Sinhala  Tamil    Seperate    
Governtment of Sri Lanka

Sri Lanka Rights Watch 65 - Settling land problems swiftly

( Created date: 20-Jan-2013 )

Land continues to be perhaps the single most problematic issue at Divisional Secretariat Reconciliation meetings. This is understandable given the complexity of the difficulties, and the number of people affected. That is why the issue is given prominence in the National Human Rights Action Plan, and why the Action Plan on implementation of the recommendations of the Lessons Learnt and Reconciliation Commission virtually gives it priority.

The Task Force for expediting implementation of the Human Rights Action Plan accordingly had a consultation a couple of weeks back with the participation of all governmental agencies involved. We also had support from the University of Colombo Law Faculty, since I have found the University Human Rights Centre has taken a number of positive initiatives to develop Human Rights awareness and best practices in various areas.

The Consultant who helped to finalize the Action Plan, and who had provided invaluable support at a meeting I had a couple of months back with the energetic Secretary to the Ministry of Lands, also participated. I am awaiting the Minutes they were asked to prepare to go deeper into the issues discussed, but I fear that delay seems endemic even in the most committed, and it is perhaps because I have little else to do that I expect everyone to take action immediately as I try to do.

Meanwhile a bright young Divisional Secretary pointed out another hindrance to settlement of problems that I had not been aware of, and which had not been mentioned in our previous discussions. This arose from the complaints of farmers in his area that they could not cultivate their lands with confidence, since there was no certainty about where boundaries lay. They pointed out that the claims of others might be put forward once they had done the groundwork for cultivation.

I was surprised that Land Officers and the administration in general had not moved swiftly to clarify issues, but the Secretary told me that there was a Gazette Notification of 1989 that precluded reallocation of lands that had been abandoned because of the conflict by those working on them previously. This obviously made sense at the time, since many people had been driven away through no fault of their own, and could not reasonably be expected to return since there was continuing threat of conflict.

It was possible then that others given such lands might also be driven away, and therefore the fact that good land lay fallow could not be alleviated. But once the conflict was over, such a rationale no longer obtained, so I am at a loss to understand why the Gazette Notification was not then withdrawn, obviously with time given for claims to be made. The argument that I have heard in other contexts, that some of the owners might be abroad and not aware that their claims had to be made soon, simply does not hold water, for anyone interested in reclaiming land has an obligation to keep in touch with issues, and only the most careless would have failed to realize in 2009 that the situation had changed.

I would myself have given a year from the time the Notification was withdrawn, but that would have been three years ago. People now in occupation in those areas simply cannot be left in uncertainty for much longer. I would say that now there should be an interval of no more than three months, and meanwhile the Survey Department should go into action and prepare plans with a view to conferring ownership title on those now engaged in cultivation.

I have noted elsewhere that the situation is bedeviled by the fact that some of those in authority in the seventies, when there was supposed to be a radical programme of land redistribution, had a statist mentality, and believed only in time-bound permits, with land fundamentally belonging to the State. That was not the philosophy of the Sri Lanka Freedom Party, which believed in property rights for the deprived, and it was that more enlightened, essentially liberal (as opposed to Communist or State Socialist) philosophy that led to such positive results from the land reformation programmes undertaken in countries such as Japan and Korea and Taiwan.
Ownership is essential for long term development, and that is why we should also introduce a Right to Property in the Fundamental Rights that the Constitution enshrines. That does not of course preclude the Right of the State to take over land, and property, for national purposes, but it does mean that such actions should be according to due process, and accompanied by appropriate compensation.

This factor lies at the core of the other issue that comes up frequently at Reconciliation meetings. Both at Kopay and at Mutur, which include people affected by the two major High Security Zones government has developed in the North and East respectively, stress was more on compensation rather than repossession. Of course there are some who want their original lands back, but it needs to be explained clearly to them that there are legal provisions for government to acquire land, and these cannot be challenged on grounds of simple unwillingness to yield possession.

However government too should be more sensitive, and should as quickly as possible make decisions about what is needed, and take it over in accordance with prescribed procedures. Unfortunately delays, caused by uncertainty in the face of conflicting excesses of wanting as opposed to needing on either side, have raised tensions unnecessarily. In addition, confusion about whether land is needed for security purposes – as to which it is essentially for the security forces to decide, albeit rationally – or for economic development (which requires conformity to certain conditions which can be objectively assessed) has contributed to further uncertainty.

What is needed then is clarity of purpose as well as precision of implementation in accordance with the law. Public purposes must take priority, but they should be fulfilled legally as well as sensitively.


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