By Radika Gunaratne –

Radika Gunaratne

A government’s eminent domain power is its right to take or acquire private property for “a public purpose’ on payment of just compensation. Thus, the requirement of any private property being required for a public purpose and the payment of “just compensation” operate as conditions precedent to the actual “taking’ of a private land by the government (or State).

The Land Acquisition Act of Sri Lanka confers power on the Minister to set in motion the exercise of acquiring private land for “a public purpose’ by merely declaring that by gazette notification he is empowered to state that, a private land is required for a ‘public purpose”.  The Act does not require the minister to state the public purpose for which such private land is required. The Constitution of Sri Lanka does not guarantee the right to property in explicit terms through a provision to that effect.

The absence of any legislative or constitutional provision relating to due process in the context of acquisition of privately owned property fails to address the economic impact of such a ministerial declaration (that, the land is required for a public purpose) on the owner of the affected land and the extent to which such a declaration interferes with investments on the security of his property based on his/her legitimate expectations regarding the future use of his property.

In this regard, one Supreme Court decision in Sri Lanka sought to respond to due process where a private owner’s land was sought to be acquired by the State, wherein it was held (per Justice Mark Fernando) that, where a Minister declares that, a land is required for a public purpose he must disclose what that purpose is (Manel Fernando v. Jayaratne, 2000(1) SLR 112(SC). That decision posed certain vital questions; why should not someone whose land is sought to be taken be told the purpose for which it is being taken? If he is not told how would he be in a position to demonstrate that the purpose for which it is to be taken is not viable? The said decision brought in a welcome element of ministerial accountability into the process of land acquisitions.

An ongoing study by the Law & Society Trust highlights the manner in which following the end of three decades of ethnic conflict, major scale developments with the influx of local and foreign capital in the market has speeded the urbanization of the cities and led to unprecedented development drives all over the country including in the former war affected areas. Land issues in the North and East has been identified as one of the root causes of the ethnic conflict. Post- conflict measures have impacted on property rights of affected persons along with drastically increased militarisation of the formerly war affected areas.

One of the major discernible trends in Northern and Eastern Sri Lanka is that there is no land for those who were internally displaced during the civil war to return to. Extensive tracts of land in this region were evacuated by the state during the civil war to create security buffer zones around military camps, called “High Security Zones” or HSZ’s. Although not forcibly removed, some individuals were compelled to leave their lands because of the horrors of war or due to natural disasters. On the conclusion of the civil war, claims were made for these lands to be returned to their rightful owners. However, there have been several glitches in this process and the end of civil war in this region has not meant the restoration of security of housing and livelihoods. Most of the land that was acquired then continues to remain in the hands of the state and is being used for military purposes. There have been protests against the government on the ground that there has been forcible evacuation of Tamil communities in the Northern Jaffna region.

High Security Zones (HSZ) in Sri Lanka evolved from buffer zones around military installations from the 1980s onwards. In many cases they are lacking adequate security justifications as they have no legal existence for their establishment. Sampur HZS is one of them. Throughout the Eastern province civilians are forced to vacate by verbal directives of local military that the areas are now unofficial HSZs. Therefore whether it is legal or not, housing, land and property (HLP) rights of vulnerable populations have been violated due to security concerns.

Another group that is frequently ignored but deeply affected by displacement is the Muslim population of the Northern and Eastern regions. The Muslim community in these regions were expelled en masse in 1990 by the LTTE. These people were forced to take the help of organizations such as the UNICEF and World Bank in order to survive. Muslims were not only unrepresented in the ceasefire talks, but were also excluded from political life. Today, the Muslims from Mannar district cannot return to their lands as they are either overridden by forest or are inaccessible. They largely remain displaced.

Similarly in the South and other parts of Sri Lanka, government power has been effected in order to acquire acres and acres of land for development purposes without much respect for law or individual rights of land- owners. Problems are faced by thousands of landowners whose lands are situated on the respective traces of planned expressways in Sri Lanka, the Southern Expressway, the proposed Kandy Highway, the Outer Circular Highway, the Katunayake Highway and other mega development projects such as the Mattala airport and the Hambantota port. These are problems equally faced by the majority and the minorities.  The Government has also attempted, through special laws, to take over of possession of privately owned land without having recourse to existing legislation, without a specific plan and without stating a specific purpose such as constructing a temple or the like by the mere declaration of an area of land as being a ‘Sacred Area’. These are all issues that should be the subject of through study.

There is an imperative  need  to  create  public  awareness  of  land  ownership  coupled with a fair and just state policy regarding land in  the  hope  that,  the  government  of  the  day  would  awake  and  respond  to  the  demand  that  may  follow  from  such  awareness. In the alternative, the  judiciary  in  whom  the  judicial  power  of  the  people  in whom  sovereignty  is  vested, must be required  to  respond  to these issues.

*The writer is an Attorney-at-Law