The conditions attached to ownership of State land are found in the Land Development Ordinance (LDO). Enacted in 1935, the LDO sets out a system to alienate State land to private individuals for the purpose of developing the land. This was done through land parcels distributed through permits and grants which have several conditions attached to it such as restrictions on sale and mortgage.

Despite its many shortcomings, the LDO can be credited for State-led development of smallholder farmers in Sri Lanka, who otherwise would not have had the capital to purchase private lands for cultivation.

Two campaigns to reform the LDO

Despite its uses, the LDO has been the subject of two popular campaigns seeking its reform. One is the campaign led by women highlighting the unequal inheritance rights of women, as the LDO gives primacy to male heirs in land inheritance.

A campaign has been carried out for more than two decades to amend this disparity and give equal status to ‘daughters’ as well as ‘sons,’ ‘granddaughters’ as well as ‘grandsons,’ and so on. This campaign has largely been led by women’s and land rights organisations and collectives, who see and experience first-hand the effects of unequal land inheritance.

The other campaign pushes for ‘freeing’ land title so that persons receiving lands from the State can use it or dispose of it as they please. This campaign, largely led by economists and think tanks ideologically aligned with neoliberal economic thinking, has a linear and simple argument – the land granted by the State is not ‘freehold’ land as the owner is not ‘free’ to sell, mortgage or dispose the land as she pleases. Despite farmers being severely indebted or not wanting to cultivate their land, they are unable to use their land as collateral to obtain loans or sell the land.

They further argue that due to population expansion, farmers subdivide their lands to smaller plots making the subdivided plots useless for sustainable agricultural production. Plots of unused lands which are thus perceived to be held by farmers who are ‘trapped’ in the system are termed as ‘dead capital,’ meaning that the land cannot be monetised or transacted in the market.

The campaign to grant ‘freedom’ to the farmer to utilise her land as she pleases hides several uncomfortable practical truths. Firstly, many of the arguments put forward about ‘trapped farmers’ with unused lands is a result of poor implementation of the LDO – the legislation grants ample powers to the State to revoke permits and in some instances cancel grants if the conditions attached to the land are not met. Advocating the State to better enforce the LDO would therefore be a simpler solution to ‘trapped’ farmers with unusable land, as opposed to unilaterally making State-distributed land freehold.

Second, the ‘freedom’ to mortgage one’s land is advocated in the context of farmers having unimaginable levels of debt. Exploitation by private rice mill owners, middlemen and financial institutions including micro finance companies lending money for exorbitant interest rates, as well as the increasing effects of climate change, have all contributed to farmers’ debt. This year, the debt situation of farmers will worsen due to the Government’s ‘green agriculture’ policy of abruptly banning chemical fertilisers, resulting in the depletion of yield and crop failure.

However, the myth that ‘free’ titles will result in better use for the farmer as well the State and contribute to productive use of State land have been debunked for a long time.

In a 2010 report, the United Nations Special Rapporteur on the right to food Olivier De Schutter stated that creating a ‘market for land rights’ may ‘have a series of undesirable consequences’ including favouring “not those who can make the most efficient use of land, but those who have access to capital and whose ability to purchase land is greatest”.

Schutter goes on to state that “the creation of a land rights market can cause land to be taken out of production in order to be held as an investment by speculators, resulting both in decreased productivity and in increased landlessness among the rural poor”.

The ‘freedom’ to mortgage as advocated by an elite circle of economists and think tanks is thus a decidedly coercive one, with the counterproductive effect of further increasing the vulnerability of the poor.

The LDO Amendment Bill 2021

It is amid these two campaigns that the Government gazetted a new LDO Amendment Bill on 27 December 2021. The LDO Amendment Bill appears at first glance to meet both campaign demands.

Its Clause 10 brings amendments to make devolution of State land title gender neutral by adopting gender neutral language such as ‘children,’ ‘grandchildren’ and so on. Clause 10 thus seems to give recognition to the decades-long demand by women’s groups for equal rights to inheritance. However, a closer reading of the Bill reveals that women’s rights are being used as a smokescreen to hide the realities of land dispossession the LDO Amendment Bill will engender if passed.

The Bill’s Clause 4 enables land permit holders to now mortgage a grant land without prior approval from the State. This wholesale embrace of the campaign to ‘free’ land from the hold of the State comes at a time when farmers sinking in debt are resorting to desperate measures, including taking their own lives.

In this context, the freedom to mortgage one’s land in the absence of any other policies by the State to ensure secure revenue for farmers will only lead to farmers losing their lands to banks, financial institutions, and large private corporations.

Land is the fundamental means of survival for a smallholder farmer. The freedom to mortgage given to a farmer sinking in debt only amounts to freedom to lose her land. Is the freedom to lose one’s only means of survival freedom at all?

When the Millennium Challenge Corporation Agreement was presented to Parliament under the previous Government, economic pundits aligned with the Sri Lanka Podujana Peramuna (SLPP) rightly pointed out the dangers of facilitating a process to privatise State land. Today they remain silent whilst the Government silently attempts to enact the same policies under the guise of promoting women’s equality, cheered on no doubt by neoliberal economists and think tanks.

However, if the LDO Amendment Bill is allowed to pass, the result will be the large-scale dispossession of lands belonging to small holder farmers, both men and women. It will be remembered as how the Government gave equal rights to women so that they have the equal freedom to lose their lands to banks and financial institutions.

Swasthika Arulingam is an Attorney-at-Law and a Member of the Liberation Movement, a left feminist political movement

Click here to subscribe to ESSF newsletters in English and/or French.