By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena -

This week, the country-wide acquiring of lands by the State in pursuit of its militarization cum post-war tourism goals came starkly into focus when journalists trying to take photographs of civilian homes reportedly being demolished in Valikamam North were (allegedly) threatened.

There are limits to our credulity

Amusingly, the Sri Lanka Army had insisted on using the example of lands acquired for the Southern Expressway as a fitting illustration to explain as to why they are acquiring land in the Northern Province ‘to meet security requirements.’ As per Army spokesman Brigadier Ruwan Wanigasuriya’s explanations, “when the Southern expressway was constructed, land owned by civilians was acquired legally. The same thing applies here. Land that has been acquired legally is being developed to meet security requirements” (Colombo Gazette, October 29^th 2013).

Disingenuously, it had also been said that ‘photographs cannot be taken of army camps and installations for security reasons.’ While this may be true of actually constructed camps and security buildings, surely can that same rationale be applied to bare lands from which residents are being evicted allegedly for ‘security requirements’? There is a limit surely to which we can be taken as fools.

Southern land acquisitions were different 

And the Army needs to be educated when it refers to comparative examples in support of the positions that it takes, at least for consistency’s sake. The process of land acquisitions in regard to the construction of the Southern Expressway cannot, in any sense, be compared with the ongoing practice of land acquisitions by this Government not only in the North but in other parts of the country as well.

This was well seen when Sinhala, Muslim and Tamil villagers in Dambulla were sent letters last year under the hand of the Secretary, Ministry of Defence asking them to quit their lands due to the declaring of a purported ‘sacred area’ in that city. A tad hilariously, the Minister of Lands (whose constituents also hail from that same area) came on record stating that the matter was out of his hands and that there was nothing that he could do about this. During past months, villagers in the Dambulla town had been agitating that the land on which they had resided for generations were marked to be arbitrarily taken away from them. Their pleas are not likely to be listened to.

The Southern expressway land acquisitions cannot be cited in support of such arbitrary patterns of land acquisitions under the Rajapaksa Presidency in any way. In the first instance, the funders of that expressway were careful in putting into place a well structured system of compensation where land owners who were aggrieved had a tier of appeal committees to take their complaints to when unfair and arbitrary compensation was paid. Even with that, government actions in acquiring land without payment of a single rupee of compensation was manifested.

Judicial conditions laid down

These acquisitions were therefore legally challenged where the Supreme Court stressed the application of the ‘public trust’ doctrine to all land acquisitions. This means in short that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes for which they have been conferred. Their exercise is subject to judicial review by reference to those purposes.

Therefore executive power is also necessarily subject to fundamental rights review in general, and to Article 12(1) of the Constitution in particular, which guarantees equality before the law and the equal protection of the law. The “protection of the law” would include the right to notice and to be heard. Administrative acts and decisions contrary to the “public trust” doctrine and/or violative of fundamental rights would be in excess or abuse of power, and therefore void or voidable.

In that instance, the judges determined that landowners had not been given adequate notice and had not been heard and that the public trust doctrine had been violated. They were given compensation for the violation of their rights and ensured a separate right to a fair compensation package for the acquisition of their lands.

Extra-legal actions must be admitted

The question is very simple therefore. In the case of the Valikamam landowners or, for that matter, in the case of the Dambulla villagers, were these stipulations laid down for the protections of rights of land owners, observed?

Moreover though judicial authority in Sri Lanka is perhaps not uniform on this point, surely is it not a basic condition that when the land of an individual is sought to be acquired, the precise requirement or the so-called public purpose for which it is sought to be used by the State must be made clear. A vague ground of ‘meeting security requirements’ will not do.

Months ago, a public officer from the South spluttered dissatisfaction to me over the acquisition by the Government of land on the basis that a hospital was going to be built. He found out some time later, that a luxury hotel was being constructed on that land, taken over for literal peanuts from its owner, a small time businessman who was too scared of the authorities to engage in any protests. Where is the justice in this, one might ask? These are concerns that must be kept well in mind as much as we may speed to our destinations on newly gleaming expressways.  So North, East, South or Central, when the Army spokesman says that the land acquisitions that they are resorting to are ‘legal’ he must know the meaning of that word. Or he must not use the term ‘legal’ but say frankly that what is being done is far from being legal.

This kind of honesty may indeed be more palatable given the atrocities that are committed in the name of law and order.