Colombo begins legal appropriation of former HSZ lands in Jaffna

Civil officials entering HSZ to place land acquisition notices in Valikaamam North on Monday. Note the all Sinhala board on the occupying state's bus in Jaffna.

[TamilNet, Monday, 22 April 2013, 22:59 GMT]
The occupying Colombo, which is converting the lands of the former High Security Zone (HSZ) in Valikaamam North in Jaffna into permanent Sinhala Military Zone (SMZ), has now instructed Village level Officials of 24 GS divisions, under SL military occupation, to visit and place legal notices announcing the ‘State takeover’ of the lands in the already SL military-occupied zone on Monday. Placing such takeover-notices inside the lands of the owners without allowing them to view the announcement, is a calculated move to deny them the legal opportunity of filing suits against the appropriation move, say legal activists representing the uprooted people in Jaffna. In the meantime, informed sources said some of the land owners are scheduled to be taken to their lands on Tuesday to give consent to the move or else suffer some negative consequences. 

51,000 people have been uprooted from the 24 GS divisions. 

Of these, at least 4,000 of them are still living in the so-called welfare camps while most of the others are living with their relatives and friends. 

The uprooted people of Valikaamam North have been struggling to get back their lands for 23 years since 1990 when they were forced out of their lands by the SL military.

The occupying SL military later declared these lands as Military High Security Zones (HSZ). 

However, after the end of the Vanni war in 2009, the SL authorities had to admit that people could return to these lands after the land mines were removed. 

However, the process of clearing land mines has been completely controlled by the SL military that did not want Tamil civilians to resettle in their own villages. 

The SL military was silently placing new fences, carving out 24 villages with the intention of making the entire area a Sinhala Military Zone (SMZ). 

On Monday, a group of GS officers were taken inside the former HSZ to carryout the placement of notices inside the fertile lands that were being appropriated by the SL State. 

The SL government has recently launched so-called ‘land offices’ in Jaffna and Ki'linochchi as recommended by the Rajapaksa-appointed Lessons Learnt and Reconciliation Commission (LLRC).

The offices established in Jaffna and Ki'linochchi have also started categorising everything that comes under SL military occupation as ‘lost lands’.

First Failure In Geneva: Trap, Blunder Or Model?

By Dayan Jayatilleka -April 23, 2013

Dr Dayan Jayatilleka

However bad Sri Lanka’s foreign policy is and external relations are, they have yet to hit the nadir that they did under President Jayewardene in the 1980s.

The first ever resolution on the human rights situation in Sri Lanka adopted in Geneva by the Human Rights Commission was in March 1987, while the first decision, which it ‘recalls’ in the resolution, was in March 1984, as was reported in the Lanka Guardian at the time (Vol 9, No 23, April 1 1987, p18). This episode, which in a lead story in the same journal three months later was derided by its Editor as a “roasting”, has recently been disinterred and touted as nothing less than a model of professional diplomacy which should have been looked up to as a lodestar by Sri Lanka’s representatives in Geneva May 2009.

A persistent attempt at a revisionist history of Sri Lanka’s diplomacy posits our performance at the UN Human Rights Commission (the predecessor of the Human Rights Council) in Geneva in the period 1984-1987, as the acme of professionalism. What the record shows is that 1987 is indeed a performance to be remembered, but not exactly as an achievement, still less a model, but rather for the contrary reasons.

A close, ten-point analysis of Geneva March 1987 in the Lanka Guardian of April 1st 1987 (Vol 9, No 23, p.16) was presented in an article billed on the magazine’s cover as ‘Human Rights: Examining the Geneva Resolution’ and carrying the by-line Susantha Dias.

The opening paragraph of the ten point critique has startling contemporaneity given the recent attempts at revisionism, shedding light on spin-doctoring and mythmaking. It reads:

“The thrust of official propaganda on the subject has been, that a covert Indian attempt to gain acceptance at the CHR for an Argentine–sponsored Resolution which was politically motivated and blatantly one-sided and intended to blacken Sri Lanka’s name in an HR context, was thwarted by SLG’s diplomacy, which brought about a watered down Resolution accepted by consensus with SLG’s acquiescence. The political reality seems somewhat different”.

Points 3&4 of the analysis help us nail down exactly when it was that Sri Lanka was first placed ‘under probation’ in Geneva.

“The Resolution was set firmly within an HR framework for, in its preamble the CHR claimed to be guided by univer sally accepted rules of inter national humanitarian law, and in its operative section the CHR called on SLG specifically to cooperate with the JCRC in dis seminating and promoting such law. The CHR has thus gone on record that there is an adverse HR situation here which requires cognizance and comment, whilst identifying the SLG spe cifically and alone as requiring to upgrade its HR performance.”

“The Resolution is to be seen as the outcome of a three- year watching brief which the CHR has maintained over the HR situation here, because it recalls the CHR’s decision of 1984 and notes the Reports of its Special Rapporteur on torture and of its Working Group on enforced or involuntary disap pearances (both presumably in respect of the SL situation). That is to say, that the CHR now deems the situation to have so deteriorated during that ‘probationary period’ as to warrant inscription of a resolution.”

So what really happened in Geneva in 1987? Point 5 leaves no room for doubt:

“The prospect initially facing SLG was acceptance by a majority of a highly critical resolu tion damaging to SLG’s in inter national standing. The outcome claimed to represent a diplomatic victory, has been a consensual resolution which, as will be spelled out below, is not only critical of SLG’s HR performance (vide paragraphs 3 & 4 above) but undermines the foundation of SLG’s position, that it is engaged in fighting a terrorist threat to law and order. Moreover, the Resolution as adopted implicitly recognises the validity of the Tamil claim that it is engaged in resisting (even if violently) a diminution of its HRs and fundamental freedoms. It is a moot point, whether or not it is preferable to be called by some ‘a scoundrel’ whilst a few others testify to your goodness, or be said by all to be ‘a cad’.”

Points 6-8 of the forensic piece nail down the extent of the strategic diplomatic defeat and the damage involved.

“The Resolution calls upon “all parties and groups”, with out identification or distinction, to forswear violence and nego tiate a peaceful settlement. Inasmuch as there are only two parties to the internal conflict situation under reference, SLG and the Tamil militants, this equates the two in terms of res ponsibility for violence, and undermines the ‘terrorism – law & order’ argument.”

“It also calls on all parties and groups to pursue a negotiated political solution “based on prin ciples of respect for human rights and fundamental freedoms”. In as much as it is the State or Government (SLG) which has the role and responsibility to uphold and apply HRs and fundamental freedoms in respect of all its citizens, and the only other combatant in the conflict situation is a militant armed section of the Tamil community, the implication is inescapable that the conflict itself is deemed by the CHR to constitute a diminution if not violation of HRs and fundamental rights of Tamils.”

“The only comfort the SLG may draw from the Resolution is that the CHR has called on the Tamil militants ALSO to desist from violence and negotiate a peaceful settlement.”

In his Conclusion, the analyst sums up the Resolution:
“(a) That the CHR has gone on the record, having watched the situation for three years, that there is an adverse HR situation here which warrants cognizance and comment by it. (b) that this situation stems from an internal conflict between parties it equates in respect of responsibility and (c) that the conflict lies within a context of diminished or violated HR’s and fundamental freedoms which require to be restored by a negotiated political solution.”

What is most devastating is the author’s evaluation, and as it turns out, an accurate pessimistic prognostication of the consequences of the professedly grand diplomatic outcome by Sri Lanka in Geneva ’87. He argues that it sets the stage for subsequent action by India, opining that:

“India could not have wished for a better preparation of the diplomatic ground, as it were, in respect of any future initia tive she may contemplate on behalf of the Tamils. One must then ask: might it not have been a clever diplomatic move by India to work for a toughly- worded resolution, which could then, in bargaining, be exchanged for a milder but consensual one, committing the entire international community in support of her perception and approach?”

Just a few months later that ‘future initiative’ turned out to be the air-drop, the accord and the projection of Indian kinetic power onto Sri Lanka’s soil, in the form of 70,000 troops. March ’87 in Geneva had indeed prepared “the diplomatic ground”.

Mervyn de Silva in his lead article in the Lanka Guardian of June 15th 1987 (Vol10, No 4) entitled ‘Diplomatic Front: Sri Lanka’s Moment of Truth’ wrote of the aftermath of the Indian airdrop: “Sri Lanka, although the victim, suffered a near-total diplomatic isolation in the international community, a stinging indictment of the UNP’s foreign policy”.

Mervyn significantly concluded “As for the UN, it was no less a person than the UNP’s first appointee to New York…who advised …on the futility of going to the Security Council, warning that it would ‘internationalise’ the issue–something we can ill afford, especially after the roasting we got at the Human Rights Commission meeting in Geneva three months ago”.

What is particularly lamentable is that such abject and myopic diplomatic masochism is presented as something that would have had the blessings of Lakshman Kadirgamar.

Manmohan to discuss resettlement of SL Tamils in UAE

TUESDAY, 23 APRIL 2013 

Prime Minister Manmohan Singh has written to Marumalarchi Dravida Munnetra Kazhagam (MDMK) general secretary Vaiko informing him that the Centre would be in touch with the United Arab Emirates (UAE) and the United Nations High Commissioner for Refugees (UNHCR) in order to facilitate the resettlement of a group of Sri Lankan Tamils in UAE.

Mr. Vaiko had written to Dr. Singh, saying that if the 19 Tamils were deported to Sri Lanka, they would be tortured there.

The Prime Minister said in his letter that the UNHCR had already arranged resettlement in third countries for some of the Tamils in the group.

The Union government would remain in touch with the UAE authorities to facilitate the process to the extent possible, the Prime Minister added. (Source: The Hindu)

Preparations for land confiscation has begun

Sunday , 21 April 2013

Government has commenced its activities to grab lands from 24 grama sevaka divisions located in Waligamam north, which consist ample resources in the Jaffna district for cultivations and fishing.

Reports states, activities in full strength towards this will begin from tomorrow Monday. The Jaffna district land development department is engaged for this activity.

Notification tomorrow

Effective from tomorrow,  land confiscation notifications would be displayed. 24 Grama Sevakas would be taken to the high security zone, the camp areas which are not still released towards this activity.  People and officials were so far, refrained to enter these regions.

People from the 24 grama sevaka divisions are displaced from year 1990. They are anxiously waiting for 23 years to get resettled in their native lands. Many protests were held by them appealing to release their lands.

4,000 persons from these localities are displaced and still continuing to live in welfare camps without any basic facilities was said.

Case pending

Parliament member Mawai Senathiraja filed a case in courts to permit him to go back to his native land, but his case is pending.  It was said, the case would be brought for inquiry on May 13th.

Meanwhile two days back a discussion was held at the Jaffna secretariat concerning the confiscation of lands in the Waligamam north. Government Agent Suntharam Arumainayagam, District Land Confiscation Officer A.Sivaswamy, Waligamam North and Kopay Divisional Secretaries, Military officials attended the discussion, profoundly discussed regarding land confiscation.  At the meeting it was decided to expedite activities from Monday.

Identification

It was decided at the meeting to invite all the land owners on Tuesday to identify their lands for confiscation.

Loss Making Key Public Enterprises: CPC To Mattala

By W.A. Wijewardena -April 23, 2013 

Dr. W.A. Wijewardena

Loss Making Key Public Enterprises: Postponing the needed reforms will be fatal pretty soon

The power shock is to be followed by other shocks too

When the new electricity rates were announced last week, newspaper headlines cried “power paralysis”, “power shocks” and “power betrayal”. Given the increase this time – more than 60 per cent in a single increase – it is not unusual for media to express their shock in equally shocking terms. However, the media and political reaction to the electricity rate increase appears to have been concentrated on this single one-off incident, ignoring the more alarming big picture emerging in the country’s public enterprise sector. Key public enterprises, namely, Ceylon Petroleum Corporation or CPC, Ceylon Electricity Board or CEB, Sri Lankan Airlines, Mihin Air, Sri Lanka Transport Board or SLTB and Sri Lanka Railways or SLR have been making losses in colossal amounts year after year for some time. Many others, though they had made profits, had not done justice to the capital employed in them by the country’s taxpayers from time to time. But this fact had been largely ignored by media and politicians.

Loss making public enterprises have eaten up 2.5% of GDP

This writer in a previous My View on Losses in Public Enterprises had equated them to ‘violation of property rights’ because people have to bear those losses one day by cutting their wellbeing, a situation similar to when their property rights are taken away by coercive action. The IMF had warned in its report on Sri Lanka issued in March 2012 that the losses in CPC and CEB alone were one and a half per cent of GDP in 2011 and would be in the region of two per cent of GDP in 2012 if prices are not revised during the remaining part of the year. Instead of heeding to this advice, the Budget 2013 had criticised the critics of the loss making public enterprises on the ground that the critics had ignored the contribution made by them to ameliorate the lives of the people in far corners of the country (p 59). But, according to the new numbers just released, the total operating losses of these two corporations standing at Rs 151 billion in 2012 have exceeded 2 per cent of GDP, vindicating IMF. When the operating losses of Sri Lankan Airline, Mihin Air, SLTB and SLR are also added to this number – losses totaling Rs 181 billion – the total losses of the six key corporations have just reached 2.5 per cent of GDP. In a country which depends on foreign remittances to boost its national savings because the domestic savings are just 17 per cent of GDP, a loss of two and a half per cent of GDP is not a simple matter that could be ignored.

Official reports silent on an emerging catastrophe

Thus, the revision of electricity rates by this magnitude was inevitable. Yet, its inevitability – and the inevitability of price revisions in many more loss making public enterprises that are yet to come – had not been highlighted in any of the official publications of the government. For instance, Annual Report of the Ministry of Finance and Planning for 2011 had devoted one chapter to State Owned Business Enterprises or SOBEs but there had not been a detailed analysis of why losses are being made by key SOBEs except providing a generic description of their weaknesses. The Budget 2013 had in fact praised these corporations for the social contribution they make. However, to its credit, the Central Bank which is supposed to give apolitical advice to the government has, in its Annual Report for 2012, deviated from the above-mentioned tradition of the Ministry and emphasised the need for improving the operational efficiency of CEB and CPC to make them viable (p 4). But the Bank’s singling out only CEB and CPC for comment may have given the impression to the Minister of Finance, Members of Parliament and the public that the public enterprise sector of the country poses no problem as a whole and therefore does not fixing by the government.

The Central Bank had a tradition of speaking out

This appears to be a deviation from the past tradition of the Central Bank where the Bank had adopted a very critical approach when commenting on public enterprises. For instance, the Annual Report 2001, while highlighting the structural reforms being carried out in the public sector and in many public sector enterprises, the Central Bank had brought to the notice of the Minister of Finance and others the following: “However, the structural reform programme should be continued with more vigor. In particular, the reforms relating to the strengthening of the public sector financial institutions (Writer’s note: because they were all technically bankrupt at that time), improving the flexibility of the labour market, restructuring CEB and CPC, improving efficiency in ports and land registration, introducing automatic and transparent price adjustment systems in public sector corporations, commercialising railway and postal services, facilitating the operation of the private pension funds and improving efficiency in civil service need to be implemented without further delay. Similarly, due attention has to be given to expedite the long overdue institutional reforms and deregulation/regulation in order to improve the efficiency and the flexibility of the economy” (pp 29-30).

With regard to CEB, the same report had advised the Minister of Finance that the following should be done: “The existing crisis situation in electricity supply has an adverse impact on the country’s productivity and expansion of production capacity. The present power tariffs in Sri Lanka are the highest in the region, significantly weakening the country’s external competitiveness. A comprehensive reform package including unbundling of generation, transmission and distribution activities of CEB, introduction of automatic, transparent tariff adjustment system, correcting biases against production activities through cross subsidy, reducing system losses which are as high as 20 per cent, involving private sector participation and removing political interference in power sector expansion activities are essential to improve the viability and future prospects of the power sector” (p 42).

CB can even reprimand the government

Since the economic reforms had not taken place at the pace at which the Central Bank had desired, the Annual Report for 2002 had mildly reprimanded the government. It has told the government that the slow progress in economic liberalisation and other structural reforms had prevented the country from realising the full benefit available under a market oriented economic policy framework. Regarding the loss making public enterprises, this is what the Annual Report 2002 had to say: “The continued operation of inefficient and loss making public enterprises has been one of the major causal factors for many economic problems faced by the country today. Their losses added to pressure on the fiscal deficit or increased public sector bank borrowings, exerting pressure on interest rates and crowding out private investment. Their inefficiency reduced the growth in productivity in the economy and raised costs of production exerting cost-push inflationary pressures. The adverse impact of their continuing functioning has been clearly shown up in the poor performance in the infrastructure facilities, weakening the country’s external competitiveness and investor confidence. For example, the power sector has been in crisis for long, resulting in an inadequate and unreliable supply of electricity and the highest energy costs in the region” (p 51).

CB should keep on nagging the government

It is rarely politicians listen to outside advice. Yet, a central bank cannot neglect its duty of telling a government what is wrong in its policy and what should be done to correct the same. This a central bank can do by being an ‘impartial spectator’ if one borrows a term from Adam Smith and not by being a part of the government. This role of the Central Bank was reported to have been stressed even by a left-wing Finance Minister, Dr N.M Perera when he addressed the senior central bank officers in 1971, according to a report filed by Ceylon Daily News. Thus, the Central Bank’s educating the politicians should be done continuously, as a former Governor, the late Mr N U Jayawardena, had said that it is the function and the duty of a bank Governor (so, the central bank as well) to “nag the government skillfully and continually”. So, a central bank should keep on nagging the government in the same way a wife would continually nag her husband to bring him to the correct path despite the personal risks to her life and welfare.

Structural reforms a must

So, what had the Central Bank talked about in its Annual Reports for 2001 and 2002? The problem with the loss making public enterprises is not a problem of periodic price adjustment alone. It is rather a problem of reforming these enterprises which the Bank had referred to as ‘structural reform’. This had been succinctly put by the IMF too in its report on Sri Lanka referred to above. It had said that immediate action should be taken to reduce the costs of these enterprises along with changing prices. This is nothing but the structural reforms which the Central Bank had advocated. To reduce the costs of the loss making public enterprises, it is necessary to improve their productivity, namely, the output they make by using one unit of input. Since they are making losses, they are presently producing less than one unit of output in money terms by using one unit of input. The productivity improvement requires them to reverse this and produce in money terms more than one unit of output. This is not a new thing and even during Kautilya’s time, some 2400 years ago, that was the benchmark used by the king’s businesses in India. Kautilya had emphasised that king’s businesses should necessarily make profits; if they do not make profits, he had equated it to a situation where the public officials eating up not only the wealth of the king, but also the labour of workers who had been employed in those enterprises.

So, what are the structural reforms that are necessary to improve the productivity of these enterprises? There are many as had been emphasised by the Central Bank in its Annual Reports for 2001 and 2002. The present government now facing a catastrophic situation cannot ignore them anymore.

Stop multiplying the public sector

First of all, at national level, the government has to revisit its state expansion policy. The government is not only adding more people to the existing public sector organisations, but also is creating new organisations without carrying out proper appraisal studies. These organisations continue to operate without proper vision, mission or strategic planning or understanding the local and global realities that are unfolding as threats or opportunities. The result is that they spend money voted by Parliament, borrow from state banks with the blessings of the Treasury if the voted money runs out and send the bill to the Treasury when they continue to incur losses eroding their capital base. The Treasury too in the past had been accommodating their requests for covering losses without inquiry or probing. No study has ever been undertaken by the Treasury before recapitalising these public sector organisations to ascertain the impact they have created in the economy. Such impact studies will give an opportunity to the Treasury to review their operations and recommend their closure if the impact is found to be negligible or negative. In the absence of such a system, it gives incentives to managers of these enterprises to continue to make losses since they know that the Treasury will come to their rescue when things have gone wrong mainly due to their own incompetence.

Keep politicians at arm’s length

Second, having revisited its state expansion policy, the government should take measures to staff the state enterprises with competent managers. It is the innovative skills of the managers today that will ensure the success of businesses. If the managers are successful they should be rewarded; if they are not, they should be removed forthwith. So, managers should feel that their continued career advancement will depend only on the success rate they produce. Once the managers have been given a free hand, they should be freed from political interferences. One may tend to argue that the politicians being elected representatives of people have a right to interfere in the affairs of a state enterprise. They have a right not as individuals but as a body. Not as individuals, because individually they have all the incentives to use the public enterprises for their own personal gains, a problem which arises in the Principal-Agent Problem or PAP today. In the PAP problem, politicians being agents of people who elect them to office work for their own personal benefits ignoring what they should have done to improve the welfare of the people. But when they work as a body, it is very rarely they could bring personal interests to the forefront when they supervise public enterprises.

Have viable business plans

Third, it should be made compulsory for all state enterprises to have viable business and marketing plans. The business plan should take notice of emerging local and global developments and how the enterprise would respond to such developments. This can be explained by reference to Sri Lanka’s second port at Hambantota. The port project had three stages of development, the first to provide bunkering services to ships that pass through Hambantota, the second to function as a transshipment port and the third to operate as a port proper. Some of the factors which the port project had taken into account when the initial planning of the project was done appear to have changed now. At the initial stage, it was mostly the ships that carried manufactured goods from China to the East Coast of the United States and Western Europe that had passed through Hambantota. It was safe to assume that this flow will increase over time along with the increase in China’s trade with the West. However, a new production model is now emerging in USA and in the Western Europe by using 3 Dimensional Printing (3D Printing) technology for manufacturing. It has been predicted that this production model will change the current “Made in China” label to “Made in USA” or “Made in EU” label thereby putting all these ships that shuttle between China and the West now to retirement. If this happens, the present installed capacity at Hambantota for bunkering will go waste and the Port Project will have to redesign its business and marketing plan accordingly. A similar business plan is called for the new airport at Mattala. A mere television advertising campaign targeting the local population and telling them the many beauties of the airport will not induce planes to use the airport; instead, new pleasure, entertainment and business activities have to be developed around the airport to get international passengers on a regular basis. Along with international passengers, the much needed planes will also come to the airport.

Unbundle big public enterprises

Fourth, the management of these public enterprises has now become unwieldy because they have not only become too large but also have expanded by means of so many associate and subsidiary companies. In addition to that, these enterprises are seeking to produce the whole range of their services under one management. This has made these enterprises both inefficient and costly. The Central Bank had therefore suggested earlier that they should be unbundled, meaning that different operations such as production, distribution and marketing etc should be separated and handled by means of separate enterprises set up for that purpose. Such unbundling that will attract private sector involvement will help these enterprises to improve the technology they are using in main production lines. For instance, in the case of CEB, instead of relying on hydro or thermal power, further research could be undertaken to use nano solar, as has been done in California today, to develop nano technology to harvest solar power to produce electricity.

Price revisions to be accompanied by structural reforms

Hence, mere periodical price revisions will not rescue the loss making public enterprises. They should be accompanied by a comprehensive structural reform programme to make them both financially and structurally viable. The postponement of this reform programme as has been done in the past will surely be fatal to Sri Lanka.

*W.A Wijewardena can be reached at waw1949@gmail.com 

Geneva resolution responsible for genocidal militarisation of Tamil country

[TamilNet, Tuesday, 23 April 2013, 07:19 GMT]
The March resolution at UNHRC in Geneva, designed by the USA and watered down by India, is directly responsible for all the current ‘legalisation’ of the genocidal militarisation carried out by the occupying Sinhala State in the country of Eezham Tamils in the island, said alternative Tamil political activists in Jaffna, citing the ‘legal’ appropriation of 6400 acres of Tamil civilian lands at Jaffna HSZ and another 6000 acres in Vavuniyaa, openly for Sinhala military cantonment purposes, within one month of passing the resolution. The genocidal State was internationally allowed to do so by the LLRC-based resolution. Its basic concept ‘reconciliation’ a camouflage for structural genocide is a brainchild of the US State Department, the activists said. 

While the current ‘legalised’ SL military appropriation of Tamil civilian lands of around 50,000 people in Jaffna immediately follows Chinese intelligence ministers visit to Jaffna, India was interested in extending the runway and laying railway lines in the tract of land that is appropriated, the activists further said.

6,400 acres of civilian land to be seized for military purposes in Jaffna HSZ

The Sri Lankan military occupied High Security Zone (HSZ) along the northern coast of Jaffna peninsula, that evicted a large number of Tamil civilians from their homes for two decades now [Satellite image courtesy: Google Earth]

[TamilNet, Tuesday, 23 April 2013, 06:40 GMT]
The occupying Colombo, through its Land Acquisition Officer attached to the District Secretariat in Jaffna, has issued a notice dated 27 April 2013, claiming that the owners of lands for 6,381 acres and 38.91 perches in 11 GS divisions in two DS divisions, Valikaamam North (Thellippazhai) and Valikaamam East (Koappaay), have not been identified and that the officials who come under the Sri Lankan Ministry of Land and Land Development are being given necessary rights to enter the lands, survey them and to define how to take over these lands for ‘public purpose’ and for ‘planned activity’. The purpose for the land acquisition is also stated as ‘to orderly hand over the lands where Defence Battalion Head Quarters (Jaffna) High Security Zone (Palaali and Kaangkeasanthu’rai) is situated’. 

Kaangkeasanthu’rai (KKS) harbour and Palaali airport, which were the linking points of Eezham Tamils with the outside world, before the war, have been ‘developed’ with the assistance of India during and after the war.

The latest move of land acquisition, aims to make the entire area, that had earlier been illegally seized by the SL military as ‘High Security Zone’ for the past 23 years, as a legally confirmed permanent property of the occupying Sinhala military.

The so-called HSZ had uprooted thousands of Eezham Tamils away from their houses and fertile lands of cultivation. The entire area has been fenced by the SL military, denying the people the right to even see their lands and properties.

A. Sivasamy, Land Acquisition Officer, District Office, District Secretariat, Jaffna has signed the document.

Mr Sivasamy claims that the notice is being issued under Section 2 of the Land Acquisition Act (Chapter 460), Sub Section 1. 

Land Ownership, Patent Rights And FDI

By Charitha Ratwatte -April 23, 2013 |

Charitha Ratwatte

In nations emerging from a colonial exploitative relationship, the ownership of land by non-nationals has always been an emotional issue.

Within the exploitation by the colonial power, the expropriation of land often owned not by individuals , but by a traditional community and the handing over of the same to foreigners or even local elites from other parts of the country for the opening up of plantations or extraction of minerals, etc., has been an essential part. This applies in whatever continent the colonial powers operated – whether it is Africa, Asia, North or Latin America.

Readers are aware of the Sri Lankan experience with the Waste Lands Ordinance which deemed land for which there were no individual title deeds and owned by a community as waste lands and vested in the colonial government, which was then sold to plantation investors at a pittance.

Even in Europe, landlordism was a major issue. Once the colonial power is ousted, land is often renationalised and vested in State institutions and often mismanaged, putting the nation’s economy into a worse mess. The solution for that economic misery is often bringing back a new colonialist in the guise of Foreign Direct Investor (FDI), getting foreign investment and management capacity to manage the plantation or the mineral exploitation.

Because of the historical animosity to colonial exploitation and the opposition to the revenue concessions foreign investors demand, there is always a trade-off between the investment and the rights and concessions provided to the investor. Due to the important and vital role foreign investment plays in today’s globalised economy, nations are often compelled to provide attractive concessions to investors, who travel the world seeking the most competitive offer for their investment.

Sri Lanka’s stance

In the 2013 Budget, Sri Lanka proposed that the 100% tax on the transfer of property and prohibition of outright transfer to foreigners, applicable for a number of years, be amended in a substantive manner. The new investment regime prohibits the transfer of State-owned or privately-owned land to the following categories of persons: A foreign national, a foreign company, a company incorporated in Sri Lanka of which 50% or more of its share holding is owned by a foreigner or a foreign company.

However the letter imposing these prohibitions also provide for some important variations of the rules. The first is the exception provided in terms of the Diplomatic Privileges Act No. 9 of 1969, where the land transfer is to a diplomatic mission or an intergovernmental or international multilateral or bilateral mission recognised by the obligations under that act.

The second is where a Condominium Parcel situated on the fourth floor (excluding the ground floor) or above of a building coming under the provisions of the Apartment Ownership Law No. 11 of 1973. The third exception is in the case of a company incorporated in Sri Lanka of which 50% or more of its shareholding is held by a foreign national or a foreign company, which has been in operation for at least a consecutive period of 10 years at the time of registration of tile of the land.

The fourth exception provided for is where the minister in charge of the subject of finance in consultation with the minister in charge of the subject of land has in the interest of the national economy, with the prior approval of the Cabinet of Ministers, by order published in the Government gazette, decides to exempt a foreign national or a foreign company from the application of this prohibition, provided there is a substantial foreign remittance for the purpose of the purchase of the land for which the investment is being allowed.

The rules further provide that in the case of the first, second and third exceptions, there will be no land-related tax imposed. But the fourth category will attract a land tax which the minister will determine by order published in the Government gazette. There is a law being proposed which will enact these provisions.

Unfettered discretion unviable

It is important to note that the power to grant exceptions to the prohibition on outright transfer of land to foreigners in the case of a perceived ‘interest to the national economy’ is solely within the authority of the ministers referred to and the Cabinet of Ministers. By what criteria this ‘interest’ will be evaluated is not provided in the letter issued to the Registrar General by the Director General of the Ministry of Finance and Planning.

An unfettered discretion granted by any law is not a viable proposition. Any person who opposes any transfer of land to a foreign entity under this proposed law could challenge the order of the minister before the Judiciary, requesting that the real ‘interest’ to the national economy which the minister feels is manifested by the investment be spelt out in plain language and the criteria in each given case can be challenged.

In the past the courts have held that there is no absolute discretion in dealing with national asset or anything else of value. The discretion must be tempered by reasonableness and objectivity; especially since an ‘interest’ to the national economy is the required factual situation. Given the controversial attitude to foreign investment in land in this country due to our colonial history, nationalisation of land, imposition of legal limits on land holding even by nationals by stringent land reform laws, etc., the effect of this new law spelt out above will be controversial.

China’s promise

As stated earlier, nations are in a competition to attract foreign direct investment. Recently China’s new President Xi Jinping made a categorical promise that he would protect the interests of global companies amid rising concern among foreign businesses about discriminatory policies that their operations in China face.

President Xi, in a meeting with a group of Chinese and international business leaders, said: “We will protect the lawful rights and interests of foreign investment companies in accordance with the law and ensure their rights to equal participation in Government procurement and independent innovation. China will never close its doors to the outside world.”

China’s President also dealt with the important property right relating to intellectual property, which is a key concern to global corporates, which fear that some nations do not recognise intellectual property rights and that pervasive intellectual property theft takes place when foreign investments are made. A recent judgement in India against the Novartis drug company of Switzerland accelerated these fears.

At the meeting with President Xi, the spokesperson for the investors was Zein Abdalla, the President of PepsiCo, who clearly outlined the heightened dissatisfaction with China’s policy environment regarding foreign investment. Abdalla told Xi: “One thing many foreign companies do fear is a rising concern about increasing restrictions on the types of investments we can make. We hope the new Chinese Government can continue to push forward opening up and encouraging foreign investment in more sectors, reform the administrative approval system so businesses will find it easier to enter markets and operate freely and build a more level playing field for foreign investors relative to domestic companies.” Abdalla singled out agriculture and access to land as an area multinationals faced increasing restrictions. Land is an emotive issue in most nations.

The President of the European Union Chamber of Commerce in China was sceptical: “We have heard of similar words from previous leaders in recent years while market access environment in China has not noticeably improved for foreign companies.”

President Xi’s meeting with heads of companies, including Volvo, Unilever, Standard Life, Samsung, Anheuser-Busch InBev, Mars and Sumitomo, was symbolic of the new business and investor friendly image President Xi is trying to cultivate as distinct from his predecessor Hu Jintao, who rarely met foreign business leaders in public life.

Intellectual property protection

Intellectual property protection has come to play an important role, equal or if not more than land rights. The price for a drug from a manufacturer who has a patent in the Indian Supreme Court denying Novartis of Switzerland a patent for a cancer drug has alarmed many foreign investors.

Protection of intellectual rights are placed on par with protection of land investment rights of investors, if not at a higher level, due to the economic rationale that the recognition of patent rights will stimulate investment in research for innovation in development of new medical cures for chronic illnesses. But the Supreme Court pointed out that protection of patent rights which exclude others from producing and marketing a drug leads to inhibition of competition, which lies at the very core of free enterprise.

The Indian Supreme Court said that the time has come to restore the balance in favour of consumers. The Court decided that a patent cannot be protected and consumers should not be forced to pay higher prices for a drug, unless there is a therapeutic benefit to be found in the new drug that a patent is requested.

The Court cleared the way for manufacture of generic drugs in India to make cheaper versions of the drug Glivec, a cancer treatment drug, and make it available to the public. The judgement as it stands is good news for more affordable healthcare and bad news for drug innovation. Both sectors need wide ranging reform.

Foreign investors will be wary of starting manufacturing operations in countries where their intellectual property rights as well rights to land they have invested in are adequately protected. Recently even in the United States the Justices of the Supreme Court have questioned whether isolated DNA per se could be patented. Scientists are worried that rulings against such patents would stultify scientific research. It could negatively affect investments in scientific research by drug companies in emerging nations where patent laws are not strict.

Myanmar

A recent development in Myanmar highlights the correlation between rights of the State, foreign investors and traditional community rights to land. Near the village of Ah Lay Daw, a copper mine is being developed near Letpadaung Mountain, on land the villagers and monks say belonged to their community, which was confiscated from them by the Government. The corporate developer is a joint venture between a subsidiary of the Chinese State-owned company Norinco and another company connected to Myanmar’s military.

As readers are aware, Myanmar is just emerging from decades of military rule which imposed a statist regime on the people, everything worth anything being owned by the State or the military. Resistance to the military dictatorship was led internally by democratic icon Aung San Suu Kyi. Internationally sanctions were imposed in Myanmar. The military seem to have caved in and has gradually allowed elections and some democratic reforms.

China was a strong supporter of the military dictatorship. Chinese State corporates made hugely exploitative investments into Myanmar’s extractive natural resource and infrastructure sectors, mainly with the motive of gaining access to raw material and Myanmar’s Indian Ocean harbours.

When the protests against the exploitative investment at Letpadaung Mountain began by the local monks and villages, the military broke up their protests by force. Then, in a conciliatory gesture, the Government asked Aung San Suu Kyi, now a Member of Parliament and Leader of the Opposition, to chair a Commission of Inquiry into the project.

The community expected some relief. But the Suu Kyi commission decided that ‘stopping the mine would lead foreign investors such as China to think that our country cannot be trusted on the economy’. That would badly affect Myanmar’s growth prospects in a negative manner. But she was able to get the villagers the market price for the land as compensation.

To complicate matters further for China, Myanmar is preparing to sign the Extractive Industries Transparency Initiative, (EITI) which oversees a voluntary transparency regime for the natural resource industry, which has struck fear into exploitative corporates and governments. EITI has stringent requirements for financial transparency, environmental standards and corporate governance. It also gives governments, like Myanmar, compelling reasons to review and renegotiate natural resource exploitation contracts entered into previously. Earth Rights International, which tracks natural resource projects, last year, identified 75 Chinese companies involved in over 90 projects in Myanmar’s infrastructure, telecom and extractive sectors.

Suu Kyi’s commission, in putting the provision of secure property rights for international investors above the property rights of poor members of the country’s population, in effect endorsed an approach to economic development that has a long history, dating back to our Waste Lands Ordinance, the land enclosures in Britain in the 18th century, the forcible removal of native Americans from much of their lands in the 19th century and confined them to small reservations, etc. that secure property rights are a vital ingredient of growth.

But this begs the question – does it matter whose property rights are secure, the investor or traditional land owners? Today increasingly it is being accepted that not only should investors have secure rights, but that also traditional owners of the land should also be protected. International financial institutions such as the World Bank and ADB have strict criteria regarding appropriation of land for development projects. Having being involved in the land acquisition for the Southern Highway, I am aware of the strict procedures which have to be complied with.

High risk enterprise

Giving discretionary power to politicians to decide on exceptions from a total ban on 100% ownership of land by foreigners, without laying down objective and clear criteria, against which concepts like the ‘interest of the national economy’ and ‘substantial foreign remittance’ can be evaluated, is a high risk enterprise. It will be huge opportunity for nationalist and civil society activists and their lawyers, who are bound to challenge, in court, every exception to the 100% tax on investment in land by foreigners, gazetted by the minister!

It is also an open-ended opportunity for rent seeking, which is not sensible in the context of transparent good governance, in nation such as ours in which the Constitution itself extols the rulers to be just: “Devo Vassatukalena, sassasampattihetu ca, phito bhavatu loko ca, raja bhavatu dhammiko.”

Impede land impounding and resettle people. Mawai appeal from Land Minister.

Immediately suspend the land confiscation in the Waligamam north and east regions and take action to resettle the people of that area in their native lands was the appeal forwarded by Tamil National Alliance Jaffna district parliament member Mawai Senathiraja to Land and Land Development Minister Janaka Bandara Tennakone.

The land confiscation posters were displayed yesterday at Waligamam north according to your instruction. Therefore take immediate attention on this issue, and cancel the above notification, resettle the people in their native lands was an entreaty forwarded by Mawai from Land Minister

Tuesday , 23 April 2013

6,381 acres of lands grabbed by forces. Official notice displayed yesterday.

Six thousand and 381 acres of lands affirming ownership with respective deeds located in the Waligamam north, Waligamam east divisional secretariat divisions were confiscated by military and concerning this official notice was yesterday displayed.

 

The directive was signed by A.Sivaswamy, Land Acquisition officer attached to Land and Land Development Ministry Jaffna district, emphasized that the  directive is issued under the  land impounding law (ch.460)2nd item.

 

Grama Sevaka officials and undergraduates left the Tellipalai divisional secretariat in the morning at 8.30 a.m, and were transported to military vehicle near Mawittapuram junction closer to high security zone periphery.

 

These officials were engaged in displaying directives concerning land impounding in the respective localities. 

 

The directive emphasized that this activity is processed to handover lands from the high security zone areas, the Palaly and Kankesanthurai to the Jaffna defense forces headquarters in the equitable manner.