The legal academia highlighted that the retrospective application of the Prescription (Special Provisions) Act, No. 5 of 2016 and the fact that this was an Act sans any dispute resolution methodology (the relevant Minister would have to create regulations) and systems was problematic as such would result in the creation of hitherto non-existent issues and conflicts amongst the Tamils.
In addition, the Ministry of Prison Reforms, Rehabilitation, Resettlement and Hindu Religious Affairs also said that those occupying the lands illegally would be evicted and they would have to go to courts if they needed to be compensated in any way.
Further, the original owners who do not have any documents to claim their ownership of the land would also have to go to courts, Ministry sources said.
The preamble of the Act states that it would enable special legal provisions to be enacted in respect of persons who have been disadvantaged and therefore were unable to pursue their rights in court for the recovery of any immovable property including land due to the activities of any militant terrorist group which prevailed in the country during the period commencing from 1983 May 01 to 2009 May 18.
Matters surrounding the retrospective application of law came up in the case Sepala Ekanayake v. Attorney General where Article 157 of the Constitution concerning international treaties and agreements and the prohibition against the violation of the territorial integrity of the country was invoked.
Senior Lecturer at the Department of Commercial Law of the Faculty of Law of the University of Colombo, Attorney-at-Law Dr. Prathiba Mahanamahewa opined that the intention in bringing this Act was clear in that it was to please the United Nations Human Rights Council in Geneva, where one of the main issues on which they apply pressure to be addressed is to give back lands to the people in the areas.
“The vision behind the act may be good but how fair is the retrospective application of the law? The issue concerning land was even there when the Indian Peace Keeping Force was in the country and when the riots and insurgencies involving the Janatha Vimukthi Peramuna were there in 1983, and between 1987 to 1989. Why has a time bar been specified?,” he queried.
Section 5 of the said Act states that the provisions of the Act would not apply to State lands. In this case the Thesavalami Law in relation to private immovable property and how they are granted from one person to another along with the Thesawalami Pre-emption Ordinance, No. 59 of 1947 are applicable. In most of the cases there are no deeds as they have been destroyed during the war. The Courts operate on the basis of the rule of law and when a case comes before the Jaffna District Court, the Court will ask for evidence in the form of a deed and in the case of Thesavalami, there are three types of deeds, one per the three kinds of personal estate, them being Thediya Thettam (acquired wealth) and Seethanam (dowry) and Mudisam (inherited property).
“Can they even give an affidavit attesting to the possession of land? There could be 10 disadvantaged persons including those coming from Canada and Australia fighting for Lot A in Wellamulliwaikkal. How long will the Court take to resolve the matter? People might resort to killing themselves. Since the Government cannot solve this issue through the Courts, they are trying to squeeze this law into the legal system. This sets a bad precedent. What about the right to equality? This is a warning to the Military to hand back all lands occupied by them including in high security zones. Such could result in national security being adversely impacted,” Dr. Mahanamahewa mentioned.
The Ministry said that the Special Provisions relating to the Prescriptions Ordinance would be applicable from 2016 to 2018.
“This special provision in the law is in operation only for a period of two years. Therefore, the disadvantaged persons, largely those affected by conflict and were formally residence of the Northern and Eastern Provinces of the country who are affected due to illegal and encroached occupants should make best use of the provisions of this new act to claim title to the encroached and illegally occupied properties and lands lost during conflict period. It is time for them to file action in the court of law within the two- year period as this relief is only available for such short period,” the Ministry said in its statement.