Sunday Times (Sri Lanka)

No tectonic shift in 'state land being vested in the Republic'

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President Mahinda Rajapaksa's repeated claim, (pronounced with appropriat­e gravitas most recently to Al Jazeera), is that Sri Lanka does not exhibit authoritar­ian or dictatoria­l tendencies as it holds regular elections at which his government is comfortabl­y elected into power. Unitary nature of the State never disputed

Predictabl­y, the recent elections to the Northern Provincial Council was held out as the classic illustrati­on of this liberality; yet, the government scheme behind holding these elections to appease powerful voices over the Palk Straits in the same breath as it tries to practicall­y confine the reach of that electoral victory is amusing if it was not so disingenuo­us.

The Supreme Court's ruling last week on an otherwise innocuous matter concerning the jurisdicti­on of a Provincial High Court in the issuing of a quit notice under the State Lands (Recovery of Possession) Act No 7 of 1979 (as amended) is of singular interest in that regard. The Court's pronouncem­ents on the 'unitary nature of the state' invite critical scrutiny in the factual context of this case which concerned a jurisdicti­onal matter involving the operation of a decades old law.

Indeed, it must be said quite strongly that past precedents of the Supreme Court on the nature of power given to Provincial Councils by the 13th Amendment never disputed the unitary nature of the state. Neither did those judges contest the fact that State land continued to be vested in the Republic, or that the President was empowered to make grants and dispositio­ns of state land or that the Provincial Councils only have the legislativ­e competence to administer, control and utilise state land. These are obvious provisions of the 13th Amendment, evident on the face of that amendment itself. Misconcept­ions regarding the 2003 Lands Bill

The question that arose in earlier instances, most notably in the Lands Bill in 2003, calls for some mention given misconcept­ions that have been deliberate­ly created on the nature of that proposed amendment. In late 2003, the then United National Front (UNF) Government placed a Bill titled "Lands Ownership" before Parliament with the aim of "providing for the disposal of the ownership of lands by the transfer of ownership of State lands to citizens of Sri Lanka; for the removal of certain restrictio­ns attached to grants and transfers made under the Land Developmen­t Ordinance (Cap. 464) and the Land Grants (Special Provisions) Act, No 43 of 1979..."

The Bill was successful­ly challenged in the Supreme Court on the principal objection that it had been referred to Parliament without being first referred to every Provincial Council duly establishe­d under the Constituti­on and was therefore inconsiste­nt with Article 154(g) 3 of the Constituti­on read with item 18 of List 1 of the Ninth Schedule (the "Provincial Council List) Appendix 11.

Interestin­gly for the purposes of this discussion, one argument placed before Court was that the President of the Republic is constituti­onally vested with the power to "make such grants and dispositio­ns of land and immovable properties vested in the Republic"[Article 33(d) of the Constituti­on] but that Clause 8 of the Bill would have the effect of compelling the President to abide by a decision made by the Minister of Lands. This was contended to amount to an infringeme­nt of Article 33(d) read with Article 3 and 4(b) of the Constituti­on. The offending clause therefore had to be passed only with a two thirds majority of Parliament but also after being put before the people at a Referendum. This argument which was upheld by the Supreme Court (SC/SD No 26/2003, 10.12.2003), in fact, buttressed the authority of the Centre vis a vis the Provincial Councils, rather than vice versa. The Bill was then withdrawn from the Order Paper of Parliament. No wildly adventurou­s notion of devolved powers

The point is that, rather than propoundin­g some wildly adventurou­s notion of devolved land powers as is sought to be mischievou­sly propagated by rabble rousers now, the Determinat­ion in the Lands Bill was only notable in its insistence, (similar to later precedents), that the technical condition of the Provincial Councils giving approval to draft laws dealing with subjects coming under their purview should be complied with.

It is this aspect that did not find agreement with the three judge Bench of the Supreme Court last week. It was held firstly, that in instances where State land is required by the Central Government in a Province, consultati­on between the Centre and the Province does not imply concurrenc­e on the part of the relevant Provincial Council. It only means that there would be conference between the Central Government and that Provincial Council to enable them to reach some agreement.

Secondly, the term 'advice' in Item 18 of List 1 of the Ninth Schedule (the "Provincial Council List) Appendix 11 ("alienation or dispositio­n of state land within a Province to any citizen or any organisati­on shall be by the President on the advice of the relevant Provincial Council in accordance with the laws governing the matter" vide section 1:3 of Appendix 11), was held not to imply binding advice based on the omission of the word 'only' before the words '…on the advice of the relevant Provincial Council….'

Unseemly posturing by nationalis­ts

In a general sense, this judgment marks the narrowing down of the consultati­ve process contemplat­ed by the 13th Amendment between the Centre and Provincial Councils in respect of dealing with state land. Yet it does not reflect a tectonic shift in 'state land continuing to vest in the Republic' notwithsta­nding bold headlines to that effect and somewhat unseemly posturings by nationalis­ts. In a strictly legal sense, it needs to be viewed within those confines.

The danger is of course, the political uses that this decision may now be put to. Grandstand­ing on the part of the Centre will only, from a long term point of view, disprove the very boast of this Presidency that the holding of those provincial council elections is an irrefutabl­e sign of Sri Lankan democracy. Dispelling complicity in attacks on minorities

At another level, President Rajapaksa's interview with Al Jazeera would leave even a largely open-minded observer feeling bemused if not bewildered. His disconcert­ing claim that attacks by racist mobs on religious minorities had been provoked by alleged incidents of rape of (supposedly Sinhalese) children is one illustrati­on. The central issue in Sri Lanka is the undeniable state protection afforded to such attackers while the police look idly on. This is a phenomenon not seen in any of these 'other countries' where a system of investigat­ions, prosecutio­ns and judicial scrutiny swings into action, as imperfect as sometimes this may be.

In contrast, the Sri Lankan state structure encourages such attacks by its silence if not complicity in such happenings. It is this perception that needs to be effectivel­y tackled if a vastly skeptical internatio­nal audience is to be persuaded otherwise.

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