COHRE Satus of HLP Rights Sri Lanka 2008

The status of the Housing, Land and Property Rights in Sri Lanka -

Status of Housing, Land and Property Rights in Sri Lanka -

Centre on Housing Rights & Evictions (COHRE) COHRE International Secretariat 83 Rue de Montbrillant 1202 Geneva SWITZERLAND tel.: +41.22.7341028 fax: +41.22.7338336 e-mail: cohre@cohre.org web: www.cohre.org COHRE Women & Housing Rights Programme (WHRP) 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel./fax: +1.218.7331370 e-mail: women@cohre.org COHRE ESC Rights Litigation Programme (LP) 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel./fax: +1.218.7331370 e mail: litigation@cohre.org COHRE Right to Water Programme (RWP) 83 Rue de Montbrillant 1202 Geneva SWITZERLAND tel.: +41.22.7341028 fax: +41.22.7338336 e-mail: water@cohre.org

COHRE Global Forced Evictions Programme (GFEP) (Postal address) PMB CT 402, Cantonments Accra (visitors address) No. 17 Fifth Crescent Street Asylum Down Accra GHANA tel.: +233.21.238821 fax: +233.21.231688 e-mail: evictions@cohre.org

COHRE Asia & Pacific Programme (CAPP) (Postal address) P O Box 2061 Phnom Penh 3 (visitors address) No. 9A, Street 420 Sangkat Boeung Tra Beak, Chamkarmon Phnom Penh CAMBODIA tel.: +61.3.94177505 fax: +61.3.94162746 e-mail: cohreasia@cohre.org

COHRE Americas Programme (CAP) Rua Jeronimo Coelho 102, Sala 21 Porto Alegre, CEP 90010-240 BRAZIL tel./fax: +55.51.32121904 e-mail: cohreamericas@cohre.org CAP - US Office 8 N. 2nd Avenue East Suite 208 Duluth, MN 55802 USA tel./fax: +1.218.7331370 e-mail: litigation@cohre.org

CAPP - Sri Lanka Office 106 1/1 Horton Palce Colombo SRI LANKA tel: +94.11.269.3143 e-mail: cohresrilanka@cohre.org COHRE Africa Programme (Postal address) PMB CT 402, Cantonments Accra (visitors address) No. 17 Fifth Crescent Street Asylum Down Accra GHANA tel.: +233.21.238821 fax: +233.21.231688 e-mail: cohreafrica@cohre.org

© Copyright 2009 The Centre on Housing Rights and Evictions (COHRE), Geneva, Switzerland Status of Housing, Land and Property Rights in Sri Lanka - 2008 ISBN: 978-92-95004-76-4 All rights reserved The Centre on Housing Rights and Evictions is registered in Brazil, Cambodia, Sri Lanka, Switzerland, The Netherlands and the US as a not for profit organisation.

Copies are available from COHRE International Secretariat and COHRE Sri Lanka Office (see contact info. above) Prepared by: Nilanka Nanayakkara Very Special thanks to: Todd Wassel who shared his experiences and knowledge Special thanks to: Todd Wassel and Rasika Mendis (review) Graphic Design & Print: Wits Associates – Sri Lanka Cover photo: the demolition of properties at Slave Island due to force eviction

Contents Chapter 1

Introduction

1

Chapter 2

Sri Lanka’s International and Constitutional Obligations for ensuring HLP Rights

3

2.1

What are housing, land and property rights?

2.1.1 Why are housing, land and property rights important?

2.2 International Standards 2.2.1 The Right to Adequate Housing 2.2.2 The Prohibition of Forced Evictions 2.2.3 United Nations Guiding Principles on Internal Displacement 2.2.4 United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) 2.3 The obligations of the Government of Sri Lanka 2.3.1 National housing, land and property rights

3 4 4 4 5 6 6

Violations of HLP Rights in Sri Lanka in 2008

9

Chapter 3

6 8

3.1 Violations as a result of the armed conflict 3.1.1 Internal Displacement during the year 2008 3.1.2 High Security Zones 3.1.3 Consequences of Displacement 3.1.4 Measures taken by the relevant authorities in order to uphold HLP Rights 3.1.5 Recommendations 3.2 Violations as a result of Natural Disasters 3.2.1 HLP Rights violations due to natural disasters 3.2.2 Reasons for HLP Rights violations due to natural disasters 3.2.3 Recommendations

9 10 10 11 11 12 13 14 15 15

Chapter 4

Forced Evictions of Informal Settlers in Slave Island

17

Chapter 5

Colombo 13 & Colombo 14 community Threatened with Eviction

19

Chapter 6

Cases to Watch

21

6.1 Supreme Court Fundamental Rights Application No. 405/08 (The Supreme Court Case filed by Tsunami victims, those who resides in Tsunami welfare camps in Moratuwa and Rathmalana) 6.2 Supreme Court Fundamental Rights Application No. 503/08 (The Supreme Court Case filed by a businessman in Talawila to evict fisherman from their traditional fishing lands.)

21 24

Status of Housing, Land and Property Rights in Sri Lanka -

Chapter 7

Conclusion

27

Appendix I

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

28

International HLP standards The right to adequate housing The prohibition of forced eviction United Nations Guiding Principles on Internal Displacement United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) The right to return The right to restitution National HLP rights and obligations

ii

28 28 30 31 32 33 33 34

Appendix II

COHRE and UNOPS survey results in Trincomalee and Batticaloa

35

Appendix III

Map of Sri Lanka

38

Introduction

Chapter 1 Introduction The Centre on Housing Rights and Evictions (COHRE) – Sri Lanka started publishing an annual report on tracking the housing, land and property rights situation in Sri Lanka in 2008. It was the first report of its kind, with no other publication focused on this particular topic.

Housing, land and property (HLP) rights in Sri Lanka are in a state of crisis, internal displacement is one of the main challenges Sri Lanka faces and internally displaced persons (IDPs) struggled for the recognition of their rights more than ever before. Without the protection of housing, land and property rights, IDPs can become more vulnerable to other forms of human rights abuses, including gender based violence, discrimination, restrictions on freedom of movement, and inadequate water and sanitation, among others.

Other marginalized and at risk groups such as informal settlers and plantation workers also lack basic housing rights such as security of tenure, which renders them susceptible to forces of the economy and government development projects. Women particularly face discrimination related to titling schemes, restitution, and other elements concerning emergency and disaster relief.

Policies and initiatives implemented by government and international organizations to address HLP needs of IDPs and other vulnerable groups have too often been retrogressive, ad hoc and have not fully met international or domestic standards.

This report on the status of housing, land and property rights in Sri Lanka - 2008 provides an overview of the key trends, events and violations pertaining to housing, land and property rights in Sri Lanka. The report aims to provide development practitioners, international and national NGOs, human rights defenders, lawyers, government officials, and policy makers with valuable insight into the challenges facing Sri Lanka and pertinent information to help protect the housing, land and property rights of IDPs and other marginalized and vulnerable groups.

The information in this report was collated primarily through desk research and through a combination of internet, media and published resources. It has also been informed by COHRE’s work with partner organizations and field research. This will continue to be an annual publication giving updates on ongoing cases and events, documenting new ones and including personal testimony from those who have suffered housing rights violations. A report of this scope can not hope to capture every detail from across the country,

Status of Housing, Land and Property Rights in Sri Lanka -

A place of worship which also has crossed the boundary has survived the initial round of demolition at Slave Island

and thus the most widespread issues are presented, along with the major cases that COHRE has been working on.

In Chapter 2, Sri Lanka’s international and constitutional obligations towards ensuring housing, land and property rights are briefly reviewed, with a more detailed explanation in the Appendix I. Chapter 3 lists violations of housing, land and property rights that have occurred in 2008 due to the conflict and natural disasters. This chapter also includes some reasons for these violations, enumerates positive measures taken by the relevant authorities and provides recommendations in order to uphold housing, land and property rights in Sri Lanka.

In Chapters 4 and 5 the report reviews two major events in the field of housing, land and property rights issues in 2008: Forced Evictions of Informal Settlers in Slave Island and Colombo 13 & Colombo 14 community Threatened with Eviction.

In Chapter 6 the report reviews two major legal cases in the field of housing, land and property rights issues in 2008.

It is COHRE’s sincere hope that all those concerned with protecting housing, land and property rights in Sri Lanka will find this publication useful and will join with CORHE in helping vulnerable communities protect their housing rights.

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

Chapter 2 Sri Lanka’s International and Constitutional obligations for ensuring housing, land and property rights 2.1 What are housing, land and property rights?

Housing, land and property rights refer to the right of everyone to an adequate standard of living, including adequate housing and to have respect for ones home and property. The ultimate goal of those working on housing, land and property rights is to prevent forced evictions and to facilitate the attainment of adequate housing and land– which is habitable, affordable and culturally appropriate, and which has security of tenure, access to services and which is located close to basic infrastructure – for everyone. For persons displaced by conflict or disaster, housing, land and property rights recognize their right to have restored the housing, land and property they lost, whether by free and voluntary return, provision of adequate alternative housing or compensation.

The road is their living room - Colombo 2

Status of Housing, Land and Property Rights in Sri Lanka -

2.1.1 Why are housing, land and property rights important?

Housing, land and property rights are human rights, which mean they are universal legal entitlements that all people have because of their inherent dignity as human beings. The Universal Declaration of Human Rights guarantees different types of rights to everyone, everywhere in the world. These rights are protected by many international treaties, which Sri Lanka has ratified and therefore agreed to implement. The most important of these treaties are explained briefly below.

2.2 International standards 2.2.1 The right to adequate housing Various international human rights instruments recognize the right to adequate housing. Five of them are binding for Sri Lanka. The International Covenant on Economic, Social and Cultural Rights (ICESCR), article 11 (1); article 5 (e) (iii) of the International Convention on the Elimination of all forms of Racial Discrimination (ICERD); the Convention on the Elimination of all Forms of Discrimination

Construction in progress in resettled areas in the Batticoloa District

Office of the High Commissioner for Human Rights, Fact Sheet No. 25, Forced Evictions and Human Rights available at http://www. unhchr.ch/html/menu6/2/fs25.htm.

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

against Women (CEDAW) in its article 14(2) (h); the Convention on the Protection of the Rights of all Migrant Workers and members of their Families.

The most important housing right is the right to adequate housing. It is the right of everyone to live somewhere in security, peace and dignity. Article 25 of the Universal Declaration of Human Rights states that: “Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” The most important treaty ratified by Sri Lanka is the International Covenant of Economic, Social and Cultural Rights (ICESCR). Article 11 (1) states that: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) issues General Comments, which provide authoritative interpretations of the rights contained in the Covenant.

In 1991 UNCESCR issued General Comment 4 to explain the right to adequate housing. The right to adequate housing contains seven elements: legal security of tenure, services and materials, affordability, habitability, accessibility, location and cultural adequacy.

2.2.2 The prohibition of forced evictions An important aspect of the right to adequate housing is the right not to be forcefully evicted from one’s home. In 1993, the UN Commission on Human Rights declared “forced evictions constitute gross violations of human rights.” According to UNCESCR, evictions “can only be justified in the most exceptional circumstances and in accordance with the relevant principles of law.” In 1997 UNCESCR issued General Comment 7 on forced evictions, providing a four-tier test to determine the legality of forced evictions and a standard to which governments can be held accountable.

In Sri Lanka there are many communities who do not have legal title to be on the land they live on.

Housing, land and property rights also protect people residing in informal settlements from forced evictions. Governments are obligated to consult with affected communities, to minimise any relocation and to ensure no one is left homeless. All the protections that are afforded in international law apply to all, including those living in informal settlements.

In addition, Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) contains, inter alia, the prohibition of arbitrary or unlawful interference with a person’s home.

Commission on Human Rights Resolution 1993/77, UN Doc. E/CN.4/1997/RES/77 Commission on Human Rights Resolution 2004/28, UN Doc. E/CN.4/2004/RES/28.

Status of Housing, Land and Property Rights in Sri Lanka -

2.2.3 United Nations Guiding Principles on Internal Displacement In Sri Lanka, the displacement resulting from a civil war spanning over twenty years and the recent tsunami natural disaster has meant the rights of displaced persons have become critical to thousands who have lost their homes and livelihoods.

The Guiding Principles on Internal Displacement contain widely accepted standards on protection and assistance to IDPs. The Guiding Principles reflect states’ obligations under international law and include standards for the protection and recovery of housing, land and property of IDPs.

2.2.4 United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) The Pinheiro Principles are the international standard on housing and property restitution and are crucial to resolving the complexities associated with bringing displacement to an end in Sri Lanka. The right to housing and property restitution provides that all people who have been forcibly displaced have a right to have restored to them any housing, land and/or property of which they were arbitrarily or unlawfully deprived, or to be compensated for any loss of housing, land and/or property that is impossible to restore.

The Pinheiro Principles are designed to provide practical guidance to States, UN agencies and the broader international community providing a consolidated and universal approach to dealing effectively with outstanding housing and property restitution claims. They are grounded firmly within existing international human rights and humanitarian law. The Pinheiro Principles are a key element of the legal framework that should inform an analysis of the status of housing, land and property rights in Sri Lanka.

2.3 The obligations of the Government of Sri Lanka The Government of Sri Lanka has ratified the key treaties concerning housing and land rights, the most important of which have been outlined above. In doing so the State is bound to give effect to the ICESCR particularly through enacting legislation.

The ICESCR sets out the nature of the obligation of States in Article 2: “Each State Party to the present Covenant undertakes to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.�

The Pinheiro Principles (Principle 2) clearly defines the States responsibility towards IDPs housing and property restitution:

See Appendix for further explanation of the Pinheiro Principles.

Sri Lanka’s international and constitutional obligations for ensuring HLP rights

“States shall demonstrably prioritise the right to restitution as the preferred remedy for displacement and as a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees and displaced persons entitled to land and property restitution.”

Governments have four important duties with respect to housing, land and property rights. The duty of nondiscrimination means treating everyone equally in the law and in practice. Law and policies of government should not discriminate between persons on grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, disability, birth or other status. The duty to respect means refraining from interfering with people’s existing access to housing. The duty to protect means governments must protect persons from violations by others, such as corporations and landlords. Finally the duty to fulfil means taking steps to make sure that everyone will progressively realise his/her right to adequate housing.

Having looked at the international legal framework and demonstrated the obligations that States have to uphold and protect the rights contained within international treatise, it is now possible to view the domestic legal framework and the protections that it affords the people of Sri Lanka and assess the existing gaps between international obligations and national law.

A plantation sector family at Macaldeniya Estate

Status of Housing, Land and Property Rights in Sri Lanka -

2.3.1 National housing, land and property rights The Sri Lankan constitution only recognises civil and political rights, not socio-economic rights.

Therefore, its fundamental rights chapter lacks express provision for safeguarding housing rights.

The only constitutional protection of housing rights is in the Directive Principles of State Policy. Article 27c of the Constitution provides that the State must ensure: “the realization by all citizens of an adequate standard of living for themselves and their families, including adequate food, clothing and housing, the continuous improved of living conditions and the full enjoyment of leisure and social and cultural opportunities.�

However, the Directive Principles are declaratory only and are not justiciable in a court of law, but are used to guide the State. Nonetheless, the Sri Lanka Supreme Court has used the Directive Principles to interpret and apply other, justifiable provisions of the constitution. It has also used innovative thinking to interpret the fundamental rights to give effect to several socio-economic rights. The Court has referred to many international human rights treaties and has attempted to streamline local human rights standards with Sri Lanka’s international obligations.

However, in terms of housing rights, these attempts have not gone far enough. Sri Lanka does not have a well-formulated housing policy. Successive governments have dealt with the issue by adopting ad hoc policies catering to particular situations as they have arisen and not as part of a broader and well-formulated policy. This has led to inconsistent policies that are not necessarily compliant with international standards and therefore do not afford the necessary levels of protection to those whose housing, land and property rights have been violated. The gap between domestic and international legal frameworks needs to be addressed to increase protection of housing, land and property rights in Sri Lanka.

For more information and detail on the international and domestic legal frameworks for housing, land and property rights please see the Appendix I.

Violations of HLP Rights in Sri Lanka in 2008

Chapter 3 Violations of housing, land and property rights in Sri Lanka in 2008 3.1 Violations as a result of the armed conflict In 2008, the majority of housing land and property rights violations in Sri Lanka were the result of displacement due to the internal armed conflict. Many of those who are displaced remain in Sri Lanka as IDPs. It is difficult to determine the exact numbers of IDPs in Sri Lanka as there is a lack of proper criteria to define a displaced person. The statistics used in this chapter have come from the Office of the UN High Commissioner for Refugees (UNHCR) website.

IDP camp in the North - dawn of another day!

Status of Housing, Land and Property Rights in Sri Lanka -

3.1.1 Internal displacement during the year 2008 According to estimates from the Office of the UN High Commissioner for Refugees (UNHCR) website, around 187,850 people remained displaced in Sri Lanka as at 31 December 2007 and 281,698 as at 30 September 2008 as a result of conflict and violence. These figures clearly reflect that internal displacement remained one of the biggest problems Sri Lanka faced.

The reasons for people being displaced as a result of conflict may be categorized as follows: (1) Housing, land and property partially or wholly damaged due to armed attack and uninhabitable; (2) Property situated in areas declared High Security Zones (HSZ) by the Sri Lankan Government; (3) Property taken over by the Liberation Tigers of Tamil Eelam (LTTE). ď Ź COHRE and the United Nations Office for Project Services (UNOPS) jointly conducted a survey in Trincomalee and Batticaloa in the months of July-September 2008. The survey constituted a segment of a wider fact finding programme comprising of structured and semi-structured interviews among Government officials working in the East as well as at the central level, and among UNHCR and INGOs working in the East. The information of the fact finding programme and survey are for the purpose of formulating recommendations for a holistic policy on Housing, Land and Property Restitution (HLPR).

For more information and detail on the survey please see the Appendix II.

3.1.2 High Security Zones (HSZ) One of the obstacles preventing IDPs from returning to their places of origin is the occupation of portions of land in the North and East by the Sri Lankan armed forces. Areas of land have been taken over by the military to protect its strategic interests and for national security. According to Inter Agency Standing Committee (IASC) reports, the establishment of HSZ in the East will prevent large numbers of IDPs from returning to their place of origin.

It is significant that none of the individuals displaced from the HSZ have received Damaged house near the last Sri Lankan Army checkpoint before reaching the Kilivetti IDP camp in the Trincomalee District (April 2008)

http://www.unhcr.lk/statistics/docs/SummaryofDisplacement-7Apr06-31Dec07.pdf

http://www.unhcr.lk/statistics/docs/SummaryofDisplacement-7Apr06-30Sep08.pdf

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Violations of HLP Rights in Sri Lanka in 2008

any compensation as required under the Land Acquisition Act and the Involuntary Resettlement Policy.

The fate of these IDPs remains uncertain and it is unclear whether they will be able to regain their land and property or whether they will have no choice but to resettle elsewhere.

For a detailed analysis of the HSZ issue please see the COHRE report “High Security Zones and the Rights to Return and Restitution in Sri Lanka: a case study of Trincomalee District.”

3.1.3 Consequences of displacement The displacement of people from their original homes and lands has a number of consequences for HLP rights:

• • • •

Owners and non-owners, such as tenants, lessors and licensees, have lost ownership or possession of their houses, lands and/or property due to their occupation by others.

Many have lost documentation, making it difficult to prove their title to property.

Problems relating to two or more claimants to the same plot of land; once the original owner vacates their homes and lands which are subsequently encroached upon, the encroacher can claim prescription title (the title gained on the land of another by continued regular use over ten years) under the general law.

Problems relating to the payment of compensation for damaged property and the construction of new houses; such as when ascertaining the actual beneficiaries, many have lost documentation making it difficult to prove their entitlements.

3.1.4 Measures taken by the relevant authorities in order to uphold housing, land and property rights Various measures have been taken by relevant Sri Lankan authorities and other organizations in an attempt to protect housing, land and property rights of IDPs.

•

•

On 23 June 2008, on the directive of the Chief Justice Sarath N. Silva, a committee was established to examine possible returns of displaced persons due to Jaffna HSZ. In August 2008 IDPs interested in returning to their lands in the HSZ were requested to register with the District Secretary with proof of land ownership and other relevant documents. A decision was taken to release a 300 meter section of the 600 meter buffer zone in Tellipalia Divisional Secretary Division.

A press release from the Permanent Mission of Sri Lanka to the United Nations in Geneva dated 20 August 2008 stated that 103 acres of land in Ariyalai East HSZ had been released and 73 farmers would be allowed access to their lands. According to North East Secretariat on Human Rights

Internal Displacement Monitoring Centre, “Submission from the Internal Displacement Monitoring Centre (IDMC) of the Norwegian Refugee Council (NRC) to the Universal Periodic Review mechanism established by the Human Rights Council in Resolution 5/1 of 18 June 2007,”, Geneva, 2008.

The committee was headed by a High Court Judge, and included the GA, the Security Forces Commander, and the Deputy Inspector General of Police.

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(NESOHR), there are 225 farming families who are dependant on the land in the Jaffna HSZ, so the numbers allowed to return represents about a third of the affected farming community.

•

•

•

Almost one and a half years after the initial gazette notification, on 30 October 2008 the Sampoor HSZ was officially reduced in Extraordinary Gazette notification 1573/19 to encompass the GN Divisions of Sampoor East, Sampoor West, Koonitivu, Kadarakaraichenai, and a part of Nawarednapuram. The total extent of the Sampoor HSZ was reduced from 105.2 sqkm to 37.42 sqkm. The reduction allows for increased legal protections for IDPs returning to lands now falling outside of the current Sampoor HSZ. On the surface the reduction of the HSZ boundaries is a positive step and has allowed a larger number of IDPs to access their original lands and property. However, the HSZ was not immediately reduced through gazette and thus legally speaking those who had returned were still subject to the restrictions presented in the original HSZ gazette. Without written permission from the Competent Authority no one could enter or remain in the area. This did not allow returnees security of tenure of their land and property, a fundamental aspect of the right to adequate housing, and left them in a continued state of insecurity.

Since early last year (2007) the International Committee of the Red Cross (ICRC) has enabled more than 125,000 people, displace in conflict areas in the North and East, to obtain drinking water, shelter and sanitation. This year (2008), in April alone, over 2,000 people benefited through these facilities. Since November last year (2007) 15,500 returnees from the Eastern province were assisted to rebuild and repair their houses with proper sanitation and waste disposal facilities.

3.1.5 Recommendations

•

Implement restitution programmes based on the Pinheiro Principles.

Restitution is a legal remedy that attempts to restore persons to their pre-loss position prior to displacement, and to address the violation of their HLP rights under international law. While it may not be practically possible to implement restitution programmes in the current context of resumed hostilities, it is important to make an assessment of the legal, policy and institutional mechanisms that would be necessary to implement an effective programme of restitution.

•

• •

12

The development of institutional structures with a clear demarcation of authority and powers to deal with specific issues relating to housing, land and property rights of IDPs. The issues include:  Secondary occupation.  Granting adequate compensation for reconstruction of housing, land and property damaged due to the war.  Implementing a practical method of proving identity and granting ownership rights over housing, land and property of IDPs.  Deciding on issues pertaining to the assessment of damage and reconstruction of property and the construction of new houses.

Disseminating adequate information to IDPs and consultation on matters pertaining to their restitution rights, including compensation.

Allowing people to freely choose between return, resettlement and integration.

North East Secretariat On Human Rights (NESOHR), “Forced Evictions of Tamils in Northeast since 1980s,” 2005.

The Island - 17th May 2008, Shamal Fernando Page – 03

Violations of HLP Rights in Sri Lanka in 2008

3.2 Violations as a result of Natural Disasters Many policy gaps became apparent in the post tsunami recovery phases that have yet to be rectified for the protection of natural disaster IDPs. Housing, land and property rights are often overlooked due to their complexity and the tendency to focus only on the immediate humanitarian need. However, housing, land and property rights are fundamental to ensuring a successful and sustainable recovery process. Without a stable family unit, with access to adequate house, water and sanitation, livelihoods recovery will not be possible in the long run as insecurity will prevail and returnees will be vulnerable to a host of other human rights abuses.

In 2008, 5 floods occurred, which affected about 797,500 people. Please note that, these figures do not capture every detail as a result of natural disasters from across the country, and thus the reported issues in the national newspapers are presented.

COHRE appreciates the Government of Sri Lanka’s and international agencies’ fast and effective response for Natural Disaster IDPs during the initial emergency relief phases. However, it is noted by COHRE that there is still much that needs to be done by the Government and other actors to protect and promote the housing rights of IDPs. Substantial planning must occur to ensure the human rights of IDPs are respected beyond the humanitarian phase, and the return and recovery of those displaced are carried out in a safe and dignified manner. In order for this to happen, more than simple pledges and delivery of aid are needed.

While the humanitarian effort following the natural disasters have been substantial, it is not clear whether assistance for recovery is adequate to address the housing, land and property rights of those affected. HLP rights need to be incorporated into all post-disaster plans if reconstruction and the return to normalcy are to succeed. An active respect for community participation and a transparent and accountable process that

A house destroyed by Tsunami in Hikkaduwa

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Status of Housing, Land and Property Rights in Sri Lanka -

continues past the initial return phase are essential to creating the conditions for effective restitution and recovery.

The Government of Sri Lanka is urged to incorporate an adequate HLP rights framework into their response to all of their post-disaster relief and recovery efforts in the future. This is especially important in view that some of the affected have been subject to recurrent disaster related displacement. The Government is obligated, together with NGOs and international agencies to ensure that return and recovery programmes address key human rights concerns.

3.2.1 Housing, land and property rights violations due to Natural Disasters Sri Lanka was one of the worst hit countries by the 2004 tsunami with over 35 000 deaths, half a million people displaced and 120 000 houses fully or partially destroyed. According to July 2007 figures, 113 673 houses are either completed (89,044) or in progress of completion.10 However, these figures include the houses built in excess of need in the South and West of the country, which mask the shortfall in housing in the North and East.

The Sri Lankan Government and donors have yet to complete the construction of permanent houses for all families whose homes were destroyed or damaged by the tsunami. Beneficiaries who have received houses have not necessarily received title for their new properties and therefore do not have full security of tenure. This has been partly caused by a lack of awareness amongst donors on how to grant houses to beneficiaries to ensure security of tenure and partly because there are no clear guidelines set down by relevant government authorities on how and when security of tenure can be achieved.

List of displacement as a result of natural disasters

• •

•

As of June 6, 2008, over 400,000 people from Western and Southern Sri Lanka were displaced from their homes and lands due to severe flooding from continuous and heavy monsoon rains. Twenty three people died, and over 1,500 houses were fully or partially damaged.11 On the 24th of March 2008, more than 381,000 people were affected by floods in Ampara, Badulla, Batticaloa, Gampaha, Moneragala, Puttalam, Mannar, Ratnapura, and Trincomalee. The numbers of houses completely destroyed by the floods were 228 while 637 houses were partially damaged.

There were 6 temporary shelters for affected families set up in Hali Ela, Eraur and Manmunai South, where 1,870 families were sheltered.12 On the 29th of April 2008, some 4,500 families were left homeless and property and livestock damaged due to the heavy rains that lashed the country in the past few days. The Disaster Management Centre said more than 3,000 families were displaced in the most affected districts of Ratnapura and Kegalle.13

Peoples Planning Commission, People’s Report India, the Maldives, Sri Lanka & Thailand, ‘Homestead Land & Adequate Housing in the Post-Tsunami Context’ Peoples Report 2007, Chapter 1, p. 5.

10

Wasantha Ramanayake, ‘More than 381,000 people were affected by the recent floods in 10 District’, Daily News, 7 June 2008, p. 3.

11

By Lakshmi de Silva,The Island,‘ Tuesday’ 25th March, 2008,Pg – 02 Over 300,000 Affected by Floods

12

Daily Mirror April 30, 2008Pg – 01Floods Leave Thousands Homeless(By Poornima Weerasekare, Senaka De Silva and Kassapa Ellepola and Ajithlal Shantha Udaya in Ratnapura)

13

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Violations of HLP Rights in Sri Lanka in 2008

•

On the 25th of May 2008, more than 1000 families at Digbedda in Panadura were rendered homeless when the Karapan ela canal over flowed in the early hours of Saturday due to the heavy rains experienced in the area.14

3.2.2 Reasons for housing, land property rights violations due to Natural Disasters One of the reasons for housing, land and property rights violations due to natural disasters is the lack of clear procedures that address housing, land and property rights in a comprehensive and sustained manner and which consider the longer term implications for victims of natural disasters.

While human-made disasters can be prevented, natural disasters cannot. However, in relation to these disasters, the Government can take proper precautions and adopt and implement policies beforehand in order to be prepared and address the needs of the victims. It is clear that as a result of failing to take such precautions Sri Lanka was faced with unexpected problems.

3.2.3 Recommendations The Government of Sri Lanka is obligated, together with NGOs and international agencies to ensure that return and recovery programmes address key human rights concerns.

To promote and protect the rights of the victims of natural disasters, COHRE makes the following recommendations:

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•

•

The Government of Sri Lanka is urged to incorporate an adequate HLP rights framework into their response to natural disasters as well as to all of their post-disaster relief and recovery efforts in the future. This is especially important in view that some of the affected have been subject to recurrent disaster related displacement.

The main institution in Sri Lanka responsible for providing citizens with adequate housing is the National Housing Development Authority (NHDA). The NHDA was not a key actor in the posttsunami housing reconstruction programme. Therefore it is recommended that the NHDA and all appropriate authorities be involved in the adoption and implementation of policies.

In Sri Lanka, the Tsunami Housing Policy of April 2006 is presently applicable. Unfortunately it cannot be enforced through the courts of law since it has not been passed by parliament. It is recommended that the relevant amendments to the Tsunami Housing Policy of April 2006 be made in order to enforce it through the courts of law.

Daily Mirror , May 26, 2008 Pg – A2 Overflowing Canal Renders Over 1000 Families Homeless By Kusal Chamath – Bandaragama and Sri Mahabellana – Ratmalana

14

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Status of Housing, Land and Property Rights in Sri Lanka -

Chaos at Glennie Passage, Station Passage, at No.50 Garden and Stuart Street in Slave Island on 17th July 2008

16

Forced Eviction of Informal Settlers in Slave Island

Chapter 4 Forced Eviction of Informal Settlers in Slave Island A Fundamental Rights Petition was filed and taken up on the 18th of July 2008 in the Supreme Court of Sri Lanka by A.A. Rahuman Beebee and 30 others against the Government of Sri Lanka. This case centred on the threatened forced eviction of informal settlers from Glennie Passage, Station Passage, at No.50 Garden and Stuart Street in Slave Island, Colombo 2. The petitioners, some informal settlers, stated that they had been living in these houses since the 1960s paying all relevant taxes and their children were attending nearby schools. They alleged that the Government had acted without a proper hearing. The petitioners’ argued that their fundamental rights to equality and equal protection of the law, as is guaranteed and recognized under the Constitution’s Article 12(1) were violated.

The Counsel for the petitioners moved to support this application in view of the untimely notice. The quit notice dated 10th July 2008 was issued by the Additional Secretary (Defence) of the Ministry of Defence, Public Security, Law and Order and stated that informal settlers from Glennie Passage, Station Passage, at No.50 Garden and Stuart Street in Slave Island would be removed along with all unlawful constructions within 7 days of the notice.

The Counsel for the petitioners also submitted that since the notice had given the petitioners only 7 days, there was imminent danger of the constructions being demolished immediately and he moved for an order requesting them from being done so. The court directed the respondents to maintain the ‘Status Quo’ and not to take action untill this case was supported in court on the 22nd of July 2008 and the Registrar was directed to communicate this order to the Defence Secretary by telephone and telegram at the expense of the petitioners.

In the meantime, some officials from the Urban Development Authority had arrived with a riot police squad at Glennie Pasage in Colombo 2 and were taking steps to demolish the houses using back-hoes, as the officials said they were not aware of the Supreme Court order.

When this case was taken up before the courts on the 20th of August 2008, the senior state counsel who appeared on behalf of the Hon. Attorney General informed that only 21 families out of 333 still remained at Glennie Street, Slave Island and 154 families had moved to temporary shelters in Thotalanga. 155 families received a total sum of SLR 101,000 which included one year’s rental of SLR 96,000 and a transport allowance of SLR 5,000 to transport their belongings. He further added that these groups would be able to find their own shelters until the planned apartments of relocation were completed in Dematagoda, Colombo 9.

The counsel for the petitioners informed that the families were now agreeable to the Urban Development Authority terms of taking one year’s rental plus a transport allowance of SLR. 101,000 and finding their own accommodations until the apartments in Dematagoda were ready. However the counsel informed that most

17

Status of Housing, Land and Property Rights in Sri Lanka -

of the petitioners being Muslims, they would prefer to stay in their houses in Slave Island until the end of the Ramazan festival.

The Court in view of the submissions concluded the proceedings on the basis that the parties would follow the terms and conditions set by the Urban Development Authority with regard to allocating houses in Dematagoda, Colombo 9.

As this Case highlights, the protection of housing rights must take place on both the international and domestic level. However, in order to ensure the consistent application of such rights, concerned groups and individuals must work to close the current gap between international and domestic obligations.

COHRE Women’s Housing Rights Officer – Asia Pacific conducted a fact finding mission in the month of October 2008, in order to examine and understand the living conditions of the families who moved to temporary shelters in Thotalanga. The study reveled that, housing conditions in the temporary shelters in Thotalanga were deplorable. The one room structures were built in rows to form lanes. Wooden planks and plastic sheets were used for making these temporary sheds and adjacent rooms are sharing walls. An average house has about one room with two sections, in which one is used for sleeping and sitting while the other is a kitchen and stores water. A portion of the kitchen is also used for washing purposes.

It is clearly visible that dwellers are forced to stack their household goods one over other as the space is very limited. Common toilets are built at the end of the lanes and a narrow step is used to climb up to reach to the toilet. Here the ground is soggy and muddy because of rains and stones blocks are kept to walk through the muddy patches. The provision of water supply is through community taps which are situated at the beginning of the site and there is no electricity at all.

For more information and detail on the fact finding mission please see COHRE Quarterly newsletter 8th and 9th editions.

18

Colombo 13 & Colombo 14 community Threatened with Eviction

Chapter 5 Colombo 13 & Colombo 14 community Threatened with Eviction On or around 2nd July 2008, about 400 families living on one side of the railway track in Colombo 13 and 14 were served with Quit Notices issued by the General Manager, Department of Railways under the State Lands (Recovery of Possession) Act requiring them to handover vacant possession of their houses to the Department of Railways by 4th August 2008, which gave them less than one month to comply.

The railway line which runs from the Port to the Kolonnawa Oil Reserve through Bluemandhall, Grandpass, Orugodawatta, Sapugaskanda and Wellampitiya is not being used at present. There are houses on either side of the said rail track and there are approximately 2000 families living along this railway line.

Residence at Blumendhall in protest

According to the affected families’ inquiries, the Government intends to lay oil pipes along the rail track from the Port to the Kolonnawa Oil Reserve. The pipes are to be laid on one side of the rail track. Houses built on that side, up to 65 meters away from the rail track, will be demolished to carryout the project.

The affected families claim that they have not had any prior notice that the lands on which their houses have been constructed would be required for the pipeline project. According to community members, surveys were carried out in 1987 and in 2006/2007 by the Department of Railways on the use of the land. However, at the time of carrying out the surveys, they were not consulted or informed that they would be required to vacate their houses and/or to find accommodation elsewhere.

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Status of Housing, Land and Property Rights in Sri Lanka -

The community further claims that, the majority of the occupants of the houses have been residents for over four decades. The said houses have been issued with Household Enumeration Cards by the Colombo Municipal Council, which contain details of the houses and their occupants.

The Government authorities have provided them with facilities such as public water supplies, toilets, and community development centres. Several families have obtained electricity, water and telephone connections to their houses and eligible persons living in the area have been registered on the Electoral Registers.

They further claim that those who have received Quit Notices have not been offered alternative accommodation and have not been consulted as to their willingness to vacate their houses either on their own or on account of any assistance given by the Government for resettlement.

It is clear that the affected families have faced grave hardship and their lives will be disrupted if they are required to vacate their houses within the very short period of time as specified in the Quit Notices.

Forced evictions shall not result in rendering individuals homeless or vulnerable to the violation of other human rights. Indeed, the Government is obligated to ensure that adequate alternative housing and compensation for all losses is made available to affected persons.

20

Supreme Court Fundamental Rights Application No. 405/08

Chapter 6 Cases to Watch 6.1 Supreme Court Fundamental Rights Application No. 405/08 (The Supreme Court Case filed by Tsunami victims, those who resides in Tsunami welfare camps in Moratuwa and Rathmalana) In October, seven residents of Tsunami welfare camps in Moratuwa and Ratmalana filed a fundamental rights application in the Supreme Court (SC FR Application No. 405/08) alleging that their fundamental right to equality and equal protection of the law guaranteed by Article 12 (1) of the Constitution was violated by the Divisional Secretaries of Moratuwa and Ratmalana and the District Secretary of Colombo as they had issued a notice to evict them from their welfare camps.

In their petition, the petitioners stated that prior to the Tsunami they had lived in unauthorised constructions built between the Galle Road and the coastline and were living either as tenants or sub families. They had been informed by the Divisional Secretaries that they were not entitled to receive housing assistance under the Tsunami Housing policy as they either belonged to the category of subfamilies or tenants Salu-Sala Tsunami welfare camp in Moratuwa at the time of the Tsunami disaster.

They alleged that several of the families who are presently living in welfare camps and who are considered to be sub-families, had, prior to the Tsunami, shared their houses with their parents as those houses were big enough to accommodate extended family members as well. However they claim that they were unable to live this way in the houses their parents had received under the Tsunami housing assistance programme as those houses had only one or two bedrooms and were highly inadequate to accommodate extended 21

Status of Housing, Land and Property Rights in Sri Lanka -

families. However, this fact was not taken into consideration by the relevant authorities in granting housing assistance.

The Tsunami Housing Policy does not expressly prohibit the grant of housing assistance to extended families. In terms of paragraph 6.2 of the said Policy, extended families would be allowed to put together their entitlements to construct larger houses. The Petitioners stated in their petition that they were aware that a large number of extended families had been given housing assistance under the Tsunami Housing Policy. In these circumstances, they stated that they had been discriminated against and been randomly singled out by the Respondents in refusing to grant housing assistance.

The Petitioners also stated that although some of them were tenants at the time of the Tsunami disaster, they did not possess any documentation to prove their tenancy and their landlords were refusing to acknowledge their tenancy fearing that the new houses they received would be claimed by the tenants under the Tsunami (Special Provisions) Act. They also claimed that although the Tsunami Housing Policy makes provisions to grant housing assistance to encroachers, it fails to provide any relief to tenants who had a legal entitlement to the houses they lived in at the time of the tsunami.

In September 2006, His Excellency the President decided to grant special relief to tsunami victims in the Colombo District and several other Districts as there was a scarcity of land. Accordingly, a sum of Rs. 750,000/was to be given to all tsunami affected families in the Colombo District and other identified Districts. In a letter dated 25.09.2006, the District Secretary of Colombo provided further details regarding the aforesaid special assistance granted to tsunami victims in the district. In terms of the said letter, a sum of Rs. 250,000/would be granted initially for the purchase of land from an area of choice of the recipient. Thereafter, a sum of Rs. 250,000/- would be granted in four installments to construct a house. The final installment of Rs. 250,000/- would be granted to obtain electricity, water or other amenities for the house. This letter has been distributed among all residents of tsunami welfare camps situated in Colombo North, irrespective of whether they are members of extended families, tenants, encroachers or others eligible to receive assistance under the Tsunami Housing Policy and a large number of tsunami victims who have lived as tenants or subfamilies prior to the tsunami, have received housing assistance provided in terms of the aforesaid letter.

However, the Petitioners alleged that the Divisional Secretaries have refused to grant the special assistance referred to in the aforesaid letter to Petitioners and others in similar circumstances living in tsunami welfare camps in Moratuwa and Ratmalana. Although they have repeatedly requested the Divisional Secretaries of Moratuwa and Ratmalana to grant them housing assistance, especially in view of the said letter, Divisional Secretaries have refused to grant any relief to them.

In September 2008, the Divisional Secretaries of Moratuwa and Ratmalana issued letters to residents of tsunami welfare camps in Moratuwa and Ratmalana stating that lands owned by private parties have been taken on a temporary basis by the Government to build tsunami welfare camps and that the owners are constantly requesting for their lands to be released. It was also stated that since they lived as sub-families or tenants at the time of the tsunami disaster, they are not entitled to receive housing assistance from the Government. They were required to leave the welfare camps and find suitable accommodation elsewhere within 21 days of receiving the said letters.

Thereafter, notices were posted on the welfare camps in Moratuwa and Ratmalana on or around 10.09.2008 signed by the Divisional Secretaries requiring all families who had purchased land to vacate the camps on or before 25.09.2008. Tenants and sub-families were also required to vacate the camps on or before the said date as they would not be receiving any assistance from the Government. It was also stated that it was the final eviction notice and that legal action would be taken to evict those who failed to comply with the said notices.

22

Supreme Court Fundamental Rights Application No. 405/08

The Petitioners and several other residents of welfare camps submitted appeals to the Divisional Secretaries stating that the tsunami had affected legal owners of houses, tenants and sub-families in equal measure and that tenants and sub-families should not be discriminated against due to mere administrative reasons. It was also stated that they were not in a position to vacate the camps by 25.09.2008 as they did not have any other places of accommodation. The Divisional Secretaries were requested to grant them housing and to allow them to remain in the welfare camps until such time. Their appeals were also forwarded, inter alia, to His Excellency the President, Minister of Urban Development and the Chief Minister of the Western Provincial Council.

Thereafter, on 24.09.2008 notices were posted in these welfare camps with the signatures of the Divisional Secretaries stating that the date by which the residents were required to vacate the camps had been extended till the 10th of October. The Petitioners filed the fundamental rights case to obtain an order, among others, to quash this notice of eviction.

The Petitioners alleged that the Respondents had failed to give due regard to the Directive Principles of State Policy as enshrined in the Constitution.

They also relied on Article 17- International Covenant on Civil and Political Rights (ICCPR) and Article 11 of the International Covenant of Economic, Social and Cultural Rights (ICESCR) which guaranteed the right to be free from arbitrary or unlawful interference with one’s home and the right to adequate housing, including the prohibition on forced evictions.

The Petitioners also relied on the opinion of the Supreme Court in S.C. Ref. No. 1 / 2008, in which the Supreme Court expressed the opinion that: “The legislative measures referred to in the communication of His Excellency the President dated 04.03.2008 and the provision of the Constitution and of other law, including decision of the superior courts of Sri Lanka give adequate recognition to the civil and political rights contained in the International Covenant on Civil and Political Rights and adhere to the general premise of the Covenant that individuals within the territory of Sri Lanka derive the benefit and guarantee of rights as contained in the Covenant. The aforesaid rights recognised in the Covenant are justifiable through the medium of the legal and constitutional process prevailing in Sri Lanka.”

The Petitioners alleged that the Respondents have acted in violation of the rights guaranteed by the ICCPR and ICESCR and also in violation of Article 12 (1)15 of the Constitution.

This case was supported on the 10th of October 2008 and the Supreme Court was of the view that tsunami victims should be provided relief and that the welfare camps should be closed as soon as possible. Court directed the State Counsel appearing on behalf of the Respondent to obtain instructions on the housing assistance that could be provided to the petitioners. When this matter came up again on the 20th of October, the State Counsel informed Court that the Petitioners could not be granted relief on the basis that they were either sub-families or tenants at the time of the Tsunami and therefore were not entitled to receive housing assistance under the Tsunami Housing Policy. Court suggested that the residents of tsunami welfare camps in Moratuwa and Ratmalana be given six months time to find alternative accommodation and that each family should be given a sum of money upon leaving the camp and the State Counsel moved for time to obtain instructions.

Right to Equality

15

23

Status of Housing, Land and Property Rights in Sri Lanka -

Thereafter, when this case came up on the 24th of November 2008, the State Counsel agreed that three months could be granted for the residents of the camps to find accommodation and that a sum of Rs. 25,000/- could be provided upon leaving the camp. Accordingly, court made order that the tsunami victims in welfare camps situated in the Moratuwa and Ratmalana Divisional Secretarial Divisions would be given time till 28th of February 2009 to vacate and that each family unit would be given Rs.25,000/- upon vacating.

In default of vacating the premises, The Court directed to issue an order for eviction upon an application made by the Divisional Secretary. The Court was of the view that this was to be a just and equitable direction to be made in respect of the alleged infringement of the Petitioners’ fundamental rights considering that the premises in question were now required for public purposes and the persons in occupation had failed to satisfy the criteria of the established relief packages.

6.2 Supreme Court Fundamental Rights Application No. 503/2008 (The Supreme Court Case filed by a businessman in Talawila to evict fisherman from their traditional fishing lands.)

In November 2007, a businessman in Talawila named V.G.N. Rockwood instituted action in the District Courts of Puttlam (1682/L) to assert his ownership and possession of the Madal Padu16 79/29 and remove the respondents from the site, among other things alleging that the other party in the case anchored their boats on the said Madal Padu 79/29 that amounted to an illegal act as per the Gazette Notification bearing No. 337/48 dated 21 February 1985.

The Plaintiff in his plaint17 asks, a) For a judgment in favour of the Plaintiff as the owner/possessor of the land described in the Schedule to the Plaint, b) To evict the Defendants from the said land, and c) For damages of Rs. 150,000 per month The COHRE Legal Team supported Defendants 2, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16, and 17 (hereinafter referred to as The Defendants) and tendered the answer on the 1st of August 2008. Before answering the Plaint, the Defendants stated several main objections to the Plaint including, that the Plaintiff did not possess a valid license. Therefore, the Defendants pleaded with the honourable court to refuse to entertain the Plaint at the outset. Further, the respondents claim that they have been using the said shore for the past Forty Five (45) years.

Not prejudicing the main objections that were stated above, the defendants mentioned among other things the following facts to the honorable court:

• •

The Defendants had been engaged in the Fishing Industry for the last 45 years.

The Defendants were given fishing equipment by the Ministry of Fisheries as livelihood assistance.

A way of fishing.

16

A written statement of a cause of action.

17

24

Supreme Court Fundamental Rights Application No. 503/2008

Whereof the Defendants asked: i) For the Plaintiff’s action to be dismissed and ii) For costs In November 2008, the plaintiff of the above mentioned case filed a fundamental rights application in the Supreme Court (SC FR Application No. 503/2008) alleging that his fundamental right to equality and freedom to engage by himself or in association of others in any lawful occupation, profession, trade business or enterprise guaranteed by Article 12 and Article 14 (g) of the Constitution respectively had been violated by the Additional Government Agent of Kalpitiya by failing to renew the ‘ Madal Padu Permit ’ for the Madal Waraya18 No.79/29 for the year 2008 and thereafter.

When this matter came up again on 12th January 2009 in the Supreme Court, the State Counsel informed Court that he received instructions from the Additional Government Agent of Kalpitiya that if the Petitioner withdrew the case that was pending in the District Court of Puttlam on the same matter, the Additional Government Agent of Kalpitiya would take steps to demarcate the “Madal Waraya” of the petitioner in terms of the applicable regulations and thereafter the petitioner would be granted a license in for the freshly demarcated area. He further informed that such a course of action was necessary since other persons were now engaged in fishing activities in the area. Under these circumstances, the court directed that this matter be finalised within a period of one month. The proceedings were terminated accordingly.

When this case came up on the 5th of March 2009 in the Puttlam District Courts, the lawyer who appeared on behalf of the plaintiff informed the court that he was withdrawing this case in accordance with the Supreme Court decision. As such the honorable Judge dismissed the plaintiff’s case and ordered the plaintiff to pay the cost to the defendants, and they were allowed to continue using the lands for fishing.

Fishermen at Thalawila drawing up a plan

Where the fishing equipment is kept.

18

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Even the Tsunami could not wash all the reasons to give their best smile to the camera - Salu-Sala welfare camp in Ratmalana

26

Conclusion

Chapter 7 Conclusion COHRE is concerned about the violations of housing, land and property rights documented in this report and advocates strongly for increased adequate housing protection for all citizens, and in particular vulnerable groups such as IDPs and informal settlers. As a State Party to the many International Covenants, the Government of Sri Lanka is legally obliged to respect the right to adequate housing, including the prohibition on forced evictions, for everyone within Sri Lanka.

The cases documented in this report clearly illustrate that not all of these standards were applied or adhered to during 2008. In documenting the reality for vulnerable groups living in Sri Lanka, this report highlights the actual situation regarding housing, land and property rights violations and the attempts made by the relevant authorities to deal with these violations. In most cases the steps taken by authorities were inadequate to effectively protect housing, land and property rights or to provide restitution for those who had suffered from housing, land and property violations.

In order to ensure the consistent application of housing, land and property rights concerned groups and individuals must work to harmonise the current gap between international and domestic obligations.

The recommendations included in this report advocate for national policies which have a housing, land and property rights framework grounded in international law and principles. It also recommends clearer mandates pertaining to housing, land and property responsibilities for government institutions to enable better planning and implementation of law and policy.

There is still much vital work needed to enhance housing, land and property rights protection in Sri Lanka.

Through continued advocacy for law and policy reform and strengthening of existing policy implementation it is hoped that real progress can make towards the full realization of housing, land and property rights.

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Appendix I Sri Lanka’s International and Constitutional obligations for ensuring HLP rights International HLP standards The right to adequate housing The right to adequate housing was first incorporated in international human rights law with the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. Article 25 of the UDHR provides that: “Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

The UDHR is not a legally binding document. It contains specific guidelines for States to realise an adequate standard of living for all citizens. Most rights listed in the UDHR have later been codified in international human rights treaties. Of particular relevance is the adoption of two general human rights treaties in 1966, i.e. the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). Both Covenants contain important standards for ensuring housing, land and property rights. Sri Lanka is a State party to both instruments and is therefore responsible to respect, protect and fulfill the human rights listed in these Covenants, including housing, land and property rights.19 The obligation to respect requires Sri Lanka to refrain from interfering with people’s rights. The obligation to protect means ensuring individuals and communities do not suffer from violations of their rights by non-state actors or other states, including inter-governmental organizations. Finally, the obligation to fulfil entails the obligation to progressively realize rights by taking positive steps towards that goal.

The ICESCR contains a codification of Article 25 UDHR in Article 11 (1), which provides that

“The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”

Sri Lanka acceded to the ICCPR & ICESCR on 11 September 1980.

19

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Appendix

(a)

Article 11 (1) ICESCR not merely incorporates the right to ‘housing’ but the right to ‘adequate housing’.20 While adequacy is determined in part by social, economic, cultural, climatic, ecological and other factors, it is nevertheless possible to identify certain aspects of the right that must be taken into account for this purpose in any particular context. In General Comment 4,21 the Committee on Economic Social and Cultural Rights has identified the following aspects to ‘adequate housing’:

Legal security of tenure.

All persons should possess a degree of security of tenure. Tenure can take the form of rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Security of tenure guarantees legal protection against forced eviction, harassment and other threats. States parties should take immediate measures to confer legal security of tenure upon those persons and households currently lacking such protection.

(b)

Availability of services, materials, facilities and infrastructure.

An adequate house must contain certain facilities essential for health, security, comfort and nutrition.

All beneficiaries of the right to adequate housing should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.

(c)

Affordability.

Personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. Steps should be taken by States parties to ensure that the percentage of housing-related costs is, in general, commensurate with income levels.

(d)

Habitability

Adequate housing must be habitable, in terms of providing the inhabitants with adequate space and protecting them from cold, damp, heat, rain, wind or other threats to health, structural hazards, and disease vectors. The physical safety of occupants must be guaranteed as well.

As both the Commission on Human Settlements and the Global Strategy for Shelter to the Year 2000 have stated: “Adequate shelter means... adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities - all at a reasonable cost.”

20

Committee on Economic, Social and Cultural Rights, General Comment No. 4 on the Right to Adequate Housing, 1991, UN doc.

E/1992/23.

21

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(e)

Accessibility.

Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disasterprone areas and other groups should be ensured some degree of priority consideration in the housing sphere.

(f)

Location.

Adequate housing must be in a location that allows access to employment options, health-care services, schools, child-care centres and other social facilities. Housing should neither be built on polluted sites nor in immediate proximity to pollution sources that threaten the right to health of the inhabitants.

(g)

Cultural adequacy.

The way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing requirements Activities geared towards development or modernisation in the housing sphere should ensure that the cultural dimensions of housing are not sacrificed, and that, inter alia, modern technological facilities, as appropriate are also ensured.

The prohibition of forced eviction The right to adequate housing carries with it the right not to be forcefully evicted from one’s home. It has been reiterated by the international community that forced evictions constitute “a gross violation of human rights, in particular the right to adequate housing.”22 Forced evictions have been defined as “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/ or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”23 International law lays down a four-tier test to determine the legality of evictions:24 1. Evictions can only be justified in the most exceptional circumstances and in accordance with the relevant principles of international law.

Commission on Human Rights Resolution 1993/77, UN Doc. E/CN.4/1997/RES/77 Commission on Human Rights Resolution 2004/28, UN Doc. E/CN.4/2004/RES/28.

22

Ibid.

23

Committee on Economic, Social and Cultural Rights, General Comment No. 7 on the Right to Adequate Housing: Forced Evictions, 1997, UN doc. E/1998/22, Annex IV, paragraph 3.

24

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Appendix

2. Governments must ensure that all feasible alternatives to eviction are explored in consultation with affected persons.

3. The following procedural protections shall be granted to those evicted: a) an opportunity for genuine consultation with those affected; b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; c) information on the proposed evictions and where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; e) all persons carrying out the eviction to be properly identified; f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise; g) provision of legal remedies; h) provision, where possible, of legal aid to persons who are in need of it to seek redress from the courts.

4. Forced evictions should not however, result in individuals becoming homeless or vulnerable to the violation of other human rights. Where the affected persons are unable to provide for themselves, the State must take all appropriate measures to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, is available.

United Nations Guiding Principles on Internal Displacement The United Nations Guiding Principles on Internal Displacement address the specific needs of internally displaced persons. They identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration. The following definition of internal displacement is used in the Guiding Principles: “internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.�25 The Guiding Principles on Internal Displacement contain widely accepted and commonly used standards on protection of and assistance for IDPs in the different stages or situations of displacement. While they are applicable to all situations of displacement, they primarily address protection concerns that typically arise in situations of conflict induced displacement. The Guiding Principles are based on and contain international Principle 2, United Nations Guiding Principles on Internal Displacement.

25

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human rights and humanitarian law, and therefore reflect states’ obligations under international law. The Guiding Principles include the following standards for the protection and recovery of housing, land and property of IDPs:

•

•

Principle 18 states that IDPs maintain their basic human right to an adequate standard of living during displacement, and therefore have a right adequate basic shelter and housing while they are in displacement. This means that when people are forced to flee from their homes, governments are obliged to provide adequate shelter and housing to the displaced population. Principle 18 is understood to entail progressive improvement of the shelter and housing situation the longer displacement lasts.

Principle 28-29 addresses return of IDPs and contain basic standards on housing, land and property restitution. The Guiding Principles clarify that all IDPs have the right to return to their homes voluntarily and in dignity, or to choose to settle in another part of the country. They further mandate authorities to assist IDPs with the recovery of their possessions, including housing, and to provide adequate compensation or reparation where such recovery is not possible.

United Nations Principles on Housing and Property Restitution for Refugees and Displaced Persons (Pinheiro Principles) The Pinheiro Principles are named after the United Nations Special Rapporteur appointed to make a study of Housing and Property Restitution, Sergio Pinheiro. They were formulated in view of the large numbers of IDPs who are forced to leave their homes and properties due to conflict or natural disaster. These principles came into existence in August 2005 after 7 years of research into housing rights of displaced persons.

The Pinheiro Principles reflect an international standard that has emerged for the realisation of the rights of refugees and IDPs to return and be restored to their original land and property. These standards have evolved from local and international activism in support of the rights of return and restitution as a solution to displacement. The principles are a combination of international human rights and humanitarian law,26 and principles derived from national restitution policies and programmes in situations of conflict around the world.

The principles have been formulated to provide a standard by which the right to restitution can be implemented and therefore rights fully realised by IDPs. They outline in detail standards for legal, policy, procedural and institutional arrangements, for housing and property restitution. They attempt to outline a systematic and a universal approach to a programme and policy of housing and property restitution both at the national and international levels.

The Pinheiro Principles are a set of standards that help achieve ‘rights based solutions’ to displacement. They prescribe standards by which the right to return and the right to restitution are realized. The right to return and the right to restitution are not the articulation of two new rights; they are based on and derived from existing human rights, which have been endorsed by the international community.

See section III: Overarching Principles - the right to non – discrimination, the right to protected from displacement, the right to peaceful enjoyment of possessions, the right to freedom of movement…

26

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Appendix

The right to return The right to return extends to refugees and displaced persons not only the right to return to their country of residence, but to their original homes and lands as well: a) The ability to return to one’s home and land is viewed as the most dignified and sustainable solution to displacement; b) Principle 10 – articulates that a process of return must be based on the voluntary and informed choice on the part of the individual returnees, and made with due regard to issues of safety and security; c) Access to information – IDPs must be provided with objective, up-to-date and accurate information on physical, material and legal safety issues (amongst other things) in places of origin to which they are to return; d) The right to return cannot be abridged by the use of time limitations, neither can there be any coercion to return; return must be voluntary and with the option of pursuing other durable solutions that does not compromise the right.

The right to restitution The right to restitution is seen as a component of the right to return, and a core remedy for displacement; the right of displaced persons to return and reintegrate cannot be guaranteed without first protecting the right of these persons to be restored to their land, housing and property.

The term restitution refers to a form of restorative justice, or an equitable remedy, by which persons who suffer loss or injury are returned as far as possible to their original pre-loss or pre-injury status.27 Principle 2.2 articulates that the right to restitution shall be prioritized as the preferred remedy for displacement. There may be other remedial action that a state pursues, such as resettlement (in another location), or the provision of compensation. But governments must be prepared to restore housing and property of displaced persons (rebuild, repair), if that is what IDPs prefer.

Equitable remedies are those that are not too legalistic in their approach. Sometimes legal provisions cannot be interpreted in a post war environment, in the same manner as it is interpreted in peaceful circumstances.

27

33

Status of Housing, Land and Property Rights in Sri Lanka -

National HLP rights and obligations Under the Sri Lankan Constitution, fundamental rights are those rights and freedoms to which every person is entitled. This includes a variety of human rights as listed in the ICCPR and ICESCR. Neither the right to adequate housing nor the prohibition of forced eviction is specifically stated as a fundamental right in the fundamental rights chapter of the Constitution of Sri Lanka. As such these rights are not expressly justiciable in a Sri Lankan court of law.28 However, an opening may be found based on the innovative thinking of the Sri Lankan judiciary, whereby the right to adequate housing may be recognised as a right implied in the Fundamental Rights Chapter.

For example, the right to life is not expressly recognised in the Constitution. Nevertheless, the Sri Lankan judiciary has been innovative in reading aspects of the right to life into Article 13. In Sriyani Silva v.

Iddamalgoda29 a widow alleging that her husband had been tortured filed a fundamental rights application.

The Supreme Court held that although the right to life is not expressly recognized as a fundamental right, it is recognised in some provisions of the Fundamental Rights Chapter. Furthermore, the Supreme Court has used existing fundamental rights to give effect to several socio-economic rights.30 The Court has referred to many international human rights treaties and has attempted to streamline local human rights standards with Sri Lanka’s international obligations.

In addition to the Fundamental Rights Chapter, Article 27(2)(c) of the Constitution contains a specific guideline for the State to realise an adequate standard of living for all citizens, including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities. This guideline is part of the Directive Principles of State Policy and Fundamental Duties. The Directive Principles of State Policy are not expressly justifiable in a court of law but are intended to guide the state (Article 29 of the Constitution). Nonetheless, the Sri Lankan Supreme Court has used the Directive Principles to interpret and apply other, justifiable, provisions of the Constitution.

According to the Court, “the Directive Principles of State Policy shall guide Parliament, the President and the Cabinet of Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society. Hence the restriction added at the end in Article 29 should not detract from the noble aspirations and objectives contained in the Directive Principles of State Policy, lest they become as elusive as a mirage in the desert.�

The Sri Lankan courts have shown a positive attitude towards granting relief to the victims of human rights violations. It is hoped that the Sri Lankan courts will continue to interpret its Constitutional provisions in such a manner as to advance the right of every citizen to adequate housing.

Justiciability normally means two things. First, the ability of courts to apply a certain law to a certain situation. Second, the right of a person (or entity) to request that the court make such a ruling. This latter right is often called the right to have standing before the court or other similar body.

28

[2003] 2 Sri Lanka Law Reports 63.

29

Bulankulame v. Ministry of Interior Development [2000] 1 Sri Lanka Law Reports, p. 243.

30

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Appendix

Appendix II COHRE and UNOPS survey results in Trincomalee and Batticaloa : The UNOPS research team conducted a total of 384 interviews: 192 among IDPs (displaced persons living in IDP camps, welfare centres or with host families), and 192 among returnees (displaced persons who had returned to their original locations or to an area close to their original locations). The average family size among the sample population was 4.28 persons per household. A total of 23.18% (89 families) of these families are single parent households, and 22.14% (85 families) of all families are female headed. Most interviewees were displaced following the resumption of hostilities in 2006. The majority of persons interviewed (61%) have a displacement history of 1- 3 years, and a significant number have been recurrently displaced for over 6 years.

The fact finding programme focused on the following broad areas; identification of losses affecting Housing, Land and Property Restitution (HLPR); administrative procedures, such as the registration of displaced persons; compensation for losses; housing standards, land and property rights and documentation, and information and participation. Among the losses that need to be redressed for adequate HLPR, are: loss by damage to housing, loss by looting, and loss by secondary occupation of houses.

With regards to loss by looting, the majority of IDPs were not aware that their homes have been looted or not. However, there is a high incidence of looting among the returnees during displacement from their homes. While there are procedures in place to report looting and to make claims for compensation, no compensation has been given on the basis of claims for looting.

The overall information gathered during the fact finding programme indicate that secondary occupation by the military is a significant issue in the East, especially for displaced persons who are now able to return to their homes and villages. There is very little procedure for overcoming and addressing difficulties resulting from such secondary occupation. While it may be necessary for the military to occupy private land and homes, the affected parties who are unable to occupy their homes, have little access to redress in the way of compensation and assistance.

Administrative procedures, such as the registration of IDPs, are insufficient to monitor a process of bringing displacement to an end. Once IDPs are ‘de – registered’ upon return, they are assumed to have resettled and in a fair way to establishing their former lives. In reality, many of the returnees continue to live in circumstances of displacement after return and are not in a position to fully utilize the assistance towards overcoming displacement, as most often, they do not receive timely and adequate assistance and compensation to achieve full restitution. Further, the living conditions of returness are not always in their own homes after return, and many returnees live in IDP sites or with host families long after return. Hence, it cannot be said that displaced persons have overcome displacement by the fact that they have returned are referred to as ‘resettled’. The provision of assistance alone may not be sufficient for the recovery and post return stage of resettlement, without an administrative process (an extension of the IDP registration possibly), which can monitor a process of restitution, and systematically restore housing, land and property to displaced persons.

The survey investigated the type of land rights displaced persons have in their areas of origin, and whether they have documentation to prove their rights over land and property. Among the survey population, the majority had some form of ownership and possession of land, and very few occupied land illegally. However, 35

Status of Housing, Land and Property Rights in Sri Lanka -

there is some confusion of the type of rights over land, among those who occupied State lands. Further, there is an apparent lack of importance placed on property rights documentation by both displaced persons and the relevant authorities entrusted with the duties of regularising land rights and implementing shelter and housing schemes. This is evidenced by the low number of people who have obtained copies of lost documentation (1%) and the relatively high number of people who do not have their documents with them (35%) among the sample. Most notably, many interviewees are unaware of the importance of property rights documentation, as illustrated by the high number of people who answered that obtaining copies was not important (32%).

IDPs and returnees can usually only access housing assistance if they have documentary evidence of property rights. Therefore, it is paramount that displaced persons, at all phases of displacement, have easy access to institutional assistance to replace lost documents or regularize any documentation that they might have. Furthermore, the high number of people who felt it was not important to replace documents indicates the need to raise awareness among the displaced population of the importance of property rights documentation and any supporting evidence in lieu of property rights documents.

Compensation for losses during displacement is another area of focus, which displaced persons have little information of. As illustrated by the survey, virtually all interviewees who suffered damage to their housing as a result of displacement think that they are legally entitled to receive compensation for these losses.

While both IDPs and returnees are aware that they are entitled to assistance/compensation, there is little information to indicate adequately ‘who’ is eligible for ‘what’. Among the returnees interviewed, only 3% of returnees in the Batticaloa District indicated the UAS (and the settling in allowance) as a factor that influenced their decision to return. Throughout the survey, interviewees indicated that information is hard to come by, often vague or inaccurate, and leaves them with no choice but to wait and see what is to follow. Most IDPs have sought information, while most returnees stated that they had not been in contact with authorities regarding the condition of their homes while still displaced.

Access to information needs to be given its due importance. If the displaced population in the East is to truly benefit from the development that has been planned for the East, they need to be given adequate information and genuine opportunities to participate in this process of development that impacts their lives. Giving people access to information is one step to ensure that they become part of the process, which would also lead to better ownership of the process and less frustration on the part of displaced persons.

Of considerable concern in the current socio-economic context of Sri Lanka is the lack of resources (and funding) to take forward the resettlement process into the development phase, including the restitution of adequate permanent houses for displaced persons. It is encouraging however that the Government of Sri Lanka has initiated a process to formulate a resettlement policy31 incorporating the return of and HLP restitution for conflict displaced persons. A policy that reflects the will and the commitment to follow a systematized process would be a positive step that precedes finding the means to accomplish its purpose.

The lack of financial resources does not negate the rights and entitlements of displaced persons affected by the conflict to have access to durable solutions to their displacement.

Successful return of refugees and internally-displaced persons is integral to peace and development in the Eastern Province. The data upon which this report is based shows how, where and why successful return is not taking place either in the Batticaloa or the Trincomalee District. Unclear land ownership, social and economic insecurity, and poor relationships with local government officials, the military and the police all need to be addressed in tangible ways above and beyond general lip-service.

Initiated by the Ministry of Resettlement and Disaster Relief, with coordination by the UNDP

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Appendix

Especially regarding available assistance, there is an apparent gap in information about available schemes of assistance and compensation and eligibility criteria for these schemes. This has the potential to create insecurity among the displaced and returning population. The lack of adequate information is an issue that is apparent in all the focus areas of the survey and fact finding programme. There is a need to make all relevant information available to both IDPs and Returnees by creating a process that involves the participation of those affected by displacement in decisions affecting their future.

There is currently an apparent lack of transparency about when and how reconstruction of housing will be implemented. While it is understood that reconstruction of housing in the East will take some time, the displaced and returning population needs to at least be informed about the plans that are being made and how they will benefit from them. Much of the frustration created by the current lack of information could be avoided by such measures.

Local authorities, who should be responsible for disseminating information to those displaced and returning, often seem to have little information themselves. This is perhaps the underlying reason why many interviewees stated that they were promised assistance, but that this assistance had not materialised at the time of the interview. It appears that local authorities simply pass on information that some assistance scheme is planned, but hold no further information on the details of those schemes themselves. While they are duty bearers, they need to be enabled by central Government to fulfil this duty by providing them with detailed information. Finally, access to information and participation needs to be understood as a right in itself, and treated as such, by properly integrating it into the process of return and restitution.

37

Status of Housing, Land and Property Rights in Sri Lanka -

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Status of Housing, Land and Property Rights in Sri Lanka -

Further Resources The ideas and strategies outlined in this booklet provide a beginning for helping to protect the people of Sri Lanka from housing rights violations. However, there are many more resources available. COHRE produces a wide range of global publications that can be accessed though our website at: www.cohre.org.

COHRE Sri Lanka Publications Reports An Introduction to Housing and Land Laws in Sri Lanka Providing Housing Security for Children after the Tsunami Inheritance Rights of Children in Sri Lanka Women and their Right to own Property Booklets Gender Sensitive Guidelines on Implementing the Tsunami Housing Policy Applying the Pinheiro Principles in Sri Lanka Guide to Types of Property Rights in Sri Lanka The Right to Adequate Housing in Sri Lanka The Legal Enforcement of Economic, Social and Cultural Rights in Sri Lanka Information Bulletins Housing Rights: Issue 1 Return and Restitution‌ Awaiting Peace?

Housing Rights: Issue 2 The Right to Return and Restitution of Internally Displaced Children Briefing Papers Issue 1-Revisitng the Concept of the Head of the Household Leaflets Everyone has the Right to Adequate Housing Including the Right to Return Seminar Report Housing and Property Restitution in Sri Lanka, Learning from Other Jurisdictions

COHRE Sri Lanka Resource Centre COHRE Sri Lanka’s office, located at 106 1/1 Horton Place, Colombo 7, also houses a comprehensive Resource Centre including domestic and international legal publications on housing, land and property rights.

The Resource Centre is open to the public Monday-Friday 10:00 am - 4:00 pm

Housing Rights for Everyone, Everywhere...

Funded by:

Centre on Housing R ig hts Evictions COHRE – Sri Lanka 106 1/1 Horton Place Colombo 7 Sri Lanka.

Tel: +94.11.2693143, +94.11.4852105 Fax: +94.11.2693143 Email: srilanka@cohre.org

www.cohre.org/srilanka

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