{"id":112645,"date":"2013-11-01T01:54:06","date_gmt":"2013-10-31T20:24:06","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=112645"},"modified":"2013-11-05T13:07:05","modified_gmt":"2013-11-05T07:37:05","slug":"not-this-good-earth-land-rights-displaced-persons-and-the-law-in-sri-lanka","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/not-this-good-earth-land-rights-displaced-persons-and-the-law-in-sri-lanka\/","title":{"rendered":"Not This Good Earth; Land Rights, Displaced Persons And The Law In Sri Lanka"},"content":{"rendered":"

By\u00a0Kishali Pinto-Jayawardena<\/a><\/span>,\u00a0<\/strong>Jayantha de Almeida Guneratne & Radika Guneratne<\/strong><\/p>\n

Published September 30th<\/sup> 2013, Law & Society Trust, Colombo<\/strong><\/p>\n

Excerpts from the Executive Summary and Introduction<\/strong><\/p>\n

An\u00a0 extra \u2013 legal\u00a0\u00a0 parallel\u00a0 regime\u00a0 that\u00a0 is\u00a0 in\u00a0 operation reveal the manner in which,\u00a0 on\u00a0 the presentation\u00a0 of\u00a0 bogus\u00a0 deeds coupled with brute force,\u00a0 owners\u00a0 of\u00a0 land\u00a0 possessing\u00a0 prima\u00a0 facie\u00a0 valid\u00a0 deeds\u00a0 are\u00a0 being\u00a0 told\u00a0 to\u00a0 vacate\u00a0 on the\u00a0 strength\u00a0 of\u00a0 such\u00a0 bogus\u00a0 deeds,\u00a0 and\u00a0 ad\u00a0 nauseam.<\/em> <\/em>\u00a0\u00a0This plight is being particularly faced by Tamil and Muslim citizens due to the militarization of the North and East in the post-war years. Those who\u00a0 had\u00a0 been\u00a0 compelled\u00a0 to\u00a0 vacate\u00a0 their\u00a0 lands\u00a0 during\u00a0 the\u00a0 war\u00a0 are\u00a0 now\u00a0 faced\u00a0 with\u00a0 frauds\u00a0 that are\u00a0 perpetrated\u00a0 on\u00a0 them by persons possessing political influence and power. In the Southern regions meanwhile, the poor and marginalized Sinhalese citizenry is pitted against the might of a pronounced State policy centered on the acquiring of private properties citing an urgent public purpose and in many cases, selling them to private companies thereafter for hotel development.<\/em><\/p>\n

Possessing rights to land is an indicator which demonstrates an individual\u2019s socio-economic, political, cultural and ethnical identity, signifying an emotive and highly symbolic value in respect of the construction of that identity. Post-war Sri Lanka has seen major scale development with the influx of local and foreign capital, particularly in the former war affected areas. Yet political motivations compelling acquisitions\/evictions have led to tensions within communities. A careful analysis of the Sri Lankan experience clearly demonstrates a pattern where regardless of the law, government power is increasingly being used in order to acquire land for development purposes or (as in the North and East) in the context of militarisation. High Security Zones and forced acquisition by the military continues to be a pertinent concern in the North and East, years after the ending of war. [1]<\/a><\/p>\n

The absence of transparency in the functioning of state organs in regard to acquisition\/eviction procedures has resulted in the process becoming less participative and clearly arbitrary. In order to establish a democratic system, amendments that empower the persons affected to have a greater say in the acquisition\/eviction process and in the resettlement, compensation and rehabilitation process subsequent to the acquisition\/eviction are necessary. The lack of transparent procedures is seen most evidently in the former war affected regions of the North and East with the resulting impact most felt by tenants without security of tenure, women and children who do not have title documents to land and marginalised ethnic groups.<\/p>\n

\"\"<\/a>From a comparative perspective, it may be relevant to note that for around a century, colonial land acquisition legislation in India was not accompanied by corresponding legally enforceable resettlement and rehabilitation norms. Today, there is a drafted bill pending before the Indian Parliament that concerns resettlement and rehabilitation. Nepal too has no concrete law concerning rehabilitation. In Sri Lanka, ministry bodies and task forces vested with the pre-eminent duty to provide a equitable framework for resettlement of internally displaced persons, do not perform satisfactorily.\u00a0 Much like India and Nepal, Sri Lanka too requires a separate law governing resettlement and rehabilitation which, in addition to being comprehensive, must also be period-neutral so as to be pertinent even to acquisitions that take place in the future. In order to make this process more accurate, a social impact assessment, in addition to the environmental impact assessment should be made mandatory.<\/p>\n

Justice indeed must be done according to law.\u00a0 Granted, the\u00a0 State\u00a0 is\u00a0 entitled\u00a0 to\u00a0 make\u00a0 inroads\u00a0 to\u00a0 that\u00a0 concept\u00a0 in\u00a0 the\u00a0 larger\u00a0 public\u00a0 interest\u00a0 for\u00a0 purposes\u00a0 of\u00a0 development\u00a0 as\u00a0 against\u00a0 a\u00a0 private\u00a0 land owner\u2019s\u00a0 right\u00a0 to\u00a0 property. But as this Study asks,\u00a0 is\u00a0 justice\u00a0 currently being done\u00a0 according\u00a0 to\u00a0 law\u00a0 in\u00a0 the\u00a0 context\u00a0 of\u00a0 state practice in regard to the wholesale acquisition\u00a0 of\u00a0 privately\u00a0 owned\u00a0 land which is a phenomenon most apparent in the formerly war affected areas of the North and East? The same question applies in regard to hasty evictions from state lands occupied by individuals whose families have been living in those lands for generations. This trend is now seen in rural communities in the Uva, Central, Southern Provinces as well as parts of the Western Province.<\/p>\n

What indeed is contemplated by the concept of sustainable development?\u00a0 Would\u00a0 that\u00a0 concept\u00a0 be\u00a0 satisfied\u00a0 if\u00a0 a\u00a0 landowner\u00a0 is\u00a0 required\u00a0 to\u00a0 vacate\u00a0 his\/her\u00a0 land\u00a0 without\u00a0 first\u00a0 being\u00a0 at\u00a0 least\u00a0 monetarily\u00a0 adequately\u00a0 and\u00a0 reasonably\u00a0 compensated? \u00a0While\u00a0 the\u00a0 more\u00a0 privileged\u00a0 enjoy\u00a0 expressways\u00a0 should\u00a0 the\u00a0 less\u00a0 privileged\u00a0 live\u00a0 in\u00a0 hope\u00a0 that\u00a0 someday,\u00a0 they\u00a0 could\u00a0 be\u00a0 compensated\u00a0 for\u00a0 their\u00a0 lost\u00a0 lands\u00a0 and\u00a0 residing\u00a0 houses?\u00a0 Should\u00a0 the\u00a0 said\u00a0 less\u00a0 privileged,\u00a0 marginalized\u00a0 per se<\/em>\u00a0 be \u00a0kept\u00a0 to\u00a0 their\u00a0 fate,\u00a0 further\u00a0 surrendering\u00a0 their\u00a0 fate\u00a0 to\u00a0 State\u00a0 action\u00a0 with the real risk that the State would submit\u00a0 that\u00a0 it\u00a0 has\u00a0 no\u00a0 financial\u00a0 resources\u00a0 in\u00a0 the\u00a0 state\u00a0 coffers\u00a0 to\u00a0 compensate\u00a0 them\u00a0 for\u00a0 their\u00a0 lands?<\/p>\n

Moreover, the impact of recent government-led initiatives in regard to post-war development is worrying. The general thrust of the National Physical Plan (approved on 03\/07\/2007 by the National Physical Planning Council chaired by the President as per Section 3 (1) of the Tourist Country Planning (Amendment) Act No 49 of 2000) to be implemented over a period of 20 years (2011-2030) forms an important part of these concerns. Acts such as the Tourist Development Act No 14 of 1968 read with the Strategic Development Projects Act, No.14 of 2008 as amended by Act No.12 of 2011 are particularly pivotal. Used very frequently in the formerly war affected areas, these laws enable the acquisition of properties of private landowners without prior payment of compensation, for strategic development purposes such as the development of tourism. When compensation for such acquired land is claimed against the State, where a considerable period of time may have also ensued, the State may well submit, that, the Treasury has said and the Cabinet of Ministers has expressed regret that, there are no funds to defray such compensation.\u00a0 Would the judiciary in the country be able to compel the State to pay such compensation? The answer to such a question (going by recent judicial precedents) appears unfortunately to be in the negative.<\/p>\n

This accentuates\u00a0 the\u00a0 theme\u00a0 pursued\u00a0 in\u00a0 this\u00a0 Study as to how\u00a0 a\u00a0 segment\u00a0 of\u00a0 society\u00a0 would\u00a0 be\u00a0 rendered\u00a0 marginalized in the formerly war affected areas of Sri Lanka as well as in other parts of the country where the Government\u2019s development thrust is prioritized at the expense of the individual right to property and land. This may very well lead to such marginalized persons in society revolting against what they see rightly as supreme injustice. Such an eventuality must be prevented at all costs by appropriate legislative and policy reform implemented as a matter of urgency.<\/p>\n

Constitutional Protections and Legislative Guarantees<\/strong><\/p>\n

The Constitution of Sri Lanka does\u00a0 not\u00a0 recognize\u00a0 the\u00a0 right\u00a0 to\u00a0 own\u00a0 land\u00a0 as\u00a0 an\u00a0 expressed\u00a0 fundamental\u00a0 right. However, an acquisition\u00a0 by\u00a0 the\u00a0 State\u00a0 may be challenged on\u00a0 the\u00a0 ground\u00a0 of\u00a0 arbitrary\u00a0 action\u00a0 postulated\u00a0 by\u00a0 the\u00a0 concept\u00a0 of\u00a0 the\u00a0 Rule\u00a0 of\u00a0 Law,\u00a0 flowing from\u00a0 the\u00a0 right\u00a0 to\u00a0 equality under Article 12 (1) of the Constitution. But, there is a rival thinking which proceeds on the basis that a landowner\u2019s\u00a0 fundamental rights application\u00a0 can only succeed on\u00a0 the\u00a0 basis\u00a0 of\u00a0 the\u00a0 fundamental\u00a0 right\u00a0 violation if\u00a0 he \/ she\u00a0 is\u00a0 able\u00a0 to\u00a0 show\u00a0 particular\u00a0 discrimination\u00a0 as\u00a0 against\u00a0 another\u00a0 equally\u00a0 circumstanced landowner who has been treated differently and with more favour.\u00a0 An\u00a0 acquisition\u00a0 could\u00a0 also be\u00a0 challenged\u00a0 under\u00a0 Article\u00a0 140\u00a0 of\u00a0 the\u00a0 Constitution\u00a0 through\u00a0 an\u00a0 application\u00a0 for\u00a0 an\u00a0 order\u00a0 in\u00a0 the\u00a0 nature\u00a0 of\u00a0 a\u00a0 Writ\u00a0 of\u00a0 Certiorari,\u00a0 prohibition\u00a0 and \/ or\u00a0 Mandamus\u00a0 on\u00a0 the\u00a0 basis\u00a0 of\u00a0 the\u00a0 well\u00a0 known\u00a0 doctrines\u00a0 of\u00a0 ultra \u2013 vires<\/em>\u00a0 ( substantive\u00a0 and\u00a0 procedural )\u00a0 and\u00a0 error\u00a0 of\u00a0 law\u00a0 on\u00a0 the\u00a0 face\u00a0 of\u00a0 the\u00a0 record\u00a0 in\u00a0 Administrative\u00a0 Law,\u00a0 subsumed\u00a0 in\u00a0 the\u00a0 later\u00a0 established\u00a0 doctrines\u00a0 of\u00a0 illegality,\u00a0 irrationality,\u00a0 proportionality\u00a0 and\u00a0 procedural\u00a0 impropriety,\u00a0 acknowledged\u00a0 by\u00a0 the\u00a0 Sri\u00a0 Lanka\u00a0 judiciary. There\u00a0 is\u00a0 remedy\u00a0 by\u00a0 way\u00a0 of\u00a0 a\u00a0 declaratory\u00a0 action\u00a0 that\u00a0 it\u00a0 is\u00a0 not\u00a0 liable\u00a0 to be\u00a0 acquired\u00a0 in\u00a0 terms\u00a0 of\u00a0 Section\u00a0 217 (G)\u00a0 of\u00a0 the\u00a0 Civil\u00a0 Procedure\u00a0 Code.\u00a0 But such a\u00a0 course\u00a0 of\u00a0 relief\u00a0 would\u00a0 be\u00a0 hardly\u00a0 expedient\u00a0 on\u00a0 account\u00a0 of\u00a0 the\u00a0 fact\u00a0 that,\u00a0 a\u00a0 landowner\u00a0 is\u00a0 not\u00a0 entitled\u00a0 to\u00a0 institute\u00a0 action\u00a0 to\u00a0 prevent\u00a0 his \/ her\u00a0 land\u00a0 being\u00a0 acquired\u00a0 through\u00a0 injunctive\u00a0 relief\u00a0 in\u00a0 view\u00a0 of\u00a0 the\u00a0 Interpretation\u00a0 (Amendment)\u00a0 Act,\u00a0 No.18\u00a0 of\u00a0 1972\u00a0 read\u00a0 with\u00a0 the\u00a0 Amendment\u00a0 Law\u00a0 No.28\u00a0 of\u00a0 1974.<\/p>\n

Our appellate\u00a0 courts\u00a0 have\u00a0 consistently\u00a0 held\u00a0 that,\u00a0 when\u00a0 the\u00a0 Minister\u00a0 of\u00a0 Lands\u00a0 declares\u00a0 by\u00a0 Gazette\u00a0 under\u00a0 the\u00a0 provisions\u00a0 of\u00a0 the\u00a0 Land\u00a0 Acquisition\u00a0 Act\u00a0 that,\u00a0 any\u00a0 land\u00a0 is\u00a0 required\u00a0 for\u00a0 a\u00a0 public\u00a0 purpose,\u00a0 such\u00a0 executive\u00a0 fiat\u00a0 cannot\u00a0 be\u00a0 questioned\u00a0 in\u00a0 any\u00a0 court. This has been departed from by the higher judiciary\u00a0 only in addressing\u00a0 a\u00a0 procedural\u00a0 aspect\u00a0 wherein\u00a0 the\u00a0 Supreme\u00a0 Court\u00a0 has held\u00a0 that,\u00a0 the\u00a0 public\u00a0 purpose\u00a0 reflected\u00a0 in\u00a0 the\u00a0 gazette\u00a0 in\u00a0 question\u00a0 must\u00a0 be\u00a0 stated.<\/p>\n

Acquisition of Private Lands<\/strong><\/p>\n

There were many statutes enacted to deal with Land and which made provision for the issuing of permits, grants, licences, etc since the 19th century. Currently, Lands are acquired by the State using the Land Acquisition Act and the Urban Development Authority Act. The\u00a0 Minister\u00a0 of\u00a0 Lands is\u00a0 empowered\u00a0 to\u00a0 acquire\u00a0 a\u00a0 privately\u00a0 owned\u00a0 land\u00a0 under\u00a0 the\u00a0 Land\u00a0 Acquisition\u00a0 Act while the President\u00a0 of\u00a0 Sri\u00a0 Lanka\u00a0 could\u00a0 sanction\u00a0 an\u00a0 acquisition\u00a0 under\u00a0 the\u00a0 Urban\u00a0 Development\u00a0 Authority\u00a0 Act. There are\u00a0 other\u00a0 statutes\u00a0 impacting\u00a0 on\u00a0 the\u00a0 said\u00a0 principal\u00a0 statutes including the\u00a0 Provincial\u00a0 Council\u00a0 Act and several\u00a0 statutes\u00a0 in\u00a0 the\u00a0 context\u00a0 of\u00a0 local\u00a0 government\u00a0 namely, the\u00a0 Municipal\u00a0 Councils\u00a0 Ordinance, the\u00a0 Urban\u00a0 Councils\u00a0 Ordinance,\u00a0 the\u00a0 Pradeshiya\u00a0 Sabha\u00a0 Act. To\u00a0 these\u00a0 may\u00a0 be\u00a0 added\u00a0 several\u00a0 statutes\u00a0 where\u00a0 statutory\u00a0 authorities\u00a0 may\u00a0 require\u00a0 to\u00a0 acquire\u00a0 a\u00a0 privately\u00a0 owned\u00a0 land including\u00a0 line\u00a0 Ministries\u00a0 which\u00a0 may\u00a0 propose\u00a0 to\u00a0 acquire\u00a0 privately\u00a0 owned\u00a0 land\u00a0 for\u00a0 stated\u00a0 purposes\u00a0 of\u00a0 education,\u00a0 (for\u00a0 school\u00a0 development);\u00a0 health\u00a0 (for\u00a0 the\u00a0 purpose\u00a0 of\u00a0 putting\u00a0 up\u00a0 a\u00a0 hospital) etc.<\/p>\n

The requirement of any private property being required for a public purpose and the payment of \u201cjust compensation\u201d operate as conditions precedent to the actual \u201ctaking\u2019 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 \u201ca public purpose\u2019 by merely declaring that by gazette notification he is empowered to state that, a private land is required for a \u2018public purpose\u201d.\u00a0 The Act does not require the Minister to state the public purpose for which such private land is required. In a series of decisions of the Appellate Courts of Sri Lanka discussed in the study it had been consistently held that, the Minister is not obliged to state \u2018the public purpose.\u2019<\/p>\n

The overall\u00a0 pattern of\u00a0 how\u00a0 privately\u00a0 owned\u00a0 land\u00a0 is\u00a0 being\u00a0\u00a0 acquired\u00a0 by\u00a0 State\u00a0 authorities\u00a0 reveals that,\u00a0 on\u00a0 the presentation\u00a0 of\u00a0 bogus\u00a0 deeds coupled with brute force,\u00a0 owners\u00a0 of\u00a0 land\u00a0 possessing\u00a0 prima\u00a0 facie<\/em>\u00a0 valid\u00a0 deeds\u00a0 are\u00a0 being\u00a0 told\u00a0 to\u00a0 vacate\u00a0 on the\u00a0 strength\u00a0 of\u00a0 such\u00a0 bogus\u00a0 deeds\u00a0 ad\u00a0 nauseam<\/em>.\u00a0 \u00a0This plight is being particularly faced by Tamil and Muslim citizens, due to the militarization of the North and East, in the post-war years. Those who\u00a0 had\u00a0 been\u00a0 compelled\u00a0 to\u00a0 vacate\u00a0 their\u00a0 lands\u00a0 during\u00a0 the\u00a0 war\u00a0 are\u00a0 now\u00a0 faced\u00a0 with\u00a0 frauds\u00a0 that are\u00a0 perpetrated\u00a0 on \u00a0them by persons possessing political influence and power. In the Southern regions meanwhile, the poor and marginalized Sinhalese citizenry is pitted against the might of a pronounced State policy centered on the acquiring of private properties citing an urgent public purpose and in many cases, selling them to private companies thereafter for hotel development. Administrative practice discloses several instances where the Urban Development Authority (UDA) as well as local authorities have acquired private land ostensibly for the purposes of urgent public purpose but thereafter used the land so acquired to construct hotels<\/p>\n

The Board of Investment of Sri Lanka established by Law No.4 of 1978 is conferred with the power to identify, in consultation with the relevant line ministries, proposed strategic development projects.[2]<\/a> Buttressing this provision is the Strategic Development Projects Act, No.14 of 2008. Development in the national interest per se to the exclusion of private rights is not what is required by good governance and the Rule of Law. A balance ought to be struck. \u201cSustainable Development\u201d is what is required. The land so acquired for a tourist development project as being a Strategic Development Project may well have been land that the private owner might have been using for business purposes which he\/she would find deprived of.<\/p>\n

Evictions from State Lands<\/strong><\/p>\n

The Study discusses how evictions from State Lands have been approached by the State and the Courts under the various statutes applicable to State Land i.e. the Forest Ordinance, the Irrigation Ordinance, the State Lands Ordinance, the Land Development Ordinance, the Land Resumption Ordinance and the State Lands (Recovery of Possession) Act. A recommendation is also made to the government to set in motion the Land Resumption Ordinance with suitable amendments particularly in regard to the time limits contemplated in the present Section 2(1), ideally, by the enactment of new legislation titled \u201cThe Land Resumption (Special Provisions) Act\u201d to deal with the situation that arose some thirty years ago due to the conflict.\u00a0 Under the State Lands (Recovery of Possession) Act once the competent authority forms an opinion that, the land in question is state land and the person in occupation or possession is in unauthorized occupation or possession, the magistrate would have no option but to order the ejectment of such person unless, the person is able to show that, he is in occupation or possession under a permit or some written authority.<\/p>\n

Much of the case law in this regard relates to who would be viewed as a \u2018competent authority\u2019 and what would constitute \u2018unauthorized occupation or possession\u2019. Two important cases discussed in this regard are Senanayake v. Damunupola<\/em> and Karunawathie Jayamaha & others v. Janatha Estate Development Board & <\/em>Others.<\/p>\n

Other ancillary statutes that deal with State Lands include The State Landmarks Ordinance, the Definition of Boundaries Ordinance, The Land Surveys Ordinance and the Requisitioning of Land Act.<\/p>\n

Governmental Policies and Initiatives<\/strong><\/p>\n

The Government has in the past made many attempts to formulate a National Lands Policy. But, discussions on a national lands policy have generally been to the exclusion of the very persons whose rights are directly in issue; namely, those with rural agricultural livelihoods, primarily farmers who are currently permit holders of restricted land grants. The 2001 Draft Land Use Policy, (while acknowledging that land is one of the most fundamental resources necessary for human beings to survive) demonstrated specific problems particularly in relation to enhancing the role of the Private Sector in land resources development, giving priority thereby to quick profits rather than sustainability and local needs of food security. This proposed Lands Policy was abandoned due to objections being raised by land rights advocates on the basis that the creation of a free land market was incompatible with the objectives of meeting human needs and of sustainability of rural agricultural livelihoods.<\/p>\n

In 2001, the Government adopted a National Involuntary Resettlement Policy to address the gaps with regard to resettlement in the Land Acquisition Act.\u00a0 The policy aimed to avoid, minimize and mitigate the negative impacts of involuntary resettlement. This policy though having remarkable provisions especially on providing compensation has rarely been used during the acquisition process. In 2007, the Government adopted a National Physical Plan for its developmental projects. But, for all these projects and the development drive, the State would surely need land and the available land resources at the disposal of the State would certainly not be adequate. Those owners and\/or occupiers of land would inevitably be affected.<\/p>\n

The Impact of Devolution<\/strong><\/p>\n

In 1987, Parliament passed the 13th Amendment to the Constitution and followed it with the enactment of the Provincial Councils Act No. 42 of 1987 and the Provincial Councils (Consequential Provisions) Act No. 12 of 1989. The ninth schedule to the 13th Amendment made an explicit constitutional demarcation of the spheres of authority of the centre and the constituent units or \u2018Provincial Councils.\u2019<\/p>\n

The 13th Amendment made express provision that, in the case of all matters set out in the Provincial Councils List, no bill presented to Parliament shall become law unless approved by all Provincial Councils or by a special majority in Parliament, with or without a referendum as the case may be. Insofar as lands were concerned, the President of the Republic is constitutionally vested with the power to \u201cmake such grants and dispositions of land and immovable properties vested in the Republic.\u201d[3]<\/a> Appendix 11 to the Provincial Councils List details rights in or over land, land tenure, transfer, alienation of land, land settlement, land use and land improvement. Item 18 of List 1 of the Ninth Schedule (the \u201cProvincial Council List) Appendix 11 prescribes that;<\/p>\n

\u201calienation or disposition of state land within a Province to any citizen or any organisation shall be by the President on the advice of the relevant Provincial Council in accordance with the laws governing the matter.” (Vide section 1:3 of Appendix 11)<\/em><\/p>\n

Though the 13th Amendment made provision for a National Land Commission, (the constitution of which includes members of Provincial Councils) which was empowered to formulate a National Lands Policy, this has not been established up to date. In particular instances, the interplay between the dual authority bestowed in respect of matters concerning lands on both the Centre and the Provinces has resulted in increasingly complex legal dilemmas. Two instances where this was seen relate to the Determinations of the Supreme Court with regard to the Lands Bill (2003) and the Amendment Bill to the Town and Country Planning Ordinance (2011) both in which the Court ruled that consent from all Provincial Councils would be required to pass the relevant Bill which respectively dealt with matters coming within the purview of the Provincial Councils.<\/p>\n

On 26 September 2013, a three member Bench of the Supreme Court handed down three separate opinions concurring that the Court of Appeal had erred in law in holding that the Provincial High Court had jurisdiction under the 13th<\/sup> Amendment and the consequent High Court of the Provinces (Special Provisions) Act, No 19 of 1990, to quash by way of a writ of certiorari, a quit notice issued under the State Lands (Recovery of Possession) Act, No 7 of 1979 (as amended). The judges agreed that the devolution of state land to Provincial Councils was subject to State land continuing to be vested in the Centre and that the power of the President to make grants and dispositions of state land continued to be unaffected. The Provincial Councils would only have the legislative competence to administer, control and utilise state land once those lands are made available to the Provincial Councils by the Centre.<\/p>\n

The ensuing divergence in judicial views, with two judges specifically disagreeing with the\u00a0 Determination of the Court in the Lands Bill (SC Nos 26-36 of 2003) in its previous holding that the power of disposition by the President in terms of Article 33(d) had been \u2018qualified\u2019 by Section 1:3 <\/em>of Appendix 11, highlighted yet unresolved fundamental ambiguities inherent in the 13th<\/sup> Amendment in regard to the nature, extent and reach of devolved powers concerning land.<\/p>\n

Case Studies<\/strong><\/p>\n

This Study comprises of case studies from the Northern, Eastern, Central, Uva, Western and Southern Provinces buttressing the overriding theme of this exercise which is that people from almost all parts of Sri Lanka have faced issues with regard to the acquisition of their lands by the State. In the North and East, the issue of High Security Zones (HSZs) established during the war and now evolved into military strongholds, impacts negatively on the livelihoods of the owners of the lands situated in the HSZs. These HSZs have resulted in lands being taken away from their legitimate owners with little or short notice. Even those who possessed legal documents of their lands and homes that were taken over for HSZs have not been provided with legal remedies.<\/p>\n

In Sampoor, in the Trincomalee District land previously designated as an HSZ is now being used for a new coal power project initiated in collaboration with India. Other lands in the East are also being taken for newly designated Special Economic Zones. In Thiriyai, a mainly Sinhala populated village the government is refusing to let many villagers who had been displaced due to the war return on the pretext of claims by the Forest Department to their lands as well as the claim of a sacred area in that area.<\/p>\n

In the Batticaloa District, Pavachikudiyena or Paduvankarai which was earlier under LTTE control and fully Tamil populated, Muslims who had been chased away or fled during the conflict are now returning to their lands but the Tamils who are currently in occupation of those lands are unwilling to return them. This has created much tension between the communities. In the Ampara District, in Panama the mostly Sinhalese villagers around the area have lost their lands to armed groups who have attacked and evicted them from their lands. Government authorities to whom they have complained have not taken any action. In Olvuil, people have lost their lands for the construction of a commercial port. At the same time in a village called Kesankerni (Ashraffnagar) the inhabitants are being deprived of their land for the establishment of a military camp in the area.<\/p>\n

Similarly in the Northern Province, meetings with villagers confirmed that even outside the so-called High Security Zones (HSZs) the SL military has appropriated acres of land in the peninsula from civic bodies and private owners. It is a somewhat unique phenomenon that members of local government bodies have been threatened in the process. In Karainagar for example, the SL Navy has appropriated lands from the local government bodies. Other targeted areas are Point Pedro and Valikaamam North. Recently (April 2013) a notice by the Land Acquiring Officer for Jaffna acting upon the instructions of the Minister of Land, was issued which stipulated the acquisition of a vast tract of land (6381 acres, 38.97 perches) within the Tellipalai HSZ in Valigamam North for the purported reason of building a Defence Battalion Headquarters [Jaffna]. More than 2000 affected landowners have filed fundamental rights and writ petitions in Court contesting this purported land grab.<\/p>\n

In the Southern Province, land has been acquired for many developmental projects including the newly established Mattala Airport and the Hambantota Port. Furthermore, the designation of Hambantota as an economic zone and the special projects being undertaken there make it inevitable that much land will be acquired for these purposes. Discussions with parties in the South including affected villagers show that much of the development work is being done without proper planning or impact assessment. Circumstances also show that the affected parties have been given inadequate compensation and not granted hearings according to the law.<\/p>\n

In the Uva Province, the Uma Oya multi purpose project has given rise to many concerns re the impact on livelihood of the persons. The impact of the project will be felt by three different types of people; namely the people who are directly displaced; people who live in the downstream of Uma Oya who will suffer water shortages and the people who are living in the areas where the earth will be made unstable due to the tunneling process. The aim of development is to enhance the living standards of the citizens of the country and those who are affected by development activity should be helped to achieve a better standard of living. Discussions with affected communities show that those who are due to lose their lands and livelihood due to the Uma Oya project are to be resettled in areas which are completely alien to them and which are unsuitable for their livelihoods.<\/p>\n

In the Central Province, in Dambulla, the declaration of a Sacred Area within the town led to many landowners being sent quit notices. There after again land was to be acquired for the establishment of an urban development area but there has not been any such development activity taking place and they were told that steps would not be taken to acquire the land. But, suddenly in 2012 they were told to hand over their lands for the purpose of a \u2018sacred area development project\u2019.<\/p>\n

In Negombo, in the Western Province there has been a remarkable increase in the un-authorised filling up of \u2018lagoon lands\u2019 by persons having political patronage with the result that the natural flow of water to long standing occupied residencies are being interfered with. Land officers are helpless in this situation. Meanwhile, several local politicians have been directly accused of acquiring vast tracts of land in the Kadol Kele<\/em> which is a mangrove forest belt spanning on a 36-acre strip along the Negombo lagoon, historically identified as a marshy land rich in bio diversity.<\/p>\n

It would appear that Sri Lanka\u2019s public authorities (no doubt subjected to enormous political pressure in many instances) are not adhering to stipulated legal procedure in regard to the acquisition of land. Even if the occupied lands were state lands held under permits such as the Land Development Ordinance or the State Lands Ordinance, still those occupying the land for generations would have been entitled to notice. Moreover, private lands are being taken over, apparently without any recourse being had to the provisions of the Land Acquisition Act[4]<\/a> or even the Urban Development Authority Act.[5]<\/a> The legal procedure followed seems to have been adopted ignoring the provisions of the Land Acquisition Act. The provisions relating to providing notice and the payment of just compensation seem to have been flouted completely.<\/p>\n

Constitutional and Statutory Provisions<\/strong><\/p>\n

The Constitution of Sri Lanka\u00a0 does\u00a0 not\u00a0 recognize\u00a0 the\u00a0 right\u00a0 to\u00a0 own\u00a0 land\u00a0 as\u00a0 an\u00a0 expressed\u00a0 fundamental\u00a0 right. However, an\u00a0 acquisition\u00a0 by\u00a0 the\u00a0 State\u00a0 may be challenged on\u00a0 the\u00a0 ground\u00a0 of\u00a0 arbitrary\u00a0 action\u00a0 postulated\u00a0 by\u00a0 the\u00a0 concept\u00a0 of\u00a0 the \u00a0Rule\u00a0 of\u00a0 Law,\u00a0 flowing from\u00a0 the\u00a0 right\u00a0 to\u00a0 equality under Article 12 (1) of the Constitution. Although this development\u00a0 forms\u00a0 part\u00a0 of\u00a0 the\u00a0 jurisprudence\u00a0 of\u00a0 the\u00a0 country,\u00a0 in\u00a0 the\u00a0 context\u00a0 of\u00a0 the\u00a0 right\u00a0 to\u00a0 equality\u00a0 in\u00a0 general\u00a0 applied\u00a0 to\u00a0 the acquisitions\u00a0 of\u00a0 land\u00a0 as\u00a0 well, a rival\u00a0 school\u00a0 of\u00a0 judicial\u00a0 thought\u00a0 that bases\u00a0 the\u00a0 right\u00a0 to\u00a0 equality\u00a0 on\u00a0 the\u00a0 \u201cequally\u00a0 circumstanced\u201d\u00a0 doctrine still persists, as would be discussed later. This rival thinking proceeds on the basis that a landowner\u2019s\u00a0 fundamental rights application\u00a0 can only succeed on\u00a0 the\u00a0 basis\u00a0 of\u00a0 the\u00a0 fundamental\u00a0 right\u00a0 violation if\u00a0 he \/ she\u00a0 is\u00a0 able\u00a0 to\u00a0 show\u00a0 particular\u00a0 discrimination\u00a0 as\u00a0 against\u00a0 another\u00a0 equally\u00a0 circumstanced landowner who has been treated differently and with more favour.<\/p>\n

Apart\u00a0 from\u00a0 that,\u00a0 an\u00a0 acquisition\u00a0 could\u00a0 be\u00a0 challenged\u00a0 under\u00a0 Article\u00a0 140\u00a0 of\u00a0 the\u00a0 Constitution\u00a0 through\u00a0 an\u00a0 application\u00a0 for\u00a0 an\u00a0 order\u00a0 in\u00a0 the\u00a0 nature\u00a0 of\u00a0 a\u00a0 Writ\u00a0 of\u00a0 Certiorari,\u00a0 prohibition\u00a0 and \/ or\u00a0 Mandamus\u00a0 on\u00a0 the\u00a0 basis\u00a0 of\u00a0 the\u00a0 well\u00a0 known\u00a0 doctrines\u00a0 of\u00a0 ultra \u2013 vires<\/em>\u00a0 ( substantive\u00a0 and\u00a0 procedural )\u00a0 and\u00a0 error\u00a0 of\u00a0 law\u00a0 on\u00a0 the\u00a0 face\u00a0 of\u00a0 the\u00a0 record\u00a0 in\u00a0 Administrative\u00a0 Law,\u00a0 subsumed\u00a0 in\u00a0 the\u00a0 later\u00a0 established\u00a0 doctrines\u00a0 of\u00a0 illegality,\u00a0 irrationality,\u00a0 proportionality\u00a0 and\u00a0 procedural\u00a0 impropriety,\u00a0 acknowledged\u00a0 by\u00a0 the\u00a0 Sri\u00a0 Lanka\u00a0 judiciary.\u00a0 The\u00a0 doctrine\u00a0 of\u00a0 reasonableness\u00a0 established\u00a0 in\u00a0 the\u00a0 English\u00a0 Law was also\u00a0 absorbed\u00a0 into\u00a0 our\u00a0 legal\u00a0 jurisprudence\u00a0 as\u00a0 an\u00a0 extended\u00a0 arm\u00a0 of\u00a0 the\u00a0 doctrine\u00a0 of\u00a0 ultra \u2013 vires<\/em>,\u00a0 subsumed\u00a0 in\u00a0 the\u00a0 subsequently\u00a0 developed\u00a0 doctrine\u00a0 of\u00a0 Proportionality.<\/p>\n

Finally, by\u00a0 way\u00a0 of\u00a0 remedies\u00a0 open\u00a0 to\u00a0 a\u00a0 landowner\u00a0 whose\u00a0 land\u00a0 is\u00a0 proposed\u00a0 to\u00a0 be\u00a0 acquired\u00a0 by\u00a0 the\u00a0 State,\u00a0 there\u00a0 is\u00a0 remedy\u00a0 by\u00a0 way\u00a0 of\u00a0 a\u00a0 declaratory\u00a0 action\u00a0 that\u00a0 it\u00a0 is\u00a0 not\u00a0 liable\u00a0 to be\u00a0 acquired\u00a0 in\u00a0 terms\u00a0 of\u00a0 Section\u00a0 217 (G)\u00a0 of\u00a0 the\u00a0 Civil\u00a0 Procedure\u00a0 Code.\u00a0 But such\u00a0 a\u00a0 course\u00a0 of\u00a0 relief\u00a0 would\u00a0 be\u00a0 hardly\u00a0 expedient\u00a0 on\u00a0 account\u00a0 of\u00a0 the\u00a0 fact\u00a0 that,\u00a0 a\u00a0 landowner\u00a0 is\u00a0 not\u00a0 entitled\u00a0 to\u00a0 institute\u00a0 action\u00a0 to\u00a0 prevent\u00a0 his \/ her\u00a0 land\u00a0 being\u00a0 acquired\u00a0 through\u00a0 injunctive\u00a0 relief\u00a0 in\u00a0 view\u00a0 of\u00a0 the\u00a0 Interpretation\u00a0 (Amendment)\u00a0 Act,\u00a0 No.18\u00a0 of\u00a0 1972\u00a0 read\u00a0 with\u00a0 the\u00a0 Amendment\u00a0 Law\u00a0 No.28\u00a0 of\u00a0 1974. This\u00a0 explains\u00a0\u00a0 why\u00a0 an\u00a0 aggrieved\u00a0 landowner\u00a0 will not be inclined\u00a0 to\u00a0 pursue\u00a0 that\u00a0 remedy\u00a0 but\u00a0 would rather\u00a0 opt\u00a0 to\u00a0 pursue\u00a0 an\u00a0 application\u00a0 by\u00a0 way\u00a0 of\u00a0 fundamental\u00a0 rights and \/ or\u00a0 by\u00a0 way\u00a0 of\u00a0 an\u00a0 application\u00a0 for\u00a0 an\u00a0 order\u00a0 in\u00a0 the\u00a0 nature\u00a0 of\u00a0 Writ\u00a0 under\u00a0 Article\u00a0 140\u00a0 of\u00a0 the\u00a0 Constitution.<\/p>\n

Thus, although the constitutional\u00a0 regime\u00a0 provides certain remedies to an\u00a0 affected\u00a0 landowner, the\u00a0 jurisprudence\u00a0 evolved\u00a0 through\u00a0 years\u00a0 have\u00a0 set\u00a0 even those slim reliefs largely at\u00a0 nought, apart from some notable exceptions.\u00a0 This paper discusses these decisions in full in succeeding segments but developments thereto may be summarized at this point. First,\u00a0 our\u00a0 appellate\u00a0 courts\u00a0 have\u00a0 consistently\u00a0 held\u00a0 that,\u00a0 when\u00a0 the\u00a0 Minister\u00a0 of\u00a0 Lands\u00a0 declares\u00a0 by\u00a0 Gazette\u00a0 under\u00a0 the\u00a0 provisions\u00a0 of\u00a0 the\u00a0 Land\u00a0 Acquisition\u00a0 Act\u00a0 that,\u00a0 any\u00a0 land\u00a0 is\u00a0 required\u00a0 for\u00a0 a\u00a0 public\u00a0 purpose,\u00a0 such\u00a0 executive\u00a0 fiat\u00a0 cannot\u00a0 be\u00a0 questioned\u00a0 in\u00a0 any\u00a0 court. This has been departed from by the\u00a0 higher\u00a0 judiciary\u00a0 only in addressing\u00a0 a\u00a0 procedural\u00a0 aspect\u00a0 wherein\u00a0 the\u00a0 Supreme\u00a0 Court\u00a0 has held\u00a0 that,\u00a0 the\u00a0 public\u00a0 purpose\u00a0 reflected\u00a0 in\u00a0 the\u00a0 gazette\u00a0 in\u00a0 question\u00a0 must\u00a0 be\u00a0 stated. In\u00a0 effect\u00a0 therefore,\u00a0 the\u00a0 Minister\u2019s action,\u00a0 by\u00a0 a\u00a0 subsequent\u00a0 Gazette, to state\u00a0 the\u00a0 public\u00a0 purpose, was ruled as not proper. [6]<\/a> <\/strong><\/p>\n

On the other hand, the\u00a0 Court\u00a0 of\u00a0 Appeal\u00a0 has held\u00a0 that,\u00a0 although,\u00a0 the\u00a0 gazette\u00a0 fails\u00a0 to\u00a0 disclose\u00a0 the\u00a0 public\u00a0 purpose, such may be inferred\u00a0 from\u00a0 correspondence\u00a0 between\u00a0 the\u00a0 affected\u00a0 land owner\u00a0 and\u00a0 the\u00a0 authorities. Thus, if there\u00a0 was\u00a0 no\u00a0 doubt\u00a0 as\u00a0 to\u00a0 the\u00a0 purpose\u00a0 for\u00a0 which\u00a0 the\u00a0 land\u00a0 in\u00a0 question\u00a0 was\u00a0 proposed\u00a0 to\u00a0 be\u00a0 acquired,\u00a0 the\u00a0 procedural\u00a0 flaw\u00a0 would\u00a0 stand\u00a0 circumvented on\u00a0 the fact that no prejudice is deemed to have been caused to the landowner.[7]<\/a> These decisions will be discussed in full later.<\/p>\n

In the background\u00a0 of\u00a0 the\u00a0 aforesaid\u00a0 divergent\u00a0 attitudes\u00a0 in\u00a0 the\u00a0 context\u00a0 of private\u00a0 land\u00a0 proposed\u00a0 to\u00a0 be\u00a0 acquired\u00a0 by\u00a0 the\u00a0 State,\u00a0 judicial advances have been few. In one interesting instance however, the\u00a0 concept\u00a0 of\u00a0 sustainable\u00a0 development\u00a0 was acknowledged by the Supreme Court in\u00a0 the\u00a0 context\u00a0 of\u00a0 acquisition\u00a0 of\u00a0 massive\u00a0 expanses\u00a0 of\u00a0 land\u00a0 for\u00a0 the\u00a0 construction\u00a0 of\u00a0 the\u00a0 Southern \u2013 Expressway,\u00a0 where\u00a0 thousands\u00a0 of\u00a0 villagers\u00a0 were\u00a0 rendered\u00a0 landless.[8]<\/a> In that case, the\u00a0 Supreme\u00a0 Court\u00a0 was\u00a0 reluctant\u00a0 to\u00a0 quash\u00a0 the\u00a0 acquisition\u00a0 which\u00a0 was\u00a0 found\u00a0 to\u00a0 be\u00a0 flawed\u00a0 procedurally\u00a0 thus,\u00a0 upholding\u00a0 in\u00a0 effect, the\u00a0 State\u2019s\u00a0 action\u00a0 to\u00a0 launch\u00a0 an\u00a0 expressway\u00a0 as\u00a0 against an individual\u2019s\u00a0 right\u00a0 to\u00a0 property. However, it modified\u00a0 the\u00a0 Court\u00a0 of\u00a0 Appeal\u00a0 ruling\u00a0 in\u00a0 decreeing\u00a0 that,\u00a0 compensation\u00a0 must\u00a0 be\u00a0 paid\u00a0 to\u00a0 the\u00a0 landowner\u00a0\u00a0 (the\u00a0 petitioner in\u00a0 the\u00a0 case),\u00a0 who\u00a0 had\u00a0\u00a0 resisted\u00a0 vacation\u00a0 until\u00a0 then\u00a0 and\u00a0 who\u00a0 eventually\u00a0 vacated\u00a0 only\u00a0 upon\u00a0 compensation\u00a0 being\u00a0 paid\u00a0 on\u00a0 the\u00a0 strength\u00a0 of\u00a0 the\u00a0 ruling\u00a0 of\u00a0 the\u00a0 Supreme\u00a0 Court\u00a0 on\u00a0 a\u00a0 subsequent\u00a0 order\u00a0 of\u00a0 the\u00a0 Court\u00a0 of\u00a0 Appeal.<\/p>\n

This instance illustrates\u00a0 the case of a\u00a0 landowner,\u00a0 who\u00a0 had\u00a0 the\u00a0 financial\u00a0 resources to\u00a0 challenge\u00a0 State\u00a0 action\u00a0 in\u00a0 acquiring\u00a0 her\u00a0 land\u00a0 and who\u00a0 ultimately\u00a0 was\u00a0 able\u00a0 to\u00a0 obtain\u00a0 monetary\u00a0 compensation\u00a0 from\u00a0 the\u00a0 State\u00a0 before\u00a0 vacating\u00a0 her\u00a0 privately\u00a0 owned\u00a0 land. But what\u00a0 about\u00a0 those\u00a0 people\u00a0 marginalized\u00a0 in\u00a0 society\u00a0 for\u00a0 want\u00a0 of\u00a0 financial\u00a0 resources\u00a0 who\u00a0 have\u00a0 had\u00a0 to\u00a0 vacate\u00a0 their\u00a0 lands\u00a0 along with\u00a0 residential houses\u00a0 and are\u00a0 unable\u00a0 to\u00a0 challenge\u00a0 the\u00a0 acquisition\u00a0 for\u00a0 that\u00a0 reason\u00a0 without\u00a0 any\u00a0 compensation\u00a0 for\u00a0 their\u00a0 expropriated\u00a0 land\u00a0 before\u00a0 vacating?<\/p>\n

Where statute law is concerned, one speaks today of permits, grants, licences etc. given under statutes such as the Land Development Ordinance, State Lands Ordinance etc. re: agricultural activity. The origins of this system go back to the 5th<\/sup> Century B.C in regard to land grants given for services rendered to the King (owner of all State Lands). Grants were given with financial support to people to construct private reservoirs, a tax however being imposed. Ownership of tanks was also permitted.[9]<\/a> The owner of the tank was allowed to levy a fee from those who utilized the waters of such tanks. After some setbacks owing to the advent of the South Indian rulers, the system was restored by the British Proclamation of 1800.[10]<\/a> The ancient system gradually came to be regulated by loose practices developing into customs later. It is those customs that today stand further regulated by the several statutes that has formed a major part of the Study in question. The major portion of land was held by people under Service Tenures testifying to the tenant \u2013 cultivation regulatory system that exist today; ownership of lands by private persons was subject always to the acquisition by the State for public purposes.<\/p>\n

In the present-day context, there\u00a0 are\u00a0 two\u00a0 principal\u00a0 statutes\u00a0 in\u00a0 pursuance\u00a0 of\u00a0 which\u00a0 a\u00a0 privately\u00a0 owned\u00a0 land\u00a0 could\u00a0 be\u00a0 acquired\u00a0 by\u00a0 the\u00a0 State\u00a0 viz<\/em>\u00a0 the\u00a0 Land\u00a0 Acquisition\u00a0 Act and\u00a0 the\u00a0 Urban\u00a0 Development\u00a0 Authority\u00a0 Act. While\u00a0 it\u00a0 is\u00a0 the\u00a0 Minister\u00a0 of\u00a0 Lands\u00a0 who\u00a0 is\u00a0 empowered\u00a0 to\u00a0 acquire\u00a0 a\u00a0 privately\u00a0 owned\u00a0 land\u00a0 under\u00a0 the\u00a0 Land\u00a0 Acquisition\u00a0 Act,\u00a0 the\u00a0 President\u00a0 of\u00a0 Sri\u00a0 Lanka\u00a0 could\u00a0 sanction\u00a0 an\u00a0 acquisition\u00a0 under\u00a0 the\u00a0 Urban\u00a0 Development\u00a0 Authority\u00a0 Act.\u00a0 There\u00a0 are\u00a0 other\u00a0 statutes\u00a0 impacting\u00a0 on\u00a0 the\u00a0 said\u00a0 principal\u00a0 statutes including the\u00a0 Provincial\u00a0 Council\u00a0 Act and several\u00a0 statutes\u00a0 in\u00a0 the\u00a0 context\u00a0 of\u00a0 local\u00a0 government\u00a0 namely, the\u00a0 Municipal\u00a0 Councils\u00a0 Ordinance, the\u00a0 Urban\u00a0 Councils\u00a0 Ordinance,\u00a0 the\u00a0 Pradeshiya\u00a0 Sabha\u00a0 Act. To\u00a0 these\u00a0 may\u00a0 be\u00a0 added\u00a0 several\u00a0 statutes\u00a0 where\u00a0 statutory\u00a0 authorities\u00a0 may\u00a0 require\u00a0 to\u00a0 acquire\u00a0 a\u00a0 privately\u00a0 owned\u00a0 land including\u00a0 line\u00a0 Ministries\u00a0 which\u00a0 may\u00a0 propose\u00a0 to\u00a0 acquire\u00a0 privately\u00a0 owned\u00a0 land\u00a0 for\u00a0 stated\u00a0 purposes\u00a0 of\u00a0 education,\u00a0 (for\u00a0 school\u00a0 development);\u00a0 health\u00a0 (for\u00a0 the\u00a0 purpose\u00a0 of\u00a0 putting\u00a0 up\u00a0 a\u00a0 hospital) etc.<\/p>\n

However, the\u00a0 point\u00a0 to\u00a0 make\u00a0 is\u00a0 that,\u00a0 any\u00a0 such\u00a0 proposed\u00a0 acquisition\u00a0 must\u00a0 receive\u00a0 the\u00a0 sanction\u00a0 of\u00a0 the\u00a0 Minister\u00a0 of\u00a0 Lands\u00a0 under\u00a0 the\u00a0 Land\u00a0 Acquisition\u00a0 Act\u00a0 in\u00a0 the\u00a0 generality\u00a0 of\u00a0 cases\u00a0 and\u00a0 in\u00a0 specific\u00a0 contexts,\u00a0 the\u00a0 sanction\u00a0 of\u00a0 the\u00a0 President\u00a0 under\u00a0 the\u00a0 Urban\u00a0 Authority\u00a0 Act. While the\u00a0 Minister\u2019s\u00a0 said\u00a0 power\u00a0 has\u00a0 not\u00a0 been\u00a0 held\u00a0 to\u00a0 be\u00a0 immune\u00a0 from\u00a0 judicial\u00a0 review,\u00a0 even\u00a0 the\u00a0 President\u2019s\u00a0 power\u00a0 itself\u00a0 has\u00a0 not\u00a0 been\u00a0 regarded\u00a0 as being\u00a0 beyond\u00a0 the\u00a0 reach\u00a0 of\u00a0 judicial\u00a0 scrutiny,\u00a0 notwithstanding\u00a0 Article\u00a0 35\u00a0 of\u00a0 the\u00a0 Constitution\u00a0 relating\u00a0 to\u00a0 the\u00a0 concept\u00a0 of\u00a0 Presidential\u00a0 immunity.[11]<\/a><\/p>\n

While that\u00a0 may\u00a0 represent\u00a0 the\u00a0 strict\u00a0 legal\u00a0 regime,\u00a0 in\u00a0 practice, as the\u00a0 empirical\u00a0 data reveal, there\u00a0 is\u00a0 an\u00a0 extra \u2013 legal\u00a0\u00a0 parallel\u00a0 regime\u00a0 that\u00a0 is\u00a0 in\u00a0 operation. The\u00a0 overall\u00a0 pattern of\u00a0 how\u00a0 privately\u00a0 owned\u00a0 land\u00a0 is\u00a0 being\u00a0\u00a0 acquired\u00a0 by\u00a0 State\u00a0 authorities\u00a0 reveals that,\u00a0 on\u00a0 the presentation\u00a0 of\u00a0 bogus\u00a0 deeds coupled with brute force,\u00a0 owners\u00a0 of\u00a0 land\u00a0 possessing\u00a0 prima\u00a0 facie<\/em>\u00a0 valid\u00a0 deeds\u00a0 are\u00a0 being\u00a0 told\u00a0 to\u00a0 vacate\u00a0 on the\u00a0 strength\u00a0 of\u00a0 such\u00a0 bogus\u00a0 deeds,\u00a0 and\u00a0 ad\u00a0 nauseam<\/em>. \u00a0\u00a0This plight is being particularly faced by Tamil and Muslim citizens due to the militarization of the North and East in the post-war years. Those who\u00a0 had\u00a0 been\u00a0 compelled\u00a0 to\u00a0 vacate\u00a0 their\u00a0 lands\u00a0 during\u00a0 the\u00a0 war\u00a0 are\u00a0 now\u00a0 faced\u00a0 with\u00a0 frauds\u00a0 that are\u00a0 perpetrated\u00a0 on\u00a0 them by persons possessing political influence and power. In the Southern regions meanwhile, the poor and marginalized Sinhalese citizenry is pitted against the might of a pronounced State policy centered on the acquiring of private properties citing an urgent public purpose and in many cases, selling them to private companies thereafter for hotel development.<\/p>\n

Conclusion and Recommendations<\/strong><\/p>\n

Granted, laws impacting on the land rights of individuals in Sri Lanka are presently governed by statues dating back more than a 1 \u00bd century, and therefore perhaps could be described as archaic. Nevertheless, if the political regime is sensitive and functions within a Rule of Law framework, the existing legal framework still carries potential, with appropriate modifications and\/or amendments to cater for those who have lost their lands as a result of conflict as well as post-war development in Sri Lanka. Yet the problem in Sri Lanka is the non-adherence of the political establishment which pervades the economic and social rights sphere, as well as more obviously, the civil and political rights spectrum.<\/p>\n

A National Land Commission will result in further delays and may not be the ideal solution to address the problem. Rather, looking at the statutory functionaries vested with power in the context of the problem, it would be more expedient, to constitute an ad hoc<\/em> committee on the initiative of the Minister of Lands (with independent power to act) comprising the divisional secretaries, the Provincial Land Commissioners, the surveyor general as well as representatives of affected communities and land rights advocates\u00a0 to entertain and inquire into claims of those who have lost (or abandoned) their lands in consequence of militarization or post-war development.<\/p>\n

Such inquiries should be conducted sans the insistence of deeds or other comparable instruments or documents in the nature of primary evidence. Secondary evidence must suffice given the background to the problem as articulated earlier in this paper as constituting Prima facie proof of claims in question unless, there are rival claims inter se<\/em> in which event, after inquiry, the said committee could be advised to refer the matter to the courts for resolution.<\/p>\n

In conclusion, these reflections and concerns show the need for special legislation perhaps in the form of and titled a Land Resumption (Special Provisions) statute, taking in the several aspects surfacing, being out of step with the existing provisions of the Land Resumption Ordinance itself read with the State Landmarks Ordinance, the Definition of Boundaries Ordinance, the Land Survey Ordinance and the State Lands (Claims) Ordinance.<\/p>\n

It is consequently recommended that, a special law be enacted consolidating the said enactments for which purpose, strong, public awareness initiatives be taken by civil society groups in the public interest to prevail upon the government to do so. Necessary Amendments to Sri Lanka\u2019s Constitutional and Statutory Regime are proposed in this Study which include making the right to property a fundamental right as well as following proper procedure in issuing notice of acquisition and providing for \u2018just compensation\u2019. Changes to administrative practice are also recommended.<\/p>\n

Most importantly, in view of the fact that thousands of people in the North and East had been compelled to abandon lands earlier possessed by them owing to the war situation and who are now desirous of resuming their possession that special pro \u2013 active legislation is enacted on account of present provisions of the Land Resumption Ordinance, the Forest Ordinance and other allied statutes which appear to stand in their way (as analysed in this Study), added to the fact that, new parties are now found to have gained possession or occupation of the said lands as condoned by state authorities. Those displaced thousands have lost whatever documents they may have had earlier in their possession. They must be allowed to establish their earlier possession prior to abandonment by other extrinsic evidence such as through Grama Sevakas\u2019<\/em> records, registers of residence, in the absence of which even by oral evidence, acceptable to a court in the event of litigation. Appropriate provisions must be made in such proposed special legislation to that effect.<\/p>\n


<\/p>\n
\n
\n

[1]<\/a> As evidenced by the field visits carried out by the Trust to the North and East which are elaborated on in Section 7 of this Study.<\/p>\n<\/div>\n

\n

[2]<\/a> Section 3(1) of the parent Act.<\/p>\n<\/div>\n

\n

[3]<\/a> Article 33(d) of the Constitution.<\/p>\n

[4]<\/a> Act of 1951 (as amended)<\/p>\n<\/div>\n

\n

[5]<\/a> Act of 1978 (as amended)<\/p>\n<\/div>\n

\n

[6]<\/a> 2000(1) SLR 112 ( per Mark Fernando, J)<\/p>\n<\/div>\n

\n

[7]<\/a> Seneviratne<\/em> v. Urban Council, Kegalle<\/em> 2001(3) SLR 105 (CA)<\/p>\n<\/div>\n

\n

[8]<\/a> Heather Mundy v. Central Environmental Authority and Others<\/em>, SC Appeal 58\/03, SC Minutes of 20.01.2004. SC Appeal 58\/2003.\u00a0 As illustrated by this case and a few others, some landowners received\u00a0 compensation\u00a0 by\u00a0 the\u00a0 State\u00a0 but\u00a0 without\u00a0 further\u00a0 question\u00a0 as\u00a0 to\u00a0 the\u00a0 reasonableness\u00a0 or\u00a0 adequacy\u00a0 of\u00a0 compensation\u00a0 paid\u00a0 under\u00a0 the\u00a0 provisions\u00a0 of\u00a0 the\u00a0 Land\u00a0 Acquisition\u00a0 Act. As discussed later, though the Act provides\u00a0 for\u00a0 a\u00a0 mechanism\u00a0 to\u00a0 appeal\u00a0 against acquisition to\u00a0 a\u00a0 Board\u00a0 of\u00a0 Review\u00a0 and\u00a0 thereafter\u00a0 to\u00a0 the\u00a0 Appellate\u00a0 Courts, this relief provided\u00a0 by\u00a0 statute is\u00a0 rendered\u00a0 a\u00a0 dead\u00a0 letter\u00a0 on\u00a0 account\u00a0 of\u00a0 the\u00a0 lack\u00a0 of\u00a0 financial\u00a0 resources\u00a0 of poor litigants to\u00a0 indulge\u00a0 in\u00a0 litigation,\u00a0 at\u00a0 any\u00a0 rate,\u00a0 beyond\u00a0 a\u00a0 point,\u00a0 being\u00a0 persons\u00a0 marginalized\u00a0 in\u00a0 society.<\/p>\n<\/div>\n

\n

[9]<\/a> \u2018The Kantakarma Inscription\u2019 \u2013 See: S. Sarath Mathilal De Silva The Concepts of Ownership and Possession In the Laws of Property in Sri Lanka<\/em> (Unpublished) citing H.W. Thambiah, Sinhala Laws and Customs<\/em>, Lake House Investments, 1968.<\/p>\n<\/div>\n

\n

[10]<\/a> H.W. Thambiah, Sinhala Laws and Customs<\/em>, Lake House Investments, 1968 at p. 179.<\/p>\n<\/div>\n

\n

[11]<\/a> Art 35 of the 1978 Constitution:<\/p>\n

Art 35 (1): While any person holds office as President, no proceedings shall he instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.<\/p>\n

(2) Where provision is made by law limiting the time within which proceedings of any description may be brought against any person, the period of time during which such person holds the office of President shall not be taken into account in calculating any period of time prescribed by that law.<\/p>\n

(3) The immunity conferred by the provisions of paragraph (1) of this Article shall not apply to any proceedings in any court in relation to the exercise of any power pertaining to any subject or function assigned to the President or remaining in his charge under paragraph (2) of Article 44 or to proceedings in the Supreme Court under paragraph (2) of Article 129 or to proceedings in the Supreme Court under Article 130 (a) [relating to the election the President or the validity of a referendum or to proceedings in the Court of Appeal under Article 144 or in the Supreme Court, relating to the election of a Member of Parliament:]<\/p>\n

Provided that any such proceedings in relation to the exercise of any power pertaining to any such subject or function shall be instituted against the Attorney-General.<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

[…]<\/p>\n","protected":false},"author":22,"featured_media":44111,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,46],"tags":[],"class_list":["post-112645","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-colombotelegraph","category-constitutional-reforms"],"yoast_head":"\nNot This Good Earth; Land Rights, Displaced Persons And The Law In Sri Lanka - Colombo Telegraph<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.colombotelegraph.com\/index.php\/not-this-good-earth-land-rights-displaced-persons-and-the-law-in-sri-lanka\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Not This Good Earth; 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