By Kamalika pieris
The 13th Amendment gave the Provincial Councils rights over “Land, land tenure, transfer and alienation of land, land use, land settlement and land improvement.” It specifically says “Land shall be a Provincial Council subject to certain limitations.” Land is not on the concurrent list either. It was therefore assumed that “Land” was the exclusive preserve of the Provincial Councils. If a Provincial Council needed any state land, the government has to hand it over, no questions asked.
It was further assumed that central government on the other hand, could only use state land with the approval of the Provincial Councils. Cabinet approved the provision of 15,000 acres of state land for a banana cultivation project in Kantale areas to be followed by 20, 000 acres more to the same company for a cadju plantation. Eastern Provincial Council cancelled these two orders, saying land was their subject and this was done without consulting them. Government disagreed. (Sunday Times 26.7.09 p 1).
M Sivasithamparam, A. Amirthalingam, R. Sampanthan of the TULF were not happy about the Land provisions in the 13th Amendment. They wrote to Rajiv Gandhi, Prime Minster of India, in 1987, complaining that though land was a ‘devolved ‘subject, Provincial Councils had no power over state land. State land was in the reserved list, which only the central government could administer. State lands inside a province also came under this provision and the President of Sri Lanka, could give these to anyone he wished, subject only to relevant national laws. They complained that in the case of land development and inter-provincial irrigation projects, central government selected the allottees and this could perpetuate ‘the present pernicious practices’. In 1984, 5150 acres of land around the Trincomalee port was vested in the Port authority, which could result in the creation of a new township ‘with racial overtones’ around the Port, they said.
A Supreme Court decision of 2013 resolved this hotly contested question of “Land Powers” under the 13th Amendment. In the case of Stafford Estate vs. Solaimuthu Rasu ( SC. Appeal 21/2013), Supreme Court having carefully studied the 13th Amendment, the Ninth Schedule and Appendix 2 of the 13th Amendment, ruled that Land Powers were vested in the Central government and not in the Provincial Councils . A three judge bench of the Supreme Court led by Chief Justice Mohan Peiris and comprising Justices K. Sripavan and Eva Wanasundara concluded in three separate judgments that state land is vested in the central government. All three judgments supported the final decision.
This judgment will go down in legal history as one of the clearest interpretation of the 13th Amendment. It came in a case dealing with a relatively minor legal issue, the jurisdiction of the Provincial High Court to hear cases involving state land. The judgment was noteworthy because of its degree of sophistication, previously unmatched, due mainly to its examination of the relationship between different provisions of the Constitution. It reversed two earlier court decisions, including the John Keells case which said that land belonged to the province.
Hereafter, state land can be used by the Provincial Councils only after it is given to them. Provincial Councils cannot appropriate lands. The Provincial Council is only subsidiary body exercising limited legislative powers subordinate to that of Parliament. The President is not bound to follow the advice or requests of the Provincial Councils regarding land either. Land can be disposed of only according to laws enacted by Parliament.
This judgment gives equal rights to any citizen to settle in any part of Sri Lanka. They can come into a province from outside. There cannot be priority for those living in that province. There is no possibility of this judgment being reviewed again in a court of law. This judgment is everlasting unless someone wants to create mischief, said attorney Gomin Dayasri.
This judgment also sends a message to those who advocate the increased devolution of power to Provincial Councils through laws designed to by-pass or circumvent the Constitution. The Constitution of Sri Lanka is a totally different enactment to the statutes inside it, such as 13th Amendment. It is not possible therefore to ‘adjust’ clauses in the Constitution (derogation) to further separatist ambitions.
The National Land Commission, which must include representatives of all the Provincial Councils (Clause 3) has been given the power to set out national policy on state land, but only at the technical level. That is, soil, climate, forest cover and so on, but not at the ‘communal or political’ level. That aspect is dealt with elsewhere in the 13th Amendment. The ethnic percentages of Sri Lanka are defined in the Census of Sri Lanka, using the three ‘races’ created by the British for the purpose: “Ceylon Tamil”, “Ceylon Moor” and “Sinhalese”. From the 1890s, the Census went beyond population enumeration and declared majority races for each province.
The 13th Amendment now seeks to ‘freeze’ these ‘majorities’. The Amendment says that Land must be distributed on the basis of ‘national ethnic ratios’. They must not ‘significantly disturb’ the demographic pattern of the province and priority must be given to persons in the district. (Appendix 2). This means that land in the northern province can only be given to Tamils. This is a direct violation of article 12 of the Constitution of Sri Lanka.
The subject of Law and Order is dealt with in Appendix I of the 13th Amendment. This is an elaborate Appendix with 14 clauses, many sub clauses and extending to five and a half pages in the official booklet (Supplement to Gazette of 20.11.1987). The 13th Amendment creates two parallel police forces, National and Provincial, with a single National Police Commission and nine Provincial police commissions. The objective was to confer sovereign police powers to the Provincial Councils and reduce the powers of the National police. Provincial Councils are empowered to legislate on any matter falling within the subject of Law and Order. They can enact their own Police statutes and repeal the Police Ordinance now in operation countrywide. The Provincial police will be headed by a Deputy Inspector of Police (DIG) reporting to the Chief Minister and not Governor. The Provincial Council appoints the DIG. Each Provincial Council can decide on the size of its police and the firearms they use. They can recruit, transfer, and promote the provincial police.
The national police will continue with the present structure of Inspector General of Police,((IGP) Deputy Inspectors General, (DIG) Superintendents of Police (SP) and assistant superintendents (ASP). But, the national police will have jurisdiction only over a limited number of offences involving national security. All other offences come under the Provincial Councils. National police cannot intervene at provincial level. When they go into the provinces, on official business, they will be under the Provincial DIG not their own DIG. The national police cannot wear uniform when in the provinces, even while they are on duty. Since the whole island is divided into provinces, it is unlikely that they would ever be in uniform! The only uniformed law enforcement officer in the island will therefore be the Provincial policeman! Both national and provincial police have to know Sinhala and Tamil and for promotion must know English as well. So, they will be tri-lingual.
The devolution of police powers has caused much concern. It seriously affects national security. To safeguard national security there has to be an intelligence arm in every part of the island. Under the 13th Amendment, before the National police can intervene in anything, they have to first consult the Chief Minister of the province and also obtain approval of the Attorney General. Under the 13th Amendment, the entire chain of command of the IGP breaks down. His DIGs are also under the Chief Minister. Even to remove one of them the IGP has to consult the Chief Minister.
At present the Criminal Procedure Code and Police Ordinance is applicable all over the island. There is a single police force and a police officer can exercise his power anywhere in the island. He has jurisdiction in respect of all offences in all parts of the country. Under the 13th Amendment law and order becomes fragmented. Police from one province cannot operate in another province. When a person commits a murder and flees out of a province, they cannot be pursued by the police of that province. Also, different provinces will have different statutes (laws) pertaining to Law and Order, prevention, detection and investigation.