Legal And Policy Implications

• Recent land acquisitions, evictions and related issues

By Bhavani Fonseka

Land has a central place in the post war debates involving resettlement, reconstruction, development and the search for a political solution. During the war and post tsunami, questions of ownership, access, control and zoning were frequently raised, highlighting the need for reform. With the tenth year anniversary of the tsunami nearing and more than five years after the end of the war, many questions persist. There are continuing challenges to individuals being able to fully enjoy, access and use their lands and reside in their homes, due to restrictions placed in the name of security and development.

Media in recent months reported on several initiatives that have had an impact on changing the existing ownership, control, use and access to land in Sri Lanka.

In October 2014 media reported of around 20,000 land permits alienated to individuals in the Northern Province, with questions raised regarding the politics of such an initiatives, scale of the land distribution, selection process and timing.

Similarly, there are also reports of the acquisition of private land across Sri Lanka. Such acquisitions must adhere to the Land Acquisition Act (LAA), which provides that land can be acquired for a ‘public purpose’. In practice, the gazettes publicly available indicate acquisitions for a range of purposes including military, development and tourism, raising the questions as to the standard of ‘public purpose’. There are other instances where no acquisition notices have been issued, although private land is taken by State entities. Noteworthy also is the recent spate of acquisitions using the Urban Development Projects (Special Provisions) Act, which allows the Executive to issue orders for acquisitions on the basis of urgency and for the welfare of the people with very limited redress available for affected parties.

Despite the existence of a statutory framework, examples from across Sri Lanka abound of the complete disregard for statutory provisions in terms of land acquisitions, resulting in displacement, dispossession and evictions. The scale and nature of acquisitions and expropriation begs the question of whether these are in fact land grabs, couched in some instances within the legal framework and in other instances in complete violation of it. Research reveals that individuals who for decades resided in their homes or used lands for livelihood purposes are being prevented access and control of their land and evicted overnight. This is despite safeguards in place to prevent such practices. This also demonstrates to the growing disconnect between what is provided in the legal and policy framework in terms of land and possessory rights in Sri Lanka, and actual practice.

Sri Lanka has a complex framework for legal and possessory rights in terms of land ownership, control and use. This legal and policy framework, covering both

State and private land, is meant to provide tenure security for individuals residing and using the land and safeguards to prevent arbitrary displacement and dispossession. The legal and policy framework, despite its shortcomings and the need for reform in specific areas, is a basic starting point of a governance system as well as constituting recognition of the rights of those owning and in possession of land.

In addition to the Constitutional and legal framework, several policies relevant to land issues are in existence. The policies highlighted here although not exhaustive, is an indicator of the policy framework in place to address land ownership, control, use, resettlement and other issues. The policy framework, as discussed in this chapter, is more in sync with current needs and dynamics as opposed to the legislative framework with efforts underway to bring in new policies and amendments to existing documents.

Although the policy framework has gone through changes in recent times, there is still room for improvement in its content and application. Key issues to flag at the outset with the policy framework is to -

1) Streamline the policy framework to ensure information pertaining to the existing framework is available in all three languages and is easily accessible to the public;

2) Ensure human rights is incorporated into the policy framework where individual rights are given prominence; and

3) There is full implementation of the policy framework with all State sponsored initiatives.

There must also be clarity in what encompasses the policy framework, as several Ministries, departments and authorities with relevance over land and related issues have their own documentation that can be construed as policy. Although Sri Lanka is yet to formulate a National Land Policy, the Ministry for Lands and Land Development insists that what is on their website amounts to land policy.

While the website has goals and objectives, there are concerns with the insufficient guidance on what the present Government policy is on land and that one needs to look at different documents and statements to piece together what is referred to as the national policy on land. Therefore it is paramount that information is freely available in one place to demonstrate present land policies of the Government and be clear on how it is to affect the rights of individuals to enjoy one’s land.

 

National Involuntary Resettlement Policy (NIRP)

In order to address the shortcomings in the LAA and to take measures to minimize risks endangered by the affected communities, Asian Development Bank (ADB) in corporation with the Ministry of Land and Land Development adopted a set of international best practices in 2001 to address issues on resettlement, and the cabinet of Ministers approved the National Involuntary Resettlement Policy (NIRP) on 24 May 2001. NIRP applies to all development induced land acquisitions and also provides for the preparation of a Resettlement Action Plan when 20 or more families are affected. In case where less than 20 families are displaced, the NIRP still requires a Resettlement Action Plan with a lesser level of detail. NIRP applies to all projects irrespective of the source of funding.

 

NIRP is designed to ensure that -

(i) Project affected persons are adequately compensated, relocated and rehabilitated; (ii) delays in project implementation and cost overruns are reduced; and

(iii) Better community relations are restored. Apart from NIRP safeguards, ADB itself has its own safeguards63 with regard to resettlement. World Bank (WB), also adopted their own safeguards on resettlement in the year 2001 and the policies were revised in September 2013.

A comparative study on the LAA and NIRP revealed several positive features of the NIRP. They include:

•     The NIRP ensures that people adversely affected by development projects are fully and promptly compensated prior to the dispossession of the land. The LAA provides compensation only on the market value of the land and there is no provision for the depreciated value of the land. Similarly there is less value given to the buildings erected on such land when compensation is assessed under the LAA.

•     NIRP has safeguards on successful resettlement and reestablishment of the livelihoods of the displaced persons and the improvement of their living standards. LAA provides for compensation, subject to many restrictions and practical delays and therefore in reality very few are eligible to claim compensation under the LAA. In respect of resettlement, LAA provides for a ‘reasonable expenses’ effecting any change of residence caused by the acquisition, which is indefinite and not expressly specified on what grounds the expenses are calculated or the duration of providing such compensation.

•     In terms of NIRP, affected persons are given the opportunity to be fully involved in the selection of relocation sites and development options at the earliest opportunity. Replacement of land is an option for compensation in the case of loss of land; and in the absence of replacement of a land, cash compensation should be an option for all affected persons. The LAA is silent on this issue.

•     NIRP provides for those without title to a fair and just treatment. Whereas under LAA the persons with interest to land is defined as one who have legal ownership.

•     NIRP provides for all affected persons a consultative, transparent and accountable process with a time frame agreed to by the Project Executing Agency and the affected persons. LAA includes both administrative and judicial processes and can be time consuming, costly and not easily accessible.

The Land Acquisition Regulations of 2008 (which is effective for acquisitions where intention of acquisition is published under LAA, on or after 17.03.2009) incorporated a few of the NIRP principles into Sri Lanka’s legal framework.

Furthermore, as already discussed, the Land Acquisition (Payment of Compensation) Regulations 2013 were adopted which provides for compensation and grievance mechanism and established the Land Acquisition Resettlement Committees (LARC). The establishment of LARC is a positive step in respect with resettlement but it is limited to the specified projects. CPA was informed of new regulations to be issued in the near future which is meant to be in line with the NIRP. CPA was also informed that with the new changes there would be an efficient process of compensation, where those dissatisfied with the decision of the LARC can appeal to the Super LARC. CPA welcomes the attempts at reform in this area and urges the authorities to introduce and implement such changes in a speedy manner. NIRP has been used in the Lunawa Environmental Development Project and the Upper Kotmale Project.

 

Draft Resettlement Policy

It is also noteworthy that the Government, under the Ministry of Resettlement is in the process of introducing a policy that addresses the administrative, logistical, advisory, humanitarian and other needs of the IDPs, returned refugees and resettled communities. Unfortunately the draft policy72 drafted and revised in November 2013, is yet to be placed before Cabinet. Notably, the draft policy addresses concerns of land and property rights.73 The draft policy provides for acquisition of land for public purpose74and payment of compensation for the acquired property. The draft also provides for acquisition to be done following the due legal process but fails to include the broader framework provided in the NIRP.

One issue of concern is that the draft policy seems to apply only to private land and there is no reference to those displaced who were in possession of State land. Furthermore, the draft policy limits the application to those ‘displaced as a result of armed conflict’ and does not factor in those displaced as a result of natural disasters or development. The draft policy also seems to have a preference towards physical movement of internally displaced persons (IDPs) than durable solutions and is referencing those still living in displacement rather than those who have already returned or relocated and who may still have outstanding protection issues related to their displacement.

 

National Housing Policy

Sri Lanka has had several Government entities and initiatives involved in

housing. The National Housing Policy is an outcome of the strategies based on the Mahinda Chintana Vision which includes some key aspects: 100,000 plots of land to be provided for construction of houses, 4 housing schemes (condominium property) to be implemented for public servants in Colombo and the suburbs, 65,000 housing units to be constructed for those presently living in an unauthorized and temporary dwellings in the city of Colombo and houses to be constructed in all villages at the rate of 25 per village.

The National Housing Policy and the National Housing Policy Action Plan were both recently launched. The Plan focuses, among other issues, on the land rights of those underserved communities whose lands are to be taken for development projects under the Urban Regeneration Project and priorities the housing needs of the poverty stricken people who are landless. CPA was informed of a broad consultative process used to draft the Policy and Action Plan. This is a welcome step and it is hoped that recommendations received will be incorporated into future implementation and policy decisions.

CPA was also informed that 25 ministries mentioned83 in the Action Plan are involved in the process of implementation and that by 2015 the Action Plan will be implemented at the district, divisional and rural levels through committees at the different levels.

Apart from the National Housing Policy there are many other housing projects and programmes in place. Janasevana is one such main project that is implemented by the Urban Settlement Development Authority (USDA) for the development of settlement structure.

The Relocation Housing Development Programme within the Janasevana was designed to upgrade the quality of life of city dwellers living in urban under-served settlements (slum & shanty settlements) by enabling them to trade-off their plot of encumbered land against a modern housing unit. The Urban Re-Development Programme was formulated to dispose the lands from the above re-housing process for urban redevelopment projects through a financing method proposed by the USDA. The land thereby is meant to be used for affordable and up-market residential and commercial constructions. The Urban Regeneration Project is implemented by the UDA.

In addition to the USDA and UDA, the National Housing Development Authority implements the urban housing project for Government and private employees. While there is a need to focus on housing, there are concerns that the involvement of several Government entities may lead to duplication and confusion and therefore it is important to be transparent in plans and the status of implementation. Similarly, while on paper the different initiatives to provide housing sounds promising, there are concerns of how people’s rights and entitlements will be respected in the implementation phase.

 

National Physical Plan Policy

The Town and Country Planning Department established under the Town and

Country Planning Ordinance was converted into the National Physical Planning

Department (NPPD) under the amended Town and Country Planning  Department Ordinance No. 49 of 2000. NPPD falls within the purview of the Ministry of Construction, Engineering Services, Housing and Common Amenities.

The main purpose of NPPD is to provide ministries with a plan for their development activities and has no involvement with acquisition of land. CPA was informed that any acquisition of land required for relevant projects would need to go through the relevant ministries.

The policy framework compared to the legislative framework is more in line with current issues and challenges. Despite this, a failure of the policy framework is the lack of uniform implementation and the inability to enforce provisions that provide safeguards to affected parties. While CPA welcomes efforts at reform, there needs to be more done to ensure that standards found in the policy framework are reflected in the legal framework and they are fully implemented.

It is only when the standards are put to use that a change is likely to take place in the thinking and practice of respecting and protecting an individual’s right to land and property.

Although the framework in place is meant to provide safeguards from unjust and unfair practices, this has been ineffective in the face of powerful actors coupled with the erosion of the rule of law.

As flagged at the outset, disturbing trends of centralisation, militarisation and consolidation of power at the cost of people’s elected representatives and transparent and inclusive governance has had its toll. Most policies and practices are justified in the name of security and development. In some instances, laws and policies are used to legitimise practices of what amounts to be land grabs. In other instances, there is a clear disregard with no effort to even attempt to provide a rationale to what are in fact illegal practices. With powerful actors such as the UDA playing an ever increasing role in the governance of post war Sri Lanka, serious concerns remain with how the present framework will be used to meet the objectives of a powerful few. It is indeed a bleak picture when certain provisions in the present framework coupled with weak institutions are likely to exacerbate displacement, evictions, dispossession and violations of law.

It is in this context one looks to the possibilities of reform in the context of national elections in 2015. Although it is too early to predict who is to govern Sri Lanka in the coming years and thereby define its future, the possibility of elections also provides for space to push for legislative, policy and administrative reform. It is time to hold the political actors to account and ensure they are made to address grievances. Successive Governments have contributed to the framework in place and the trends evident in Sri Lanka to continue to undermine the people’s right to live and use their land. Immediate action is needed to prevent further erosion of the rule of law and ensure that governance is for the benefit of the people. This opportunity must not be lost.

 

Recommendations

CPA has researched and documented land issues and trends across Sri Lanka for over a decade and provided recommendations based on areas that require reform. Although there is some progress in terms of previous recommendations, much more needs to be done to vitalise the reform debate and introduce much needed changes. The present brief reiterates recommendations made previously which are relevant in the post war context and lists out specific recommendations identified from the present research.

Although the present framework is specifically looking at the legal and policy framework related to acquisitions and related issues, there is no ignoring broader trends impacting land and possessory rights. Therefore, at the outset CPA sets out key recommendations in addition to the specific ones that are captured in the Legislative Reform and Policy Reform respectively. The Government must ensure there is a genuine attempt at a political solution including the full implementation of the Thirteenth Amendment to the Constitution. Decision making and implementation of projects should be decentralised, ensuring power is closer to the people and with officials who have the knowledge of local issues. In this regard it is also important to recognise the role and powers of local authorities and to ensure they are provided a role in decision making. Connected to this is to ensure the lead in administrative tasks is with the civilian administration with effort made at demilitarisation.

Evidence shows to the influence of a development agenda on policies and projects with scant regard towards a rights based framework. Although there is no denying the need for development, initiatives in this area should be in adherence to the constitutional and legal framework and international obligations. Development projects should also be planned and implemented in a transparent and inclusive manner. It is timely that a comprehensive review of compensation schemes is undertaken and ensure transparency, equity and fairness in the allocation and payment of compensation. While CPA notes current efforts at reform in this area, these need to be done via a transparent and inclusive process.

 

Legislative Reform

CPA urges the full implementation of the Constitutional framework and laws that respect the rights and entitlements of those who have resided in premises. This includes the implementation of the amended LAA in terms of acquisitions of private lands and the provision of compensation. CPA welcomes efforts by the Government to introduce amendments into specific laws relevant to State land including the LDO and urges transparency in the process. Such reform should also be reflected in the implementation of projects including in the alienation of State land.

The Government should amend the LAA and other relevant laws to be in adherence to the National Involuntary Resettlement Policy (NIRP). CPA welcomes attempts underway to introduce new regulations to address issues of compensation but urges that reform is needed in other areas of the LAA.

Steps should be taken to repeal the Urban Development Projects (Special Provisions) Act which provides for broad powers to the Executive to take over private land with limited checks and balances. CPA believes that acquisition of private land should come within the purview of the Ministry of Land and Land Development and carried out in a transparent manner in accordance with an amended LAA.

Similarly provisions within other laws that provide broad powers to the Executive and Government actors should be amended. For example, the BOI Act and the Requisition Act are two that provide for land to be taken with limited checks and balances and should be amended to ensure rights of individuals are not unfairly deprived in terms of their land and possessory rights.

There should also be transparency and information publicly available regarding land required for zoning, development and other purposes that may impact a person’s ability to fully enjoy his or her land. The laws listed in this brief highlight numerous ways for lands to be demarcated a development area or other such areas and this should be done in a transparent manner and in consultation with relevant stakeholders including affected communities. CPA recommends a review to be done in this regard by the Ministry of Land and Land Development with the support of the Ministry of Justice, Attorney General’s Department, Legal Draftsman’s Office, NHRC and other actors.

 

Policy Reform

Public information should be freely available in all three languages on the policy framework relevant to land and related issues. CPA’s research highlighted different ministries, departments and authorities having several documents that impact land and possessory rights but these were not all freely available to the public. It is paramount that all stakeholders including the public are aware of the policy framework and the priorities and processes enshrined in this framework.

Immediate steps should be taken to fully implement the NIRP and for it to be reflected in the legal framework. Donors should have provision for all donor funded projects to meet the standards provided in the NIRP and to ensure there is a basic minimum standard adhered to in all development and related projects.

Steps also should be taken to finalise the Resettlement Policy in a transparent and participatory manner and to ensure that it incorporates standards found in the international framework and the NIRP.

There should be clarity in housing standards and policies in places and the adherence to these as a basic starting point in all housing projects including projects addressing needs as a result of the war, natural disasters, development and other purposes.