Focus on Rights

Evictions of tsunami affected landowners
In the past, the process of forced evictions has been peculiarly discriminatory in its impact in Sri Lanka. Constitutionally of course, there is no right to property guaranteed though the Supreme Court has, through judicial interpretation, recognised a right to due process when persons are deprived of their properties. This has included the right to be informed and to be heard when land is to be acquired.

A corresponding duty has been imposed on State when acquiring property ostensibly for an urgent public purpose, to give due notification of the exact purpose as well as the urgency of the proposed acquisition.
This is, of course, in strict legal theory. Practically, the right to due process in respect of land acquisition and consequent evictions of landowners from their property has existed only in respect of those fortunate enough to go before court and to obtain a fair hearing from judges sympathetic to their plight. The effect of those decisions have not trickled down to administrative and government officers in a manner as to benefit the marginalised and underprivileged who are unable for many reasons, including financial, to invoke the jurisdiction of the courts in their favour.

The attitude of the Government in relation to acquisition of land, whether for development purposes or otherwise has thus been very cavalier. The bypassing of norms that demand fairness and accountability is well evidenced, none more so perhaps than in relation to the Southern Expressway (the first major expressway project in Sri Lanka) as seen both in the increasing number of applications in court as well as by the fact that an internal report of one of the major lenders for the project, the Asian Development Bank (ADB) has found non-compliance with its own rules and guidelines in the implementation of the project. The fact that the ADB could not have been stricter down the line in relation to the said implementation is, of course, lamentable.

This attitude of pervasive non-accountability is bound to govern the response of the Government to tsunami affected landowners, particularly as the legal rights of many of these people to the land on which they had been living prior to the tsunami are not well secured. The current position of the Government in regard to eviction of householders from their lands situated within the so-called buffer zones in the South and the North-East appears not to be as severe as it appeared to be at the start. This is due to the mass protests evidenced from tsunami affected persons from all the affected provinces as well as the displeasure evidenced by international humanitarian agencies who have pointed to the trauma that the internally displaced persons would suffer as a result.

However, the extent to which this caution will prevail is uncertain given also reports of tourism master plans being prepared for parts of the tsunami affected North-East as well as the South that would inevitably result in mass scale evictions.

All actions of the State, it must be understood, are governed in this regard not only by domestic norms that specify accountability but also by applicable principles of international law. Sri Lanka is bound by provisions of the International Covenant on Civil and Political Rights (ICCPR) which imposes certain restrictions on the Sri Lankan State in this regard despite the fact that the right to property is not a constitutionally protected right domestically.

Two decisions by the UN-HRC are relevant in this regard (see Adam v Czech Republic (Comm. 586/1994, para. 6.2) and Des Fours v Czech Republic (Comm. 747/1997, para. 7). In these cases, it was ruled that the right to property is capable of judicial supervision and control. The UN-HRC recognised that while the right to property is not protected as such under the ICCPR, such rights may be considered where they raise issues under other provisions of the Covenant. Consequently, Article 14 protects the right to a fair hearing and due process in the determination of property rights under domestic law, and corresponding protection from arbitrary interference.

In one instance, the Committee in examining the right to a home in terms of the International Covenant on Civil and Political Rights took the view that forcible eviction of inhabitants from so-called informal settlements in certain parts of Kenya without prior consultation with the populations concerned and/or without adequate prior notification has been viewed as arbitrarily interfering with the Covenant rights of the victims of such evictions, especially their rights under article 17 of the Covenant. See Concluding Observations of the HRC in relation to Kenya, CCPR/CO/83/KEN, 29 April, 2005, HUMAN RIGHTS COMMITTEE, Eighty-third session.

The European Court of Human Rights, (ECHR) in considering parallel rights in terms of the European Convention on Human Rights, has found that, although the deprivation of the property of a landowner may have been provided for under law and be in the public interest, the failure of a State Party to ensure a fair hearing can result in a finding that it acted unlawfully or arbitrarily in violation of the provisions comparable to Art 14. (see Hentrich v France (18 E.H.R.R. 440, para. 56).

Regional tribunals have also found that in seeking to protect their right to a home against potential threats, people are entitled to receive relevant and timely information. The State Party is under a positive duty to provide this and failure to do so can violate the individual’s right to respect for the home.

The requirement of consultation, information and adequate procedural fairness as an inherent aspect of the right reflects the approach of other international bodies such as the UN Economic, Social and Cultural Rights Committee which has stated in relatio to forced evictions that it is crucial that appropriate procedural protections are in place prior to any evictions from the home.

These include (a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all those affected persons prior to eviction and (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected.

In this respect the ESCR Committee has specified that the right under Article 17 to be protected against "arbitrary or unlawful interference" with one's home complements this protection against forced eviction. (See ESCR Committee General Comment 7, paras. 8 and 15 These decisions and jurisprudence illustrate that the State needs to observe a particularly high standard of vigilance in ensuring procedural fairness when dealing with property rights of tsunami affected and/or development affected persons in Sri Lanka.

What the State does may be taken to the international legal arena as a consequence of obligations that the State itself has incurred in international law. (ie; by ratifying the ICCPR as well as its Optional Protocol permitting individual communications). Public participation must be ensured from the beginning of the procedures for evictions and due account is to be taken of the outcome of the public participation in reaching the final decision, which must also be made public. Government officials may do well to observe the rules of caution specified by the domestic courts and the UN-HRC in this regard.

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