating Officer).

The Observation Committee will also assist this Committee. Any “knotty problems” for which the Committee has no solutions will be resolved by a process of mediation in the case of State land, (Special Mediation Boards) and a process of arbitration to be finalised later.

An “annual permit” will be issued in respect of claims to State land that are accepted and this will be made permanent after one year. Instructions in this regard are to be issued later.

This procedure is different to that adopted under present legislation regulating distribution of State lands, and also empowers bureaucratic decision making with the participation of the military. It involves the introduction of a new system of land distribution with strong military involvement.

It is not clear whether the government officials concerned and army officers have the expertise and capacity to determine complex issues of land rights, ownership and access to land, and that decision making will be free of political bias of what seems a very centralised system of decision making. The involvement of the army in what is essentially an aspect of civil governance is a serious matter of concern.

5. Private land ownership in conflict affected areas of the north and east

Transactions in regard to land, according to private law have to be executed by notarial deeds which may or may not be registered. Title is therefore dependent on deeds, and documents such as wills, and court orders on proof of wills.

People in the north and east may have lost documents or have no notarial deeds. Their title and claims to private lands may be based on informal arrangements or written documents that are not legal. Title may also have passed according to complicated rules of inheritance under the local personal law, Tesawalamai (in the Northern Province), or Mukkuwa customary practices in the Eastern Province. People may not have death certificates of deceased kin, or may be unwilling to obtain death certificates for missing family members who, they hope will return.

The Circular merely requires persons claiming private ownership to make applications, like claimants of State land, to the relevant “first Committee.” The procedures to be followed are to be clarified later. It is not clear why they have been required to make applications in respect of their lands at this time. The complex nature of private land ownership claims suggest that the bureaucratic procedures outlined in the current circular, will be more problematic if applied in these cases.

An important aspect of private land ownership is the principle of prescription. This principle enables a person who is in de facto possession of land to claim ownership after 10 years of undisturbed and uninterrupted possession held against (adverse to) the interests of the owner with paper title. The period can be postponed in the case of certain situations such as the status of childhood (minority) or absence overseas.

These circumstances are considered disabilities that prevent claims for acquiring title by prescription. The exceptions do not cover situations of internal armed conflict. Consequently there may be persons who may claim prescriptive title on the basis of possession for over 10 years.

Prescriptive title based on 10-year ownership is not dependent on the possession of a deed, though people sometimes register a deed of declaration setting out their prescriptive claims. Fraudulent deeds may also have been registered due to corruption of lawyers as well as officials.

All these issues will have to be addressed in dealing with claims to private ownership of land in the north and east. It is not clear whether these complex issues too will be dealt with according to these new ad hoc bureaucratic procedures. Since the officials are required to await further instructions regarding these claims, there is a serious risk that these matters too will be decided through new bureaucratic procedures, rather than the usual fora – courts of law.