Focus on Rights

Alienating our land: paradoxes in the Bill
When, despite the recent constitutional convulsions, a Bill titled "Land Ownership", was placed on the Order Paper of Parliament on November 19, 2003, (effectively the first day on which the House sat after its prorogation), the paradoxes inherent therein were fascinating.

The Bill itself seemed innocuous at first glance, visited upon us by the greater benevolence of the Lands Minister who appeared determined, out of the goodness of his heart, to grant lands outright to the citizenry of Sri Lanka who had earlier, only restricted land grants under laws such as the Land Development Ordinance and the Land Grants (Special Provisions) Act No 43 of 1979.

However, even during its formative stages, locally based activist networks such as the Movement for National Land and Agricultural Reform, (MONLAR) questioned the wisdom of such moves. For years, farmers in this country, (for whom these lands have been targeted as grants), had been browbeaten by successive government policies of marginalisation.

As a result, the majority of the currently land restricted grantees, farmers in the main, continue to be desperately poor. Some had committed suicide unable to cope with the slashed subsidies and unmerciful lack of sympathy for their plight. The most reasonable forseeability of outright land grants to these farmers would be the selling of this land to the highest bidder, which, devoid of any such restrictions to that effect in the current context, could be alien entities or individuals.

Strong arm World Bank policies that had been recommending a shift away from rice and other domestic food crops to high value (export crop) production and the creation of a 'free land market", meanwhile formed a disquieting background to this discussion, as previously analysed in this column not so long ago. The "Non Plantation Sector Policy Alternatives Report," (1996), for example, cited the vast number of restricted land grants as a primary obstacle to this end and suggested that free hold titles be granted to all those who had only restricted land grants. Restrictions to the selling of land was recommended to be done away with.

Interestingly, this move towards outright land alienation was not spurned by the People’s Alliance either, given a predilection for simple vote catching measures. However, it is during the time period of the present government that we see an actual bill in this regard being presented to the House, that would result in the grant of free hold titles to some 1.2 million restricted land grantees.

It is reasonable to ask therefore as to where are restrictions to outright alienation to non-citizens or foreign corporate bodies, in the proposed Bill? Or, do we want the ownership of our agricultural land to replicate what is speedily taking place in areas of historic significance in Sri Lanka such as most notably, Galle, where the most visible landowners are the foreigners?

And now, we come to the paradoxes. Though the proposed Bill had been earlier objected to in no uncertain terms by President Chandrika Kumaratunga, the compromise arrived at in order to present the Bill to the House, is significant.

The Bill contemplates a process whereby the Minister first receives observations from the Divisional Secretary, Designated Officer or an officer authorised in that behalf in writing by the Land Commissioner, regarding the granting of a certificate of full ownership to an applicant. Thereafter, the application together with recommendations made in that regard by the Minister is forwarded to the President, who is given final authority (within a period of three months) to grant the certificate.

A substantially similar process (with the availability of an appeal to the Board of Review from the first decision of the Divisional Secretary, Designated Officer or delegate of the Land Commissioner) is prescribed in the case of disputed lands.

A piquant question then would be, (putting aside convenient compromises by the present incumbent in the office of the President and politically opposed Ministers of the Government), as to whether even in its present form, the executive President's power to "make such grants and dispositions of lands and immovable property vested in the Republic' as constitutionally decreed in Article 33(d) of the Constitution, has been unduly restricted.

As seriously, the question is as to whether the whole amounts to an attempt by the Centre to bypass the Provinces without the proper constitutional procedure being followed? The Bill, in its first clauses, is mandated to apply to one or more of the Divisional Secretaries Divisions falling within an administrative district or to all or any Grama Niladhari divisions within the former divisions as the Minister may specify in the Gazette. Municipal lands, urban council lands, pradeshiya sabha lands and urban lands declared to be development areas are excepted from its reach.

In clause 1(3)(a), it is also stipulated that in the case of lands granted or transferred under the relevant laws after the 13th Amendment to the Constitution, the proposed law shall apply only in respect of such grants or transfers made in accordance with the laws and the provisions of the 13th Amendment.

It is a moot point whether the mandated procedures in the 13th Amendment in respect of alienation of provincial land could be got over in this manner. This stipulates very clearly that alienation or disposition of State land within a Province to any citizen or to any organisation shall be by the President, on the advice of the relevant Provincial Council in accordance with the laws governing the matter." (Article 154(G)(3) of the Constitution read with item 18 of List 1 of the Ninth Schedule (the 'Provincial Councils List'), section 1:3 of Appendix 11).

There is, after all, a substantive difference between the first restricted grant and the outright alienation contemplated by the Bill. Purists could therefore convincingly argue that the Bill offends the fundamental principles of devolution that have been constitutionally enshrined in that its provisions have not been first presented to the Provincial Councils as mandated.

In all (quite apart from the fact that the Bill is mandated to apply only to lands in Sri Lanka, the elevation of which is "less than 1524 meters above mean sea level", making its practical applicability pregnant with all sorts of possibilities as deliciously imaginative as they are confusing), it would be reasonable to conclude that the Lands Bill is as problematic as they could possibly come.

In the final analysis, what we badly need is a defined national policy on land whereby changes to the ancient practices and laws of land ownership are strictly regulated and far more sympathetic responses to the continuing traumas of the agricultural livelihoods of the present restricted land grantees. In the alternative, shoddy makeshift solutions can only wreak incalculable damage to this country.

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