Do the provisions of law protect the right to equality ?

  • Who is the ‘Successor

Mahaweli Development Program was introduced in 1969 and implemented in 1970. In 1978 it was diverted as “Accelerated Mahaweli Development Program (AMDP)”. Under the Mahaweli Development Program, the government provided lands for the families, but they were not given a title for land. Under the state, they had only possession for the land. So, the owner of holding can’t sell those lands. Yet, owner of holding can nominate the successor to holdings.

According to that ‘Successor’ has been interpreted as, ‘…a person who is entitled under this chapter to succeed to that land or holding upon the death of the permit holder or owner thereof, if that permit holder or owner died leaving behind his or her spouse, upon the failure of that spouse to succeed to that land or holding or upon the death of that spouse.’

  • How it contradicts with the right to equality?

According to Land Development (Amendment) Act, No. 16 of 1969, ‘no person shall be nominated by the owner of a holding or a permit holder as his successor unless that person is the spouse of such owner or permit–holder as his successor unless that person is the spouse of such owner or permit holder, or belongs to one of the groups of relatives enumerated in rule 1 of the Third Schedule’. Accordingly, Third Schedule, rule 1(b) added, “Title to holding shall devolve on one only of the relatives of the permit holder or owner in the order of priority in which they are respectively mentioned in the table, the older being preferred to the younger where there are more relatives than one in any group.”

Its priority is given to elder son within a family. Further, it is added in Third Schedule, rule 1 table.  So, it clearly reflects conflict with the constitutional right to equality which is guaranteed by Article 12. As it is, (1) All persons are equal before the law and are entitled to the equal protection of the law. (2) No citizen shall be discriminated against on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any such grounds.

So, considering with above mentioned Third Schedule, the law itself creates inequality by giving priority to the older one and ‘son’. It causes various social, economical, cultural and legal issues. There are prima facie human rights violations and many legal issues. Discrimination against sex, Discriminate within elder, younger in family, Violation of right to land and Violation of self-dignity, Violation of matrimonial right to inherent property and Violation of right to inherit

  • Discrimination against sex

Many of women in the area suffering from the law. Female usually couldn’t succeed to lands as they marry someone and go with him. Not stay in the home. Yet, there are some widows, and even husband also don’t have lands. In such situation discriminating them based on sex is make huge inequality. According to Article 12, all persons are equal before law together with entitle to have equal protection under the law. Not only that but also Sri Lanka has ratified ICCPR and ICESCR. Those conventions mainly added even in the preamble non-discrimination based on sex.  Similarly, in ICCPR Act, No. 56 of 2007, Section 2 also affirms that equal before the law. Yet, mainly the Section 26 and Section 43 of the (Amendment) Act are prima facie have given priority to ‘older Son’ in a family which is against to this fundamental right to equality.

Also, Sri Lanka has signed CEDAW on 17th July of 1990. It affirms equal rights and dignity for men and women. Section 2 of the convention added that state parties agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women. So, Article 12 (2) and (4) can consider as such protection for women to prevent from discrimination based on sex. But, with the restriction on the nomination of the successor in Mahaweli zone that constitutional safeguards are not practical. Some women were ousted home by elder son due to the law has given unlimited power to him succeed over ownership of property. Sometimes elder son may be the younger child in a family. Though there are elder daughters in family power over to succeed to land has given to that younger son in the family. law consider he as elder son in the family. it does not matter there are elder daughters in the family. It’s like patriarchy view of the law.

  • Discrimination based on the order of birth.

There’s a discrimination based on the order of birth. Though there is no sex-based discrimination, there are issues regarding succeed to lands among male children as well. Due to the amount of land are reducing and the population is increasing those land issues are continuously arising. Some older sons are in the family living outside the Mahaweli zone, even outside the country. They may have landed outside the Mahaweli zone. Yet, younger children can be poor and unemployed. Yet, without considering them older son can transfer that land to someone. With the law, the older son can be the powerful one in the family. Though spouse survives as he or she has life interest only, survive spouse also cannot against to the decision of the elder son.

  • Conclusion

So, the law regarding the nomination of the successor has created a lot of issues in the zone. family issues are increasing in the zone day by day due to the law. Members of the family fight against for land. Killing and injure each other, duress over each other, landless people, non-permission residences, litigations over siblings. So, many of them are suffering from the law.

Though the fundamental right to equality is violating, Mahaweli zone people cannot go to Supreme Court to get an order of writ against their siblings. As it cites in the Article 126 of the constitution that violation shall be done by the administrative or executives. Anyhow, if some discrimination had happened by the Mahaweli authority then one can go Supreme Court by saying Fundamental Rights violation. Issues regarding Land Development Ordinance have to file in High Courts in Central Government to get an order of writ. So, when disputes arise they used to go Mahaweli office in the area. Those authorities tried to establish justice. Yet, practically there’s no fair hearing procedure. So, bias can be affected the decision made by the authority. So that procedure also cannot success to resolve those issues. Access to justice is far away from the Mahaweli zone residence people.

Though existing law creates huge discriminations and legal issues in the Mahaweli zone, Authorities do not take these issues as serious. Issus regarding lands are unlimited in the area. So, that may be the reason for unamended the law. Anyhow considering Hansard reports though there were debates regarding Ordinance and Amendments, their main concern had not directly moved to this restriction on the nomination of the successor. Even nowadays there are no successful debate or even mention these issues in the parliament. Though there was Bill in parliament to amend special priority has given to elder one by the Third Schedule, rule 1 that attempt also was not succeed.

Mahaweli Development Program covered a large part of the territory in Sri Lanka. Currently, settlers of this program and their generations may be their coming generations continuously become victims of this restriction on the nomination of the successor under the Land Development (Amendment) Act No 16 of 1969. So, many of officials and people lived in the zone ask to amend  the law.

  • Recommendation

The law regarding the nomination of the successor for a land has to be amended as such.

  1. It has to remove the priority table.
  2. The procedure of the succession inherent property which is mention in Matrimonial Rights and Inheritance Ordinance No 18 of 1923. According to the Ordinance, Section 22 and Section 23, half of intestate property of descended person goes to his surviving spouse and another half of property divided equally among children.

 

 

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