| by Kishali Pinto-Jayawardena

( October 6, 2013, Colombo, Sri Lanka Guardian) President Mahinda Rajapaksa’s repeated claim, (pronounced with appropriate gravitas most recently to Al Jazeera), is that Sri Lanka does not exhibit authoritarian or dictatorial tendencies as it holds regular elections at which his government is comfortably elected into power.

Unitary nature of the State never disputed

Predictably, the recent elections to the Northern Provincial Council where the Tamil National Alliance (TNA) won in spectacular fashion was held out as the classic illustration of this liberality; yet, the government scheme behind holding these elections to appease powerful voices over the Palk Straits in the same breath as it tries to practically confine the reach of that electoral victory is amusing if it was not so disingenuous.

The Supreme Court’s ruling last week on an otherwise innocuous matter concerning the jurisdiction of a Provincial High Court in the issuing of a quit notice under the State Lands (Recovery of Possession) Act No 7 of 1979 (as amended) is of singular interest in that regard. The Court’s pronouncements on the ‘unitary nature of the state’ invite critical scrutiny in the factual context of this case which concerned a jurisdictional matter involving the operation of a decades old law.

Indeed, it must be said quite strongly that past precedents of the Supreme Court on the nature of power given to Provincial Councils by the 13th Amendment never disputed the unitary nature of the state. Neither did those judges contest the fact that State land continued to be vested in the Republic, or that the President was empowered to make grants and dispositions of state land or that the Provincial Councils only have the legislative competence to administer, control and utilise state land. These are obvious provisions of the 13th Amendment, evident on the face of that amendment itself.

Misconceptions regarding the 2003 Lands Bill

The question that arose in earlier instances, most notably in the Lands Bill in 2003, calls for some mention given misconceptions that have been deliberately created on the nature of that proposed amendment. In late 2003, the then United National Front (UNF) Government placed a Bill titled “Lands Ownership” before Parliament with the aim of “providing for the disposal of the ownership of lands by the transfer of ownership of State lands to citizens of Sri Lanka; for the removal of certain restrictions attached to grants and transfers made under the Land Development Ordinance (Cap. 464) and the Land Grants (Special Provisions) Act, No 43 of 1979...”

The Bill was successfully challenged in the Supreme Court on the principal objection that it had been referred to Parliament without being first referred to every Provincial Council duly established under the Constitution and was therefore inconsistent with Article 154(g) 3 of the Constitution read with item 18 of List 1 of the Ninth Schedule (the “Provincial Council List) Appendix 11.

Interestingly for the purposes of this discussion, one argument placed before Court was that the President of the Republic is constitutionally vested with the power to “make such grants and dispositions of land and immovable properties vested in the Republic”[Article 33(d) of the Constitution] but that Clause 8 of the Bill would have the effect of compelling the President to abide by a decision made by the Minister of Lands. This was contended to amount to an infringement of Article 33(d) read with Article 3 and 4(b) of the Constitution. The offending clause therefore had to be passed only with a two thirds majority of Parliament but also after being put before the people at a Referendum. This argument which was upheld by the Supreme Court (SC/SD No 26/2003, 10.12.2003), in fact, buttressed the authority of the Centre vis a vis the Provincial Councils, rather than vice versa. The Bill was then withdrawn from the Order Paper of Parliament.

No wildly adventurous notion of devolved powers

The point is that, rather than propounding some wildly adventurous notion of devolved land powers as is sought to be mischievously propagated by rabble rousers now, the Determination in the Lands Bill was only notable in its insistence, (similar to later precedents), that the technical condition of the Provincial Councils giving approval to draft laws dealing with subjects coming under their purview should be complied with.

It is this aspect that did not find agreement with the three judge Bench of the Supreme Court last week. It was held firstly, that in instances where State land is required by the Central Government in a Province, consultation between the Centre and the Province does not imply concurrence on the part of the relevant Provincial Council. It only means that there would be conference between the Central Government and that Provincial Council to enable them to reach some agreement.

Secondly, the term ‘advice’ in Item 18 of List 1 of the Ninth Schedule (the “Provincial Council List) Appendix 11 (“alienation or disposition of state land within a Province to any citizen or any organisation shall be by the President on the advice of the relevant Provincial Council in accordance with the laws governing the matter" vide section 1:3 of Appendix 11), was held not to imply binding advice based on the omission of the word ‘only’ before the words ‘…on the advice of the relevant Provincial Council….’

Unseemly posturing by nationalists

In a general sense, this judgment marks the narrowing down of the consultative process contemplated by the 13th Amendment between the Centre and Provincial Councils in respect of dealing with state land. Yet it does not reflect a tectonic shift in ‘state land continuing to vest in the Republic’ notwithstanding bold headlines to that effect and somewhat unseemly posturings by nationalists. In a strictly legal sense, it needs to be viewed within those confines.

The danger is of course, the political uses that this decision may now be put to. Grandstanding on the part of the Centre will only, from a long term point of view, disprove the very boast of this Presidency that the holding of those provincial council elections is an irrefutable sign of Sri Lankan democracy.

Dispelling complicity in attacks on minorities

At another level, President Rajapaksa’s interview with Al Jazeera would leave even a largely open-minded observer feeling bemused if not bewildered. His disconcerting claim that attacks by racist mobs on religious minorities had been provoked by alleged incidents of rape of (supposedly Sinhalese) children is one illustration. In yet another instance, the President’s complaint was that attacks on minorities and their places of worship in ‘other countries are seen as isolated examples while in contrast, responsibility is attributed directly to him when similar incidents happen in Sri Lanka. But the central issue in Sri Lanka is the undeniable state protection afforded to such attackers while the police look idly on. This is a phenomenon not seen in any of these ‘other countries’ where a system of investigations, prosecutions and judicial scrutiny swings into action, as imperfect as sometimes this may be.

In contrast, the Sri Lankan state structure encourages such attacks by its silence if not complicity in such happenings. It is this perception that needs to be effectively tackled if a vastly skeptical international audience is to be persuaded otherwise,

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