| by Kishali
Pinto-Jayawardena
(October 28, 2012,
Colombo, Sri Lanka Guardian) Six months ago, Sri
Lankans were unpleasantly galvanized by the spectacle of Budddhist monks led by
the Chief Incumbent of the Rangiri Dambulla Vihare, Inamaluwe Sumangala Thero
marching onto a mosque in Dambulla that they claimed was illegally constructed.
Gentle remonstrations by Muslim villagers with the marching protestors that
they had worshipped at the mosque for decades only invoked harsh language from
the marchers and the issue spiraled out of control with communalists from both
sides fanning the flames. This was despite the villagers disassociating
themselves from the protestors and sober voices such as government minister
Janaka Bandara Tennekoon who also hailed from the area declaring that he too
was witness to the fact that this had been an old place of worship as recalled
from his personal knowledge. Providentially, saner wisdom prevailed after a
time and strained tempers died down to all intents and purposes with the mosque
resuming its operations.
Symptoms
of a much bigger problem
At that time, the
problem appeared to be a seemingly innocuous issue regarding the legality or
otherwise of a place of worship and was framed within the parameters of a
purely religious cum legal question. But what was hidden in this chaos was
another equally grave truth. In actual fact, this furore was only a symptom of
a much larger problem regarding government policy in designating private lands
as sacred areas and ejecting villagers without due recourse to proper legal and
regulatory procedures.
 |
For many decades in Sri Lanka, protections against torture, enforced disappearances and extra judicial executions were the traditional challenging lines drawn before governments by citizens. Now, these lines of challenge are shifting and are becoming blurred with newer and equally ominous threats directly impacting on private land rights in a post war development process that seems to have ruthlessly thrown out justice along the way.
This process has little
regard to ethnicity or religion as seen by the plight of considerable numbers
of Dambulla landowners who have been abruptly
informed by the Ministry of Defence and Urban Development that their lands now
belong in a ‘sacred area’ and that they should ‘kindly’ hand over possession of
their properties by end of this month. In turn, they have been promised paltry
amounts of compensation and vaguely promised ‘a portion of land’ elsewhere
without being informed as to where that land would be located. The terror that
has struck the hearts of these villagers on receipt of such a letter by the
Ministry of Defence (with the consequential question as to whether the evictions
would be done by brute force if there is resistance) is palpable.
General
trend of deprivation of land rights
These events should, of
course, arouse no particular surprise to those well informed among us. Such
developments had been taking place for quite a while in regard to lands in the
North and East of Sri Lanka where the military had been utilized to take over
lands from local owners and as some would remind, without even the basic
promise of compensation or alternative land, however paltry that offer may be.
But what is of note to
those who prefer to deny that these injustices are occurring around us, is that
this pattern is not limited to the so called war affected areas of the country where
convenient arguments may abound as to why the government needs to take a strict
line in respect of land ownership that has been caught up in the conflict for
decades and which may be contested in terms of rights of the original settlers,
those who occupied the lands and those who claim ownership through legal
documents. In contrast to those complex questions, coercive patterns of land
acquisitions are much clearer here. These are private lands that have either
come down through generations to their current owners or have been bought by
them in clearly evidenced deeds of sale but which rights of ownership are
sought to be summarily dismissed. As mentioned previously, among these affected
Dambulla villagers are Tamils, Sinhalese and Muslims. In one particularly
soberingly illustrative tale for the chauvinists among us, one small landowner about
to be deprived of the land on which he was born and spent all his adult life is
of Sinhalese ethnicity and an adopted son of Tamil parents. These state actions
are pervasive and indicative of a general trend whereby basic land rights of
ordinary people regardless of ethnicity are being stripped from them.
Need
to form a collective rallying point
Certainly, the dire
helplessness into which the Dambulla affected landowners have been cast into, is
symbolic of current state policy in regard to deprivation of land rights. This
is indeed unprecedented in as much as these land acquisitions target not those
who are economically well off but those who are the deprived and the
marginalized in the first instance, with full knowledge that few would have the
resources to fight back.
Where Dambulla is
concerned, in a malicious irony that cynics would appreciate, the majority of
those affected are Sinhalese farmers and small time businessmen owning small
and medium sized tracts of land ranging from twenty to ninety perches, most
probably all of whom had voted for this government and this Presidency in the
immediate past elections. In another irony, the mosque which is exempted from
this spate of proposed land acquisitions due to, in part, the public outcry
that the events in April this year gave rise to, have now become a beacon of
light for the Sinhalese villagers whose lands are under threat of immediate
acquisition. While there may be chuckles aplenty at this turn of events (and perhaps
justifiably so) what is happening in Dambulla illustrates an extremely
dangerous trend that should, along with other like instances across the
country, form a collective rallying point demanding change in government
policy.
Acquisitions
after thirty years have lapsed
In terms of the law, it
appears that more than three decades ago, an area had been designated as the
‘Dambulla Raja Maha Vihare Urban Development Area’ by the then Minister of
Local Government, Housing and Construction, acting under the Town and Country
Planning Ordinance No 13 of 1946. Certain lands had been gazetted as due to be
acquired at that time. However, owing to peoples’ protests, this acquisition
process was not proceeded with and the so called ‘urban development area’ was limited
in a manner as to affect villagers to the minimal possible extent. Relying on
assurances provided by successive governments thereafter that they will not be affected,
villagers had built on their lands expending their savings, some had commenced
businesses and expanded their properties.
After this lapse of
time, reliance on a thirty year old gazette notification to acquire lands,
moreover using the highly ambiguous terminology of ‘sacred areas’ appears to be
both arbitrary and unjust. The letter requesting villagers to hand over their
lands does not mention the section of a relevant statute under which the action
is proposed to be taken. And even though it vaguely mentions that alternative
land will be handed out, given the lack of such alternative land being actually
identified, there is little faith on the part of those affected that this will
indeed compensate for the abandonment of thriving businesses and cultivations. No
urgent public purpose has been identified.
Designations
of ‘sacred areas’
In any event, the
essential question is as to whether lands could be acquired in this manner by
the mere designation of an area as a ‘sacred area’? Some months ago, the
Rajapaksa administration attempted to bring in an amendment to the Town and
Country Planning Ordinance which would have given the relevant Minister
unfettered powers to gazette an area as
a ‘sacred area’ which would effectively deprive the landowners themselves of
powers over such gazetted lands. The Supreme Court, in judicial thinking
similar to the Divineguma Bill, ruled that the amendment should be referred to
all Provincial Councils for approval and the amendment was then withdrawn.
Unlike in the
Divineguma Bill, there was no flurry on the part of the government to defy the
Supreme Court and proceed with the tabling of the amendment to the Town and
Country Planning Ordinance in the confident expectation that it would have the
two thirds majority needed in Parliament even to override the Supreme Court
ruling. Instead, what appears to be happening is that, in the absence of clear
legal provision, as the Dambulla example amply illustrates in practice, hitherto
designated urban development areas are being willy nilly designated as ‘sacred
areas’ and people are being asked to leave their lands in consequence thereof.
This is clearly an
extremely worrying development that impacts on basic justice and fairness. In
the relevant targeted areas of Dambulla, no urban development scheme has been
drawn up to the knowledge of those affected. In any event, restaurants and
tourist spots with free sale of liquor dot the apparently designated ‘sacred
area’ at every point, thus logically raising the basic question as to how this
area can reasonably be deemed to be such?
Shifting
of lines of challenge
For
many decades in Sri Lanka, protections against torture, enforced disappearances
and extra judicial executions were the traditional challenging lines drawn before
governments by citizens. Now, these lines of challenge are shifting and are
becoming blurred with newer and equally ominous threats directly impacting on private
land rights in a post war development process that seems to have ruthlessly thrown
out justice along the way.
As in the case of
impunity in respect of accountability for grave human rights violations which
crosses ethnic boundaries in this country, these relatively new challenges are
of common to all peoples from the North and East to the Central and other
provinces, the one common factor being their absence of bargaining power with
the politically powerful.
Indubitably, these are
all new and potentially disastrous powder kegs waiting for their inevitable
point of explosion.
 Six months ago, Sri Lankans were unpleasantly galvan...){kind=link}