By Sarath N. Silva –
The recent decision of the Supreme Court, coming in the wake of the first ever election to the Northern Provincial Council, has aroused much concern and mixed reaction that it is in the public interest to make with due respect to the court, a realistic analysis of its content.
The appeal to the Supreme Court stems from an application filed by Solamuthu Rasu, a workman in a tea estate, before the Provincial High Court of the Central Province, seeking a writ of Certiorari to quash a notice to quit issued on him purportedly under the State Lands (Recovery of Possession) Act. The land from which he is to be evicted is described in the notice as a portion to Stafford Division of the Ragala Estate.
Rasu claims that he was an employee of the Estate, which vested in the Land Reform Commission in 1975 and that he was allocated the plot of land in question in about 1980 under a scheme of providing workmen with a means of income. He cleared the land which was undeveloped and has been cultivating it since then. On March 12, 1982 the Minister vested the Ragala Estate in the J. E. D. B. which was established under the State Agricultural Corporation Act. The new management sought to eject him from the land and a proceeding was instituted in the Primary/Magistrates Court of Nuwara Eliya under section 66 of the Primary Court Procedure Act. The court made order in favour of Rasu and directed that he could remain in possession until evicted upon an order of a Civil Court. No such case was filed against him.
In 1992, there was another change of management and the business of the Ragala Estate was taken over by a Public Company viz Mathurata Plantation Ltd in terms of an order under Act No 23 of 1987. Subsequently this company was privatised. Several years later the 2nd Appellant before the Supreme Court described as a “Consultant/Plantation Expert” acting apparently on a resolution of the JEDB purported to issue a notice to quit on Rasu, the validity of which he challenged in the application to the High Court. It appears that although the functions and the business of the JEDB had been taken over by the Plantation Company on the order referred above, there remains an insidious and highly questionable practice of recovering possession of land claimed by the company through the summary procedure in the State Lands (Recovery of Possession) Act in the Magistrate Court without going through a regular civil action in the District Court.
It is regretted, with respect, that the Supreme Court has failed to take into account or even to mention any of the facts referred to above which could have been gleaned from documents filed in the relevant proceedings. Such an inquiry was required since Rasu had challenged the entire process of ejecting him from the land he was cultivating from 1980 by the purported recourse to the summary procedure in the State Lands (Recovery Possession) Act.
The “Plantation Expert and the Superintendent of the Stafford Division who were cited by Rasu as Respondents objected to the jurisdiction of the High Court on the basis that the land in question in “State Land” which is not a matter set out in the Provincial Council list of the 13th Amendment. The High Court upheld the objection and dismissed the application. Rasu appealed to the Court of Appeal which reversed the decision of the High Court and held that the Court had the jurisdiction to entertain Rasu’s application. Then the Plantation Expert, the Superintendent of the estate and the Attorney General appealed to the Supreme Court which by the said decision overruled the Court of Appeal and restored the order of the High Court dismissing Rasu’s application. The net result of the copious interpretation of the 13th Amendment and the powers relating to “State Land” undertaken by the Chief Justice in his judgment is that Rasu will now be evicted summarily from the land he was cultivating from 1980.
The first point I wish to raise in this analysis with due respect is that the Chief Justice in his judgment failed to examine the basic issue whether the land in respect of which Rasu filed his application is “State Land” in terms of the Constitution. Any interpretation of the Constitution being the Supreme Law of the Republic has to be done in the context of the Constitution itself and no other. The phrase “State Land” appeared firstly in the Constitution in Appendix II of list 1 (Provincial Council List) in the 13th Amendment. According to its provisions “State Land” has two attributes;
(i) It is land vested in, meaning owned by, the Republic and,
(ii) which may be disposed of by the President in accordance with Article 33 (d), contained in the provisions setting out the President’s powers and functions, in accordance with written law governing the matter.
It is manifest from the matters stated above, which do not feature in the judgment, that the land claimed by Rasu does not come within any of these attributes. The land which was privately owned, vested in the LRC, then the JEDB and then passed to the control of a public company shares of which are traded in the Stock Exchange. The President never had power under the Constitution to dispose of that land.
It appears that the Chief Justice has mistakenly assumed that the land in question is “State Land” from the reference to the State Lands (Recovery of possession) Act. But any such misapprehension could have been cleared by an examination of the provisions of that Act, which too has not been done in the judgment.
The Act, contains a summary procedure (Without a trial) to recover possession of state land. Section 18 of the Act contains an interpretation clause which provides that state land means the land to which the state is lawfully entitled to or disposed of by the state (which would be state land within the meaning of the Constitution) and includes land of various Corporation and Boards. However the opening words of section 18 specifically states that this interpretation is restricted only to that Act. It would be preposterous to assume that the extended meaning given to the phrase “State Land” in that Act would apply to the phrase “State Land” in the Constitution. Thus it is seen that the land in respect of which Rasu filed his application is not “State Land” within the meaning of the 13th Amendment and with due respect, the deep foray of the Chief Justice to the gamut of provisions in the 13th Amendment regarding “state land” is without a basis. The purpose of a judgment is to apply the law to the facts of a case. To use the words of Chief Justice Abrahams, the Court is not an ‘Academy of law’ where an exposition of law is done to expand the base of knowledge.
The 13th Amendment has three sets of provisions on the subject of land including rivers, waterways, foreshore, maritime zones and the like. Whilst it provides a delineation of the respective powers and functions that are reserved to the Government on the one hand and devolved to the Provincial Councils on the other, it provides for consultation, the need to seek advice and so on demonstrating the intention of the Constitution that they be implemented on the basis of consensus and harmony for the benefit of the people of Sri Lanka who are the ultimate repositories of power in terms of Article 3 of the Constitution.
The role of the court in any scheme of devolution of power is that of an arbiter, to decide on any particular dispute or question that has arisen. The Court should not endevour to lay out a roadmap for the implementation of the respective powers since it may disturb the harmony and the process of giving and taking that would evolve in keeping with the intention of the consultation in the course of such implementation.
Be that as may. What of Rasu’s land? Where if any does it fall in the scheme of the 13th Amendment?
The first in sequence of the three sets of provisions is items 18 in list 1 (Provincial Council list) which specifies “land” as a subject of Council. It elaborates the term “land” to encompass rights in and over land, land tenure, use, settlement, improvement and so on subject to the extent set out in Appendix II to that list. This Appendix is titled “Land and Land Settlement”. It states specifically that “Land shall be a Provincial Council subject”, except for the overriding reservation that state land shall continue to vest in the Republic and may be disposed of by the President in terms of Article 33 (d) and applicable written law and further subject to the special provisions in paragraphs 1 and 2, Paragraph 1 providing for the use of State land within a province by the Government for its functions on the one hand and the Provincial Council for its functions on the other and for the alienation of state land within a Province by the President. Paragraph 2 is special provision with regard to Inter-Provincial Irrigation and Land Development Project. The land which Rasu is in possession is not excluded by any of the special provisions and as such would be a matter in the Provincial Council List in respect of which the High Court has the jurisdiction to issue a writ of certiorari. Is Rasu a victim of an injustice?
*This article appeared in the Daily Mirror
ilyasfazly / October 9, 2013
We can see where ‘ all the king’s horsemen and all the king’s men ‘ are heading. the learned are today a bunch of fools or stooges, the peace loving citizen is fodder to be trampled..only the shameless and greedy can survive today.where one belongs only one knows.
Dinuk / October 9, 2013
For once Sarath Silva has determined fairly that Rasu is a victim of injustice at the hands of the corrupt political stooge who is barking up the wrong tree here – the de facto CJ Mohan Peris. This case should go to Geneva as a test case of discrimination against Indian Origin Plantation Tamil community and the need for DELIMITATION and reform of the plantation sector so that people who live on the land may own the land they have developed – as elsewhere in the country.
Mohan Peris is clearly unfit to be CJ and has not only caused injustice to Rasu, he has also missed the bus and brought a political argument about devolution of land powers to a sector governed under the British Colonially instituted plantation sector re. rules of land alienation.
More importantly. there is a long history of discrimination against the impoverished plantation Tamil families who under the colonial racist plantation economy were slaves and serfs of the plantation company… They never had right to own the lands on which they slaved for generation. This slavery to the British tea economy became surfdom to the racist Sinhala state and JEDB companies after independence and nationalization of plantations. This judgement shows the continuing enslavement of this community and the need for reform and DELIMITATION of land so that plantation lands become villages that can access the same services as SInhala villages and need for reform of land ownership and tenure in the hill country plantation sector to reverse centuries of discrimination against Rasu’s community. This is a TEST CASE>
Dodo / October 9, 2013
India should take up this matter of discrimination against Indian Origin Tamils of Lanka…
Justinian / October 10, 2013
I find the reasonng from the former CJ abit strange.
He says, “The net result of the copious interpretation of the 13th Amendment by the Chief Justice in his judgment is that Rasu will now be evicted summarily from the land he was cultivating from 1980.”
So is he saying that the current CJ should have gone on with the legal error to keep Rasu on the land he encroched in 1980?
What kind of ‘rule of law’ is that?
Sarath Silva made a gross error in this case and he should admit it ‘mea culpa’ style now instea of trying to pick holes in CJ’s judgement.
jansee / October 10, 2013
Did you really read the entire article? Your snapshot view smacks of ignorance. It is the current CJ (puppet CJ) who had erred in law in reciting a decision that clearly and contemptuously exposes his blatant regard for the law. It is he who has committed the legal error.
Justinian / October 10, 2013
If you represent ‘knowledge’, I would like to remain ‘ignorant’ you sicko.
shankar / October 12, 2013
“So is he saying that the current CJ should have gone on with the legal error to keep Rasu on the land he encroched in 1980?”
Justinian,you idiot,the land was not encroached on.It was given to him by the organisation at that time and he did all the hard work and cleared it up and has been cultivating and feeding the people.
Buggers like you will always trample the small guys and thank god you bastards lost control of the country little by little.
And even if you don’t understand what is encroachment because of your limited knowledge at least learn to spell it out correctly so that the delicate feminine gender who read don’t turn crimson with embarassment thinking you are referring to rasu’s crotch.
Ben Hurling / October 9, 2013
Please pay no attention to what this man has to say.
I used to believe he had a degree of dignity. I was wrong.
Rajapassa has bought him over with a Presidential Advisor position.
What he has to say has no value anymore.
Just a mouthpiece of anyone who is willing to pay for his services.
Ajith / October 9, 2013
Are you saying that you have to listen to the corrupted appointed Chief Justice to fulfill Gota’s laws to the constitution?
It is not about him but it is about the facts.
Kalupahana / October 9, 2013
This bugger must be hanged by his nuts in public.
What a fraud he is.
Batalanda Ranil / October 11, 2013
Hooray to that! This corrupt scoundrel is a cancer to Sri Lankan society. Perverse ideas, perverse decisions and perverse behavior.
Silly Ratwatte / October 13, 2013
Bundle him up and send him to Saudi Arabia for a public beheading.
Thiru / October 9, 2013
The constitution and the 13th amendment are not sacrosanct – they can be changed with 2/3rd majority in parliament the government has.
It is the will to change for an equitable constitution for all communities that we should be talking about. And that’s what is lacking.
People, especially Sinhala Buddhist writers, former CJ included, seem to consider the biased constitution as gospel. If this mind set doesn’t change we will be going round and round in vicious cycles.
Piranha / October 9, 2013
Is the Cheap Justice ignorant of the law and incompetent?
What of the other two judges who gave similar judgements? Are they ignorant and incompetent too or are they just following the Cheap Justice blindly?
The verdict had very important political consequences in regard to the 13th amendment and was the court’s decision due to pressure from the Rajapaksa regime? This is very likely and if so tumultuous times ahead for the NPC and the country.
Could Rasu challenge the decision?
genny / October 9, 2013
THis Cheep Justice is the one who made party cross overs possible whereby the collapse of our Parliment in which politicians jumping all over for money .
AYMAN / October 25, 2013
THIS IS THE BUGGER WHO IS RESPONSIBLE FOR THE CROSSOVERS, WHICH KEEPS
THE RAJAPAKSES IN POWER.
IF HE HAS SELF RESPECT, HE SHOULD HANG HIMSELF LIKE “JUDAS”
HE SHOULD DROWN HIMSELF IN THE DIYAWANNE SINCE THAT IS WHERE HE HAD HIS CLANDESTINE OUTINGS.
Me Muslim / October 9, 2013
Sarath N Silva has caused a Problem for ILMA International School made them walking from the main road just beaacuse of 2 unmarried Burger old f ladies whom loves Dogs. Bastard… this is a Problem of Budhism not a Sinhala Problem.. it is a SURVIVAL of FITTEST and SIYALU SATHWAYO means ALL ARE ANIMALS… this MF is an Ass Hole disgrace for Sri lanka
AYMAN / October 25, 2013
SARATH DID THIS TO PLEASE TWO RESIDENTS,WHO ARE TWO OF HIS KIND .
DOES HE NOT FEEL SORRY FOR THOSE CHILDREN WHO HAVE TO WALK AND STAND IN SUN AND RAIN.
HIS CHARACTER IS WELLKNOWN. HE AND SUDATH TALKING OF BUDDHISM ON TNL.
WHAT A JOKE?
chamara / October 9, 2013
Native Vedda / October 9, 2013
Sarath who was the Chief Justice presiding over the case brought by the MR’s former chums JVP in which he allowed the de-merger of North and East without hearing arguments from the other side.
Mahela / October 10, 2013
This is the crook who taught Rajapakse how to rob the country Legally.
Tsunami Scandal, Hedging Scandal,Greece bond, black money foreign accounts, Acquiring other people’s land and property calling them Buddhist Cultural heritage land near Buddhist Temples, and others calling High Security Zones etc,etc,
The absolute crook ruined Independence of Judiciary which is the most corrupted in the world, now calling for validation of 13th Amendment.
Only another Parippu drop to Araliya Gaha will solve the problem.
Park / October 9, 2013
Ah! Ah!! at last the present Cheap Justice’s decision has been challenged. This is a good beginning. The decision in Raju’s case has nothing to do with Raju, he is only a vehicle that was used by the present Cheap Justice to provide a “Rajapakse Regime likable” decision. Rajapakse Regime did not want to provide land rights to PCs so as usual illegal Cheap Justice of the day used Raju’s case to provide an order that would make sure that PCs under the 13th amendment will not have land rights. Nothing more and nothing less. Its time for TNA to first bring this to the notice of the President to provide a suitable amendment to the 13th amendment for the PCs to have the land rights or failing which, take this Raju’s case to United Nations and prove that the present Cheap Justice is not only Cheap but also his judgments are false and should not be recognized by any body in any part of the world.
Fathima Fukushima / October 9, 2013
Tamils have no dignity after losing the war.
They will go begging to anyone.
Lankan / October 9, 2013
Not as bad as Rauff Hakim, head of Muslim Congress!
PalmSquirrell / October 10, 2013
You really are like a broken record stuck in runt. You say the same thing over and over again in multiple threads.
TNA is not begging MR, instead it was TNA who insisted on taking the Oath from MR while the latter was not happy about it.
Fathima Fukushima / October 9, 2013
Even Sarath Fonseka! :)
justice / October 9, 2013
The de facto CJ’s bluff/faulty assumptions in favour of his master’s ‘government’ has been exposed by a former CJ,by reasoned argument,which is quite clear even to a layman.
Why so much hot air over ‘land powers’ which lay dormant for 25 years but resurrected only after the TNA’s victory in the NPC?
Now, the army seems to have total power over utilisation of not only state land,but also privately owned land in the so-called ‘high security zones’ and elsewhere,more than the state itself.
ilyasfazly / October 10, 2013
Today. the state machinery poses the questions and the issue and state’s entity provides the answers and the solutions. Justice is being steamrolled by the judiciary itself.
Dr.Rajasingham Narendran / October 9, 2013
Retired Chief Justice Sarath Silva has explained the legal aspects of this case quite well and has questioned the judgement in unmistakable language. The current Chief Justice was also nit picking with words such as ‘ Advice’ to undermine the land-related provisions in the 13th amendment. His verdict as I understood, was exceeding his mandate with reference to the case in question.
I have to thank the retired CJ for explaining matters in an understandable language. The recent convoluted judgement in this case was described in the media as being a ‘Landmark’ , where as in fact it appears to have been designed to be a ‘Landmine’ judgement.
I hope Rasu gets to stay and own his land, without ending up a victim of injustice.
Safa / October 9, 2013
Cheap Justice exposed. What has this case got to do with 13A? This is what happens when people become too small for their shoes. Dance to the tune of the masters.
yusibrahi / October 9, 2013
The former C.J. states “the purpose of a judgement is to apply the law to the facts of a case” I wonder whether he applied this principle when he delivered the judgement, that paved the way for members of Parliament from the opposition to cross over to the Govt without losing the seat.
Mahela / October 10, 2013
Many Indian Labourers that British too to East African, Southern African and Caribbean countries under it’s empire, today their descenders are Land owners, well to do businessmen, highly educated professionals, academics and politicians in those countries.
But in Sri Lanka the same Indian origin descenders are not given the opportunity to come up in life. They are still been branded as Indian coolies or foreigners living in the same old line houses.
Why the Racism and double standard.
According to the Law, if a tenant lives in the same rented house for over 25 years, they could not be evicted by force.
If so how come Rasu’s case is different.
These are the crook Law makers and politicians who cook up Law to suit their needs, greed and aspiration.
Also it is you Sarath N. Silva – Former Chief Justice who started to manipulate and cook up law to suit your friend President Rajapakse, acquitting him from many scandals, frauds and corruptions and now CJ Mohan Peiris is following your foot steps, thanks to your teaching, guidance and direction.
You cannot tell the baby crab to walk straight when the Papa crab walked side ways.
That’s why now Sri Lanka is fast heading towards the top 25 corrupt countries in the world.
Sri lanka would have been a heaven without corrupt,manipulation, greedy and selfish Lawmakers and Politicians.
Leave people alone. They are fed up with you crooks, racists and cowards.
Gandha Azwer / October 11, 2013
Thanks to Bathalawathies daughter ChandiBandi for giving us this gift of a bloody oversexed, immoral cad.