Excerpts from a Report by Bhavani Fonseka and Mirak Rahim (Centre for Policy Alternatives)
Most individuals in Sri Lanka will identify land as a fundamental element that defines their life. Ownership and control of land, including the location of and the extent of land owned indicate a person’s wealth and social status. The respect that flows from this has a number of other repercussions including access to schools and marriage prospects. Secure land rights imply economic security and provide surety for loans and thereby facilitate income generation and improve livelihoods. In Sri Lanka, land has been a critical factor in the ethnic conflict that intensified and resulted in the outbreak of a war that spanned over two decades. State aided land settlement projects under development and irrigation schemes, the failure in addressing key land and development related issues, violence against particular communities that resulted in the abandonment of properties, and the establishment of ad hoc security restrictions in areas all contributed to the increasing tensions that ultimately led to the outbreak of war in Sri Lanka. Over the course of the war, the land problem was exacerbated by increased displacement of entire communities from their land, occupation of land belonging to private individuals by the military and LTTE, arbitrary seizure of land belonging to Muslims by the LTTE in the North and East, the establishment of High Security Zones (HSZ), Special Economic Zones (SEZ) and the loss of documentation. Although discussions on land and related issues and attempts to resolve disputes at a community level did run concurrent to the conflict and heightened during the Ceasefire Agreement (CFA) and post-tsunami period, there were no concrete steps taken by the State or any other actor to fully address the root causes of grievances, provide sustainable alternatives and introduce modalities that could have reduced some of the underlying problems and disputes.
In a post-war context, with the defeat of the LTTE in May 2009, the Government, political parties, civil society and citizens at large are faced with an unprecedented opportunity to address the root causes of the ethnic conflict and long-term grievances faced by different communities. Although there is an opportunity to address a fundamental issue such as land through looking at both the constitutional, legal and policy framework and the problems on the ground, very few initiatives have been put forward by the different actors. Nearly a year after the end of the war, with two national elections held and the current Government enjoying an overwhelming majority in Parliament, this is clearly the moment to unveil concrete proposals for constitutional and political reform and a roadmap that introduces changes to the current set up. There are, however, unconfirmed reports of impending constitutional reform including changes to the Thirteenth Amendment and the role and powers of the Provincial Councils. Whether such a framework will guarantee the rights of all citizens or only a certain group or none at all, are yet to be seen. What is noteworthy is that though a significant time period has passed since the end of the conflict, there has been little public information, discussion or debate on Government proposals for possible ways forward. In the current post-war climate, there is no information as to whether the numerous HSZs will be dismantled; whether all IDPs will be able to return to their land; and furthermore, whether there would be a restitution and compensation policy. The lack of transparency and due process with regard to Government procedure into the post-war context are issues of grave concern and need to be reversed.
The present report explores the complex web of land issues in the Eastern Province. At the outset, CPA states that this report only highlights key land issues in the Eastern Province in the post war context and is not a historic study of the use, management and control of land in the area. The specific time period in focus spans 2007-2010. It provides an overview of the situation soon after the Eastern Liberation to that of the post war context in Sri Lanka and the status of land within a three year period. The Eastern Province was militarily liberated by government forces in 2007, following which the region has seen a host of developments related to land. The military liberation of the East and the resulting process of normalization have provided the context for the return of the displaced and land reclamation, the provision of resettlement, reconstruction and development assistance by humanitarian agencies, donors and the Government. This has had a dramatic impact on the quality of life for civilians, even while they continue to deal with the long-term repercussions of the war, including the loss of lives, destruction and damage to property, the loss of livelihoods and incomes, and the disruption of community ties. Some of the critical land issues and problems in the Eastern Province and their impact on larger political and governance issues are highlighted in the report. For instance, access to land is a critical aspect to land use and control. In the East, security restrictions and military occupation have somewhat curtailed full enjoyment of land rights. Furthermore, obstacles to accessing land have resulted in disputes and grievances which if left unresolved can lead to a multitude of problems. Another complicating factor is the manner in which the subject of land has been approached by both state and non-state actors to fuel as well as mitigate ethnic tensions, to facilitate development projects and economic growth, to develop particular communities, dispossess and displace others, establish new administrative divisions and settlements and change ethnic demographics - all of which have had long term implications.
Land as a highly politicised and ethnicised issue was an underlying cause of the war. The report examines the post-war context of new land settlements and land grabbing, landlessness, encroachment on state land, illegal land sales and the implications of the loss or destruction of land documentation in the East. These have all aggravated issues of ownership, access and control of land between land users/owners. There have been reports of communal violence breaking out as a result of land disputes. There are also sporadic reports of intimidation and even assaults, indicating the real potential for violence over land disputes. A number of land disputes were reported to CPA some of which were described as land colonization, but these are claims that CPA could not verify, even though there was a significant level of political and military involvement in some of these cases. Nonetheless, CPA repeatedly encountered a strong perception among many of the interviewees at the community, district and administrative levels of State actors being partial to particular ethnic communities when dealing with land. Hence even when the State is acting in good faith in advocating particular policies there is strong mistrust and fear on the ground. Rather than ignoring these fears the Government needs to ensure greater transparency, information and participation in order to address these perceptions.
The present report also explores the constitutional, legal and policy framework that governs land in the region. The issue of land is further compounded by the different levels of government involved - the Centre, province and district and the powers vested in them. Although the Thirteenth Amendment to the Constitution was introduced with the goal of devolving powers to the Provincial Councils including in the area of land, as discussed in the report, the Central Government overrides provincial council decision-making and policy implementation on land and continues to be the major actor. Even though the number of ministries, including those dealing with land, has been cut in the current cabinet, there continue to be multiple actors at the different levels of administration, especially in the case of the Centre with several departments and authorities overseeing various issues related to land. The lack of progress made in resolving land disputes and the inability to introduce and amend much needed laws and policies demonstrates the ineffectiveness and inefficiency of a bureaucracy and a multiplicity of actors with some overlapping functions. Though CPA has met several government officials who within their limited mandates are attempting to address the grievances of the communities and land conflicts, a common problem documented by the CPA team is the inertia and lack of initiative among some senior political appointees and the disturbing trend of the high levels of politicisation. Though this is not a new phenomenon regarding land and the Eastern Province, the provision of secure land entitlements and development requires that this systematic problem is addressed without delay. A fundamental problem is the lack of political will and political imagination to address the ground realities and grievances of the affected communities and to engage in policy reform. The report recommends possible solutions to the problems and gaps highlighted. It calls for reform at the constitutional, legal and policy levels. While the issue of power sharing and a political solution needs to be addressed and any solution has to grapple with the subject of land, there are areas which the Government can move on without delay, including the strengthening of the powers of the Eastern Provincial Council (EPC) and consulting the EPC on key land related issues. Despite the twenty year lag, it is not too late to constitute the National Land Commission (NLC) which would strengthen the process of establishing a fair land policy. Developing a policy framework on land could be advantageous for long term development provided that it ensures greater transparency and inclusiveness in decision making and formulation of policies. Existing land related legislation has to be amended, including the Land Development Ordinance and Prescription Ordinance. Specific initiatives to provide land for the landless as discussed in this report or compensation and restitution to those whose land and property has been affected by the war, need to be strengthened, taking into consideration the issues on the ground which are set out in the following chapters.
In responding to the problems on the ground, CPA recommends a two-track approach of developing a policy framework and establishing/strengthening community-oriented mechanisms and processes. Land disputes and conflicts which have intensified in the post-war context, probably in relation to an increased feeling of personal security, improved freedom of movement and a greater number of returns, need to be addressed through clarification of the legal status of individual cases. This also requires community-oriented and mediated solutions, be they land kachcheris, land task forces or mediation boards/committees.
The Government, political parties and bureaucrats also need to ensure that governance is made more effective and sensitive to community needs. Existing issues such as the confusion over divisional boundaries for instance need to be clarified so as to improve administration. In dealing with issues of military restrictions such as high security zones and occupation of individual properties that obstruct civilian access, there has to be a commitment to review security requirements in the post-war context, and accordingly provide a time line for withdrawal. There should be rent schemes for continuing occupation and compensation/restitution in the case of permanent occupation which should be kept to a minimum. While the cases and issues discussed in the report are very specific to the Eastern Province, these are not isolated issues and trends peculiar to the East alone. These issues and trends have resonance in other parts of the country, but more so in other conflict affected areas such as the North. The latter is presently going through a phase of rebuilding and development and will face similar as well as unique problems with land. If ‘the Eastern model’ is to be used in the North, best practices and solutions in the East need first to be developed and implemented before they can be replicated elsewhere. For Sri Lanka to move forward in a post war context, where fundamental grievances including land issues are addressed there needs to be larger political and constitutional reform. An underlying theme in the report is that this and the policies and programmes it produces must be underpinned by a people-centric approach – one that is pivotally representative of the needs of the people in the area. Such a shift will not only addresses grievances of the affected communities but could also mitigate conflict and ethnic tensions.