• Study Circle legal team points out that Bim Saviya is an economic burden for Govt.

By Shenali D. Waduge The Government and the Central Bank of Sri Lanka (CBSL) must rethink before investing foreign funds in a programme that has failed and will require over a century to complete.  The article ‘Bim Saviya Title Registration Act’s 24-year reign of chaos’ published last week in The Morning covered points highlighted by three attorneys in an open letter in April 1998, after taking part in a study tour to Australia prior to the Government enacting the Title Registration Act in March 1998 [1].    Thereafter, the Sri Lanka Study Circle legal team was asked to present its observations on the Bim Saviya programme. The observations and research given in this article reveal that the Government needs to repeal the Registration of Title Act No. 21 of 1998, which is an economic burden to the country. The observations of the legal team are based on the following factors:

1. The Government’s policy is to introduce mandatory registration as given in the Cabinet Memorandum 20/2100/322/007 on 24 December 2020.  
2. A study of reports by 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 South Africa, referred to in the Cabinet Memorandum.

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 in a higher position in the Doing Business Index (DBI), the Government introduced the Australian land law through Act No. 21 of 1998.   Is this not questionable?   Was this initiated to receive funds? If so, how much has been received already? Who drafted the Act, which was hastily passed by the then Government?  Why does the Government request massive funding from the Millennium Challenge Corporation (MCC) in spite of this Act’s failure of 20 years? (The US has not introduced the Australian law; instead it has the deed recording system). The Government, particularly the Ministry of Lands and the Governor of the Central Bank, must realise 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 despite investing millions of dollars. From the total of 12.5 million land parcels that are required to be registered, a register with a mere 750,000 land parcels has been prepared. This is a waste of foreign exchange.   Why has Bim Saviya failed?   The hurriedly-passed Title Registration Act is defective. The operating system contains impractical costly procedures based on a foreign law – the 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
• The impractical amount of time it takes to visit over 12.5 million land parcels
• The Surveyor General must register ownership and the plan 
• In its 20 years of existence, this Act has completed only 5% of the above process. Over 11 million land parcels are yet to be surveyed and registered
• The Title Settlement Commissioner’s report showcases the difficulties that exist

  Why can’t Sri Lanka prepare a mandatory land register without Bim Saviya?    Sri Lanka could amend the existing Registration of Documents Ordinance No. 23 of 1927 and make registering ownership of lands with plans according to the surveying system of Sri Lanka mandatory. This is the system practised in the US, the UK, and South Africa, as owners undoubtedly wish to register their lands and will want to uphold that right. This will save the cost and time of visiting over 12 million land parcels. The Registrar General of Lands wrote to the Senior Advisor to then Prime Minister Ranil Wickremesinghe on 6 April 2016 laying out this practical solution [2].    Who required land registration to be made mandatory?   The mandatory land register was part of the Doing Business Index (DBI). The DBI required Sri Lanka to register all its land and owners to make it easier to purchase and mortgage land. The excuse given was to bring Sri Lanka on par with other developed nations, however, the real reason was for investors to have access to land. The advantage for landowners was that when their land was officially registered under their name, the opportunity for fraud would be curtailed.   What is the opinion of the World Bank and AusAid on Bim Saviya?   The Australian Government did assure Australian Dollars (AUD) 350,000 for the Stage 1 legislative framework, however, the Australian consultant opined that the Torrens law was unsuited for Sri Lanka. This meant AusAid would not have allocated funds, even though the Act was hurriedly passed in 1998. The World Bank, too, found Act No. 21 of 1998 to be defective, as expressed by Director Jessica Mott in her report [3].  The World Bank funding was to enable research to improve the existing register. However, the Sri Lankan Government (GoSL) passed the Act even while the World Bank and BASL were discussing the research aspects of the land laws. This was another example of the GoSL acting on its own, against advice, or having been advised by the wrong parties.   What has the failed Bim Saviya cost SL so far?   The cost of this futile exercise has been $ 2.5 million per year – thus, in over 20 years, Sri Lanka has spent over $ 50 million so far, to register just 750,000 parcels of land. At the rate of 350,000 registrations per year to complete the required 12.5 million land registrations, Sri Lanka will take over a century to complete the project. This clearly shows the extent of its futility; by the time a land parcel gets registered, the owner may have already departed! The Government needs to take stock of this situation, carry out a cost assessment, and cease the allocation of funds for such a futile project.   What was the opinion of the committees?   The former President tasked the Ministry of Justice to appoint a team of lawyers to look into the land law. The increasing number of complaints by landowners and lawyers resulted in the then Government appointing two committees. Both committees concluded that Act No. 21 of 1998 was unsuitable to prepare a conclusive mandatory register.  The committee concluded that the register under this Act could not accommodate the rights of co-ownership, ‘anda’ cultivation, customary rights on inheritance, and trust deeds and rights of religious institutions (temples, kovils, etc.). They concluded that the name of the Act should also be changed to Voluntary Title Registration Act if the legislation was to be maintained. However, this will not fulfil the requirement of the Doing Business Index, or the policy of the Government given in the Cabinet Memorandum.   How has the issue affected landowners in Sri Lanka?   The prevailing land law in Australia following colonial occupation was introduced to Sri Lanka as Bim Saviya. However, even after 150 years, the indigenous people of Australia are struggling to gain ownership rights to their land under the title registration system. The Mabo case is an example of repealing the law and winning justice for the land by the indigenous people.  Similarly, in Sri Lanka, landowners are also struggling under Bim Saviya since:

1. The Urban Development Authority (UDA) and the local authorities are not accepting the plans drawn under Bim Saviya as per the Surveyor General’s report 
2. Land fraud has new avenues with Act No. 21 under Bim Saviya, which has placed statutory limitations on judicial intervention; it is not easy to reallocate lands from fraudsters. Therefore, landowners need to be extremely vigilant with Bim Saviya

The owners only receive a certificate in lieu of their deeds without any of the protective laws that exist in Australia to protect landowners from cybercrimes or fraud. The courts are thus under pressure, as the Bim Saviya does not have legal remedies for fraud.  In conclusion, the solutions from the legal team stated:

• The Bim Saviya programme or Act No. 21 of 1998 was not beneficial to Sri Lanka  
• Sri Lanka would get nowhere in the DBI with two voluntary registers where digitised facilities could not be introduced to search for owners from a one-stop shop. Therefore, it is best to continue registering the existing deeds, instead of re-surveying and issuing title registrations, and registering them afresh into a new e-land register
• Once the register was made mandatory, owners would register without the Government being forced to visit over 12 million plots
• Act No. 21 of 1998, or Bim Saviya, required the removal of the history or pedigree chain of owners. It was a warning to landowners to retain their deeds, as some banks wish to check the deeds. Eventually, in the event of fraud or cyberattack, the deeds would end up being the only means to prove ownership
• Bim Saviya denied owners access to 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 how procedures adopted in South Africa would function with laws in Sri Lanka. This required an 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 No. 19 of 2006. This Act specifically requires the Information and Communication Technology Agency of Sri Lanka (ICTA) to retain paper documents in case of issues like cyberattacks, or hacking of land registers or their data
• A major lacuna in the old registration law (specifically Section 7 of Ordinance 23 of 1927) was that it didn’t have provisions to reject forged or invalid deeds. This has facilitated fraud. The Registrar of South Africa has quasi-judicial powers to maintain the integrity of the register. Similar options should be pursued by Sri Lanka alongside biometric solutions as applied in banks and passport offices to prevent fraud

The problem is clear, the solutions have been given by lawyers, and yet the Government continues to plod forward requesting funds for a failed land project that will take over a century to complete at the current rate. It is an unnecessary waste of funds when the country has other solutions.    References  

• https://www.themorning.lk/bim-saviya-title-registration-acts-24-year-reign-of-chaos/

• RG/TRB/03/278[2] PM Advisor ref JCR/SEC/PMO

• https://documents1.worldbank.org/curated/en/293851468308634964/pdf/ICR0000190].pdf

  More research papers from lawyers on 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-

• https://www.sundaytimes.lk/160807/sunday-times-2/eland-registry-digitalisation-and-bim-saviya-beware-of-pitfalls-203724.html

• https://www.sundaytimes.lk/180909/business-times/land-fraud-affects-foreign-and-local-investments-310330.html

• https://www.ft.lk/Opinion-and-Issues/dependable-law-land-registry-are-vital-tools-for-land-owners-to-protect-against-real-estate-fr