| by Upul Joseph Fernando

( October 2, 2013, Colombo, Sri Lanka Guardian) The main reason why the 43rd Chief Justice, Dr. Shirani Bandaranayake, was removed from her post was presumably due to two decisions she had delivered in respect of land issues through constitutional interpretations, which were obviously not to the liking of the government.

One was the decision relating to Town and Country Planning (Amendment Bill) wherein the Supreme Court's interpretation of the Constitution clearly established the legal position that the subject of land is devolved to the Provincial Councils under the Constitution. As a result the government was compelled to withdraw that particular Bill.

The next contentious issue was the Court's decision pertaining to the Divi Neguma Bill, in which too, the panel of judges chaired by her decided that land power was a subject devolved to the Provincial Councils.

The judgment; the rationale

Quoted below is an extract from the judgement delivered by the panel of Supreme Court Judges led by then Chief Justice, Shirani Bandaranayake.

"Appendix II refers to Land and Land Settlement. It also specifies that State land shall continue to vest in the Republic and may be disposed of in accordance with Article 33(d) and written law governing the matter. The said Appendix has also specified that, subject to the aforesaid, land shall be a subject of the Provincial Councils, that would be subject to the conditions laid down under the special provisions specified in Appendix II on different headings. The said headings include State Land, Inter-Provincial Irrigation and Land Development Projects and the National Land Commission.

All these provisions clearly indicate that the basic distribution of authority over the subject of land is based on the fact as to whether the land in question belonged to the State or not. State land would continue to vest in the Republic, and Provinces would have authority over such land only subject to the special provisions laid down in terms of the Constitution stipulated under Appendix II.

Accordingly, where reference is made to items 18 of the Provincial Council list and Appendix II of the list, it is clear that under Appendix II, directions are given chiefly with regard to State land.

The Bill under review, as stated earlier, deals with integrated planning in relation to the economic, social, historic, environmental, physical and religious aspects of land in Sri Lanka, which come within the purview of the subject of land that is referred to in item 18 of the Provincial Council list which includes rights in or over land, land tenure, transfer and alienation of land, land use, and land improvement.

It is therefore evident that the subject matter referred to in the Bill deals with an item that comes within the purview of Provincial Councils."

Recently, the new Chief Justice appointed by the government had given a judgement relating to land power under the Provincial Councils. According to this decision, land power has been directly placed under the sole authority of the Central Government. The decision comes days after the 5/6 electoral victory the Tamil National Alliance (TNA) achieved in the North. More importantly, it was delivered at a time when the Northern Province Chief Minister elect has made a strong case for land power devolution as its top priority. The judgement by the Supreme Court directly rules against their claim to land powers. In the circumstance, they have no alternative than to depend on India and the international community to help them cut the Gordian knot as it were.

Somewhat opportunistic line

When the former Chief Justice was subjected to an impeachment motion in Parliament, Western countries stiffly opposed it. But India followed a somewhat opportunistic line in that it sought to get a commitment from the government to hold the Northern Provincial Election in return for keeping silent on the Chief Justice's impeachment. India always had a habit of looking at the Tamil problem in this country exclusively from the Tamil's point of view, whereas Western nations view it in a larger perspective, based mainly on human rights. Mahinda Rajapaksa's Government had India's support for hosting the Commonwealth Heads of Government Meeting (CHOGM) here in exchange for holding elections to the Northern Provincial Council.

At this stage, the impeachment of the Chief Justice, Shirani Bandaranayake, appeared likely to cause a conflict of interest between the two parties committed to following their agendas. It was suspected then that India conspired to suppress the Commonwealth Report on the impeachment, using Commonwealth Secretary General, Kamalesh Sharma. In fact, allegations have now surfaced that Sharma was instrumental in keeping the Commonwealth Report in virtual cold storage. In hindsight, it now appears if India also promoted the condition laid down in the Commonwealth Report, that hosting CHOGM was conditional on reinstating Shirani Bandaranayake as Chief Justice, India today would be in a much stronger position to safeguard the interests of the Northern Provincial Council.

India had never shown much interest in Sri Lanka's democratic responsibilities, human rights, judicial independence and press freedom as far as the Tamil problem was concerned. But the West always saw them as inter-related and pushed for a more inclusive solution to the ethnic problem.

India notched up a big victory by prevailing on the government to hold the Northern Provincial Council elections.

Moot powers to the provinces

India's gratitude was shown by keeping Western countries silent on the Chief Justice's impeachment, thus allowing the country to host CHOGM without any opposition from them. The Indian gift of gratitude in time to come could prove to be a Trojan horse. It can, if it needs, find ample justification to intervene in the matter of land power devolution for the Provincial Councils, under the provisions of the 13 Amendment, as enshrined in the Constitution. It should be recalled that J.R. Jayewardene invited the Indian forces to ensure smooth implementation of the 13th Amendment and set up the Provincial Council system. If the TNA, which is armed with a 5/6th majority in the Northern Provincial Council, appeals to India to help them win full devolution of powers, including land powers under the 13th Amendment, the probable outcome has to be carefully assessed before making any conjectures. India will certainly not resort to military adventurism as it did during JR's tenure. It is possible India could request the Commonwealth to intervene on its behalf, to ensure full implementation of the 13th Amendment by the Sri Lankan Government. It would be interesting to see how Mahinda Rajapaksa, as the new Chairman of CHOGM would react to it. India, which brazenly used the Commonwealth Ministerial Action Group to promote Sri Lanka's claim to host CHOGM, would not hesitate to do the same this time also and mobilize CHOGM's help to achieve full devolution of power to the Provincial Councils.

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