Sri Lanka Rights Watch 26 - Land Issues

( Created date: 30-Jun-2012 )

During the first set of consultations on the Human Rights Action Plan arranged by the Task Force of the Inter-Ministerial Committee expediting its implementation, it became clear that one of the most important cross-cutting issues was that of land rights. I realized that this was also important in another respect, since land came up as a central issue when I served on the government delegation that met with representatives of the Tamil National Alliance. LLRC recommendations also deal to a significant extent with land issues, though unfortunately these are not treated in general discussion with the same importance as matters of less concern to the people at large. And of course efforts by government to deal swiftly with some problems with regard to land were met with strong resistance which has now brought the matter into the Courts.

This seemed therefore a matter which should be discussed in a small group of stakeholders able to take action, and we requested the Ministry of Lands to arrange this. While many problems are exacerbated by the range of decision makers involved, and no clear understanding as to which is the lead agency, in this case the situation was simpler, since obviously it was the Ministry of Lands that had to take the lead. Its Secretary however decided initially, very sensibly, that we should have a preliminary meeting to discuss the various issues involved, though I was fortunate to have with me the consultant who had helped finalize the Action Plan, and who has a much better grasp of the issues involved than I do.

So does the Secretary, as we found out, and he had already taken action to resolve some of the problems. A slight one, but complicated, was the Land Development Ordinance, or rather the changes that were required, in particular to ensure gender equality. This had been amended for the purpose a couple of years ago, but abortively, since it was then noticed that Provincial Councils had to be consulted before any such amendment could proceed.

Consultation had been lethargic, as with most such requirements, and in our discussions we had worried about this, and wondered whether it was worth proceeding only with the relevant schedule to ensure gender equality, leaving the other changes to be decided later. But it turned out that the Secretary had already held the necessary discussions with Provincial authorities, and achieved consensus through small but pertinent changes to ensure the involvement of provincial officials.
With regard to the schedule about gender equality, there had been no problems at all, since obviously in the modern age it makes no sense to give primacy to male heirs if anyone dies intestate. Consensus thus being achieved now, we can only hope that the necessary formalities, at the President’s Office and through legal officials, are got through swiftly.

This is not something however we can anticipate. The manner in which excellent legislation has been delayed, through the absence of a sense of urgency at the Legal Draughtsman’s Department, as well as for other reasons, has been a constant problem in recent years. The Secretary said however that he had noticed a change recently, which I hope will be entrenched.

The main area in which action is needed with regard to land is in the case of the internally displaced. I remember, soon after I took over as Head of the Peace Secretariat, discussing with the then head of the Law Commission, Prof Marasinghe, the need to have provisions in place to deal with the conflicting claims of original owners, and those who had occupied lands that were vacant, and might feel entitled to possession by virtue of prescription provisions.

Prof Marasinghe said that they were working on the matter, and soon afterwards I believe draft legislation was made ready. Whilst the rights of those displaced under pressure had to be preserved, to dismiss other claims, and not only when improvements had been made with some financial outlay, would clearly not be just either. But mechanisms for compensation, with stress on the provision of alternative land, rather than money, would not have been difficult to work out, and would also have addressed the wider problem of landlessness. What we had felt was that, while actual decisions, and the development of conflict resolution systems through mediation, should be decided by experts, the main point was that such decisions had to be made quickly.

The Secretary was aware of this, and had set the wheels in motion to resolve this problem. Unfortunately controversy had arisen the previous year after a regulation designed to ensure swift action had been challenged, understandably perhaps because different versions had appeared in different languages. However there seemed broad understanding of the need for generally acceptable principles to be affirmed, with final authority and appeal procedures entrusted to relevant officials with the appropriate status.

One problem I had not anticipated, but which came up constantly at the Divisional Secretariat Reconciliation Committees I had attended, was the question of title with regard to land made available in the seventies and eighties. I realized then that there had been two conflicting views with regard to the land redistribution exercise begun by the United Front government. Handing land over to the peasantry was the dominant ethos, but there was also a school of thought which held that all land should be possessed by the state, and only given out for use on permit. Given the disinclination of government officials to give up control of what they governed, that latter philosophy seemed to have won out in many areas. What with the complications wrought by conflict, this had led to deprivation, which needs to be corrected rapidly. In Kilinochchi I had been told things were slow, as compared to Vavuniya, where action had been taken. I do not know details of this, but I believe the Secretary will be able to sort this too out quickly.

Daily News 8 June 2012 - http://www.dailynews.lk/2012/06/08/fea05.asp

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