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| Farmers in Vanni, Sri Lanka |
''More needs to be done if peace and reconciliation are to be
achieved, including through the full implementation of the Thirteenth Amendment
to the Constitution which would involve devolving land powers to the Provincial
Councils and the establishment of the National Land Commission.''
Land Circular: 2013/01
Centre for Policy Alternatives/March 2013
In January 2013 the Government issued a new circular titled
Accelerated Programme on Solving Post Conflict State Lands Issues in the
Northern and Eastern Provinces- Land Circular 2013/01 (herein referred to as
the Circular), which is the most recent effort by the Government to address
land problems in the North and East. The Circular sets out a process to be
implemented over two years in order to identify and address problems relating
to State land in these two provinces. The Centre for Policy Alternatives (CPA) has
prepared this short note to highlight key issues and concerns relating to this
Circular and its implications if implemented.
Nearly four years after the end of the war, there is an
urgent need to address the root causes of the war and the grievances of the
affected communities. Land is a key issue requiring attention through a variety
of measures which should pay due attention to individual‟s land rights and
claims, and the history of the land. CPA has engaged in research and advocacy
on land rights and related issues for over a decade, documenting developments
and providing recommendations on land and related issues both in terms of the
war and the tsunami.[i]
A key focus area of CPA‟s work has been on land issues in the North and East, as
the war resulted in and exacerbated a variety of problems including access to
land and displacement, occupation by state and non-state actors, competing
claims, loss of documents and land records, which in turn has impacted
individuals, families and communities in multiple ways. In the post-war context,
CPA has critiqued and advocated for reform in the existing legal, policy and
administrative structures so that problems on the ground and grievances of
affected communities are addressed and a genuine effort is made by the
Government to introduce and implement a programme that facilitates normalcy and
reconciliation. This has also entailed advocacy on other initiatives in the
post war period including the previous Land Circular (2011/4) and the need for an
improved mechanism.[ii]
At the outset, CPA welcomes some of the constructive
steps taken by the Government at the policy level in the post-war context to
address land issues in the North and East including recognising the problems
with the previous Land Circular (2011/4), withdrawing it and introducing the
present Circular which is an improved version of the previous one. Problematic
aspects in the previous Circular that were highlighted by CPA including the
Land Commissioner General issuing a circular relating to both state and private
land and military involvement in civilian administrative duties have been
omitted in the new Circular. The Circular does respond to some of the
complexities of the ground, including the difficulties in proving ownership and
the need to recognise the competing claims of original claimants and those who
have encroached or are occupying someone else‟s land and have developed these
lands. The Circular however, needs to be supplemented by other processes, some
of which are detailed below.
Although the Circular is an improvement from the previous
one, there are provisions which lack clarity and are ambiguous. The Circular
states at the outset that it is to apply only to state land and is to be
implemented in 2013 and 2014, ensuring a narrow focus and application. What has
been kept out of the Circular is the time period available for applications to
be made, time to be taken to decide a matter and whether there will be an
appeal process, in the event an individual feels unfair treatment with the
process provided in the Circular. Furthermore, while the Circular explicitly
states that it deals with issues related to state land, there is reference to
private land under 2.2.1.2 which deals with „lost lands.‟ The Circular points
to a number of scenarios through which land can be „lost’ such as lands being
vacated or the occupants chased away during the conflict; being used for
‘development activities under government institutions and armed forces’ and
‘where other people have permanently settled on those lands’. The Circular
instructs that alternate lands should be provided with consent of those who
have „lost lands‟. There is also specific reference to private lands or lands
distributed under state grants where the Circular provides for alternative land
in accordance with „compensation assessment carried during the acquisition
process of those lands‟.
According to the Land Acquisition Act No 9 of 1950 as
amended, private land can be acquired for „public purposes‟ with the Act
providing a process for such acquisition and the Minister identifying land that
is to be acquired. The Circular seems to indicate that if private land or lands
distributed under state grants are „lost‟ for „development activities’ or when
„other people have permanently settled‟, then an acquisition process is to
commence. Is the Circular implying that the reasons given above are to be now
considered a „public purpose‟? Is the Land Commissioner General and/or other
Government officials assuming powers provided to the Minister in accordance
with the Land Acquisition Act who is
to identify land for a „public purpose‟? If the language provided in the
Circular is to be taken at face value, this particular issue goes beyond the
powers provided to the Land Commissioner General whose mandate is solely on
state land.
The Circular needs improvement in several areas, as
highlighted in the following table. In particular, there needs to be greater
clarity with regard to some terms that are used in the Circular such as „lost
land’ and „development activities’. This is especially relevant given the
concerns relating to state occupation, including by the military, the lack of
information on whether land will continue to be occupied or released by the
State, and the lack of acquisition and compensation processes so far. It is
also paramount that the Government articulates its position on land in the post-war
context, particularly in terms of the individual land rights of those who may
be affected by such acquisitions. The present Circular implies that the
Government‟s preference is towards „development activities’ and that individual
land rights including those of landless people are to be treated as a secondary
consideration.
While CPA notes that development is important in the
transition towards a post- conflict context, there should also be consideration
for people‟s rights and grievances. CPA reiterates that while the Land Circular
is meant to assist in resolving land issues in the North and East in post-war
Sri Lanka, it should not be used as a tool to interfere with the existing
constitutional and legal framework and any amendments that are proposed should
be done in adherence to the established process and done in a transparent and
inclusive manner.
The Circular also provides broad powers to the Divisional
Secretary (DS) to decide on state land issues. While it is important to use the
knowledge of those who are closest to the people and aware of the history of
the land, it is also important that clear guidance is provided to ensure
consistency, uniformity and prevent the abuse of power. The use of land
katcheris is a positive aspect but there is a need for an appeals process for
those affected by problematic outcomes. It is also crucially important that the
Government recognises the complex ethnic relations in the areas and resulting
dynamics on land issues. This will not only provide for a more sustainable
solution but will also provide public confidence in the process. As such there
has to be some effort to strengthen community participation in the process, including
through the involvement of community leaders when mediating complex disputes, which
may be ethnicised and politicised.
The Circular is however, fundamental to addressing and
resolving land issues in the North and East, thereby facilitating other
processes such as the return and resettlement of displaced persons, the
reconstruction of houses, restoration of livelihoods and the consolidation of
peace and development. While the Circular sets out the framework for issues
surrounding state land, there is no indication by the Government regarding
plans pertaining to private land. While noting that the Land Commissioner
General retains his purview of state land in the present Circular, there is a
need to recognise that land issues in the North and East are much more complex
than a simple distinction between what is “state” and “private”. Therefore, there
needs to be a parallel process to address problems relating to private lands, especially
in a context where there are numerous disputes and confusion over whether
individual plots of land are state or privately owned.
A recurrent dual problem documented by CPA is the lack of
transparency and the confusion related to current policies and the framework
governing land on the one hand, and the ignorance among affected communities
pertaining to their rights and how to secure these rights on the other. Therefore
a vital step by the Government and all stakeholders is to raise awareness on
land rights, the documents and the legal framework pertaining to land so that
answers are provided to basic questions including what constitutes a legally
valid document and as to how documentation to one‟s land can be obtained. There
is also a need to raise awareness of this Circular and the process that it
attempts to set in place.
While the Circular has a positive feature in that it does
not restrict anyone in the country who has a problem pertaining to state land
in the North and East from registering their problem, it is also extremely
important that the Government addresses the needs of all those who maybe
affected by the Circular, including those who are refugees and others who are
overseas. This is particularly pertinent in a context where there is confusion
as to what is state and private land -contestation of ownership and control of
land being a key issue in the post-war context.
There is a need for a larger policy agenda to deal with land,
including though not restricted to revisiting the existing legal and policy
framework, amending arbitrary and archaic laws and making public the circulars
and regulations that affect people‟s right to own, control and access their
land. More needs to be done if peace and reconciliation are to be achieved, including
through the full implementation of the Thirteenth Amendment to the Constitution
which would involve devolving land powers to the Provincial Councils and the
establishment of the National Land Commission.
For the full commentary including the table please visit here.
1 Centre for Policy Alternatives (CPA),“Informal
Dispute Resolution in the North East and Puttlam”, (2003), available at
http://www.cpalanka.org/wp-content/uploads/2007/8/Informal_Dispute_Resolution.pdf;
CPA, “Land and Property Rights of Internally Displaced Persons”,
(2003); CPA, „„Memorandum on Land Issues arising from the ethnic conflict and
the tsunami disaster‟‟, (2005); Bhavani Fonseka & Mirak Raheem,
“Trincomalee High Security Zone and Special Economic Zone”, CPA, (2009);
Bhavani Fonseka & Mirak Raheem, “Land in the Eastern Province: Politics,
Policy and Conflict”, CPA, (2010); Bhavani Fonseka & Mirak Raheem, “Land in
the Northern Province Post-War Politics, Policy and Practices”, CPA, (2011).
[ii]
Bhavani
Fonseka & Mirak Raheem, “A Short Guide to „Regulating the activities
regarding management of lands in the Northern and Eastern Provinces‟ Circular :
Issues & Implications” , CPA, September 2011, available at
http://www.scribd.com/fullscreen/65756001?access_key=key-2n9juixwucpeaun7qe09.