By Austin Fernando –
In his inaugural address at the India- Sri Lanka Consultation on Devolution on March 4th 1995, Prof GL Peiris emphasized the need to bear in mind five factors as basic and indispensable prerequisites for successful devolution.
I remember a Great in Sri Lankan Politics, Minister Lakshman Kadirgamar in attendance with Minister S. Thondaman at this meeting. They have departed, but the five factors, i.e. (1) Sincerity (2) Clarity (3) Cohesion (4) Enforceability and (5) Availability of adequate and viable machinery to enable conflict resolution, remain.
Quoting President’s Secretary Lalith Weeratunga, The Island reported (February 13th 2013) that the government was “still struggling to address land issues four years after the conclusion of the conflict in May 2009”. He added that in the post-war recovery process, the government was addressing the contentious issue in accordance with the recommendations made by the Lessons Learnt and Reconciliation Commission (LLRC). He gave an austere ray of hope for pro-devolutionists saying, “The government was mulling the possibility of appointing a Fourth Land Commission (4LC) to settle land issues.”
Recently in Geneva Prof GL Peiris has added, “The Terms of Reference (TORs) of 4LC are under preparation.” Compared with Weeratunga’s statement, “mulling the possibility” has been upgraded to active “preparation”.
From a different angle all this has international reiteration, because the 4LC was on clipboards many moons ago on July 26th 2012 in the National Action Plan (NPA) for implementing the LLRC Recommendations.
LLRC and NLC
I am not a lawyer, but irrespectively I may say that the LLRC Report has created subtle vagueness of constitutional provisions on State Land, i.e. regarding the NLC.
The relevant LLRC recommendation on the NLC says (page 278):
“9.150 The Commission is of view that the Government should expedite action on the establishment of a NLC in order to propose appropriate future national land policy guidelines. In formulating land policy the proposed NLC should include Guidelines for the equitable distribution of State land. The Commission regrets to note that although this is a requirement under the 13th Amendment, and a draft Bill has been framed, successive Governments have failed to get it passed through the Parliament.”
In the recommendation the principles of equity has gained highest value. Regarding state land equity is demanded by the peoples’ representatives of North and East, and, also in the South. The northern and eastern spokespersons complain that their land rights have been “confiscated” by the government. The southern spokespersons complain that southern land-hunger solutions (which were also considered relevant by the 1927 LC) and the potential use of a common national resource (even for national security as complained by Defense authorities) will be negated if Provinces enjoy land administration.
Compare this with the constitutional provision in Appendix II of the 13thAmendment.
“3:1 The Government of Sri Lanka (GOSL) shall establish a NLC which would be responsible for the formulation of national policy (NP) with regard to the use of State Land. The Commission will include representatives of all Provincial Councils in the Island.
The NLC’s functions according to Appendix II are:
- Formulation of NP for the use of State Land
- Establishment of a Technical Secretariat
- Ensure the NP is based on technical aspects
- Lay down general norms in regard to land use having regard to scientific factors.
- Tie the Provinces on State Land administration.
Hence, it is easy to identify the misinterpretation. While Appendix II mandatorily envisages “formulation of NP”, LLRC “wants the NLC to propose land policy guidelines. “The final output of the NLC differ if the LLRC interpretation is accepted, i.e. “policy guidelines” as against “NP”.
If the NLC requires “guidelines” they have to only turn on to Appendix II Sections 1 and 2. NLC need not reinvent the wheel. Section 1 clears the standing of State Land utilization and limitations placed on the Center and Provinces. Section 2 deals with the Inter-Provincial Irrigation and Land Development Projects and land utilization under them. Incidentally, the NPA has already said “distribution of State Land continues as provided for in the Constitution” confirming Appendix-II.
If the NLC output is to prepare policy guidelines, it will shift the responsibility for policy formulation elsewhere; e.g. to the Ministry of Lands, Cabinet, Executive President. It was unintended by Appendix II- 3:1. Why should the PC representatives be appointed (Appendix 3:1) to the NLC if the center is formulating the NP?
Presidential Commission vs. Institutionalized NLC
Even the identification tag is different- one, the 4LC and the other, the NLC. 4LC is a temporary exercise. Presidential Commissions are appointed under existing law, evidence heard, reports ceremoniously handed over, some not released to the public for unknown insidious reasons. The second is a permanent organization that should be established under legislation.
The reality is that once the LC finishes reporting, its Office will be closed. But the NLC will be continuing with a Technical Secretariat (Appendix 3:2), servicing the PCs (Appendix II- 3:3 and 3:4). LC Reports will be in the National Archives or filing cabinets while the NLC will be a living organization reviewing policies, legislation etc. on a technical base and amending and improving them.
Presidential Commission recommendations as stated are not always implemented. It applied to previous LCs and other Commissions too. For example, some worthy 1985 LC findings and recommendations have not been implemented up to now, e.g. establishment of a Watershed Management Authority and a Boundaries Commission which could be quoted as saving graces for sensitive environmental and political issues. Of course, important LC recommendations from 1927 LC have been the reason for the introduction of the Land Development Ordinance and the creation of the Land Commissioner’s Department.
Establishment of NLC
To appoint a 4LC the relevant law is the Presidential Commission of Inquiries Act. To appoint a NLC there is no legislation as yet, though previously attempted. The NLC Bill was presented to the Parliament by the Minister of Lands on July 21st 1992. It lapsed with the dissolution of the Parliament on June 24th 1994.
The LC 1929 Commissioners were the Attorney General, Solicitor General, and Controller of Revenue, Surveyor General, Settlement Officer and a selected lot of Members of the Legislature, appointed by AGM Fletcher, the Officer Administering the Government. The Draft Bill (1992) provided for the constitution of the Commission, powers and functions, staff, Technical Secretariat etc.
The Commissioners proposed in 1992 were the Secretaries of Lands, Agriculture, Plantations, Environment, six knowledgeable members appointed by the President and nine PC nominated Commissioners. Parliamentarians, Provincial Councilors and Local Authority Council Members were disqualified from being Commissioners in Section 3 (2) in the Draft Bill. Cohesion enabled. Enforceability assured.
However, it is believed that the negation in 1994 was due to unpreparedness to empower an institution run by bureaucrats and technocrats to make policies. The thinking probably had been that the all-knowing Cabinet should prepare the NP and political bias should prevail, which was annihilating constitutional intentions (Appendix II- 3:3). Mind you, this is the only place in Sri Lankan law/administration where NP formulation had been legally entrusted to an institution.
For the NLC to function the necessary technical capacity will be available through an established Technical Secretariat. Previously LCs obtained the services of existing departments and engaging Sub-Committees of the LC (e.g. LC 1927). Continuity of a NLC should be maintained through the Technical Secretariat. If the national land policy is to possess a scientific rationale irrespective of political and ethnic considerations (Appendix 3:3), recruiting the best and independent experts will be necessary.
The quoted statements made at foreign venues and the NAP might give mixed messages on the NP on State Land use. Diaspora and anti-GOSL groups will educate the internationals on the legality of these exercises. When the internationals hear of such mixed views in a constitution quandary, it is easy to be misled and criticize the GOSL. Hence, the need prevails still to make a clear stance on the constitutional provisions. Otherwise, the criticism that deception is the order will be made, quite deservingly.
When one considers the above mentioned juggling with terminologies one may question what portion of sincerity, clarity, cohesion, enforceability and mechanisms for conflict resolution remain in our state land use governance system.
Anyone wishing good luck to Reconciliation may find the value of these factors. Everyone irrespective of ethnicity, religion and other variables should uphold the values which Professor Peiris stood for nearly 20 years back, rather than to what he says now. I mean no disrespect to him.