Columns

In early November 2012, a heated public discussion took place at a crowded hall in Tangalle just yards away from the abode of former President Mahinda Rajapaksa. The space was packed with indignant and vociferous community leaders in the deep South brandishing their property deeds and railing against the (then) Government’s modus operandi of gobbling up every available inch of land for post-war ‘development.’
This was the time that the previous regime had reached the heights of the profoundly surreal with the Ministry of Defence sending out a circular ordering that public discussions on land rights should not be held. There was a clear logic to this patently unconstitutional circular.

Government intimidation, no deterrent
Immersed in its project of land grabbing from Dondra in the South to Point Pedro in the North, the Rajapaksa enterprise had foreseen the fact that while the Sri Lankan villager would suffer the most degrading attacks on life and liberty without public complaint, a savage inner fury would come out into the open when the land is touched. Despite the ravages that civil and ethnic conflict had wreaked on Sinhala, Tamil and Muslim communities, ties to their lands were deep and generational.

Affinity to land was a common bond across all peoples regardless of their ethnicity. In that steamy hall in Tangalle, as we battled to answer complex questions on the legal protection of property rights in the menacing backdrop of a regime that showed its utter disdain for the law and for the courts, this was very clear. Ministry directives were no barriers to outrage. The presence of cronies of a ruling family within virtual hailing distance of that discussion did not deter. The chorus of inflammatory public anger went on and on, unstoppably at times it seemed.

These were the growing manifestations of a stronger tide that would finally, in early 2015, sweep former President Mahinda Rajapaksa from the virtual monarchical throne that he had conjured for himself. Thus it is now difficult to look on patiently as the former President wraps the garb of a crusader around himself and professes concern for the continuing displacement of villagers in Hambantota due to a Chinese funded industrial park. This is despite initiating Chinese ‘white elephants’ that have now, among other reasons, resulted in an enormous debt burden for the country.

Advice that should have prevailed then
Challenged on this singular hypocrisy, the former President has taken refuge in semantics and argues that he is not against development but only opposes displacing people and harming the environment. But this is canny advice that he should have directed to himself when in power instead of mindlessly parroting them now in a bid to regain popularity.

The so-called Greater Hambantota City Development Program, a pet Rajapaksa project consisted of various frivolities including a port and airport and of all things, another international cricket stadium in the middle of nowhere.

Villagers were ruthlessly dispossessed and moved to elephant corridors where their very lives were at stake. The former President’s touching concern for the environment now stands in rude contrast to the fact that during his Presidency, all environmental concerns were swept to the four winds. Unlike in the past, neither could the judiciary be appealed to, given the rude pressure exercised over judges by the regime at the time. This was the very same pattern in the North and East where Tamil and Muslim villagers faced the twin threats of loss of land right by the military as well as due to hotel development.

Mapping out this unconscionable seizing of lands at that time in a study (co-authored, Not This Good Earth, Land Rights, Displaced Persons and the Law in Sri Lanka, 2013), a repeated pattern which emerged was the complete contempt shown for decades-long legal precedents that protected peoples’ rights from unlawful State action.

The State is in the wrong
This disregard seems to prevail even now. To give the Unity Government its due, unlawfully seized lands in some areas like Sampur have been returned to their lawful owners. But others live in the limbo of the perpetually displaced. In a scenario replicated across the North and East at several points, the residents of Keppappilavu in Mullaitivu are continuing mass protests started almost two weeks ago due to their lands held by the military not being returned to them. It is a crucial question whether this Government will heed their anguish.

But overall, this attitude which is commonly prevalent that the giving back of land by the State to their owners is a magnanimous act on the part of the political authority must cease. The contrary is the case. The very act of seizure of these lands has been, in many cases, against the law. The deprivation of the legal rights to property therefore puts the State in the wrong. It must plead clemency from the displaced.

Correspondingly, ad hoc amendments to the law at the whim and pleasure of this Minister or another must also cease. Laws such as the Definition of Boundaries Ordinance, the Land Survey Ordinance, the State Lands (Claims) Ordinance, the State Lands (Recovery of Possession) Act, and most importantly the Land Acquisition Act must be expertly assessed and reformed. A well developed land audit must be done in the North and East. Even if a National Land Commission is not established, the Government must put into place administrative structures that bring together public officers, affected communities and land rights advocates to settle land disputes over militarization or post-war development.

Prioritise proper policy reform
Meanwhile Sri Lanka’s legal and constitutional protections of land rights need to be strengthened. The explicit right of any person not to be arbitrarily deprived of property and to be protected from arbitrary evictions needs to be guaranteed. Where justifiable acquisitions do take place, fair compensation must be secured before eviction.

These are matters of policy and law reform that the Unity Government should have attended to immediately on coming into office. The Tamil National Alliance (TNA) should have urged this as a priority. Certainly these matters may not be as glamorous as the tempting carrot of constitutional law reform but rest assured that they are equally important and indeed, far more achievable.

In the alternative, the tide of popular anger that swept the Rajapaksa phenomena away in 2015 can well change its course. As we saw then, it was ordinary people’s reactions that made a difference, not the cacophony of political agendas that conflict as politicians quarrel with each other. This is a good reminder to ruling politicians at this time.