6 August, 2020

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The Constitution, Court, Cocker Spaniel And Colombian Haka Over Land (Part I)

By Rajan Philips

Rajan Philips

“It is a pity … the new constitution has all the marks of a hasty, slip-shod and flabby draft …” –   Dr. NM Perera, Critical Analysis

It is not just the constitution of 1978 that NM critically analysed when it was new and hot off the press, but even the thirteenth amendment that came ten years later reeks of  slip-shod and flabby drafting.  And nowhere more so than on the subject of land.  The Supreme Court ruling last week appears to be circumscribed by the flabbiness of the constitution and has led to different interpretations of what the Court ruling has said – whether the matter of land is a Provincial Council or Central Government subject.  The ruling has inspired a haka dance among those who are not happy with the results of  the Northern Provincial Council election.  The political twist following the court ruling has once again targeted JR Jayewardene for over the top polemic abuse.  The former sphinx, the old fox, is now a cocker spaniel – for want of a nationalist pedigree among Lankan dog lovers.  Political clowning has turned the court ruling into a symbol of national fighting spirit.

More seriously, the Supreme Court ruling gives the context, not just the pretext, to bring the subject of land under a different, less adversarial and more comprehensive, microscope.  Even as we are respectful of the court’s ruling on the constitutional rights over land, we must also be mindful of the other vital dimensions of land that transcend ephemeral legal interpretations – land as the foundation of human existence and as a fundamental resource for economic production and environmental protection.  It is also necessary to see in historical perspective how political, social and economic factors have shaped the evolution of legal and administrative practices in regard to land and property rights over nearly 200 years.

In fact, the 19th century Wasteland Ordinance could be seen as the progenitor to subsequent land regulatory legislations both during British rule and after independence, including the 1979 State Lands (Recovery and Possession) Act.  It was the eviction of Solaimuthu Rasa of Nuwara Eliya under the 1979 legislation and the ensuing litigation that led to the Supreme Court’s ruling last week.  The ruling incidentally was less about Mr. Rasa and more, if not entirely, about the question whether land is a Provincial subject or a Central government subject under the Thirteenth Amendment.

The evolution of land powers and politics

The modern concept of Crown (now State) land and its application in Lanka arose under British colonial rule, ironically, in conjunction with the efforts to establish a firm and freehold system of private property rights.  The institution of property rights was fundamental to the capitalist development of land, but the British rulers had to navigate through a myriad of pre-existing mostly shared ownership customs and practices.  The development of laws and of land surveys through the Survey Department formed the basis for the establishment of titular, freehold property ownership and rights.  A parallel development was the emergence of spurious claims to ownership of unoccupied land parcels as land became a source of lucrative income.  Such ownership claims were possible given the low population level and plenty of unoccupied land for most of the British period.  The colonial government’s response was to declare unoccupied lands as Crown land and penalize unauthorized occupation as encroachment.  The legal mechanism was the “Crown Lands Encroachment Ordinance” enacted in 1840, and better known as the ‘Wasteland Ordinance’.  The purpose was to regularize land alienation and protect it from ownership claims and contentions.

The legal platform was thus set for the development of private plantation agriculture using unoccupied Crown land in the central provinces.  That was the beginning and consolidation of plantation capitalism in the 19th century, in Sri Lanka, as elsewhere in the far flung British Empire under British companies and using immigrant labour from South India.  But the problem of land alienation could not be fully resolved.  The law picked on the poor and the landless resorting to chena cultivation, while speculators, lawyers and money lenders involved in the land business made loads of money on land deals or became major land owners themselves often by default.  The patriotism of the emerging elite was limited to formally resenting the foreign ownership in land but did not include any impulse to invest in agriculture in any significant way.

The spinoff effects of plantation agriculture including the increasing demand for staple rice and the monetization of the economy posed serious challenges to traditional cultivation practices and subsistence food production.  After tentative initiatives in the 19th century, the British rulers focused more systematically on domestic agriculture after World War I.  True to the maxim that “the problem of agriculture in Ceylon is the problem of irrigation,” the colonial government allocated significant resources towards two types irrigation works: major construction work and minor construction work.  Until 1931, the emphasis was on major work located in the sparsely populated dry zone areas of North Western, North Central, Eastern and Northern Provinces which were considered to be conducive to large scale rice production.  After 1931, the emphasis shifted to minor work targeting village tanks throughout the island including the heavily populated wet zone provinces.  The 1927-29 Land Commission and the 1931 Land Settlement Ordinance created the institutional and policy framework for land alienation, mapping out and titular ownerships including the recognition of chena cultivated lands.

Land policies and resource allocations were predicated on two fundamental principles: the preservation and enhancement of the peasantry as a social group and the development of the dry zone for expanding food production and for achieving “a more even balance of population” between the sparsely populated dry zone and over populated wet zone provinces.   But the project of developing the dry zone through benevolent state sustenance of the robust peasant has never been able to meet expectations and has never generated a proportionate return for the decades of substantial state investment.

The North Central Province initially and rightfully attracted government and political attention for restoring the magnificent irrigation network of ancient Sinhalese civilization, followed by significant investments in major irrigation work in the Eastern and Northern Provinces.  But there were no takers – the colonial government tried peasants, middle classes and even private capitalists – for settling in and developing the dry zone into a prosperous rice bowl.  Colonization of the dry zone could not begin until 1939 and really took off with added incentives and political patronage in the early years after independence and again as part of the Mahaweli development programme.

Land and political representation

In retrospect, it is fair to say that the dry zone development project while not delivering on its economic promises went on to create a somewhat unintended but persistent political problem.  Perhaps the only economic achievement of the dry zone project has been the quantum increase in rice production.  This achievement, although impressive in its own right, came too late, at high cost and when the consumption patterns of the people were being irreversibly globalized.  What is more, the agricultural sector and rural society continue to be the nation’s chronic losers in terms of income, productivity and gainful employment.

The political manifestations of the land and agrarian problem have been on two separate fronts.  One among the Sinhalese, counterposing the rural society and youth against the urban establishment, and the other pitting the Sinhalese, the Tamils and Muslims against one another over land politics and land powers.  It is the latter problem that found its way into the Thirteenth Amendment and precipitated last week’s Supreme Court ruling.

Specifically, the ethnic contestation over land arose out of Tamil political concerns that state aided colonization of the Eastern Province was changing the ethnic composition of the Province, and consequently the proportions of ethnic representation in parliament.  In other words, the problem of land politics originated as a problem of representation and not as an argument over land as an economic resource.  In tandem with the disenfranchisement of the plantation Tamils, the Sinhalese colonization of the Eastern Province dramatically altered the ethnic proportions of MPs that the Soulbury Commission had envisaged based on considerations of population and area in the different provinces.

This was the context in which the Tamil Federal Party advanced the notions of traditional homelands and regional autonomy, and was able to reach agreement with two Prime Ministers, SWRD Bandaranaike and Dudley Senanayake, in regard to addressing Tamil concerns over colonization and alienation of state land in the Northern and Eastern Provinces.  The federalist leaders used to say that the principles of their agreement with Mr. Bandaranaike in regard to colonization and land matters were honoured even after the abrogation of the B-C Pact and after Mr. Bandaranaike’s assassination by succeeding governments until the floodgates were opened again with the Mahaweli development programme.

As is well known the acceleration of the Mahaweli programme coincided with the emergence of the Tamil separatist demand, and land matters became a key point of contestation in the search for a political solution after the catastrophe of 1983.  The end results are the provisions in regard to land matters in the Thirteenth Amendment.  But it is not correct to say, as has been claimed after the Supreme Court ruling, that Tamil political leaders have been content with the Thirteenth Amendment provisions in regard to land, or that they have been touting those provisions as a victory for provincial autonomy over the central government.

On the contrary, the treatment of land in 13A has been a major source of dissatisfaction to the Tamil political leadership.  In fact, the government of President Kumaratunga tried to address this dissatisfaction in significant ways through its unsuccessful proposals for constitutional change.  Ironically, President Kumaratunga in her actions hardly respected provincial powers or gave due regard to Provincial Councils.  The even greater irony is that while a previous Supreme Court ruling faulted President Kumaratunga in a state land transaction matter for acting without consulting the relevant Provincial Council as required by 13A, one of the judgments in last week’s Court ruling stipulates that such consultation is not mandatory.

*To be continued next week

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    “The North Central Province initially and rightfully attracted government and political attention for restoring the magnificent irrigation network of ancient Sinhalese civilization, followed by significant investments in major irrigation work in the Eastern and Northern Provinces. But there were no takers – the colonial government tried peasants, middle classes and even private capitalists – for settling in and developing the dry zone into a prosperous rice bowl. Colonization of the dry zone could not begin until 1939 and really took off with added incentives and political patronage in the early years after independence and again as part of the Mahaweli development programme.”

    This repudiates the canard that colonization was a strategy to change the ethnic-wise demographic composition.

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