Colombo Telegraph

Colonization Schemes: What Did The B-C Pact Say?

By R.  Sampanthan

R Sampanthan MP

I am happy to follow the Minister, the Hon. Janaka Bandara Tennakoon, who, I think, in the course of his statement referred to the multifarious problems that exist in the North and the East pertaining to State land. I will be dealing with some of these issues in the course of my speech.

Lands, Sir, is a fundamental issue. It has  enormous influence on vital aspects of human activity and it is crucial, particularly from the point of view of the affected people, like persons displaced during the war and so on. There are private lands. Large extents of private lands are to be acquired by the Government in both the North and the East. The owners are opposed to such acquisition. These are lands on which these people have lived for generations and centuries. People have gone to court in regard to this matter and the Government has given certain commitments to court on this question. But, unfortunately, those commitments have not been kept. In fact I have raised some of the issues in Parliament and I have been given some commitments on the Floor of this House, but unfortunately, even those commitments are not being kept.

There are substantial lands held on permits issued by the State. There are lands possessed by people over long periods of time for which they have not been issued permits because Governmental machinery has not functioned in some of these areas efficiently for a long period of time. No land kachcheries have been held. Necessary action was not taken by Government to give land to landless people. These people are landless people and are entitled to receive land. There is documentary proof of the fact that they have cultivated those lands or lived on those lands. There is what is known as the “Dappu” entered in regard to paddy fields. There are also other documents with Local Government officials to establish that people have possessed these lands. It is necessary that all these people must be given those lands. It is also necessary that a vast number of people who do not have lands are also given lands to enable them to live on such lands and to cultivate such lands.

People were displaced, Sir, in large numbers both in the North and the East. Some have returned Some are unable to return because their lands, particularly agricultural lands, are unlawfully held by others. Those lands have been encroached upon, trespassed upon by other persons and are being held by those persons, largely new settlers from adjoining areas  in the East and in the North, such lands are held by the military.

There are also instances where persons are being brought from other areas to these lands in both the North and the East. These people have no means to survive unless they cultivate their agricultural land. In the matter of residence, those people who do not have land are unable to obtain any relief for the purpose of their residence because they must own a land before they can even build a house. So, these are matters that need to be attended to. But, unfortunately, the authorities are not resolving these issues. The people have complained to Divisional Secretaries, to land authorities, both at central and provincial levels. They have complained to the police and sought interference by the law-enforcement authorities, but there is no resolution. There appears to be a lack of will on the part of the authorities to resolve these issues in an effective manner. It appears that in some instances such delay is deliberate. Land should be restored to people who are entitled to such lands, and landless people must be given lands. There appears to be no definite arrangement to implement this responsibility. This is beneficial to people who are unlawfully possessing such lands. It gravely affects the displaced people who want to return, and the landless people who are entitled to State land and want to receive land. These people can resume normal lives only when this issue is resolved in a just manner.

The implementation of impartial land dispute resolution mechanisms is one of the components in the Resolutions adopted by the UN Human Rights Council in 2012 and 2013, which the Sri Lankan Government had been called upon to implement. That is no mechanism whatever to resolve such land issues. The position is only getting worse by the day. People are suffering immensely. In some so-called welfare centres, people are living in squalid conditions. I am sorry to state that the Government is insensitive to this situation. In some areas, high officials want people to suffer because the people want to be resettled on the lands from which they were displaced and are not willing to comply with the directions of the  officials in regard to the area of resettlement. This applies to particularly the Sampur area in the Trincomalee District. People have been deprived of their dry rations; people have been made to starve. There is a retired military official who is retained as Government Agent in Trincomalee for more than seven years. I wish to pose the question whether he is being retained to implement such programmes. Such a long term for a government agent is not heard of in public service. The Governor of the Eastern Province against whom the previous provincial government resolved that he should be removed, the Cabinet of Ministers unanimously resolved that he should be removed and wrote to the President but he is not being removed and his term has been extended and he has been given a fresh term.

Why are these things being done? The general impression is that it is these persons who are creating obstruction in regard to the resettlement of these people on the lands from which they were displaced. A reasonable resolution in regard to disputes pertaining to land is fundamental for reconciliation. There can be no reconciliation unless disputes pertaining to lands are settled reasonably. Reasonable resolution of issues, particularly power pertaining to land, are also inextricably linked to the evolution of a reasonable political solution.

I would like to trace, Sir, the history of this issue. I would first like to refer to the Bandaranaike-Chelvanayakam Pact signed on the 26th of July, 1957. What did the Pact say with regard to Colonization Schemes? This is what the Pact contained. I quote:

“(F) It was agreed that in the matter of colonisation schemes the powers of the Regional Councils shall include the power to select allottees to whom lands within their area of authority shall be alienated and also power to select personnel to be employed for work on such schemes. The position regarding the area at present administered by the Gal Oya Board in this matter requires consideration”.

That is because at that point of time, a substantial number of people from outside had been settled in that area administered by the Gal Oya Development Board. But, other than that area, in the Northern and Eastern Provinces, this was to be the position.

Then, we had the Dudley Senanayake-Chelvanayakam Pact, Sir, which was signed on the 24th of March, 1965 and this is what the Pact stated in regard to State lands. I quote:

“4. The Land Development Ordinance will be amended to provide that citizens of Ceylon be entitled to the allotment of land under the Ordinance.

Mr. Senanayake further agreed that in the granting of land under colonization schemes the following priorities be observed in the Northern and Eastern provinces.

(a) Land in the Northern and Eastern Provinces should in the first instance be granted to landless persons in the district.

(b) Secondly, to Tamil-speaking persons resident in the northern and eastern provinces.

(c) Thirdly, to other citizens in Ceylon, preference being given to Tamil citizens resident in the rest of the Island.”

That was the Pact signed with Mr. Dudley Senanayake. Two of the tallest leaders, Mr. S.W.R.D. Bandaranaike and Mr. Dudley Senanayake who served this country, signed these Pacts along with the undisputed leader of the Tamil people, the late Mr. S.J.V. Chelvanayakam, in their capacity as Prime Ministers of this country. Their idea was that the territorial identity of minority peoples, who preponderantly occupied the Northern and Eastern Provinces, must be preserved.

That is because they felt that such an arrangement was fundamental to ethnic peace and harmony. Unfortunately, Sir, that matter was not implemented and I think that has been the primary cause for the conflict, which everyone in this country has faced for several decades.

I might mention, Sir, – I do not want to be misunderstood – that when the country attained Independence in 1947, not a single Member of Parliament from the majority community was elected in the Eastern Province.  But, today we have five Members of Parliament who have been elected from the majority community in the Eastern Province.  That is because the thinking of both Mr. S.W.R.D. Bandaranaike and Mr. Dudley Senanayake has not been implemented.  I might mention, Mr. Deputy Chairman, that between 1947 and 1981, while the natural increase in the Sinhala population in the whole country was 238 per cent,  the Sinhalese population in the Eastern Province increased by 883 per cent.  In other words, the natural increase of the Sinhalese population in the whole country was less than two and a half times between 1947 and 1981, but, in the same period, the increase in the Sinhalese population in the Eastern Province was almost nine times.  Those facts, Sir, speak for themselves and clearly indicate how unjust this question of allocation of land has been.

Then, we come to the Thirteenth Amendment to the Constitution, Sir, which was the next step in regard to State land.  Item 18 of the Provincial Council List says, I quote:

“Land, – Land, that is to say, rights in or over land, land tenure, transfer and alienation of land,  land use, land settlement and land improvement, to the extent set out in Appendix II.”

That is the land power given to Provinces in regard to State land.

Appendix II states, I quote:

“State land shall continue to vest in the Republic and may be disposed of in accordance with Article 33(d) and written law governing the matter.

Subject as aforesaid, land shall be a Provincial Council Subject ….”

I repeat,

“Subject as aforesaid, land shall be a Provincial Council Subject, subject to the following special provisions:-”

There were certain special Provisions made in regard to that matter.

Land was also referred to, Sir, in the Reserved List II in the Thirteenth Amendment to the Constitution which states, on the question of land, I quote:

“… State Lands and Foreshore, Except to the Extent Specified in Item 18 of List I.”

In other words, that is, except to the extent specified in Item 18 of the Provincial Council List.

So, the power devolved on Provincial Councils in regard to State land was to remain.  I lay emphasis on this matter, Sir, on account of certain developments that have taken place recently.

So, even under the Thirteenth Amendment to the Constitution, Sir, you would see that there was power given to Provincial Councils over State land however limited or inadequate such power maybe.

Then, from there, Sir, we move on to the Constitutional proposals of former President Chandrika Bandaranaike Kumaratunga. I would first briefly refer to the proposals that she placed before the country in 1995 on Land and Land Settlement. Paragraph 4.1 of the proposals states, I quote:

“ 4.1  Land will be a devolved subject and State land within a region will be vested in the Regional Councils. State land within a Region required for the purposes of the Centre in respect of a reserved subject may be utilized by the Centre in consultation with the relevant Regional Council in accordance with such procedures as may be established by law.

4.2  Priority in future land settlement schemes will be given to persons first of the district and then of the Region. “

These proposals of Madam Chandrika Bandaranaike Kumaratunga in 1995 were followed by the Constitutional proposals she placed before Parliament in 2000. What is stated under Chapter XVI pertaining to land is as follows. I quote:

“143(2) The Centre and the Regions shall succeed to such State land at the commencement of the Constitution in the manner hereinafter            provided and shall hold such State land in the name of the Republic. “

The next paragraph states further, I quote:

“(3) (a) The Centre shall succeed to State land controlled or used, in relation to subjects and functions enumerated in the Reserved List, by the Central Government, its institutions or any public corporation at the commencement of the Constitution. ”

Then, Paragraph 5 states, I quote:

(5) Every Region shall succeed to all other State land within the Region and such State land shall, subject to –

(a) The rights enjoyed, immediately prior to the commencement of the Constitution, by any person in lawful possession or occupation, immediately prior to the commencement of the Constitution, of any such land;  and

(b) be at the disposal of the Regional Administration of that Region for the purposes set out in the Regional List, and the Regional Administration shall be entitled to exercise rights in or over such land, including land tenure, transfer and alienation of land, land use, land settlement and land improvement, in accordance with applicable written law.

(6) (a) Where the Central Government is satisfied that State land in a Region is required  for the purpose of a subject in the Reserved List, the Central Government may, after consultation with the relevant Regional Administration, require the Regional Administration to make available to the Central Government or to such public authority as the Central Government may specify, such land as may reasonably be required for such purpose and the Regional Administration shall comply with such requirement.”

Further, Sir, on the question of priority it states, I quote:

“(8) Priority in land settlement schemes after the commencement of the Constitution shall be accorded first to landless persons of any sub-division, recognized by law, of a District, then to landless persons of the District and then to persons of the Region.”

That is what Madam Chandrika Bandaranaike Kumaratunga’s proposals stated, both in 1995 and 2000.

What is significant about this proposal, Sir, is that President Mahinda Rajapaksa was a Member of President Chandrika Bandaranaike Kumaratunga’s Cabinet of Ministers and was a party to this proposal. That was definitely the position of the Sri Lanka Freedom Party and all its progressive alliance partners.

I am confident that this continues be their position even today. In fact, President Mahinda Rajapaksa, when he addressed the inaugural meeting of the APRC and the Committee of Experts in 2006, wanted them to study all earlier proposals starting with the Bandaranaike-Chelvanayakam Pact and the patterns of power-sharing in other countries the world over. Land is always a regional or state subject in every other country.

The majority of the Committee of Experts came up with their report on State land and their position is very clear. The majority of the Committee of Experts appointed by President Mahinda Rajapaksa and guided by him in his inaugural address at the first meeting, deliberated and came up with their proposals in regard to State land. It states in paragraph 17:1, I quote:

“The Centre shall succeed to State land controlled or used by the Central Government and its institutions in relation to subjects and functions in the National List at the commencement of the Constitution”.

Paragraph 17:2 states:

“Every Province shall succeed to all other State land within the Province, subject to the rights of persons in lawful possession or occupation of such land. A Provincial Government shall be entitled to exercise rights in or over such land, including land tenure, transfer and alienation of land, land use, land settlement and land improvement.”

That was the Report submitted by the majority of the Committee of Experts, eleven of them multiethnic in character, the majority of them being Sinhalese appointed as experts. This was done during President Mahinda Rajapaksa’s first term.

This matter had also been interpreted by the Supreme Court  in a series of cases over a period of time. I will not refer to all those cases but I will just refer to one case, the case in which the Hon. Vasudeva Nanayakkara was the Petitioner. A Court comprising of three Judges including the Chief Justice ruled in that matter. They referred to “Appendix II” of the Thirteenth Amendment to the Constitution.  I quote from that Judgement.

“Appendix II” in my view establishes an interactive legal regime in respect of State Land within a Province. Whilst the ultimate power of alienation and of making a disposition remains with the President, the exercise of the power would be subject to the conditions in Appendix II  being satisfied.

A pre-condition laid down in paragraph 1.3 is that an alienation or disposition of State land within a Province shall be done in terms of the applicable law only on the advice of the Provincial Council. The advice would be of the Board of Ministers communicated through the Governor. The Board of Ministers being responsible in this regard to the Provincial Council.”

So, Sir, that is the interpretation of the Supreme Court on the question of State land, that it is subject to an interactive regime where initially the action must be initiated by the Provincial Council, who will have to advise even the Central Government in regard to what needs to be done though the ultimate power of disposition of State land, that being property vested in the Republic, lies with the President.

After the alleged impeachment of the former Chief Justice, in my view only for the reason that she upheld the provisions of the Constitution pertaining to limited provincial autonomy,  it would appear that a view  inconsistent with the view expressed in the Vasudeva Nanayakkara case has been taken by a court headed by the new Chief Justice. This is a matter of grave concern for the reason that the Executive may totally disregard the provisions in the Thirteenth Amendment to the Constitution pertaining to the province’s power over State land, however inadequate and limited such power maybe in its present form. This would be inconsistent with not merely the line of judicial thinking that has hitherto prevailed but also the progressive political thinking that has developed in regard to provincial power over State land which has been enunciated by me earlier in the course of my speech. This has also to be viewed in the context of the clamour by some extremist forces that the provincial power over State land should be annulled. The recent developments make this issue a very tense issue in relation to the prospect of genuine reconciliation. Genuine reconciliation in such circumstances would become utterly impossible.

Sir, I wish to say a few words in regard to the provincial council arrangements. Provincial Council elections have been held in the Eastern and Northern Provincial Councils recently, in the Eastern Provincial Council last year and the Northern Provincial Council this year. Eleven out of the twelve Tamil Members elected to the Eastern Provincial Council were from the Tamil National Alliance and thirty of the total of thirty eight Members elected to the Northern Provincial Council were from the Tamil National Alliance. Of the eight other Members elected only three were Tamil Members. The democratic verdict of the Tamil people has been made abundantly clear by the decisions taken by the people in the North and the East at these elections. That verdict must be respected. It must be respected by the Central Government. It must also be respected by all the bureaucrats who ran the Northern Provincial Government before the elections. The democratic verdict of the people was also against that rule. In fact, some important persons who administered the Northern Province earlier, campaigned against the TNA on behalf of the present ruling party. I would submit Sir, respectfully that it would be ridiculous  to expect them to work with the Tamil National Alliance in a spirit of cooperation.

Pending the evolution of a reasonable, workable and durable political solution within the framework of a united undivided Sri Lanka which cannot be elusive for ever, we want to as successfully  as possible work the Provincial Council to ameliorate the pathetic plight of our people and also in the  interest of goodwill and harmony.

The Northern Provincial Council, to which elections were held on 21st September, has not yet taken off. I will on this  occasion, refrain from talking too much  about that because the Chief Minister of the Northern Province is interacting with  the Presidential Secretariat and we would like to see what the result of such interaction would be.

We expect that the verdict of  the people would be respected, that is the hallmark of democracy. If the Northern Provincial Council is not enabled to function effectively,  the holding of the Northern Provincial Council Election could only be regarded as a disingenuous exercise. Such a conclusion,  I respectfully submit Sir,   would be inevitable.

Before I conclude, there is one matter I want to refer to. There has been a letter written recently by the Secretary of the Presidential Task Force, one Mr. S.B Divaratne,  to Mr. Subinay Nandy, UN Resident/Humanitarian Coordinator.  I will read the letter, Sir. This is what it says:

“Dear Mr. Subinay,

Humanitarian Development Assistance to  the Northern Province.

This note is sent to you to confirm the involvement of the PTF in monitoring the above activities in the Northern Province as practiced in the previous years.

The procedure adopted by the PTF in relation to approval and monitoring of the above activities carried out for the benefit of  the resettled families  in the Northern Province remains unchanged. I would therefore, be grateful  if you would kindly  inform all heads of the UN Agencies and the Humanitarian Country Team to follow the same procedure for the year 2014 as well. The Monitoring through 3W Monitoring Tool will continue. The District Secretaries and the Divisional Secretaries have been informed to liaise  with the UN Agencies and the INGOs like in previous years in relation to such activities implemented in those Divisions.

Your cooperation is appreciated.

Yours sincerely,

S.B. Divaratne

SecretaryPTF

Cc:

1.      Hon.  Governor,  Northern Province

2.      Chief Secretary

3.      All GA’s/ District Secretaries  – for compliance and  to keep the  Divisional Secretaries  informed

4.      All SF  Commanders.”

No copy to the Chief Minister of the Northern Province, a  person who has been elected  most convincingly  by the people of the Northern Province to look after their affairs. This is in regard to relief and rehabilitation. Social Services and Rehabilitation which are item 7 in both the Provincial List and the Concurrent List of the  Thirteenth Amendment to the Constitution which comes under the jurisdiction of the Provincial Council but this gentleman writes to various people ignoring  the Chief Minister, not even a copy to be sent   to the Chief Minister. What does this indicate, Sir? These are functions clearly within the purview of the Provincial Council. What is the motive behind this letter? Is it to prevent the Provincial Council becoming functional?

Is it hubris on the part of an individual who writes this letter, who imagines that the verdict of the people in the North can be discarded and rejected and that he can do what he likes? Or is it that a sense of impunity induces him to think that the bureaucracy can do whatever they want? What is the purpose of the Northern Provincial Council Election being held and a Chief Minister being elected by the people if, after the Election is held, this type of letter is going to be sent in regard to work pertaining to relief, rehabilitation and services to the affected people, the displaced people?  These are the questions, Sir, that we want to pose. It appears to me that if this be the trend, that is not a happy augury. I refrain from posing that question, whether this letter is indicative of Government policy, in view of the fact that the Chief Minister has been interacting with the Presidential Secretariat and that we expect that through such interaction, the Provincial Council will be able to function effectively. But, it is a matter that is relevant, that such a letter has gone out at this crucial time.

I remember, Sir, when I was in Jaffna during the course of the election campaign, I read a statement made by the Hon. Basil Rajapaksa – the powerful Minister of Economic Development in this country – that once the election was over, the programme known as “Uthuru Wasanthaya” would be handed over to the Northern Provincial Council. Has that been done? Can anyone please tell me? If the TNA had not won, it may have been done. What happens to the “Uthuru Wasanthaya” programme now? Are you prepared to hand over that programme to the Northern Provincial Council in keeping with the commitment you made publicly at the time of the election and enable the Provincial Council to function?

Before I conclude, Sir, I think it will be relevant for me to read just one paragraph of the Report that had been released just a few days ago by the UN Special Rapporteur on the Human Rights of Internally Displaced Persons. While being in Sri Lanka recently, he visited the Northern Province and met with a large number of people. This is what he says in his Report. I will read just one paragraph, Sir, before I conclude. It states, I quote:

“Key issues to address include protection of the physical integrity and bodily autonomy of women and girls and their reproductive rights, of children, feasible access to land, and a proportionate balance between justifiable military concerns of national security and freedom of movement and choice of place for IDPS seeking to return to their original places of residence. Transparent information on plans to release land currently under military control and withdrawal of the military from all civilian functions would help to find durable solutions for people in conflict-affected areas. While significant numbers of IDPs secured their residential plots of land, some still need access to their original farmland or fishing areas to sustain their livelihood. Displaced and resettled communities seem to remain vulnerable to recurrent shocks. Their situation is exacerbated by growing food-insecurity and indebtedness in the Northern Province, partly due to the lack of sustainable livelihood opportunities. “The situation of single female headed households and of orphan girls is particularly preoccupying.

නියෝජ්‍ය සභාපතිතුමා

(பிரதித் தவிசாளர் அவர்கள்)

(The Deputy Chairman)

Order, please! Hon. Sampanthan, you have only two more minutes.

ගරු ආර්. සම්පන්දන් මහතා

(மாண்புமிகு ஆர். சம்பந்தன்)

(The Hon.  R.  Sampanthan)

I am finishing up, Sir. It further states, I quote:

“While some received assistance to rebuild their houses, others live in extreme poverty, without adequate access to services and livelihood,” added Mr. Beyani.”, the Special Rapporteur on the Human Rights of Internally Displaced Persons.

Sir, we have raised some fundamental questions today, particularly on the question of State land and on the question of the functioning of the Northern Provincial Council. Mr. Beyani has also raised questions in regard to the security of females in the Northern Province and the right of persons to livelihood.

We seldom receive an answer from the Government in regard to the questions we raise.  I am grateful that I have not been interrupted today; I am thankful for that. But, we would expect the Government to respond to our questions and let the people of this country know what is happening.

I thank you, Sir.

*Parliamentary speech by TNA Leader, R.  Sampanthan on December 14, 2013

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