Sunday Times 2
Bulldozer-happy RDA: Symptoms of impunity and violation of people’s rights
The recent excitement over the Road Development Authority’s bulldozing of the rich man’s pond in Colombo 3, the Colombo Swimming Club (CSC), received much coverage. The rich and poor are being treated alike. At least the RDA doesn’t discriminate when it comes to bulldozing.
The Colombo Swimming Club
The RDA’s actions, whilst creating a stir in Colombo society, are symptomatic of a much deeper national issue that mostly affects poor and vulnerable citizens. Unfortunately, the woes of the poor are rarely heard. Unaware of the laws and their rights, they do not have the means to hire lawyers and spend years in court to seek just compensation.
Land acquisition in Sri Lanka is still governed by the 1894 Land Acquisition Act (LAA), amended from time to time. Why is Sri Lanka clinging on to a colonial law and only occasionally fiddling around with amendments? A 2013 Gazette provides relief with resettlement assistance but only for select, named projects. What about all the others and why are they being treated differently? Nineteenth century demands for land acquisition to support colonial interests are surely different from an independent Sri Lanka’s 21st century development requirements? The 1894 Act is not likely to give much-needed protection to the citizenry. Colonial masters had no interest in the natives except to serve their own interests. Why have successive government failed to address the failures of the LAA?
In 2001, supported by technical assistance from the Asian Development Bank (ADB), the cabinet approved the National Involuntary Resettlement Policy (NIRP). Then, it was the National Planning Department (NPD) that was forward-thinking, in anticipation of putting into place an urban development master plan. The NPD decided to have a policy to guide resettlement. Up to date the policy has not been legislated. Why?
Sri Lanka, being one of the first countries in the region and very few in the world to have such a policy, could not capitalise on the gains nor revise the LAA despite the ADB’s continued technical assistance. India, on the other hand, having learnt painful lessons from delayed land acquisition and poorly managed involuntary resettlement, has legislated a progressive Land Acquisition and Resettlement Act and that, too, without external assistance. No doubt, implementation is another matter. However the first steps have been taken to legislate against rampant land acquisition and disregard for people.
Sri Lanka, by contrast, has regressed. A little understood fact is that most land acquisition in Sri Lanka is undertaken by issuing section 38 (a) of the LAA, which allows for “emergency” (to date undefined). Land is vested with the state within 48 hours with compensation to be paid at a later date (maybe never), unless land owners go to court. Further, such emergency acquisition absolves the acquiring agency from hearing objections to the project.
Why did RDA issue section 38(a) in 2010 to acquire the swimming club land? Is it an emergency when the bulldozers arrive seven years later? The routine application of the emergency clause perverts the Act itself. Why has no State agency or the Government questioned the abuse of the emergency clause and violation of peoples’ rights under the law? Notwithstanding all such efforts to avoid due process, land acquisition in Sri Lanka takes years to complete – often as long as five – involves multiple agencies, requires some 52 procedural steps and costs the public purse huge sums in additional interest due to delays in compensation payment.
Successive governments ignored the repercussions of abuse of the LAA including mounting costs to people and State alike. Innovative sector agencies and divisional secretaries under whose purview land acquisition is managed also resort to encouraging voluntary land donation or simply ignore the requirement to pay compensation. While the State externalises costs by impoverishing its citizens through delays or non-payment, contractors and rent seekers benefit from the callous inaction of State functionaries.
Due to delays in handing over land to contractors, the clock starts ticking and fines mount (in foreign currency to international contractors). The real costs of projects are hidden from the public as there is no disclosure of the disaggregated cost at project end. Lack of computerised information on land, State or privately-owned, insufficient information on valuation methods, land values, absence of transparency and failure to disclose public information are owing to a lack of governance and a poverty of vision.
Again, India, discloses land price guidelines on Government websites, including information regarding valuation for tax purposes, methods and procedure for valuation, etc. By contrast, check Sri Lanka’s Government Valuation Department website, last updated in April 2015 with no useful public information.
Government valuation is well known to be insufficient for people to replace their lost assets – so much so that if a Government agency wants to sell its asset it is not going to sell it off at the Government valuer’s price. It is reported that the CSC land is valued at Rs.4 mn a perch while the RDA offered Rs. 2 mn. An independent valuer found the entire plot to be worth Rs.1.4 billion but the RDA’s price was Rs. 374 million and that, too, not at 2017 prices. There has been no payment to date. Why knowingly diddle the people then or, more importantly, sign up projects if there is no money to pay? After all, land acquisition can only be imposed for “public purpose”- presumably a public benefit.
The only time Government agencies scramble to cough up the cash is if one of the multilateral development banks – being more terrified than the Government of a public outcry and civil society action – cite their safeguard policies and push them into a corner for minimal compliance and stricter monitoring.
In addition to the Colombo Swimming Club saga, Castle Hotel at Slave Island, Yan Oya, Uma Oya and the Central Expressway Project have all been in the press recently. Why have none of these projects complied with the NIRP and prepared resettlement plans? What about the Hambantota port, Special Economic Zones and multiple urban development projects proposed in the past and future?
Some of the largest infrastructure projects amounting to millions of dollars in taxpayers’ money are implemented through the RDA. The Central Expressway is a four-phase project, the website says. One resettlement plan, in English, is available for Phase 1, Stage 2, and 2A (Ambepussa link road), prepared in 2016. A staggering 2,707 households are to be affected with some 253 public buildings and common property resources acquired, the cost of land acquisition and resettlement for Stage 2 is reported as Rs.34.41 billion. This is probably a conservative estimate given undervaluation of assets and absence of a detailed design and proper inventory of losses. Selection of the contractor and supervision consultant appears to be complete while the land acquisition is yet ongoing. No information is available on whether people have been paid.
Are the prices for compensation to be revised at the time of payment, since the RDA has used emergency powers for land acquisition and is, therefore, not bound to pay up before vesting the land with the State? When will they pay? For other sections, there are differing schedules with the land acquisition program being completed before the detailed engineering, presumably based on the feasibility study which could change considerably at the detailed design stage which runs into the year 2020.
In section IV for example, the land acquisition is in progress and seems to have stalled in 2016 while the detailed investigations, design and review continue through to 2019, putting the cart before the horse. Further in Stage I, the contractor is responsible for land acquisition. What arrangements were made for such unprecedented action in a public sector project? And there is no information on the Stage III of the CEP.
RDA, the various approving agencies, the Central Environment Authority, the Ministry of Lands, the Government valuer and all key players in infrastructure development must be held to account for circumventing due process and allowing the use of emergency powers for projects that are clearly not a national emergency; assessing compensation at low and outdated values; which are not updated at the time of payment; not paying people before vesting lands with the state; not complying with the NIRP; and lacking upfront public disclosure of accurate information.
The Megapolis planners would do well to look at the recent history of urban development in Colombo. Although touted as slum and shanty clearance of non-title holders, some homes in the Slave Island area were well-constructed multiple-family homes. But replacements were small apartments for the entire household. People were evicted using military force and due process was not followed. Not compensated for their previous homes, many were required to pay more than a million rupees over twenty years. There was no consultation with affected people about their preferences.
(The writer is a resttlement specialist)