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Thursday Jun 27, 2024
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Bim Saviya is a law where ownership could be obtained by means of an invalid/forged document
By Public Opinion Committee
Over the past four decades successive Government policy makers have moved towards introducing land policies and land laws promoted in western countries. They keep ignoring our own institutions, laws and practices, totally eroding them beyond recognition.
Digitalising and formalising a country’s land titling system is an extremely difficult task. It is a minefield of practical difficulties, complicated by legal culture, social norms, institutional capabilities and corruption.
It appears the Government has readily agreed with the MCC to ensure coordination with the studies and designs made by other donors namely World Bank, USAID, US Embassy, and other US interests (Annex 1 p33). Further it agrees that the availability of MCC funds for land privatisation has to depend on the enactment of the Land Special Provision Act (LSPA), where the registration of absolute land grants must be completed through the title registration system, called the ‘Bim Saviya’, based on a foreign land law (Annex 1, p30).
Annex 1, p28 also refers to Bim Saviya and the preparation of an e-register. This is the result of entering into several agreements that have required us to legislate foreign laws relating to land, simply to enable us to accept foreign grants. ‘All this for the sake of alleviating poverty’, appears to be how we were pacified.
No mention is made to consider the advice given by the legal fraternity.
Was the Bim Saviya introduced under a new parliamentary procedure?
No one knows when laws are passed by parliament. No one was aware, of when and how, the Act 21 of 1998 – Bim Saviya came into operation. Bim Saviya is an Australian law restricting access to court, repealing the Roman Dutch law and the Common law of our country practiced for over 100 years. Lawyers and land owners are totally unaware of the implications of this law. The committee looking into the MCC may not be aware of the economic burden created by this law.
Is the Committee aware of the economic burden and the legal ramifications of Bim Saviya? (The new law Assurance Fund in lieu of judicial remedies)
Bim Saviya is a law where ownership could be obtained by means of an invalid/forged document. Example if A’s land is sold to B on a forged invalid transfer to B. B’s name once registered in the digital register the law of Bim Saviya protects the ownership of B. A’s fundamental right to access court is repealed by the law of Bim Saviya. A’s solution is to obtain compensation from the Government. The Government therefore under the Bim Saviya has to set up the statutory Assurance Fund [Act 21 of 1998] to compensate owners. The Government must look around to see the consequences of this law, in other nations – for example notwithstanding UK’s stringent laws to prevent fraud compensation to owners over the last 10 years had been around £ 55 million under the Assurance Fund Scheme.
Can the Government genuinely make this promise to the land owners?
Sri Lanka’s vulnerability – dependence on foreign funds and advisors
The successive governments have completely abdicated their responsibility, to, revise outdated colonial land laws, promote legal education and research among Sri Lanka’s academics and legal fraternity. Without commencing any local initiative, merely permitted entities like World Bank, USAID and US Actors to enter the country to introduce Bim Saviya and digitalisation. We have moved on to digitalisation commencing with advice from US interest. For instance, this report prepared by the American Embassy Colombo – November 2011: https://photos.state.gov/libraries/sri-lanka/577989/pdf/eLand%20Hub%20Project.pdf.
They had already commenced copying the names of owners from the old register (which was in operation without any revision since 1864) to the new Digital register, when the Registrar General of Lands claimed that 50% of entries in the old register were forged.
The names of owners are determined by a non-judicial process for the first time in Sri Lanka; entrusted to the administration. Land owners names are exposed with their ID numbers and addresses, without the international laws to protect owners in a digital world.
Is it not oxymoronic that to alleviate poverty we create poverty?
The promise to make poverty history for the past 60 years with foreign aid and advice had been a failed effort in many jurisdictions. The judiciaries of many countries are faced with challenges; for which they have given a new legal term ‘Bijural Effect’. There is ample literature on the subject:
1) Malaysia https://www.thestar.com.my/opinion/letters/2007/12/23/at-the-mercy-of-land-scams. A former member of the Malaysian Bar Council states ‘Title registration’ (Bim Saviya) is a law which has wreaked havoc in land transactions and increased the number of land scams in the last nine years (Boonsom Boonyanit case the Torrens system, innocent landowners who are victims of fraudsters and scam artists cannot expect to find justice in the law).
Diplomatic immunity will protect the MCC and the MCC Sri Lanka from fraud charges and the inevitable consequences to the legal process where lawyers and judges will be programmed to accept cut and paste laws from foreign countries
2) Singapore Article: ‘Whither Torrens Title in Singapore?’ Written by Barry C. Crown; Associate Professor, Faculty of Law, National University of Singapore Torrens system was designed to solve problems in South Australia in 1858. Will this law be relevant to us today in the 21st century? https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal-Special-Issue/e-Archive/ctl/eFirstSALPDFJournalView/mid/513/ArticleId/375/Citation/Jo
3) England – UK – ‘The helpless Judiciary, orders recovery of damage for land fraud from lawyers’; https://hmlandregistry.blog.gov.uk/2017/02/06/recovering-indemnity-payments/ Can the lawyers practice with such economic burdens
4) Although Sri Lanka has commenced with Bim Saviya, USA itself has not considered the law in many states, they are considering whether governments would be equipped to finance the system. https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=2264&context=wmlr
Has the US and UN telescoped into one entity?
After signing the MCC, the implementation of Bim Saviya and digitalisation will be assigned to a Primary Agent of the Government called the MCA Sri Lanka Ltd. according to Annex 1 page 34 of MCC. The agent shall have operational legal independence and full decision making autonomy with or without consultation. The agent becomes responsible for exercising the Sri Lanka Government’s rights and obligations to oversee, manage the Bim Saviya and the digitisation project in the targeted districts.
The Government waives all claims for all loss, damage, injury or death arising out of activities or omissions of the agent section 6.8 of the MCC – will have complete legal immunity for all its actions.
Do we consider the MCC as a UN organisation, giving them the privileges and immunities enjoyed by representatives of the members of the UN and officials of the organisations? As only representatives of the members of the United Nations and officials of the organisation under UN rules enjoy privileges and immunities as are necessary for the independent exercise of their functions; https://legal.un.org/avl/ha/cpiun-cpisa/cpiun-cpisa.html.
Perhaps this is a precautionary measure as Bim Saviya erodes our institutions, laws and judicial practices. Diplomatic immunity will protect the MCC and the MCC Sri Lanka from fraud charges and the inevitable consequences to the legal process where lawyers and judges will be programmed to accept cut and paste laws from foreign countries.
The Government claims to have funds to complete Bim Saviya
The Government whilst limping along for 12 years, wasting funds on a failed project has promised to complete the balance 35 land registries and complete 9.5 million parcels of land less 100,000 undertaken by the MCC in 10 land registries. The MCC document also refers to the Government’s poor performance for 12 years relating to Bim Saviya completing only 600,000 parcels from 2007 to 2019, costing nearly $ 2.5 million per year
Can the Government genuinely make this promise? [MCC No, Section 2.6 (Government resources budget – page 6 of MCC & Annex 1-34).
Could someone give a road map of how foreign funds and foreign laws could alleviate poverty?
Anyone who had taken a loan from a bank will know that if you are poor and unable to produce evidence of wealth, banks will not grant loans!
Privatisation of land rights require a land law system that could be understood by the local people, if it is to alleviate poverty. This is the reason that countries that were successful with digitalisation, spent over 12 years to train academics and staff to enter into the revolutionary process.
Can the poor function with 12 digit number given to them in lieu of their deeds?
Can they manage transactions on a digital register with the 12 digit number?
I am sure even the affluent land owners are not aware of the revolutionary changes. The advice to initiate research programs and to disseminate knowledge was given in the World Bank report in in 2007.
http://documents.worldbank.org/curated/en/418081468781158319/pdf/multi0page.pdf.http://documents.worldbank.org/curated/en/750021530107195459/pdf/Improving-the-Quality-of-Land-Administration-in-Sri-Lanka-19-June-2017-final-draft-clean.
After neglecting the required process given in the above reports for over 12 years, to embark on further radical changes with MCC funds will be a grave mistake. The changes will result in destroying our paper deeds, destroying all historical records of our land ownership; owners will be reduced to a paperless deed environment and our current land ownership will be confined to a digital number toxic with corruption reflected in the manual register. Perhaps we will not have professionals well-equipped to handle the foreign systems nor will we have the intellectual property rights to manage the electronic operations in land registries.
I hope the committee will advise the Government to be intellectually independent. Reference must be made to the advice given in the 2007 World Bank Report and the Economic Commission for Europe – Geneva Land Administration Guidelines with Special Reference to countries such as Sri Lanka. Their advice is for countries to build their own systems according to their own social, economic and cultural environments.
http://www.unece.org/fileadmin/DAM/hlm/documents/Publications/land.administration.guidelines.e.pdf
