9 August, 2020

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SC Ruling Part 2: Battle Over Land Turns Into Battle Of The Chief Justices?

By Rajan Philips

Rajan Philips

In what seems to be becoming the battle of the Chief Justices, former Chief Justice Sarath Silva has publicly disputed the factual foundation of the so called landmark Supreme Court ruling whose main consequence might be to prop up political claims denying provincial powers over land.  One is left to wonder if Chief Justice Shirani Bandaranaike will also enter the fray.  As the only academic who vaulted to the bench, she might be better placed in adding to the knowledge of the law than delivering judicial opinions in op-ed articles.

Save for drawing some prurient satisfaction, the situation is really a sad state of affairs, and disgracefully so.  The three Heads of State who monkeyed with the judiciary, JR Jayewardene, Chandrika Kumaratunga and Mahinda Rajapaksa, have a lot to answer for.  JRJ is beyond answerability.  Will the conscience of the other two, their advisers and their appointees keep all of them restless at night? “Fat hopes”, whispers the realist.

What we can learn from this mess is that if the central government and the Provincial Councils are to discharge their obligations in using land for sustainable economic use and protecting it as an environmental resource, they have to turn to alternative policy, technical and administrative resources rather than turning to legal resources and the courts for interpreting the constitution.  If at all the constitution is a compass, not a road map; a weather vane, and not an agricultural tool.

From British times, elaborate mechanisms have been put in place for alienating land with a hierarchy of officials exercising legislatively assigned powers according to clear criteria. There was political interference and the system was not entirely foolproof against administrative malpractices.  But there were checks against them within the system, as well as parliamentary oversight and an independent court system as the final external arbiter.  The system worked.  We can debate, as I did last week, the economic benefits and the political fallout of the dry zone colonization project, but the project processes worked.  There was no need for a constant recourse to the constitution or the courts.

I do not think there was any reference to powers over land or land alienation in the Soulbury Constitution.  The only reference was in connection with provincial land areas for the purpose of electoral delimitation.  The Soulbury Constitution did not include any express provision for the granting or disposition of land by the Governor General.  That would not have prevented the Governor General from granting and disposing of lands in accordance with the law and on the advice of the Prime Minister speaking for the Cabinet of Ministers.  There is no express provision for presidential land grants in the American Constitution, but US Presidents have executed millions of land grants (patents) under specific Acts of Congress.

The 1972 Constitution included an express provision in Article 21 for the President of the Republic to execute “under the Public Seal grants and dispositions of such lands and immovable property vested in the Republic of Sri Lanka as may be lawfully granted by the President.”  The 1978 successor includes a similar provision in Article 33.  But the similarity ends there not only because of the Thirteenth Amendment that came later but also because of the political and policy purposes of the two constitutions as well as the completely different roles of the President under the two constitutions.

In the 1972 Constitution, the President was a ceremonial Head of State acting on the advice of the Prime Minister, the Head of Government, except in specific situations.  Further, the direction and emphasis of state policy in 1972 was more towards collective forms of ownership, production and distribution.  Land reform and nationalization of the estates became signature achievements of the Sirimavo Bandaranaike government.  Some called the estate nationalization a “highway robbery”, while, as it later transpired, the topmost government leaders transferred their land ownership to accomplices to avoid losing it to the state.

Head of State turned on its head

The 1978 Constitution turned everything on its head, making the President Head of State and Head of Government, and reversing state policy towards favouring privatization and dispossession of the state.  The lands taken over by the earlier government were ‘reprivatized’ not by returning to the previous owners but by granting it to someone else.  If the back and forth land swaps were at the root of Solaimuthu Rasu’s court battles, that fact would appear to have been overlooked in the Supreme Court ruling, according to ex-CJ Sarath Silva.

A different question is whether the 1978 Constitution gives the President extraordinary powers to execute “grants and dispositions of lands and immovable property vested in the Republic”, in contrast to the 1972 Constitution.  And whether these powers have come to mean a lot more by way of alienation of land by an individual state official (i.e. the President), than the normal practice of the President, as Head of State, putting the Public Seal on a paper that has come to his desk through all the hierarchy of checks and signoffs by state officials below him.

The question is all the more pertinent now that we have different judicial opinions as to whether the Thirteenth Amendment does or does not place a check on the President’s power for alienation or disposition of ‘State land’ by requiring prior advice of the relevant Provincial Council?  Is it that prior to 1  3A, the President could have exercised unrestricted powers in giving away state land?  And does it mean now that by virtue of the missing word ‘only’ in 13A (Paragraph 1.3, Appendix II, Ninth Schedule) the constitution enables the President to give away state land carte blanche for a casino or whatever?

The Thirteenth Amendment came into being, however controversially, to serve a political purpose.  For over twenty five years many sections of the state machinery including the judiciary have acted on the basis of 13A and the understanding that land is a Provincial Council Subject within the overarching unitary framework.  No matter in which Province or under what Provincial Council the land is, it belongs to the Republic.  The Provinces are part of the Republic and not alien to it.

Therefore, it strains common understanding to have it suggested now that the ‘declaration’ that “land shall be a Provincial Council Subject” is “only explanatory of the purposes for which the Provincial Councils have been assigned with lands … (as) are evident in the special provisions 1.1, 1.2 and 1.3 of Appendix II.”  These provisions and the provisions relating to inter-provincial irrigation and land development are not the purposes of the Provincial Councils, but concomitant constraints on the two levels of government.  The purposes are what are set out in Paragraph 18 of the Provincial Council List.

These purposes, viz., land rights involving tenure, transfer, alienation, use, settlement and improvement have now been superseded by the pressures created by the wholesale usurpation of people’s properties as state land for security reasons.  Very soon the Supreme Court will hear petitions from property owners from the Northern Province, particularly Jaffna Peninsula, who have been evicted from, or denied repossession of their land for reasons that are a total violation of natural justice.  The courts or anyone else will be hard pressed to deal with this existential land problem without involving the newly elected Northern Provincial Council.

As well, in dealing with future land matters, one would hope that the courts will eschew “the brooding presence of the Republic”, and invoke instead, giving due regard for the dangling participle, a more compassionate presence of the Republic.  The Republic ought not to be brooding, or menacing, to its people wherever they are, and especially to the people of the North who are coming out of decades of war, destruction and isolation.

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