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Land powers and the Supreme Court

2013 Oct 08

The timing of the Supreme Court’s judgment on devolution of land powers – just two days after a historic election for the Northern Provincial Council – gained significant attention within and outside Sri Lanka. Inevitably, the focus has shifted to the Tamil National Alliance (TNA) and how the Alliance – and the Provincial Council it controls – would respond to the judgment.



While I intend to comment on the political repercussions of this judgment, a few observations on its legal implications may be in order. The first is that the judgment contains three separate opinions and they arrive at the same conclusion–that the power of issuing a quit notice in terms of the State Lands (Recovery of Possession) Act lies with the Centre, and not the Provincial Council – which was the only question before Court. The Supreme Court granted Special Leave to Appeal on two questions of law, but decided to stick to only the first question. The constitutional provisions dealing with the Provincial High Court's jurisdiction are separate and distinct from the provisions dealing with devolution of powers. Thus, any pronouncement other than on the question before Court would tantamount to obiter dictum and does not form the ratio decidendi, or ‘the reason for the decision.’



Secondly, although all three judgments arrived at the same conclusion, they follow divergent lines of reasoning. For instance, while one opinion explicitly rejects the existing statement of the law laid down in the Land Ownership Bill Determination and Vasudeva Nanayakkara Vs. N. Choksy, that the President’s power to dispose State land is qualified by the 13th Amendment – which states that such power should be exercised “on the advice of the Provincial Council”–another cites with approval the very passage taken from the Land Ownership Bill Determination rejected in the other.



Rules of precedent



Thus, at least in terms of the question of whether the President requires the approval of the Provincial Council to dispose State land, the existing law appears not to have been disturbed. This is the case because, as stated in the case of Bandahamy Vs. Senanayake, the rules of precedent require that “three Judges as a rule follow a unanimous decision of three Judges, but if three Judges sitting together find themselves unable to follow a unanimous decision of three Judges, a fuller bench would be constituted for the purpose of deciding the question involved.” Since the Land Ownership Bill Determination and the judgment in Vasudeva Nanayakkara’s case were both issued unanimously by benches comprising three judges, it is seriously doubtful that the recent judgment  – which did not follow existing precedent–changes the law, in respect of the disposition of State land. This question is critical, because successive Sri Lankan Governments have continued to settle ethnic Sinhalese from southern Sri Lanka in the North and East by disposing State land to them, with a view to changing the demographic composition in these areas. That programme has been intensified under the Rajapaksa regime.



Nevertheless, the political implications of the judgment are clear. The 13th Amendment was introduced pursuant to the settlement of an international treaty by India and Sri Lanka providing a limited measure of devolution to Provincial Councils. The Amendment has always been understood by politicians, civil servants, lawyers, judges and the international community to devolve land powers to the Provincial Councils. Various circulars issued by the Ministry of Land and Land Development attest to the fact that the devolution of land was never in doubt.  This view was strengthened by a number of judgments of the Court of Appeal and the Supreme Court. Now, in a sudden instant, the Supreme Court tells us that these powers were in fact never devolved. That the way in which the 13th Amendment has been understood for 25 years was erroneous. That the 13th Amendment only meant for the Province to administer whatever land the Centre – in its beneficence–though fit to give away.



Timing of the judgment



The timing of the judgment is critical. The fact that it came two days after the historic election for the Northern Provincial Council, where the people overwhelmingly voted for devolution and self-governance, but before the Council became functional, has received much comment. More critically, however, the judgment arrives at a juncture where the government has explicitly committed to denying the Northern Provincial Council constitutionally mandated powers over land and law and order. The government has now constituted a Parliamentary Select Committee – composed primarily of members opposed to any meaningful devolution – ostensibly to recommend a further weakening of devolution. The arrival of this judgment may be perceived by the government as easing its own burden and enabling it to hide behind a judgment of the Supreme Court. The government should be clearly told that this position is untenable and that it has a duty to make good on its promises of extensive devolution made to India and the international community.



Last week’s judgment offers the clearest proof yet that the 13th Amendment does not provide any measure of meaningful checks on central intrusion into provincial governance. It points directly to the Amendment’s inadequacies. To its capacity to be abused and the fickleness of the devolution of the very subjects it was intended to devolve. Moreover, the judgment unequivocally demonstrates the inherent problem of devolution within a unitary State – the threat of the unilateral rollback. That the government was for four years unwilling to implement even these weak provisions on devolution is a testament to the centralizing mindset of the regime and its inability to even contemplate meaningful sharing of powers. Clearly, it only delivers when pushed, and pushed hard.



Acknowledging the need



Now, it needs to be pressured even more. For those who acknowledge the need for devolution but believe the 13th Amendment is sufficient, the Supreme Court’s judgment must provoke a rethink. How can one support devolution within the parameters of the 13th Amendment, when those parameters are constantly shifting? When there are no checks and balances to prevent a wholesale centralization – whether through executive control, legislative changes or judicial fiat  – of what was previously known to be devolved? In 2006, the Supreme Court ruled against the merger of the Northern and Eastern Provinces on the instance of an extremist faction within the Sinhala community. The merger was a critical component of the Indo-Lanka Accord in that it sought to protect Tamils’ right to self-governance in the face of orchestrated demographic change. Now, attempts are made to gut provisions on devolution of land in an almost identical fashion, so as to enable uninhibited demographic change in the North and East. Gomin Dayasiri, who appeared before the Supreme Court in the instant case, now publicly exults in what he deems is a trick played on India by former President J. R. Jayewardene, who approved a constitutional text which appeared to devolve land, but has now been interpreted to do the opposite. In short, India’s efforts to ensure implementation of the 13th Amendment and movement beyond are being rendered redundant, by trickery and daylight land grabbing.



The Supreme Court’s judgment reminds us that devolution can never be meaningful and permanent within the asphyxiating confines of a unitary State. The urgent need is for meaningful constitutional reform so that devolution can be made more secure, the rule of law protected, and the judiciary made independent. The steady erosion of minority protections in the Indo-Lanka Accord through judicial pronouncements can only be reversed by a permanent political solution and a new constitutional order. Moderate Tamil leaders have articulated this message for more than 60 years. If people within and outside Sri Lanka didn’t believe us then, they should, and will, believe us now.

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