Secondary occupation of lands owned by expelled Muslims of North – Concerns & Recommendations

Muslim presence in the North dates back to eighth century. According to historians forefathers of present Muslims were present in the North of Sri Lanka as far back as the eight century.  Mannar and Jaffna are two places recorded in history. Muslims have been engaged in Trade and other vocation in the Jaffna area. They were settled in number of streets and those streets had Muslim names.  Large number of mosques and schools also catered to them. In 1981 the total number of Muslims in the North was 50,831.   According to statistics as at end of 2007 the population of Muslims in the North is 20,583.

The process of eviction of Muslims from the Northern Province commenced early as 1985.  Muslims from Mullativu were the first victims.  In the year 1990 a pure form of ethnic cleansing of Muslims took place in an unprecedented manner. Muslims were ordered to leave within a short time period or face dire consequences.  According to a survey conducted by Dr. S.H. Hasbullah Muslim families were evicted from about 70 villages in the province. Scholars have pointed out that the eviction was a calculated attempt at uprooting of an ethno-regional identity of a community from a land of historical habitation. Even today the reasons for the expulsion of Muslims from the North are not clear.

In the year 1990 except in certain parts of Mannar and Vavuniya Districts an attempt was made to clear the rest of the North of Muslims. The effort was successful in the Jaffna, Mullaitivu and Mannar Districts. However, in the Districts of Vavuniya and Mannar substantial number of Muslims continued to remain in spite of threats to life and property.  In Vavuniya the entire Muslim population remained intact (statistically) and in Mannar the Muslim population dropped drastically to less than 6,000 after the expulsion.  (From 26.81% to 5.14%)

At the time of expulsion a large concentration of Muslims lived in the Jaffna District. In the year 1981 there were 13,757 Muslims in Jaffna.   The number is down to 299 in the year 2007. There was heavy concentration of Muslims in the Jaffna town.

Muslims of the North left behind land and property and all their other belongings when they were expelled in 1990. According to a survey carried out by the Muslim Rights Organisation an extent in excess of 30,000 acres of land (agricultural, settlement or land earmarked for future use) belonging to 11,000 individuals are left abandoned in the North. This land is either occupied by other individuals or remains abandoned.

Inaccessibility, security considerations and third party possession have prevented the displaced from visiting their homes and lands. Even during the ceasefire (2002-2004) and peace negotiations the Muslims could not settle in their land and house due to variety of reasons.

According to information land and houses belonging to Muslims are now occupied by others. Land is being used by them for cultivation and other purposes. On inquiries the Muslims were told that the land and houses now belong to them. Even the law enforcement authorities and public officers are helpless.

In conflict environments third party possession of property belonging to others is known as “secondary occupation”. In countries like Bosnia, Kosovo and Rwanda (many other countries) the secondary occupation posed a serious threat to re-integration in post conflict situations and also threatened existing peace. The difference between those countries and Sri Lanka is that the period of duration of secondary occupation is almost two decades in certain cases.

According to laws of Sri Lanka encroachment or forcible occupation of land and houses are unlawful. An aggrieved individual can seek redress through courts of law to have the land or property restored back.  These remedies are sought very frequently in courts in normal circumstances. However the conflict environment in the North and East has posed several difficulties. Security conditions, deficiencies in maintenance of law and order and civil administration have prevented victims form seeking regular legal and administrative remedies. To seek such remedies the aggrieved party needs to be present in the area.

In the case of Northern Muslims the long period of abandonment, inaccessibility and security reasons have together provided an ideal opportunity for the secondary occupiers to possess and occupy land and property freely and without and obstacle. The owners are unable to access their land and property or obtain information regarding the current state of them. This has created a climate of total impunity for the secondary occupiers.

Aggrieved Muslims are unable to gather documents of title and other documents to prove the land belong to them. Such documents are needed to prove ownership in courts of law.  Most of the victims are unable to retrieve or obtain copies of vital documents. In the absence of documents the only other way of proving ownership is to get others to testify and identify land and property. Due to the long period of abandonment lands are difficult to identify due to changes and due to natural causes. Even individuals who are capable of identifying land and give evidence are either too old or not amongst the living.

Laws of Sri Lanka make a distinction between State land and Private Land and property. Both categories of land are governed by different laws. The State is the custodian of land on behalf of people and hold land in trust. State land administered and managed by specific institutions established by law. Laws have been enacted to dispose and alienate State land and the government from time to time declares policies as to how State land is divested to people and institutions.

As much as laws enable individuals to acquire land and property, laws also provide for the legal basis for loss of title to land and property. The law found in the Prescription Ordinance which was enacted by the British more than 100 years ago. In terms of this law a third party is entitle to acquire title to property through long time possession. This is known as prescriptive title.

It is understandable that in ordinary circumstances prescription has been used to acquire right to immovable property such as land. Courts are inclined to hold with the third party occupier on the basis of legal and factual considerations. Prime among them is the failure of the owner of property in asserting his legal rights in time. What is meant here is that an owner of property must take legal remedies immediately to recover it. The delay will work against the legal owner unless action is taken within the stipulated time.

Ground realities in the northern province will make recourse to legal remedies difficult. Primary reason is the costs involved and the laws delays due to breakdown of law and order and civil administration etc. on the other hand the affected Muslim will not have necessary documentary proof acceptable to court or verbal evidence. It will be near impossible for them to stand up to the claim of a secondary occupier and succeed.

In Sri Lanka in depth study of the issue of secondary occupation is still at an early stage of development. This is due to the fact that most complicated and contentious cases are in the Northern Province and also most of the cases in other parts of the country have been resolved to a certain extent. Number of international organisations and policy institutes have also done considerable amount of work on this subject of late. However the state policy or the law reform has not been very responsive to the needs. Apart from legal issues the secondary occupation of land and houses raises few other serious issues-

a)    Potential to create fresh disputes
b)    Competing claims and protracted legal/administrative procedures
c)    Hindrance to orderly re-settlement of the displaced

The subject of secondary occupation of land and property has been subjected to extensive discussion and research in other parts of the world. Bosnia and Herzegovina, Kosovo, Sierra Leone, Guatemala are some of them. In some countries like Bosnia and Kosovo the agencies have successfully implemented property restitution plans. On this subject the “Pinherio Principles” have been widely adopted as guiding principles on land and housing restitution.

Secondary occupation has also created a social issue. Most of them are poor landless, often they belong to Tamil community. In such circumstances eviction of a secondary occupier will also lead to more tension in the society.

Recommendations

The viable option is to lobby for law and policy reform. Amendment to existing laws or introduction of new legislation is important to deal with the multitude of issues expeditiously. In order to address issues arising out of abandonment of land and secondary occupation new structures and institutions are necessary. The policy and law reform envisaged can be initiated in three stages. But all stages are interconnected.

Immediate

a)    Vesting of abandoned properties of displaced (Northern) in the State

Declaration through an act of Parliament or through regulations under Public Security Ordinance that land and houses belonging to displaced individual vests in the State without any encumbrances. (Soon after July 1983 riots REPIA was created through regulation and all affected properties were vested in the State)

b)    Preserve documents of title to land, survey plans, land registry details

Documents of title to land and property are lost, destroyed or forcibly taken away at the time of expulsion. Therefore owners are not in a position to prove title to property in courts of law. Immediate action should be taken to protect documents at the Kachcheris, Land Registries and other Government offices including microfilming and copying.

c)    Conducting of land survey and photographing of property

Due to abandonment of land and 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 of surface signs.

d)    Setting up of  special institution and appointment of special officers

Institution and offices should be created for registration of details of land and houses abandoned in the North.

Intermediate

Law reform

a)    Enactment of new laws and amendment to existing legislation

Introduction of suitable amendments to the Prescription Ordinance and enactment of new laws to set up a special institution to exclusively deal with property related issues.

b)    Special tribunals/courts to inquire in to property claims

Setting up of special courts with powers to expeditiously settle disputes relating to property in areas where the displaced live with wide Jurisdiction.

c)    Laws to nullify land transfers under questionable circumstances

Policy reform

a)    Formulation of a special land policy for North and East

New policy should address issues relating to land and land use in future.

b)    Appointment of special Commissioners

Commissioner to advice displaced individuals and act as an intermediary in respect of land matters, registration of documents and persons.

c)    Expeditious Issue of copies of documents of title

Government institutions should be geared to issue copies of relevant documents to displaced individuals on a priority basis.

d)     Legal advisory services to the displaced

Government and the international community should immediately set up legal aid centers to assist the displaced individuals to recover abandoned property.

Long term

a)    Return

The ideal solution is the return and re-integration. However the possibilities are looking less promising.  Return shall be preceded by revival of civil administration and provision of basic amenities and infrastructure facilities. Suitable conditions to commence economic activities too should be created for the return to be sustainable.

b)    Restitution of land and houses

Return will have to be followed by restitution of land and property or vice versa

c)    Compensation

Compensation will be considered only in the event of restitution not possible.

d)    Relocation

Relocation only in the event of re-settlement is not feasible