Abandonment and the Secondary Occupation of Property in the North
The legal consequences- Concerns and Recommendations
By M.H.M. Salman
The purpose of this document is to initiate a dialogue among interested parties on the subject of secondary occupation of private property belonging to the Muslims of the North and to draw attention of the policy makers to take necessary remedial action.
The process of expulsion of Muslims from the Northern Province commenced as early as 1985. Muslims from Mullativu were the first victims. In the latter part of year 1990 a full scale expulsion of Muslims took place. According to a survey conducted by Dr. S.H. Hisbullah Muslim families were expelled from about 70 villages.
According to the national census conducted in 1981 a total of 54,205 Muslims lived in the North. In the absence of official population statistics it is assumed that on the basis of calculation of 2% annual growth of population (from 1982 to 1990) there would have been around 63,000 Muslims in the North at the time of expulsion.
The expulsion was successful in the Jaffna, Mullaitivu, and Kilinochchi Districts. In the Mannar District it was a partial success. About 6,000 Muslims braved threats and intimidation and continued to live there. Records show in Mannar the Muslim population dropped (From 26.81% to 5.14%) drastically to less than 6,000 after the expulsion. In the Vavuniya District the entire Muslim population remained intact. (Statistically)
According to available statistics a total of 20,583 Muslims currently live in the North. The Secretariat for the Northern Muslims estimates that there are 19,314 displaced families living outside the North at present. Another category of the displaced Muslims live outside Sri Lanka. Accurate figures and where they currently live are not available.
According to a survey carried out by the Muslim Rights Organisation an extent in excess of 30,000 acres of land belonging to 11,058 Muslim individuals have been abandoned in the North. Abandoned land is either occupied by third parties or remains unoccupied.
Even after the lapse of nineteen long years and the defeat of the LTTE displaced Muslims are not in a position to take a full stock of the status of their property. Reasons are, inaccessibility due to security, hostile environment and the presence of mines etc. Those who had managed with difficulty to visit and inspect the properties had witnessed that in certain cases third parties are in possession. Abandoned lands have undergone considerable physical changes. Land is either overgrown or the surface has undergone changes rendering identification difficult.
According to surveys 12% houses in the Jaffna district are subject to secondary occupation. Secondary occupation of property is very much prevalent in the other districts in the North too though accurate details are not available. The true extent of the secondary occupation of property will only be known when normalcy is restored and the displaced individuals are permitted to visit the areas without restriction.
Several studies have been conducted to assess the impact of secondary occupation in Sri Lanka by a number of international organisations and policy institutes. However the State policy or the law reforms have not been very responsive to the outcomes or to the actual needs that have been identified. The studies have found that secondary occupation of land and houses raises the following social issues-
n Potential to create fresh disputes
n Competing claims and protracted legal/administrativ e procedures
n Hindrance to orderly re-settlement of the displaced
The subject of secondary occupation of property has been subjected to extensive discussion and research in other parts of the world. Countries like Bosnia and Herzegovina, Kosovo, Sierra Leone, and Guatemala have successfully implemented restitution plans.
According to laws of Sri Lanka encroachment or forcible occupation of land and houses are per se unlawful. An aggrieved individual can seek redress through courts of law to have the trespasser or the illegal occupant ejected from the property and gain possession through legal remedies such as possessory action or under section 66 of the Primary Courts Procedure Act.
As much as laws enable individuals to acquire property and assert ownership the laws also provide for the legal basis for loss of ownership to property. The law is found in the Prescription Ordinance which the British enacted more than 100 years ago. Prescription Ordinance governs both acquisitive and extinctive prescription. In layman's language a person can acquire or lose ownership to property by operation of the law of Prescription.
The basis of extinctive prescription is founded on the principle of negligence on the part of the owner of property. In terms of the law an owner of property is under a legal obligation to assert the legal right of ownership within a stipulated period of time to re-possess property. Should the owner fail or neglect to institute legal action within the stipulated time the secondary occupant acquires ownership provided certain conditions are fulfilled.
Courts of law apply provisions of prescription law in terms of procedures laid down in Statutes. In ordinary circumstances where parties are equally placed application of the law is reasonable and justified. However in conflict environments the parties to a dispute may at times not be equally placed in many respects.
For instance in a lawsuit where a displaced Muslim from the North is challenging a secondary occupant of property in the North, he is at a definite disadvantage vis-a- vis the secondary occupier. a) Northern Muslim lives elseware b) properties are inaccessible c) the environment is hostile d) inability to have access to documents or witnesses etc. on the other hand the secondary occupant is placed in an advantageous position by virtue of his possession and the unrestricted access to witnesses, documents and the friendly environment.
One of the incidental issues arising out of secondary occupation of property is the impact of restitution will have on the secondary occupant. Although the occupation of property belonging to others is an unlawful act, there are other circumstances necessitating a more flexible approach to the resolution of this complex issue.
If a secondary occupant is ejected from the property, more often than not it will give rise to fresh problems. That is because in the North most of the secondary occupants are poor landless and belongs to the Tamil community. In such circumstances the ejectment of a secondary occupier will also lead to more tension in the society.
Successful military operations have paved the way for re-settlement of Muslims of the North. The Government has also taken several positive steps in this regard. However no attention is paid to resolve the issues arising out of secondary occupation of private property in the North. In order to complement the efforts of the government the following broader issues are identified in respect of issues relating to secondary occupation in conflict areas-
n Non availability of a credible and comprehensive database pertaining to the land and property issues
n Total inadequacy of laws and policies deal with secondary occupation
n Absence of cost effective and enforceable alternative dispute resolution mechanisms
n Inability of the authorities and the non-state actors to resolve these issues in a just and peaceful manner;
n Potential for future tension between individuals and communities
nSensitivities and genuine concerns of secondary occupants
Instead of strategies, successive governments were keen to set up multitude of ministries, departments, institutions and ad hoc mechanisms creating fresh problems. Issues of co-ordination, overlapping of functions and responsibilities have often created delays, confusion if not conflict among the institutions themselves to the detriment of the displaced people.
In order to address issues arising out of abandonment of property and secondary occupation all parties must think innovatively and also act fast. Following are some thoughts for policy and law reform. For purpose of clarity the envisaged policy and law reforms are set out in three stages, but all stages are interconnected.
1.Initiation of a dialogue involving all parties
The government must initiate a dialogue with all stakeholders.
2. Vesting of abandoned land and properties of displaced (Northern) in the State
Enactment of a new legislation or regulations to grant legal protection to abandoned private property in the North and East. Such law or regulation should have the effect of vesting the properties of the displaced automatically (by operation of law) in the State without any encumbrances.
Laws can be enacted through an act of Parliament or under regulations under Public Security Ordinance. Soon after July 1983 riots REPIA was created through regulation and all affected properties were vested in the State by operation of law. Land and properties vested as such were divested to legal owners after inquiry.
3. Preservation of documents of title to property
Immediate action must be taken by the authorities to preserve and protect documents of title to property such as deeds, permits issued by government and also survey plans, agreements, licences and other document relating to approvals issued by local authorities or government institutions. Issue of copies of documents destroyed or lost too should be expedited.
4. Conducting of land survey and photographing of property
Due to abandonment of property for long periods of time all identity marks and other evidence have been lost or destroyed. The original owners will not be able to identify their properties due to lack or non existence of surface marks or signs. Therefore the Government must facilitate displaced persons to obtain ruling on boundaries of their property under relevant law or practice.
A comprehensive report of property of the northern Muslims is available using new and advanced technologies. A survey too should be carried out to obtain details of land ownership of individuals.
5. Creation of awareness among the displaced population
Lack of awareness and ignorance has affected most of the displaced persons. They are not very much aware of their legal rights and entitlements. Most of them have hopes of returning to their homes in unsafe neighbourhoods. Most of them are also unaware of legal consequences arising out of abandonment of property
Law and policy reform
1)Enactment of new laws and amendment to existing legislation
A serious danger is likely that the legal owners losing ownership due to the operations prescription. If a displaced person loses title to property in such circumstance it will be a travesty of justice and will also reflect poorly on all stakeholders.
Therefore the Government must seriously consider introducing necessary amendments to the Prescription Ordinance and other relevant law without further delay.
2. Setting up of special tribunals/courts to inquire in to property claims
The Government should give serious consideration to set up special courts or tribunals to hear and determine applications in areas where the displaced live, on matters relating to land disputes. These courts or tribunals could be set up under special law. The special courts or tribunals must have jurisdiction to hear applications on a wider range of subjects and should also have powers to expeditiously settle disputes relating to property. Such courts or tribunals must be given jurisdiction to inquire into testamentary cases and disputes relating to land between persons (displaced persons or one party is a displaced person) that were pending at the time of displacement. Similarly pending cases with regard to tenancy rights, servitudes or any right or obligation arising out of land too should be transferred to these special courts or tribunals for determination.
3. Laws to nullify land transfers under questionable circumstances
Several instances have been reported that Muslims of the North had been compelled under coercion or force to dispose land and property at a far lower price than the prevailing market value.
The Government should appoint a committee to investigate such instances and to recommend necessary law and policy changes to grant relief to affected individuals.
Policy reform and executive
& administrative action
1. Formulation of a special land policy for Northern province
Land use and demography of the entire Northern Province have undergone irreversible changes due to the conflict, the resultant displacement of people. Therefore action must be taken to inquire in to and recommend necessary action to identify future land requirements for development, settlements and livelihood activities and to ensure security.
2. Strengthening of law and order
Government must strengthen the law and order situation in and around settlement areas. Improved security and the sense of safety will encourage the displaced people to return and re-settle.
3. Restoration of civil administration
Government must take immediate action to restore civil administration in the North to facilitate the return of displaced people and to claim abandoned property.
4. Alternative plans
Authorities also must consider providing realistic solutions like those of providing land for re-location and building new houses for both the displaced and the secondary occupiers.
5. Legal advisory services
According to survey conducted majority of northern Muslims are not aware of the legal consequences of abandonment of property and secondary occupation.
Therefore the Government should spearhead a campaign to create awareness through legal advisory services to the displaced people and the secondary occupiers with the active participation and assistance of non state parties.
6. Land mediation
In order to avoid further escalation of tensions and acrimony the issues arising out of secondary occupation should be settled through an inclusive process involving all parties concerned. One of the tested approaches is mediation where all concerned sit with a mediator to discuss and find ways of resolution.
Therefore the Government should consider enacting a body of laws similar to laws existed in Bosnia and Herzegovina and Kosovo.
1. Restitution of property
Formulate policies and introduction of legal framework for restitution of property.
Government must formulate policy and procedures to pay compensation to the affected individual in lieu of restitution only in the event of restitution of property not being possible or at the request of the displaced individual.
Government must consider relocation of the displaced only in the event of re-settlement being not feasible or at the request of the displaced individual.
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