Policy Note1

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For Level 1 type land issues, the core challenge is the dramatic increase in land disputes due to population return, which is likely to overburden existing administrative and judicial bodies. The latter therefore need support in their capacities to tackle pending cases through an acceptable fast-track mechanism. Such fast-track mechanisms could, for example, deal with minor land disputes surrounding residential land and/or boundary disputes.

For Level 2 type conflicts, inter-ethnic conflict resolution mechanisms on community level need to be encouraged and strengthened. The challenge for community-based inter-ethnic dispute resolution mechanisms is that in the context of the conflict-affected areas, they will need to involve the two combatant parties in the ethnic conflict at some point in the resolution process. If the support from the involved communities for these mechanisms and the involved actors is strong, their leverage power vis-à-vis the combatant parties and political interference will be more pronounced. One may also consider establishing neutral ombudspersons as facilitators if such an involvement is considered appropriate and helpful by the concerned dispute parties. Since Level 2 type conflicts can easily become more politicized, it is advisable to search for mechanisms, which keep out political spoilers and which are based on pragmatic resolution of disputes rather than political bargaining.

To establish and strengthen their authority, such alternative mechanisms of dispute resolution need to be appropriately legitimized and capacitated for their responsibilities. In the case of fast-track mechanisms for minor dispute resolution (Level 1 type conflicts), the Sri Lankan government would need to pass appropriate legislation to grant special conditions for these particular dispute cases and define the exact powers and responsibilities of such a fast-track mechanism. Further, it would need to be clarified whether or not decisions from such fast-track mechanisms are substituting the right of dispute parties to file their case to the courts afterwards. Such legislation would need to be based on a consensus among the major political stakeholders, including the LTTE and Tamil parliamentary parties, to gain effective credibility. These fast-track mechanisms could entail district-wide committees with representatives of different ethnic (and political groups) and a technical support team, which would map out the different cases, gather the evidence and make suggestions for their resolution. This procedure would allow transparency and accountability in the process and ensure political backing of decisions.

For Level 2 type conflicts, there often exist some informal mechanisms of inter-ethnic dispute resolution on the ground. However, many of these committees and mechanisms are either defunct, lack enforcement capacity or are politically biased and therefore, prior to any engagement with existing mechanisms, such biases need to be carefully investigated. On local or regional level, there are often a number of respected “leaders”, often religious clergy or influential business persons, who have gained the confidence of a particular community. Establishing independent committees for dispute resolution will require the consent from all important stakeholders, including combatants, politicians and government officials, but the latter should be discouraged to stand on such committees, because this is likely to polarize the dispute resolution process.

1 Policy Note on Land and Conflict in the North and East of Sri Lanka prepared by Benedikt Korf (Department of Geography, University of Liverpool), and Isabel Lavadenz (Senior Land Policy Specialist-SASAR-World Bank).

2 The conflict affected mainly the Northeast and neighboring provinces. Districts of the Northeast are Ampara, Batticoloa, Jaffna, Kilinochchi, Mannar, Mulaituva, Trincomalee and Vavuniya. Neighbouring districts are Anuradhapura, Pollonnaruwa (North-Central Province), Moneragala (Uva Province) and Puttlam (North-Western Province).

3 Sources: Asia Foundation 2004, FCE 2003, Hasbullah et al. 2005.

4 For more comprehensive reviews of land laws, see NEHRP 2004a, b: CPA 2003, 2005a; Bastian 1995.

5 Sources: Bastian 1995, Brow and Weeramunda 1992, Farmer 1957, Herring 1983, Moore 1985, Peiris 1996, Singh 1989.

6 Source: Peiris 1991, 1996.

7 These “perceptions” represent the dominating discourse within each ethnic constituency. Needless to say that of course, there are also differing opinions within one ethnic constituency; however, the ones considered here are those which have become politically relevant in the post-conflict transition process, especially for the peace negotiations.

8 Sources: Peiris 1991, 1996, Silva 1998.

9 Sources: e.g. Balasundarampillai 2002; Manogaran 1987; Tambiah 1986; Wilson 2000.

10 Sources: Bastian 1995; Klingebiel and Rösel 1998; Manogaran 1987; Peebles 1990; Shastri 1990; Spencer 1990; Tambiah 1986.

11 Bush 2001; Klingebiel and Rösel 1998; Gillies 1992; Mallick 1998; Uphoff 1992.

12 Sources: Bastian 1995, CPA 2003, 2005, NEHRP 2004a, 2004b, UNHCR 2003.

13 UNHCR: Statistical Summary as at 28 February 2005.

14 Sources: Goodhand et al. 1999, 2000.

15 Sources: Korf et al. 2001; Korf 2004, 2005, McGilvray 2003, Thangarajah 2003.

16 UNHCR: Statistical Summary as of 28 February 2005.

17 Source: Hasbullah et al. 2005.

18 Source: Korf et al. 2001.

19 Source: Korf et al. 2001.

20 Source: CPA 2003

21 Source: UNHCR 2003.

22 Source: Frerks and Klem 2005.

23 Source: UNHCR 2005, 12.

24 Sources: CPA 2005c, Frerks and Klem 2005, Hasbullah et al. 2005, World Bank et al, (2005).

25 Source: World Bank et al. (2005) Sri Lanka 2005 Post-Tsunami Recovery Program. Preliminary Damage and Needs Assessment.

26 Source: see Table 8.

27 These guidelines were published in a Public Notice dated 17 January 2005. These guidelines were specified by the newly created Task Force for Rebuilding the Nation (TAFREN) in two separate Public Notices issued on 27 February 2005.

28 Source: CPA 2005b, 2005c, Frerks and Klem 2005, UNHCR 2005.

29 Source: Frerks and Klem 2005.

30 Sources: CPA 2005c, Frerks and Klem 2005.

31 Source: CPA 2005c, Welikala 2005.

32 Sources: UNHCR 2003, CPA 2003, 2005a; NEHRP 2004a, 20004b.

33 Such occupation can be differentiated in three types: (1) Occupants and owner, right holder are of the same ethnic group, (2) occupants and right holder are of different ethnic groups (occasionally, this includes politically encouraged encroachment of lands of the “ethnic other”), and (3) the occupant is one of the conflict parties (army or LTTE). This sub-section deals only with issues relating to (1). Issues relating to (2) and (3) will be dealt with in para 60 and 65 respectively.

34 The Prescription Ordinance permits a person to acquire the property of another through uninterrupted and undisturbed possession for ten or more years. (Source: CPA 2003, 16)

35 Source: CPA 2003.

36 Source: UNHCR 2003, 19. See Rösel (1997) for reports on such transfers in Trincomalee in the 1990s and various reports of the UTHR (J).

37 Note that these issues become even more protracted if returnee and secondary occupant belong to different ethnic groups.

38 Puttalam: Illegal alienation of land has affected relocated IDPs who wish to remain in their area of displacement. It is estimated that 60% of the land in Puttalam on which IDPs relocated is state land, which was fragmented and illegally sold by local Permit and Grant holders to IDPs. Source: CPA 2003, 8.

39 Source: NEHRP 2004a

40 Source: CPA 2005a; NEHRP 2004a, 2004b.

41 Sources: CPA 2005a, UNHCR 2003.

42 Source: CPA 2003, 2005a; NEHRP 2004a, 2004b; UNHCR 2003.

43 Source: CPA 2003, 2005a.

44 Source: CPA 2003, 3.

45 In the Sri Lankan context, “resettlement” refers to return to the original place, “relocation” means settling in a place different than the original home place.

46 This is so due to fear of changing ethnic population ratios in the new district, which could become ann issue of political concern in inter-ethnic relations.

47 Source: CPA 2003, 3.

48 Source: CPA 2003, UNHCR 2003.

49 Source: Korf et al. 2001; Korf 2003.

50 Source: UNHCR 2003, CPA 2003.

51 There are reports that lawyers in Jaffna appear to have informally agreed not to use the Prescription Ordinance if the original owner was absent as a result of war. (Source: CPA 2005a, 46).

52 Source: CPA 2003, 51.

53 Source: UNHCR 2003.

54 Source: CPA 2003, 57.

55 Sources: CPA 2003, 2005a.

56 Source: Korf et al. 2001.

57 Source: Korf et al. 2001.

58 See, for example, CPA 2005a, NEHRP 2004a,b.

59 Sources: FCE 2003; Hasbullah et al. 2005; Korf et al. 2001; Korf 2005.

60 Source: Korf 2005.

61 Source: Hasbullah et al. 2005.

62 Sources: Hasbullah et al. 2005; Korf et al. 2001; Korf 2005.

63 Source: Hasbullah et al. 2005.

64 Source: Hasbullah et al. 2005; FCE 2003.

65 Sources: FCE 2003; Korf 2005.

66 Source: Hasbullah 2001; Hasbullah et al. 2005.

67 Source: Hasbullah et al. 2005.

68 Source: Korf 2005.

69 Source: Liyanage + Hasbullah 2004.

70 Source: Hasbullah et al. 2005.

71 Source: Hasbullah et al. 2005; Korf 2005. Amparai has always been a partial stronghold of Muslim politicians. At the same time, there is evidence to believe that the powers of Muslim politicians and administrators may have become weaker after the ceasefire agreement.

72 Source: Hasbullah et al. 2005.

73 Sources: Rösel 1997; UTHR (J) – Report No. 11 (UTHR (J) (1993a).

74 Sources: Balasundarampillai 2002; Rösel 1997; UTHR (J) (1993a).

75 Sources: UNHCR 2003; UTHR (J) 1993a, 1993b.

76 Source: UNHCR 2003, 18. It needs to be noted that unofficial land occupation by Sinhalese encroacher, mostly from outside Trincomalee district, on the Habarana-Trincomalee road has continued to take place even after the ceasefire agreement.

77 Sources: UNHCR 2003.

78 Sources: CPA 2003, 2005a; Hasbullah et al. 2005; UNHCR 2003.

79 Source: CPA 2003, 47.

80 Source: CPA 2003, Hasbullah et al. 2005; UNHCR 2003.

81 Sources: CPA 2003, 2005a; FCE 2003; Hasbullah et al. 2005; Rupesinghe 2002.

82 The Muslim Rights Organisation (MRO) and the Foundation for Co-existence (FCE) have established a Land Register that systematically enumerates the land claims of the Muslims in the North and East. The investigation collected information about the date of acquisition of land, the manner in which it was acquired, the extent of the land, the deeds (or titles) to the land, the extent of property and livestock kept in the land. Subsequently, Land Committees were established in some all three districts of the East (Source: FCE 2003). With increasing intra-Tamil tensions in violence in 2004, most of these committees are now defunct.

83 Sources: Chmela 2004; FCE 2003; Hasbullah et al. 2005; Korf et al. 2001.

84 Depending on the situation and the gravity of the grievance, such conflicts could also be categorized as Level (3) type conflict, because informal inter-communal negotiation between community leaders is more unlikely to happen than in case of Tamil-Muslim land disputes.

85 Source: Hasbullah et al. 2005.

86 Source: UTHR (J) 1993a.

87 Source: UNHCR 2003.

88 Appendix II of the 13th Amendment states: “alienation or disposition of State land within a province to any citizen or to any organization shall be by the President, on the advice of the relevant Provincial Council in accordance with the laws governing that matter.” (emphasis added)

89 Source: Korf 2005; Rajasingam-Senanayake 2003.

90 Sources: Bastiuan 1995; Balasundarampillai 2002; UNHCR 2003, UTHR (J) (1993a, 1993b).

91 Source: UNHCR 2003.

92 Source: UTHR (J) (1993b).

93 Source: Bastian 1995.

94 Source: Hasbullah et al. 2005.

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