Sri Lanka’s Choice: Deed E-Land Register or MCC/Bim Saviya E-Land Register?
The main argument to support the MCC Land Project is that technology will put an end to land problems & Sri Lanka will be on par with countries using advanced technologies. These countries are where they are as a result of a lot of research. Sri Lanka has had no such research except foreign research, foreign recommendations and foreign aid to implement foreign recommendations. This was how a foreign law was passed hurried and in secret without public consultations in 1998. In a country where the population is yet to be technologically on par with the West, totally automating the Land registrar into a foreign title system will be advantageous to the very rich at the cost of the poor who have little or no access to the technology and do not know how to use it to protect their land rights.
The question is
- Do we continue with the deed system where all of us will have a physical deed & have it automated on a e-land register with new methods introduced to eliminate land fraud?
20 land registries have already been automated and only smaller districts covering the remaining land registries need to be completed
- Do we negate all of the work done in registering land deeds to an e-land register and convert 8.5m deeds to a new Title Registration system because it is linked to the $67m MCC Land Project which requires all lands to be privatized, repeals all the land laws of the country including judicial authority to later realize that all citizens do not have computers, internet nor deeds and the Government has no Funds to pay compensation for land fraud while the Government is additionally burdened with socio-economic issues for which the Government will have no land and no funds to resolve?
What are the issues in converting Deeds to Title Registration (Bim Saviya) & is it worth the hassle for a $67m Land Project that requires implementing Bim Saviya (MCC Annex 1-28)?
- Title Registration architects ignore legal aspect of adjudicating ownersof 8.5m land from deed to title registration (bim saviya)
- Title Registration Act removes Judicial powersafter issuing of certificate by creating a new Commission of Title Dept who has officials with no legal knowledge in land adjudication & unable to satisfactorily resolve land matters before converting from deed to title registration. The cases piling up as a result of these issues cannot be ignored by the Government.
- Only compensation for land owners if fraud title registration is registered into electronic registrar. If a fraud owner registers a fraud bim saviya into the new e-land registry the original owner can only seek remedy from the Commissioner of Title & be compensated. He/She will not have his/her land returned. This is a very dangerous scenario for land owners.
- The Government is also undertaking the economic burden under Section 60 of Act 21, 1998 Title Registration to compensate in lieu of judicial remedy. Why is the Government undertaking to compensate people for lost land from frauds as a result of Bim Saviya? Why is land not being returned to the valid & original owner? $67m makes no mention funding the Compensation component as a result of frauds from bim saviya? How can GoSL agree to a foreign land system that denies regaining one’s land if defrauded & offering only compensation. How can GoSL compensate to the value of the lost land/defrauded?
- The Government should not hurry to issue bim saviya certificates to land owners ignoring the legal issuesbecause MCC is Funding only 10 land registries in 7 districts. The remaining 35 land registries in 18 districts will have to be funded by GoSL.
- Nowhere does the MCC Agreement say that its Funding will go for legal disputes in the 10 land registries/7districts MCC is funding. Which means GoSL has to bear compensation for any land fraud. Does the GoSL have the money to compensate?
- GoSL burdened with having to Fund & Resolve new Socio-Economic Issues.In addition to compensating land owners who have had their land defrauded, how will the GoSL deal with land owners (especially the poor) who have no land to live on, no means of livelihood – where will the GoSL resettle people when GoSL has no state land as State Land has been privatized under MCC?
- The Samarasekera Committee appointed by then President Mahinda Rajapakseadmitted that giving an one-page bim saviya certificate in lieu of the deed cannot address issues like co-ownership & families living on lease land for generations and engaged in some form of agriculture.
- MCC demands the GoSL convert all lands (private & State) to title registration& the title registration certificate to be automated into a new e-land registrar that is internationally compatible.
- Title Registration is given to ONLY ONE OWNER– this means no co-ownership or shared ownership as in the deed system is allowed. Inheritance laws will also be repealed. Issues will also arise converting Temple/Kovil lands to Bim Saviya. Title Registration will remove Personal Laws – no more Thesavalamai, Upcountry or Muslim personal laws related to land will apply
- Title Registration System (Bim Saviya) REMOVES PRESCRIPTION & HISTORY RECORDS of the DEED SYSTEM. This means only the owner’s details are on the bim saviya certificate. Details of past owners will not exist. In fact the Title Registration Act 21, 1998 has provision to destroy past records in Section 53. However, in the deed system all past records of ownership prevails allowing the courts to provide legal remedy better.
The Title Registration system is an Australian land title system introduced in 1885 with the intent to eliminate the indigenous land owners adopting the legal maxim Terra Nullius.
Why doesn’t the GoSL continue with the existing deed system with almost complete Deed E-Land Register?
The existing deed system should continue. Deeds of 20 land registries have already been scanned & entered into an e-land register. The balance smaller district deeds will be entered by end of year.
The recommendations of the Samarasekera Report have been taken to account. Ironically, the Committee that was headed by Milinda Moragoda when he was Minister of Justice in 2009 recommended a simple method of recognition & identification of owners which has been statutorily introduced for Trust Deeds via Trust Ordinanceand should be extended to all deeds for land sales. This is a major development to prevent land deed fraud in manual form & in electronic format as well.
The Deed system will be 2 fold – manual deeds with co-exist with electronic deedscomplying with Electronic Transaction Act Section 23 of 2006 which states that Land Transactions SHOULD NOT be made FULLY AUTOMATED. Owners will continue to possess his/her deed & can operate the deed e-land register using the owner’s registration number. The title registration certificate has a 12 digit number accessible to anyone anywhere in the world.
Deed system also has instances of land fraud but with above owner recognition laws and the Court system we can resolve the issues as in USA WHERE THEY HAVE A DEED SYSTEM WHICH THEY CALL RECORDING SYSTEM. US has been very reluctant to accept the Torrens Title Registration system as they do not wish to deprive owners of their right to access court and because the system of compensating owners is to costly (what GoSL will soon find out)
When Sri Lanka has the solution and is already doing the solution in 2 simple steps, why do we want to confuse the situation by entering into Bim Saviya together with MCC Land Project which will take over 100 years to establish a law for the e-register as emphasized by the Commissioner of Title in 2018 report.
Why is the Attorney General’s Dept hurrying amendments in laws to facilitate & quicken Bim Saviya without simply recommending to continue with the existing deed systemand resolving the land disputes by the Courts and thereafter entering into the Deed e-land register all of which are under local patent, ownership & control and within Sri Lankan laws to adjudicate whereas the MCC-Title Registration bind Sri Lanka to follow international laws & US regulations.
Can the lawyers and professional organizations look at the issue from the lens of the citizen & citizens right to land ownership & socio-economic security instead of the merits of foreign funding only!
Shenali D Waduge