Land and land policy has received much attention in recent times. There are numerous discussions and activism around land policy. For example, the LLRC has recommendations about land disputes in the North; land disputes were mentioned in the resolution passed against Sri Lanka during the 18th session of the United Nations Human Rights Council; there are studies largely based on the notion of land rights; some civil society groups have organised themselves to work against on land grabbing, and environmental groups are concerned about the impact of land use on the environment.
On one hand, land is a physical resource that can be mapped, quantified and studied within various fields of knowledge collectively known as earth sciences. But this physical aspect gets a totally different meaning through political and economic processes. This happens over time, and what we face today is a result of politico-economic history.
Some of the key steps in this politico-economic history of land took place during the colonial period. The establishment of the institutional framework for the modern Sri Lankan state in the 1830s, and the passage of the Crown Land Encroachment Ordinance of 1840, changed the nature of property relations on state land. The most important shift was establishing the need for documentary proof of ownership of land. The land where this could not be established came under the state. Along with these developments, the idea of ‘encroachment on state land’ came into being. In feudal Sri Lanka this notion did not exist. As we shall see below, this notion of ‘encroachment on state land’, created during the colonial period, has become very useful for the ruling class in recent times.
The flip side of the enactment of the Crown Land Encroachment Ordinance was the sale of land to establish the plantation industry. This was the first major step undertaken to establish a capitalist mode of production in Sri Lanka. Capital came from Britain and labour from South India.
From the time the economy was liberalised in 1977, sometimes called the second wave of globalisation as opposed to the first wave during the colonial period, the government has allocated land for the expansion of the private sector. This demand for state land from private capital is bound to expand in the post-war period. The post-war stability achieved through military means has created better conditions for the expansion of capitalist relations in society and the private sector needs state land for this purpose. In addition, land is required to develop the infrastructure necessary for promoting capitalist growth.
Along with these demands by capital, institutional reforms to consolidate private property rights and develop a land market for state land have entered into the policy debate. In a widely discussed report published in 1996, the World Bank recommended divesting state ownership of land and establishing institutional mechanisms for the market mechanism to operate on land. The main focus of the report was how to improve non-plantation agriculture. The authors of the report believed deepening market relations on state land would consolidate land among more productive farmers, leading to agricultural growth. The necessary laws were passed to make this a reality, and a land titling project was implemented. In addition, the government began to convert permits given through the Land Development Ordinance to various other forms of ownership identified with names such as Swarnaboomi, Jayaboomi, etc. Although these were not title deeds, they conferred more rights on the owners of land. The Bim Saviya programme implemented under this government is the latest addition to the attempt to consolidate private property rights on land.
The liberal discourse of individual land rights, in contrast to articulating collective demands, supports the agenda of promoting private property rights and institutions on land. This will support capitalist development. This discourse can consolidate the rights of the marginalised only if individual land rights are combined with measures that would protect the poor from the pernicious effects of the market. Here we go beyond individual rights to collective needs.
While establishing institutional reforms for the development of a capitalist economy, the late colonial period also saw the beginning of land distribution for the purpose of improving the lot of the rural peasantry. The Land Commission of 1928 and Land Development Ordinance of 1935 were important in this regard. From this point onwards both colonial and post-colonial states of Sri Lanka had a series of policy measures distributing state land to the landless. State land was distributed through land settlement schemes; so called ‘encroachments’ were regularised, and land was distributed for village expansion. These policies continued even during the liberalised period of capitalism. In fact the largest land settlement programme was implemented during that period. These policies were linked to development objectives such as improving agriculture and making the country self-sufficient in food.
This means that although a notion of ‘encroachment’ was constructed during the colonial period, for a long time the Sri Lankan state did no treat this idea in a narrow legalistic sense. In a country where a large proportion of the population was rural, the state accepted the fact that land that came under the state due to the Crown Land Encroachment Ordinance had to be distributed for the benefit of the rural population. In addition ‘encroachments’ were regularised for the same purpose.
The distribution of state land is part and parcel of a set of policies that subsidised and protected the smallholder peasantry. The vast majority of this peasantry are Sinhalese. This was a major plank of development policies of Sri Lanka. However it is clear now that the impact of markets and some of the policy changes under liberal market policies have brought about a class differentiation in rural areas. At one end are the poor peasantry that have not benefited from policies promoted to protect smallholder agriculture. Small plots, subdivision of plots with every generation, production with family labour for home consumption and depending on various forms of casual labour for earning an income characterise their lives. A significant proportion of income in poor rural households comes from wage labour. At the other extreme are the rich peasantry, cultivating larger plots, able to use technology, hiring wage labour and producing a surplus. They are also involved in other means of income earning such as hiring out agricultural technology, trading, etc. Richer farmers are also influential in politics. Access to political power has allowed them to extend into other spheres of the economy. Therefore despite many years of land distribution there is land hunger among the poor peasantry in rural areas. The bulk of them are Sinhalese.
The policies aimed at tackling the land hunger of the peasantry that began in the 1920s excluded the population that lived in the plantations. Characterised as an ‘alien population’, they were not entitled to land distribution under the various settlement schemes. In other words, while the basis for Sri Lankan capitalism was established through plantations, the working class that produced a surplus for the modern Sri Lankan economy was excluded from the policy of distribution of state land. This situation has continued throughout the post-colonial period. Even now, although there are many from the plantation background earning a living as small farmers, many would fall into the category of encroachers.
Policies to protect the peasantry through distribution of state land became a major factor in worsening ethnic relations. The main issue was the settlement of people in the Eastern Province. Land settlement policies changed the ethnic composition of the Eastern Province and had an impact on electoral power. This became a fundamental reason for the civil war. Thus a policy that had a progressive dimension in protecting the poor peasantry became one of the factors contributing to an armed conflict.
As a result of this history, control over state land in the Northern and Eastern Provinces remains a major political issue in finding a political answer to the national question. It was a critical issue in all past negotiations. The 13th Amendment has limited answers to this question. But even this remains unimplemented. Anyhow, with a presidential system that has centralised de facto power to a high degree, it remains to be seen how the state can be reformed to ensure devolution of power.
The constitutional debate on devolution of power over state land has been complicated by the numerous problems created by three decades of armed conflict. There are numerous land disputes in the Northern and Eastern Provinces. These have been recorded in a number of reports. A particular concern is the land cultivated by poor peasants in the Vanni. Quite a proportion of this land would have been cultivated under LDO permits or ‘encroached’. There is no sign of any systematic effort to sort out these problems. Many of the institutions dealing with land issues have been undermined during the time of the war. This creates a better environment for land grabbing. In the post-war context this land will come under pressure due to capitalist expansion to the North and East.
Finally, in the process of capitalist growth urban areas are likely to become the most sought-after locations by capital, and the state will support this process by developing infrastructure. Cities become centres of accumulation, and it is often easier to understand the global process of capital accumulation by focusing on urban centres around the world and their linkages. This will put pressure on land occupied by the socially excluded and marginalised in urban centres, especially Colombo. Dispossessing the marginalised of their land in cities can take place through market mechanisms, as well as through the use of state power. The notion of ‘encroachment’ will be a useful category for the latter strategy.
Thus in the post-war context there are several land issues if we are concerned with the socially excluded and marginalised. There are common problems faced by all of them, but there are also specific issues faced by each group. The poor peasantry, a significant proportion of which are Sinhalese, need land to make a living. The Indian Tamil population, who were left out of land distribution programmes from the beginning, need to be included as a special category in discussions on land policy. The poor peasantry from the North and East, especially the Tamil peasantry from the Vanni, face the possibility of losing their land. They also face similar problems to the Sinhala poor peasantry in making a living from land. It is useless to talk about livelihoods without tackling these fundamental issues. Finally, the land of the urban poor from diverse ethnic backgrounds will come under pressure due to expansion of capitalist development. Therefore in analysing land demands of the marginalised there is a need to combine both class and ethnic characteristics. More importantly, any kind of activism undertaken by civil society has to take into account this diversity. Focusing on some issues to the exclusion of others will make this activism a force that divides the struggles of the socially excluded and marginalised.
To end this note there is a need to make a few comments about the policy-making process within the state. In dealing with problems faced by the socially excluded and marginalised, civil society groups spend a lot of time trying to influence state policies. Donors also encourage this and routinely want civil society to participate in formulating policies, which normally end up with a document. Then the next task is how to see this is implemented. This is not a bad thing in itself, so long as we understand what the state is and how policy-making takes place in states. The dominant idea about the state that underpins these exercises is to view the state as an independent rational actor. Within this perspective, policy-making amounts to collecting information, analysing, making laws, creating new institutions if necessary, allocating resources and implementing. Well, if states were like this we would have very few problems in society.
The other view is to see states as arenas of struggles and conflicts. In the struggles there are interest groups, politics and a messy process, a large part of which cannot be understood by looking at laws and formal processes. For example, when it comes to land policy, the dominant forces at present are those who support capitalist growth, Sinhala nationalism, those who want to use political power to get hold of state land and a political class that has used state land as a means of political patronage. The political forces that represent the socially excluded and marginalised are weak. Civil society will be more effective if it keeps in mind such a conception of state when trying to influence state policies. Of course, working with the state has to be coupled with identifying and being a part of the struggles of the socially excluded. If some dimensions are missing, trying to influence the state, while believing it to be a rational actor, amounts to being trapped in a discourse promoted by elites and their backers.
Sunil Bastian
Former Senior Research Fellow
International Centre for Ethnic Studies