Study Circle Legal team says Bim Saviya is an economic burden to the GoSL
The Government and the Central Bank must rethink before investing foreign funds on a program that has failed and will require over 50 years to complete. “’Bim Saviya’ Title Registration Act’s 24-year reign of chaos” covered points highlighted by 3 attorneys in April 1998 after taking part in the Study Tour to Australia prior to the GoSL enacting the Title Registration Act in March 1998.
Thereafter, the Study Circle Legal Team were asked to make their observations on Bim Saviya. The observations and research given in this article reveals that the government needs to repeal Act 21 of 1998 which is an economic burden to the country.
Their observations are based on
1]the Government’s policy that is to introduce a mandatory register as given in the Cabinet Memorandum, Cabinet Memorandum 20/2100/322/007 on 24.12.2020.
2] a study of reports of committees appointed by the President and the Ministry of Justice and a study of the statutes introducing mandatory registration and electronics in other jurisdictions specifically of South Africa referred to in the Cabinet Memorandum [country that operates a mandatory register with the existing deed system ]
When the requirement of the government and other political actors was to convert the existing land register to a mandatory register to facilitate searching owners electronically from a ‘one stop shop’ in order to be on higher position in the Doing Business Index the government introduces the Australian land law by Act 21 of 1998.
Is this not questionable?
Was this to receive funds? How much has been given already?
Who drafted the act which was hastily passed by the government?
Why does the government request for massive funding from the MCC in spite of the failure for 20 years [USA had not introduced the Australian law they have the deed recording system.
The GoSL in particular the Ministry of Land & the Governor Central Bank must realize that foreign funding should not be solicited or used for failed projects and Bim Saviya is one such failed project. Since its enactment in 1998 the expected mandatory register was not prepared in spite of investing millions of dollars. A register with a mere 750,000 lands had been completed out of 12.5million. This is a waste of foreign exchange.
Why has Bim Saviya failed?
The hurriedly passed Title Registration Act was defective. The operating system contains impractical costly procedures based on a foreign law – Australian Torrens Title Registration. This system is alien to Sri Lanka and unsuited to meet our historical and community system of ownership. How we have used our land is totally different to Australia.
Why is the Act impractical?
- government officials must visit owners at a massive transport cost.
- How long will it take to visit over 12.5million owners?
- Survey General must register ownership & the plan.
- In 20 years of rolling out this Act, only 5% have completed the above process. Over 11million land parcels have yet to be surveyed and registered.
- The Title Commissioners report showcases the difficulties that exist.
Why can’t Sri Lanka prepare a mandatory land register without Bim Saviya?
Amend the existing registration law ordinance 23 of 1927 and make mandatory registering of ownership with plans according to the surveying system of Sri Lanka. This is the system practiced in US, UK, & South Africa as owners undoubtedly wish to register their lands and will want to uphold that right. This will save cost & time of visiting 12million land owners.
The Registrar General Lands wrote to the Senior Advisor to PM Ranil Wickremasinghe on 6th April 2016 laying out this practical solution – Reference RG/TRB/03/278 PM Advisor ref JCR/SEC/PMO.
Who required the land register to be made mandatory?
The mandatory land register was part of the Doing Business Index. The DBI required Sri Lanka to register its land & all owners to make it easier to purchase land & mortgage land. The excuse was to make Sri Lanka on par with the other developed nations, however the real reason was for investors to have access to land.
The advantage for land owners was that when their land was officially registered under their name, the opportunity for fraud would be curtailed.
Cabinet Memorandum 20/2100/322/007 24.12.2020.
What is the opinion of World Bank & AusAid funding re Bim Saviya Act 21 of 1998
Who originally promoted to the GoSL to implement the Australian land law to Sri Lanka.
The Australian Government did assure Australian Dollars 350,000 for Stage 1 legislative framework, however the Australian consultant viewed the Torrens law was unsuited for Sri Lanka. This meant AusAid would not have been allocated funds though the Act was hurriedly passed in 1998.
World Bank too found the Act 21 of 1998 defective as expressed by Director Jessica Mott in her report
World Bank funding was to enable research “Learn Innovative Loan” to improve the existing register. The GoSL passed the Act while World Bank & BASL were discussing the research aspects of the land laws.
This was another example of GoSL acting on its own or against advice or advised by wrong parties.
What has the failed Bim Saviya cost the GoSL so far
Act 21 of 1998 was hurriedly passed. It has been prodding on for 20 years registering only 750,000 land parcels out of over 12.5m owners. The cost of this futile exercise has been $2..5million per year. For 20 years Sri Lanka has spent $50million to register just 750,000 parcels of land. At the rate of 350,000 registrations per year to complete 12.5m Sri Lanka will be taking over 100 years. This clearly shows what a futile exercise it is as by the time a parcel gets registered, the owner may have already departed!
The GoSL needs to take stock of the situation, carry out a cost assessment of the project & stop allocating funds for a futile project.
The former President tasked the Ministry of Justice to appoint a team of learned lawyers to look into the land law – what was their opinion
Increasing number of complaints by land owners & lawyers resulted in the GoSL appointing 2 committees. Both committees concluded that Act 21 of 1998 was unsuitable to prepare a conclusive mandatory register. The committee concluded that the register under Act 21 cannot accommodate the rights of co-ownership / ande-cultivation / customary rights on inheritance / trust deeds and rights of religious institutions (Buddhist temples, kovils etc) They concluded that the name of the Act should also be changed to Voluntary Title Registration Act, if we are to maintain the Title Registration. This will not fulfill the requirement of the Doing Business Index, or the policy of the government given in the Cabinet Memorandum .
How has the issue affected land owners in Sri Lanka?
The prevailing land law in Australia following colonial occupation is introduced to Sri Lanka . as Bim Saviya. Even after 150 years the indigenous people of Australia are struggling to gain their ownership rights to land under the title registration system. The Mabo case is an example of winning justice for land by the indigenous, people repealing the law .
Similarly in Sri Lanka land owners, under Bim Saviya are also struggling as
1]the UDA and the Local Authorities are not accepting the plans drawn under Bim Saviya vide Surveyor Generals report
2] as Land fraud has new avenues with Act 21 as the new law under Bim Saviya has placed statutory limitations on judicial intervention; it is not easy to regain lands back from fraudsters. Therefore land owners need to be extremely vigilant with Bim Saviya
The owners only receive a certificate in lieu of their deeds without any protective laws that exist in Australia to protect land owners from cyber crimes or fraud. Court is under pressure as the Bim Saviya does not have legal remedies for fraud
In Conclusion with solutions from the legal team —
- Bim Saviya or Act 21 of 1998 is not beneficial to Sri Lanka
- Sri Lanka will get nowhere in the Doing Business Index with 2 voluntary registers where electronic cannot be introduced to search owners from a one stop shop Therefore, it is best to continue registering the existing deeds instead of re-surveying & issuing title registrations & registering them afresh into a new e-land register.
- When the register is made mandatory owners will register without the government visiting 12 million owners
- Act 21 of 1998 (Bim Saviya) requires the removal of the history or pedigree chain of owners. It is a warning to land owners to retain their deeds as some banks wish to check the deeds. Eventually, in the event of a fraud or cyber attack, the deeds end up the only means to prove ownership.
- Bim Saviya denies owners to access their rights in Court in the event of land fraud.
- On 24 December 2020 a cabinet memorandum was issued as a solution to establish a mandatory register. The Cabinet requested lawyers to research on procedures adopted in South Africa which functions with law that operates in Sri Lanka. This required amendment to Section 7 of Ordinance 23 of 1927 to convert the register to a mandatory register. Paper deeds are included in the Electronic Transaction Act 19 of 2006. This Act specifically requires ICTA to retain paper documents in case of issues like cyberattacks, hacking of land register or its data.
- A major lacunae in the old registration law (Section 7 of Ordinance 23 of 1927) was that it didn’t have provision to reject forged invalid deeds. This has facilitated fraud. The Registrar of South Africa has quasi-judicial powers to maintain the integrity of the register. Similar option should be pursued by Sri Lanka alongside biometric solutions as applied in banks and passport office to prevent fraud.
The problem is clear. The solutions have been given by lawyers, yet the GoSL continues to prod forward with a failed land project requesting funds that will take over a century to complete at the current rate It is an unnecessarily waste of funds when the country has solutions
More Research papers from lawyers –Protecting owners with the existing register— published in the Negombo Law Journal https://www.lankaweb.com/news/items/2020/08/03/the-sri-lankan-e-register-should-be-governed-by-a-law-suitable-to-sri-lanka-
Shenali D Waduge