Columns - FOCUS On Rights

Bartering away land and security rights of all Sri Lankans

By Kishali Pinto Jayawardene

On a clear day, the waters off the eastern coast of Sri Lanka, abutting villages such as Panama and those further interior including Kumana, are of such a brilliant blue as to dazzle the eye. Set against soaring rock cliffs and sparkling white sand dunes, the scene is reminiscent out of the pages of a story book, with the pirate ship just about to round the cove.

The depredations of modern day pirates

Yet in recent times, it is this very spectacular natural beauty that has ironically spelled doom for hapless villagers whose lands, held by them for generations, are being snatched away by powerful political individuals in the alleged name of post war development. These are the modern day pirates, able to cause as much grief and beating of breasts as the fabled marauders of yester year, only minus the black eye patches, the wooden legs and the claw hands.

The villagers of Panama, Kumana, Helawa and Ragamwela are not alone in their misfortune. Indeed, increasingly evidenced patterns of land grabbing in the East constitutes the most telling answer to those who would like to say that Sri Lanka’s problems of the Rule of Law are confined to civil and political issues. The contrary is, in fact, the case.

This is inevitable. Any argument that the breakdown of the law in this country, which has paradoxically post war exceeded even all the depredations of previous decades, would somehow miraculously confine itself to only those unfortunates categorized conveniently as terrorists, saboteurs, non-patriots or common criminals was bound to result in failure. When a country’s legal system is undermined to the point of being virtually unworkable, it does not stop at certain points. Instead, the failure is systemic. It spreads to every level of community functioning and ultimately results in the community taking matters into their own hands. In this regard, the issue of ethnicity also decreases in importance. Again, the East is a good example, Sinhala, Tamil and Muslim villages are equally affected. Their residents are equally angry.

Legal precedents tossed aside

In the face of these inroads on property rights, not only humble villagers but even those with all the legal skills to ordinarily resist such actions are helpless. Waving his hands in agitation, one lawyer explained to me that his lands had been acquired for the Oluvil port project more than a year ago but that fair compensation is yet to be given.

Legal precedents do not appear to be of any use anymore. In 2004, the Supreme Court ruled in the petitions of several landowners whose properties had been acquired for the Southern Expressway without prior notice and without fair compensation, that the then state authorities had acted in violation of the law (see Mundy vs Central Environment Authority and others, SC Appeal 58/03, SC Minutes of 20.01.2004, judgment of MDH Fernando J).

The Court was unequivocal in its pronouncements that powers vested in public authorities are not absolute or unfettered but are held in trust for the public, to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by reference to those purposes. In the instant case, it was observed that the villagers, as persons affected, were entitled to notice and to be heard as per the principles of natural justice. Their fundamental right to equal treatment and to the equal protection of the law entitled them to notice and a hearing.

Land rights disregarded by the powerful

But where are these rights observed by the authorities in the case of acquisition of lands taking place all over in the East as a precursor to tens of luxury hotels being built with minimal benefits to the traditional residents of these areas but with fat commissions no doubt being put in the pockets of the politically powerful?

The other accompanying phenomenon is the increasing prevalence of lands being sold to foreign companies even though this involves large scale evictions of landowners, some of them who have legal title to the land and others who do not. Yet, even in the context of persons alleged to be in unauthorized possession of state land, the state of the law is that such persons cannot be summarily evicted. A good judicial assertion to this effect was made, for example, in Edwin v. Tillekeratne when the Court recalled historic words adopted as a general rule of conduct, “That no man of what estate or condition that he be, shall be put out of land or tenement …… without being brought in answer by due process of law” (2001, 3 SLR, 34).

Current lands policies worse than all past practices

Even more ironically, the United National Front (UNF) government was seen to be engaged in policies inimical to the country when briefly in power a decade back, most particularly in regard to land ownership. The UNF’s Lands Ownership Bill in 2003 was struck down by the Supreme Court primarily on the basis that there was lack of adherence to constitutionally mandated procedures. If this Bill had been passed, it would have resulted in doing away with restrictions attached to grants and transfers of state lands. However, even though this policy came to fruition in this period, it had been in the making for many years before under a different political administration. A 2001 Draft Land Use Policy advocated the creation of a ‘free land market’. One of its objectives was to enhance the role of the private sector in land resources development in order to bring about a rational distribution of population and settlements so that orderly economic growth and balanced regional development is ensured.

Obviously such an approach was basically incompatible with the sustainability of rural agricultural livelihoods. The majority of these land restricted grantees were desperately poor. Others had committed suicide unable to cope with the slashed subsidies and unmerciful lack of sympathy for their plight, by successive governments. The most logical consequence of outright land grants would be the selling of such land to the highest bidder, which could be alien entities or individuals.

Most strenuous objections were raised to that proposed Lands Use Policy. However, we are yet to see similar objections being raised to the present government’s policies on land which are even more disturbing than its predecessors. In fact, current practices in regard to alienation of land has affected not only the rural communities but has spread their tentacles to the cities in the shape of foreign companies and consortiums being given rights outright in prime state properties that are meant to be held in the trusteeship of this government.

Disregarding of post war priorities of land and security

In this post war era, issues of land and human security are intertwined in such a manner as to be virtually inseparable. Clearly, both are under tremendous threat in Sri Lanka as a direct result of the absence of the Rule of Law and of arbitrary government policies.

Last week’s column spaces dealt with the unabated incidents of ‘grease devils’ in the East and elsewhere in the country, excepting (rather bewilderingly), the South and the North. It is surely food for thought that even the highly militarized environment prevalent in many areas of the East did not deter villagers from attacking police stations and army posts when they suspected that ‘grease devils’ were being given shelter by the authorities.

Not only that, it was reported this week that rural hospitals too had been surrounded and their medical staff urged not to treat suspects who had been caught by the villagers. Their ambulances had been attacked. Incidents of shooting into crowds by the police, the army and the navy had only aggravated matters. In Kinniya, public officials, politicians and government administrators were held hostage by enraged crowds demanding that their security be guaranteed.

Use of war victories for other purposes

The argument that disaffected sections of the political opposition were behind this scare may be popular with some but is not wholly logical at many levels. If we are to treat these incidents as organized anti-government actions, given that these incidents are not localized but are evident across provinces, could one expect that level of organization by parties who do not have the capacity, the internal will or the basic planning even to organize a successful people’s march against the government? Even more disturbingly, the inaction by the police in investigating and apprehending the offenders is inexplicable. One would have expected that if these were indeed orchestrated against the government, it would have been relatively easy to apprehend those responsible which would, in turn, be a huge propaganda victory for the government.

Ultimately, it needs to be said, over and over again if necessary, that this government cannot be allowed to think that its war victories can be used in such a manner as to barter away this country to all and sundry. It needs to protect the human security and land rights of citizens as a foremost priority. If it does not understand this basic reality, then surely it must be taught that most important lesson by its voters?

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