Sinhala  Tamil    Seperate    
Governtment of Sri Lanka

‘The Right to Land and the Right to Development“ Irreconcilable Differences?’ at the Forum on ‘Sri Lanka’s Road to Sustainable Development’ organized by the Law and Society Trust, August 22nd 2014

( Created date: 24-Aug-2014 )

The Right to Private Property is not recognized in the Sri Lankan Constitution. When the Liberal Party first asserted the need for this, in the eighties, we were considered eccentric, as we were then with regard of our advocacy of the German Mixed System of Election and a Second Chamber. 
Now that the idea – like those others, I should note - is more widely accepted, I should also stress the flip side of this, as it were, namely that this Right is not in conflict with State needs when it comes to development. Those must necessarily take precedence. As I have pointed out recently, in dealing with the constant queries that come up at Divisional Reconciliation meetings, the State does have the right to take over land for public purposes, and this cannot be circumscribed. However it has to be exercised in conformity with clear regulations, which include the stipulation that nothing that is not strictly necessary for the stated purpose is taken over. There must also be transparency as to the purpose and the rationale for selection, and the process needs to be justiciable. The third principle that must accompany these is of adequate compensation, again with transparency as to the calculations, and justiciability.
The principles may be simple, but putting them into practice is not. Also, given the delays and expenses of our legal system, it is desirable to put in place, to ensure justice, mediation mechanisms, so that recourse to law is rare. And there must be systems in place to ensure that judicial or quasi-judicial decisions are not flouted.
I say this because of the sorry history of a project that I think exemplifies the problems we face. I refer to the Southern Highway, which I think everyone will agree is a welcome development that benefits the country as a whole. Yet we know that it took ages to complete, and the route was changed finally so that much more private property was taken over than on the initial plan, and much more compensation paid than should have been necessary. And though the ADB had a complaints mechanism in place, and though that mechanism ruled in favour of those who had objected to the new route, that ruling came too late to bring relief. 
What had happened in that instance? The problem arose not because of any conflict between the Right to Property and the Right to Development, but because of the greed of officials and the complacence of those who should have monitored progress. Add to that the change of government in between, so that two – or maybe it was three – sets of rent seekers had to be accommodated, and you can see how difficult it is to work on principle. Interestingly, the story in the area was that the initial change of route was because the property of the mistress of a leading politician could not be disturbed, a wonderful example of the sanctity of Property, in the broader sense too. 
I cite that example to indicate that we have a long-standing problem with regard to the question before us. But I realize, if only because of where we are, that this discussion is intended to focus also on what is happening now. In that regard I think we can identify four different types of problem – 
a) Takeover of land by the military. This has been less than is sometimes alleged, but clearly far too much has been taken near Palaly and Kankesanthurai, and the first principle noted above is being violated. The argument is that this is for security purposes, and I grant that this is as important as development, or even more so. But given that we are not in an emergency situation any more, the need for transparency cannot be forgotten. Since this is ignored, it is not surprising that the actions of the State have led to deep resentment. 
b) Takeover of land without proper procedures under the guise of security purposes. This has happened too often, for instance with regard to Sampur, where we called for reports when I chaired the Task Force on expediting implementation of the Human Rights Action Plan. It turned out that the Security Forces had wanted very little land, and this was true with regard to the indian Project too, both of which were flaunted as being the reasons for land being taken over. But what had in fact happened, as far as we could make out, was that land was also being used for private development, with regard to which procedures should have been more stringent.
c) Conflicting claims with regard to ownership. This problem does not really come within the topic laid down here, but given how much anguish it causes, we need to recognize the need for swift and equitable solutions. Seven years ago I discussed the matter with the Chairman of the Law Commission, who said he had a draft ready to deal with the problem of Prescription. But it was only earlier this month that legislation came before Parliament, and then it had to be delayed because there had been inadequate consultation. In this regard I should note that I find it quite astonishing that a body such as the Law and Society Trust has not supported my efforts to amend Standing Orders in an attempt to introduce some sanity into the manner in which legislation is brought before Parliament. But I suspect that, like our opposition, which fails to use the tools at its disposal, it finds it more convenient to complain than promote reform.
d) Confusion with regard to land permits. In this regard it would make sense for the State to stop granting land on permits that have to be renewed, since this places restrictions on the exercise of the Right to Property, and can cause much misery when renewals are forgotten or inheritance is contested. Rather, it makes more sense to give outright grants, albeit they can be subjected to prevention of selling for a fixed period of time. This will also help with regard to loans for improvement, and will also help to develop a sense of Property Rights which is now not generally shared. 
Finally, we need to develop systems that ensure awareness amongst stakeholders with regard to proposed development projects. Recently government introduced a system of local consultation which needs encouragement and strengthening. The Civil Defence Committees in every Grama Niladhari Division are now meant to discuss social and economic issues too, and they are supposed to be chaired by the Grama Niladharis, which should ensure official cognizance of matters discussed.
But the system is not always in operation, and there is carelessness about the maintaining of minutes, and sharing of these with the citizenry as well as officials at different levels who have the power to decide with regard to the issues raised. I would suggest that organizations interested in the promotion of Rights help to entrench and develop this system, since it will be a useful tool for the dissemination of information as well as promoting people’s participation in the decision making process. So let me conclude with the suggestion that, not only should we try to establish principles that stakeholders including the State should follow, we should also find out what measures are being taken to improve the delivery of services and try to improve them and ensure awareness of both Rights and Processes.


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