Is Power Sharing in Land Administration Practical in Sri Lanka?

Editors note: The author informs us that this Long Reads article is the result of many months of research, and aimed at promoting reconciliation. It is a dispassionate take on a vexed issue, and the author has in recent weeks shared it on a personal basis with selected political figures in the Government and Opposition. It is published on Groundviews with just a few edits. The author predicts that sooner than later negotiators in Government will come to terms with power sharing in land administration.

The article is especially timely given the statement to media yesterday by Hon. S.M Krishna, the Indian Minister of External Affairs, that President Mahinda Rajapaksa has promised the full implementation of the 13th Amendment plus, and that the Sri Lankan Government would deliver on its promise. The hope of the author is that his article lays the foundation for a progressive dialogue on this vital issue.

Austin Fernando is the author of My Belly is White, and a former Secretary of Defence in Sri Lanka.

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Having observed recent changes of approach regarding other differed stances of the government, (e.g. Terms of Reference of the Parliamentary Select Committee) I initially decided to share thoughts on land power sharing, welcoming a decent dialogue on land power sharing.

I am not a politician or a lawyer, but a believer and supporter of power sharing. As a development administrator I was the Secretary of the Ministry of Provincial Councils and Local Government for three continuous years from 1993-1996, under two different political administrations. I believe these qualify me to look at sharing land powers with all provinces- not only to the North and East.

The already known stance of some in the incumbent government on land power sharing differs from mine. But, governmental or political stances need not be permanent. How can one predict whether the governmental / political stances on devolution or land power sharing would not change? As a Buddhist I believe in “Sabbe Sankara Anichcha” (Everything is impermanent) and apply it even to this conceptual difference, especially in the light of the latest recommendation made by the Lessons Learnt and Reconciliation Commission Report stating that devolution should promote greater harmony and unity among the people of this country.[1] Sharing land administration powers is a part of the devolution process enshrined in the Constitution and hence a dialogue on land power sharing can be considered useful, though stances on devolution oscillates in the same personalities, depending on the environment.

For example, today, if one asks Minister Maithripala Sirisena who once declared[2] as the General Secretary of the Sri Lanka Freedom Party that “the Government would devolve all powers including police powers to the East in accordance with the 13^th Amendment to the Constitution” what his stance on sharing land and police powers with provinces is, he will respond differently, because of impermanence of political thinking.

The President being reported in Daily News online December 21^st 2011 as saying “He also noted that an outstanding demand of the TNA for police powers to the North and East is not a practicable proposition” shows some change of attitude on land power sharing, which he included in the same package of non-events earlier. If this is not misreporting, in other words it could mean that he considers land power sharing as practical. The title of this paper therefore indirectly addresses an issue related to a presidential statement and hence a decent debate and tolerance of dissent may not be a waste of effort.

Governmental stances on ‘land power sharing’

I must say the behavior and responses of the incumbent government on power sharing on land is similar to almost all former Sri Lankan governments, though there were differed but extremely rare positive stances for power sharing  taken by the like of Minister Gamini Dissanayake, immediately after the Provincial Councils Act No: 42 of 1987 was passed. For that matter he deserves honor because he was the only Minister who could be credited for such convinced brave steps for land power sharing. Therefore, only blaming the incumbent government for the disinterest, current disagreements and hiatus, as done by Tamil politicians and internationals some time, is unreasonable.

Earlier President Mahinda Rajapaksa categorically declared that he was not for sharing Land and Police Powers with Provinces. Not much explanation was given by him or others for such stance. However, it is not difficult to understand why. I think that it is indirectly explained by Appendix II of the 13^th Amendment to the Constitution (hereinafter Appendix II). I may point out in summary the negative concerns that might have influenced negative perceptions creation for land power sharing.

1. Even though State land continues to be constitutionally vested in the Republic, if the provisions in Appendix II of the 13^th Amendment are adhered in land administration, it may lead to “controls” by the provincial administrations- especially if the provincial administration is politically uncooperative with the government in power and thus should not be permitted.
2. Under 1:3 of Appendix II, alienation or disposition of State land shall be by the President, on the advice of the relevant Provincial Council (PC). One may argue that the government may seek advice, but refuse to accept when offered. Such dissent may be due to non-cooperation by PCs. However, if it happens, it will then dilute the concept of devolution of power by withdrawing from a “give and take policy.”
3. Even though the inter-provincial irrigation and land development projects (e.g. Mahaveli) will be the responsibility of the Government, the actual application of the principles and criteria under 2:3 of Appendix II for “selection of allottees and other incidental matters connected thereto” will be within the powers of the PCs. (Appendix II Clause 2:4). This may excite the ‘center’ as loss of power by devolving, as reflected by the responses of the pro government politicians now.
4. Having got the better of selection of the allottees by the Provinces, which is the space offered for political yields, what will be the gain for the center only by administration of inter-provincial irrigation and land development projects?

Since I am not a lawyer the above concerns may be considered as layman’s interpretations. But the Supreme Court has declared as follows, which may be creating serious concerns for the politicians at the center. In one judgment, it is stated:

“The position that was taken by the learned State Counsel came up in Agrarian Services (Amendment) Bill. Agrarian Services as has been enumerated by the Court, is a subject which is given in the Provincial Councils List as well as in the concurrent list in the Ninth Schedule to the Constitution. When a subject is listed in the concurrent list, it would be necessary to consider the subject matter in depth to ascertain how much authority the Provincial Councils would have over such a subject. However, this difficulty does not arise with regard to the question under review as there is no reference to the subject matter of land in the concurrent list.

“In fact in the Reserved List, reference is made to State lands and provides that, 

      “State land and Foreshore, except to the extent specified in Item 18 of List I”

Such extents, as referred to earlier are clearly set out in Appendix II of the 9^th Schedule, which specifically states that, “land shall be a Provincial Council Subject.” In considering the aforementioned contents it is abundantly clear that the matter in question is a Provincial Council subject that has been devolved to the Provincial Councils in terms of the Thirteenth Amendment.”[3]

If one goes by this ruling he/ she may reasonably and legally contest the statements made against land power sharing, and the unconstitutionality of such rejection. Another may interpret this judgment as proposing placing Land as a Concurrent List subject, so that it may create the need “to consider the subject matter in depth to ascertain how much authority the Provincial Councils would have over such a subject,” meaning allowing the government at the centre to finger on land issues.

The fear at the center at all times must be the stances that would be taken by an elected PC in the North and East, which will not abide and stand with southern political thinking, stances and implement directives from the center on land power sharing. It cannot be a pipe dream, knowing the political thinking of many Tamil politicians who are not from the two mainstream political parties. One should not forget that the ‘Tamil aspirations’ of Tigers included this demand, expressed as “Homeland Concept” and expanded to a wide area demarcated in their Eelam maps. I suspect that some Tamil politicians must be waiting for the day to constitutionally respond through an elected political entity of theirs (e.g. a PC). This is the suspicion in the minds of southern politicians at the center too, converting them to be negative for the demand. As a last resort, they may one day extend the suspicion to a status of demand for the erasure of PCs from the Constitution. The issue is how far that day is.

The Tamil politicians who are with the government show a different face. It is evident from recent statements in the media made by pro-devolutionist Minister Douglas Devananda. He has suspected “political unrest among people in the south over any attempt to devolve land and police powers.”[4]  He did not mind shedding devolution of Land and Police powers for the time being and demanded implementing the 13^th Amendment. A sigh of relief would have appeared on Minister Devananda’s face having seen the above quote in the Daily News. There is also the hard view that agrees with the President’s, held by some of his supportive political groups in the incumbent government, which might have instilled more of such fear in Minister Devananda, for him to succumb in this manner. When he is the Chief Minister of the North, as he aspires to be, and pressured by the elected body, will he be able to reject a very popular constitutionally accepted political demand to administer land in his Province? Will the Buddhist teaching of impermanence prevail on his current statement to implement the 13^th Amendment, sans land and police powers?

For the southern pro-government incumbent provincial politicians land power sharing does not seem to be a concern. From court cases related to land power sharing (e.g. Please see foot note 12 for one recent case in Appeal Courts) it is apparent the Provincial Land Commissioners already use authority over land. So much so, the first respondent in the case mentioned in foot note 12 was the “Land Commissioner (Southern Province)”. If the government at the center too is politically theirs, it is not difficult to deal with land administration arrangements to suit their convenience and satisfaction. Since it is so currently (2011), provincial politicians would not mind the status quo to operate under ‘camouflage.’ In a way, not permitting such enjoyment of constitutional rights overtly or covertly to the northern and eastern PC authorities may be interpreted by them as discriminatory.

But the Tamil politicians reaping the benefits irk the politicians at the center for political and popularity reasons, which has been aggravated after the war victory in May 2009. The central political feeling may be “Why should the government give in to a Tiger demand after wiping them out?” which appears correct. The Tamil political feeling may be “Why should not we enjoy the political right we have earned through the Constitution?” A pro-devolutionist cannot disagree with it.

Purpose of this exercise

The attempt here is to explore a via media to share power on lands, with least annoyance created to opponents of power sharing with all Provinces, while staying within the operative constitutional provisions. In other words, the purpose is to answer the titled query aiming to focus on solutions to one itching issue before the Government and the electorate, sometimes extending across the oceans.

It is neither a challenge to the thinking of the supporters of extensive and comprehensive centralization, nor a backup to the political parties vociferously demanding total sharing of land powers in the North and East Provinces. This is only an exploration of justifiable compromises, to enable withdrawing from hawkish demands for power sharing, while agreeing with the need for power sharing, as well as, to disable mooting selfish non-sharing of land administration. This effort aims through dialogue carving a sensible practical operational medium which may be acceptable to both ‘devolutionists’ and ‘centralists’.

What is attempted here is legal, as there had been confirmations received on this issue by decisions taken by the Supreme Courts[5]. As quoted earlier such decision has firmed up that land is a devolved subject. Hence, what is wrong in attempting a via media to respect such decision from the highest court?

Approach of this presentation

In finding the compromising paths for land power sharing, I consider it important to revisit the past, which is forgotten by political hierarchies, policy makers, professionals, lawyers and media who oppose devolution as a process.

I do not think it is required to visit the present State land management issues in the South because (as stated above) the PCs and the government currently belong to the same political group. It has been alleged that in the North and East governmental pressure on land administration had been made on the PC through the Governors. I believe that though there is no openly and expressly stated land power sharing with PCs, at present through operational arrangements land administration is done by the PCs, (other than in the North and East), as wished by the Chief Ministers, who are generally the Ministers in the PCs in charge of the Land subject. Hence, the non-insistence of this power by current Provinces and even publicly refusing devolved land powers by some southern provincial politicians is only camouflage.

This presentation will briefly discuss the background for power sharing, fears expressed on land power sharing, counter such fears, explain actions already carried out by successive governments towards this end and summarily propose a power sharing process considered by me as feasible within the current constitutional provisions, which can be reviewed and amended as required. However, being a layman development administrator, my focus will be on tacit application of the laws. In the process some legal implications will be discussed hoping that the required political and legal inputs would be explored, reviewed, revised and applied by appropriate legal experts and politicians.

Indo- Lanka Accord 

In 1987 the government devolved power to the PCs after the Indo – Lanka Accord. Some argue that devolution was a process gulped by Sri Lanka under Indian compulsions and that it is a project “Made in India” for all intents and purposes. I am aware of the opinion expressed –rightly or wrongly- that India has deliberately used the Appendix II in the 13^th Amendment to favor the demands of Tamils. Some political authorities and anti-Indian spokespersons oppose land power-sharing quoting these anti-Indian sentiments. But, they little realize that the former have signed the declaration or swore the Fourth Schedule in the  Constitution to uphold and defend the Constitution of Sri Lanka, which also carries sharing of land powers  with the PCs.

Expressed fears of devolving land powers and Appendix II

The current constitutional provisions on land power sharing are comprehensively expressed under Appendix II and Item 18 of List I under the 13^th Amendment to the Constitution.

The main theme of arguments enunciated against land power sharing is based on the following.

1. Such power sharing will lead to a duplication of a Federal State arrangement where total land administration will fall in to the hands of ‘federated Provinces’, thus superseding the Cabinet at the centre. With politicians least respecting the Principle of Subsidiarity[6] and holding to centralization, based on political hegemony at all institutional levels (e.g. National, Provincial, Local Authority or even at community – i.e. Cooperative or Rural Development Society), this issue has become acute.
2. The President’s constitutional authority [Article 33 (d) of the Constitution] on State land will be challenged by the Provinces.
3.  The State land needs of the Security Forces could be ‘blocked’ by minority controlled North and East PCs creating security threats and consequently threatening peace, thus favoring Tiger regrouping.[7]
4. The extent of land in the North and East is so large; such vast resource will be monopolized by the North and East PCs- thus paving way to a meager national ethnic minority to discriminately control one third or more of land of the country.[8]
5. Land administration by Provinces will reject or scuttle alleviating land hunger of the majority community, which had been practiced from first Sri Lankan Prime Minister D. S. Senanayake’s era.
6. The larger areas of land mostly eligible for virgin development are in the North and East and the land related power sharing will discriminate and jeopardize the majority social welfare in other provinces due to possible legal inaccessibility to lands in the North and East, if land administration power is devolved to PCs and snobbishly used by them.
7. Though not publicly stated, a hidden feeling exists that the Sinhalese supremacy as an ethnic group will be weakened by land power sharing due to constraints placed on the majority community.
8. In a situation where the government is formed by one political group and the PC administration from another opposing political group, whichever the PC is, there will be difficulty in cooperating on land administration. In other words, government authority could be rejected by the PC, thus converting the central state authority to be secondary to provincial, if proper controls are not in place.
9. The hold of the government on environment considerations will be jeopardized by sharing land powers because resources such as watersheds, rivers etc are dual or multi-provincial assets.

The fear in (1) above is negated by the fact that Sri Lanka is a Unitary State, and not Federal or Quasi Federal. Hence there are many legal restrictions on that alone to counter such status, unless a Federal Constitution is accepted by the country, which seems to me millions of light years away from reality, unless a political miracle happens. Of course, if miraculously a Federal Constitution is accepted, the country has to abide by its stipulations because it is the country’s preference.

Concern (2) is negated by Article 33 (d) of the Constitution and it already made known by the interpretations by the Attorney General, which will be discussed later.

Concern (3) above can be managed under Appendix II 1- 1:1 where only a consultation is required with the PCs, when State land is required for a Reserved Subject. For me ‘consultation’ does not mean ‘concurrence’ or ‘permission’. It means procedures for assessing public opinion about a plan or major development proposal. Devolution can succeed only with such dialogue and compromises made.

Arguments (4) to (8) are not necessarily centered on land issues but on political and ethnic or communal considerations, as the North and East are predominantly populated by minorities who will elect majority of their provincial “rulers” from minority communities. It will make the national majority of Sinhalese a regional minority which will not be a consideration for other provinces. This discriminatory approach is in itself anti-constitutional because a person who has declared upholding and defending the Constitution (i.e. Fourth Schedule to the Constitution) will be violating the Constitution provisions by negating Clause 3:3 of Appendix II  by debasing land policy on “political and communal” aspects.

Any PC or parliamentary or other constitutionally established authority within the Government / Opposition hierarchies, thus inclusive of the Tamil politicians,  too will be violating the Constitution in similar manner by acting with such discriminatory bias, whichever the communal  / political group that is favored by them.

The concern (9) is looked after by Clauses 3.2 and 3.3 of Appendix II and Article 27 (14) of Directive Principles in the Constitution.

Being a non-lawyer layman I do not intend dealing with intricate legal issues, but my stance (subject to correction by legal luminaries) is that the concerns in (9) and other legal issues are surmountable under existing constitutional provisions.

Countering fears on devolving land administration powers

Let me briefly counter these fears that suggest that existing constitutional provisions assist federating, provincially monopolizing, leaving space to block national land hunger solutions, discriminating the majority and degrading environment.  Nevertheless, unexpected repercussions may arise but it is a case of management to overcome them.

(1)    The preamble of scheduled List II under 13^th Amendment to the Constitution gives the National Policy making power on all subjects (thus ‘land’ included) to the government by being “Reserved” and not to the PCs. Reaffirmation of this power is in Appendix II- 3:1 through the National Land Commission” (NLC) of the government, and not by the PCs. Under Clause 3.4 of Appendix II, the PCs have to exercise powers devolved on them “having due regard to the national policy on land formulated by the NLC, which will be an arm of the State. Therefore, the threat of monopolizing and ad hoc manipulations by the PCs will not be possible. Note: The National Policy on any subject / function under the 13^th Amendment which lies in the hands of the government cannot be cajoled or crippled to suit narrow minority political gains of political parties that demand power sharing. They cannot be rhetoric and debunk the constitutionality. Those from the government ranks who oppose devolution of land powers should clearly understand the power lying in the hands of the government. Instead they have throughout exhibited jittery weak-kneed responses to devolve. However, the accepted work steps to declare a National Policy is not clear. Is there any law, constitutional arrangement, institutional arrangement or a commonly accepted process for this exercise, except for land national policy making? If available, has any government made use of any such system for national policy making?

(2)    According to Appendix II preamble “State land shall continue to vest in the Republic” and not with the PCs and subjected to Article 33 (d) of the Constitution and written law. This is further subjected to special provisions stated in Clause 1 of Appendix II. Of course, the challenge will be how to manage the special provisions to bring the conflicting groups together when there are given court rulings.

(3)    Disposition of State land will be in accordance with Article 33 (d) of the Constitution which states that the Public Seal of the Republic for grants and disposition of lands and immovable property will be a power and function of the President. It is noted the attempts through PC Statutes to thwart this power and authority has been successfully countered by the government.[9]

(4)    Land as a subject and function will be controlled by the government as per (1), (2) and (3) above, excepting in some constitutionally identified areas, as mentioned under (5) below.

(5)    Appendix II Clauses 1- 1:1 to 1:3 empowers the government to:

(a)    Utilize land for a Reserved or Concurrent subject by the government in accordance of laws governing. The government shall ‘consult’ the provinces but not be dictated by the PCs, or for that matter need not always agree with the PCs’ opinion. If the interpretation of ‘consultation’ is to seek permission it will complicate the issue and hence care should be taken in drafting working arrangements of the national policy on lands. However, ‘consultation’ will be one way to condition stiffened stances.

(b)    Make available land for provincial subjects for the administration, control and utilization in accordance with the laws and statutes governing land, for which the national policy of the NLC will be the main guideline (Clause 3:4 of Appendix II). It will be seen later that there had been some accepted ways in the past and review and imposition of the appropriate may be considered by authorities.

(c)    Permit the President to alienate and dispose any State land on the advice of the PCs, which makes the government powerful to manage lands under power sharing. Here too it must be remembered that PC advice need not be mandatorily accepted[10], but reasonable and due consideration will enhance required relationships between the centre and periphery.

Note-1: The Attorney General has interpreted this matter further by opining that Clause 1:3 of Appendix II is only confined to alienation[11] and disposition of state land which had been released to a PC for PC subjects in terms of Clause 1:2 of Appendix II for which the advice of the relevant PC will be required. This means that the right of the State to dispose State land in accordance with Article 33 (d) of the Constitution and other written law (which will include the Crown Lands Ordinance) is unfettered.[12]

Note-2: Whether the ‘advice’ is binding on alienation or disposition of State land may be a concerned matter. On perusal as a layman, it is observed that there are instances where ‘advice’ comes in to limelight in PC administration. For example Article 154B (8) (d) relates to the Governor acting “in accordance with the advice of the Chief Minister” who possesses the majority in the PC[13]. Under 154F (1) the need to act in “accordance with such advice” is stated. But under 1:3 of Appendix II such forcible use is not demanded. The President is subjected to act “in accordance with the laws governing the matter” and not on the advice of the PC. It meant working in accordance with the Land Laws already in place and even the future legal instruments that could be passed.

(d)    The constitutional provisions for inter-provincial irrigation and land development projects (e.g. Mahaveli Scheme) straightforwardly lie in the hands of the government, as per Clause 2 of Appendix II. However, compromises to be made towards the role of PCs as per Appendix II should be explored, as stiffened status will not support power sharing. The NLC and the National Policy could assist in building the required rapport. [14]

(e)    Under Clause 2:3 of Appendix II the principles and criteria regarding the size of the holdings will be determined by the government in consultation with the PCs, but not unilaterally by PCs or under the dictation of the latter.

(f)     The criteria for allottee selection will be on the degree of landlessness, family size, income levels, agricultural background etc (Clause 2:4), which had been similar during Prime Minister D. S. Senanayake days and later, until politicization of selection increased under all successive political regimes. One may argue that the application of these criteria is within PCs powers. But, PCs shall exercise such powers having due regard to the National Policy formulated by the NLC. (Appendix II- Clause 3:4). The NLC can within the constitutional provisions incorporate to the National Land Policy other appropriate criteria on selection of allottees or processes, tagged to constitutionally approved ones.

(g)    Further, ethnic ratios and expansion of the allottees to the Province from districts is assured by Clause 2:5 of Appendix II, which will look after all communities on a proportional basis.

(h)    Clause 2:6 of Appendix II assures the equity principle of land management.

(i)     The politically vulnerable maintenance of demographic ratios is assured by Clause 2:7 of Appendix II.

The focused demands of land powers and the expressions used at such instances made by Tamil politicians, media and Diaspora spokespersons have made this issue acute and suspicious, with an ethnic bias. It is unfortunate. Their interests project expressions endorsing the “Homeland Concept” of the Tigers. This concept and counter concepts have been in circulation for long. The merged North and East concept of the Tigers and Tamil politicians was one such, which was countered during President JR Jayewardene’s tenure by opening up Dollar and Kent Farms and attempts made to redraw the provincial boundaries by colonization the banks of Yan Oya. Probably the Tamil spokespersons are convinced now (end 2011) that it is currently happening.

The brewing demand for Tamil homeland was orchestrated recently by TNA Leader R Sampanthan MP and MA Sumanthiran MP where they focused on the land owned by Tamil people’.[15] Some called these lands “Tamil lands”[16] tagging ethnicity to lands. Countering this is observed right now with carving of Weli Oya Divisional Secretary’s Division by the government replicating status anticipated by the Yan Oya Project of the UNP regime quoted above. These Tamil politicians demanding land administration powers, having created suspected ulterior motives of political and communal bias also commit the same judgmental error, equivalent to those committed by some pro-government political authorities in the South who resent sharing land powers with the Provinces.

Land administration power sharing past interventions

May I start with the political beliefs behind land power sharing?

The politicians rely on conventional thinking of power sharing. So much so deliberately or inadvertently they place devolution and decentralization as an ethnic issue. This status is due to a false premise, also patronized by many Tamil and some Sinhalese politicians. Many Tamil politicians think that North and East belong to the Tamil speaking people, and none other. Many Sinhalese politicians and sometimes bureaucrats think that North and East should be left alone as the potential area for alienation of their choice and should not be lost to minority administrations. Further, they argue on historical, ethnological and archeological evidence to demand total control of land, and some going to the extent of Sinhalese- Buddhist domination of areas. How unfortunate to observe a devastated nation cracked to splinters, population and leaders think in divisive and non-integrative terms after a nearly thirty year conflict, when unity and integration should be the theme for nation building? This is the psychological paranoia created by trust deficiency, which takes various shapes, one being future security considerations, another being State aided colonization. And, there may be many others.

Let us glimpse on the past practices that had been guided by this mythological beliefs. I say so because how governments acted had been decided by politicians’ whim and fancy, and, unfortunately and not necessarily by sanity, judiciousness or constitutional reasoning.

The points quoted here are proof of how successive governments performed in power sharing exercises on land. The importance of reference to such actions is that the governments cannot be ad hoc, nor need to waste time to reinvent the wheels. And further, this proof provides the understanding that a government could be challenged on legality, processes, past, continuity, predictability that should be maintained by a government. Such challenge will not motivate reconciliation, which seems to me as a serious pressure exerted on the incumbent government, especially by the Indian South Block, though sometimes subtly handled by them with a velvet glove. Or, are we not privy to what really happens to conjecture so?

I flag some of the actions that related to the land power sharing exercise undertaken by successive governments, which cannot be erased by rhetoric, as I see from statements made by politicians, some professionals, opinion makers and journalists etc. Summarily some salient aspects are stated below.

(1)    The 13^th Amendment has proposed several institutional arrangements and legal provisions that could make land power sharing a possibility. All land related activities are expected to be done in accordance with Appendix II. This status could be used to have controls through the NLC, which can safeguard governmental interests, as it derives power from the basic law- i.e. the Constitution.

(2)    It is reminded that the then Minister of Land and Land Development (Minister Gamini Dissanayake) met the Chief Ministers, Provincial Ministers, Chief Secretaries and senior officials on August 4^th 1988 and made clear the State policy on devolution of land powers under the 13^th Amendment. His Secretary by circulars informed the extent and coverage of land powers that have to be devolved by ministries and departments and went to the extent of informing that the officers in the Provinces who were carrying out the functions of Lands and Irrigation under List I would thereafter function under the administrative fiat of the Provincial Secretary of Lands and Irrigation.[17]

(3)    The above circular was issued after wide dialogue between the government and provincial administrators and extended to even submitting a draft Statute for land power sharing, from which the Ministry expected fulfilling provincial statute making.[18]

(4)    The Ministry intended to share resources with the provinces for land management as stated in this circular.[19]

(5)    A conflict in law on delegation of power based on Clause 1:3 of Appendix II, which queried on the alienation or disposition of State land within a Province to any citizen or to any organization by the President was pointed out by the Ministry of Lands and Land Development[20] to the Presidential Secretariat.[21]

(6)    To this conflict the Attorney General responded[22] that “it would be competent for the President to delegate any power in terms of Section 105 of the Crown Lands Ordinance”.[23] But the Attorney General additionally advised that “before making the proposed delegation, it would be necessary to amend the Third Schedule in Regulation 24 made under Sections 95 and 96 read with Section 105 of the said Ordinance”. I do not think this amendment was done.

(7)    Since there was a time lag for Statute making the PCs (Consequential Provisions) Act No: 12 of 1989 was passed by the Parliament and certified by the Speaker on May 30^th 1989. Its preamble says that it is an “AN ACT TO MAKE INTERIM PROVISION FOR THE INTERPRETATION OF WRITTEN LAW ON MATTERS SET OUT IN LIST I OF THE NINTH SCHEDULE TO THE CONSTITUTION” which showed the interest and intent of the government for continuity of implementing the constitutional provisions of the 13^th Amendment (not only State land matters).

(8)    Though there is fear among the opponents of power sharing on land that PCs will have total power on alienation and disposition of any State land in a Province, based on the Attorney General’s opinion the Secretary of Lands advised that “the advice of the relevant PC will be required only for the alienation and disposition of State land which have been made available to PCs for PCs subjects (List I).”[24] Hence, the above mentioned fear may be redundant as the PCs’ authority is restrained / limited by release of lands by the government to the PCs [summarily explained below under (9)] and due to the requirement for the PCs to adhere to the National Policy that is formulated by the NLC. (See Appendix II- Clause 3:4.)

(9)    Release of State lands thus becomes very crucial for which there were arrangements made by the then (1989) Ministry of Lands.[25]  Accordingly, when an application is made to the Minister of Lands and Land Development, it will be processed by the Ministry and approved by the Minister; and, when the request is for more than 500 acres it will be submitted to the Cabinet for approval. When the approval from the two sources is received, a certificate of release will be issued by the Minister of Lands. The Land Commissioner will release land to the PC through the GAs. The fear that the provinces will grab State land as they wished is rejected or at least satisfactorily diluted when this process of release of State land is considered. The authorities involved in the operation are all centrally government managed and hence will be center friendly.  As it is, land administration can be reinforced by the NLC by delegating more powers to the GAs, as decided by the Cabinet recently (October 2011)[26], if accepted by the NLC. These past processes can be learning experiences.

(10)  Since the PCs were managing land affairs in different ways, the Ministry of Lands and Land Development clarified the operational status on transfer of land work to the PCs under several important legal instruments , i.e. the Land Development Ordinance,  as amended by Act No: 16 of 1969 and Act No: 67 of 1989, Crown Lands Ordinance No: 8 of 1947, Land Grants (Special Provisions) Act No: 43 of 1979 and State Lands (Recovery Possession) Act No: 7 amended by Act No: 58 of 1981.[27] These have looked after the needs of the government up to now (with revisions as required) and improved by the government under the Bimsaviya Programme.[28]

(11)  There is grave fear in the minds of southern politicians that the Tamil politicians will encourage encroachment of State lands as there had been similar experiences with the Gandhian Movement and others in the quest for state power by the Tigers. Hence this fear may be even justified. Even this issue is covered under Act No: 29 of 1983, Regularization of Encroachments wherein it was expected that PCs receive the concurrence of such regularization through the Land Commissioner and Ministry of Lands, again central authorities.[29] The inputs of guidelines by the NLC could be used to tighten screws as required by endorsement, if such fear is intact even now, or until clear understanding is reached.

(12)  Keeping to the constitutional requirements, the Ministry of Lands directed that all lands other than the Inter Provincial Irrigation and Land Development Projects should be administered by the PCs and kept the decision making power on the latter lands in the centralized unit of GAs at the District level, again a central authority. If this is the way how it ought to be, the NLC mechanism could be utilized as an alternative authority to the Ministry of Lands even in the future.

(13)  According to the instructions given by the Ministry of Lands, PCs could initiate the alienation of State lands for which the lands had to be released by the Government and this will be done according to the process mentioned in (9) above, which gives the handle to the government and not to Provinces. It was categorically mentioned that alienation of lands under small tanks rehabilitated under Village Irrigation Rehabilitation Project which did not come under the Inter Provincial Irrigation and Land Development should be done by the PCs[30]. If 13^th Amendment is for power sharing, and at least this power is not given to Provinces, what is farcically shared or devolved?

(14)  The Ministry was cautious with regard to possession of documents which was to be done through the GAs or Provincial Land Commissioners due to the ongoing conflict situation in the country, which may be reviewed at present after war victory.

(15)  The Appendix II made a very important provision regarding the establishment of the NLC, under Clause 3. This proposition has created many knee-jerks among southern politicians. The NLC was not appointed by any government after 1987, though required by the Constitution.  It was perhaps due to several reasons, though Appendix II was very clear that its appointment was by the government, and PCs should exercise the devolved powers having due regard to the National Policy as formulated by the NLC[31]. Reasoning for non appointment of the NLC is thought of as follows:

(a)  The prevalent understanding that national policy making should not be in the hands of a Commission but in the ‘supreme’ Cabinet, as such policy making will negate the powers and authority of the ‘central’ politicians in the Cabinet.[32] However, national policy making is completely controlled by the government under the preamble to List II under the 13^th Amendment, Article 33 (d) of the Constitution and Appendix II- Clause 3.

(b)  The fear was that the NLC membership in numbers will be more biased to the eight PCs and hence the PCs may dictate to the government on land issues- the tail wagging the dog! When the NLC Bill was presented in the Parliament on July 21 1992, this fear was erased by making provision for 19 members under Section 3 of the draft Bill. The overriding power was kept in the hands of the government by proposing a larger number having allegiance to the center and thus the NLC’s National Land Policy would have been obviously centre oriented.[33]

(c)  The monopolistic power that was wielded by the Parliamentarians on land issues since Independence cannot be retained if land powers are shared because the lands released for alienation and disposition will be managed by the PCs according to the Constitution. This is one selfish jealousy that prevents the centre to hold on to land powers. But, if needed to counter misdoings, the National Policy approved by the NLC can provide for reasonable measures such as reviews.

(d)  In addition, if the government and PCs are in different political controlling hands it may thus provide opportunities for the PCs to come in to conflicts with the opposing political groups during alienation and disposition of land. If the ongoing dialogues are an indicator it is certain that such conflicts would occur, especially between the center and North and East Provinces. Even now this happens in southern PC areas when political power rests with the same political group. And, some times after an election selected allottees are chased away from the legally alienated lands due to political reasons! However, the NLC should strictly create the selection criteria with national binding that could prevent such happening. Additionally, the Technical Secretariat in Clause 3:2 in Appendix II should introduce methods to settle conflicts of interest between and among PCs / Government.

(e)  The unpreparedness of Land Ministers to think that the NLC is the body to make the National Policy for State Lands was openly expressed by the Ministry of Lands advising Provinces and District Administration to inquire on National Policy from them,[34] while concurrently and conveniently evading appointment of the NLC, thus validating reason for such direction by the Ministry of Lands.

(16)  The Bill presented in the Parliament to establish the NLC gave the powers and functions of the Commission that included the preparation of the national policy with regard to the use of State lands and to lay down norms in regard to the use of State lands having regard to the soil, climate, rainfall, soil erosion, forest cover, environmental factors and economic viability, which are the interests of the Technical Secretariat under Section 14 of the draft Bill. But this Bill never saw the light of the day and lapsed after nearly two years on June 24^th 1994 with the dissolution of the Parliament. This showed how the then UNP government that showed extreme keenness to devolve land powers in 1989 lagged behind in five years.  It coincided with another important political scenario- i.e. change of hands of the presidential administration, as well as allocation of the subject of Land in the Cabinet.

(17)    Administrative control of Provincial Land Commissioners by governmental fiat was done in several ways. Firstly, the government took steps to appoint all Provincial Land Commissioners from among Assistant or Deputy Land Commissioners of the Land Commissioners Department[35] Secondly, the Provincial Land Commissioners were concurrently appointed as Additional Land Commissioners.[36] Thirdly, the Land Commissioner commenced Provincial Land Commissioners Meetings where land management issues were discussed and directions were given. Fourthly, with the Transfer of Powers Act the Divisional Secretaries were made Heads of Departments of the centre and land work in the Divisions was left in their hands using centralized authority. These arrangements kept the provincial land administrators under the thumb of the centre and not really under the PCs. Is it the latter been tried now (end 2011) by strengthening the hands of the District Secretaries?

(18)    Two Provinces, namely North Central and Western, passed the Land Statutes.[37] However, the government did not want these statutes to be implemented. The government received the Attorney General’s Department blessings to intervene on recommendations made by the Land Commissioner to stop implementation[38]. Some provisions in these Statutes were conflicting with or suggesting encroachment of Reserved constitutional provisions, which incidentally found to be wanting by the government on reasonable grounds. I may quote one such provision to prove the point. In the Land Statute 5 of 1994 passed by the North Central Province, Section 3 while stating that the implementation of the Statute was subject to the powers vested to the President under the Constitution, included provision to issue grants under Section 4.1- a presidential power under Article 33 (d) of the Constitution. In another case the Statute empowered the PC under 3.6 to deal with mining, disposition of minerals etc, which is a power granted to the government under the Reserved List ‘Minerals and Mines (b)’. Hence, it was not surprising to observe the ‘central’ government [39] and Attorney General opposing such provisions, and making use of such opportunity to steamroll the PC by using Executive direction. This is the way how the Government which was so accommodative in 1989 to pass the Statutes (by even sharing a draft Statute) changed its course in 1995 due to political decisions and afterwards blocked the implementation of the Statutes which were passed by the PCs.

(19)    When I was the Secretary of PCs, end 1993 a similar issue was raised and on the instructions of Lands Minister Paul Perera, circular instructions were issued by the Secretary Lands reiterating the already explained constitutional provisions.[40] I guess this was due to my refusal to permit alienation of land on a request of a UNP parliamentarian and my acting in defense of the Southern PC under (Opposition) Chief Minister Amarasiri Dodangoda. Later even Governors were cautioned by the Ministry of Home Affairs, Provincial Councils and Local Government to ensure that Land Statutes were delayed or not passed.[41] These experiences taught how governments could pressure not to share land powers.

Need for a National Land Policy as per 13^th Amendment

The National Policy on Land is specifically mentioned in Appendix II Clause 3:1 and the implementation by PCs is mentioned in Clause 3:4 of the same.

The Land Commissioner or the Secretary of Land or President’s Secretary[42] has been declaring what should be the purported Land Policy or guidelines for adherence by the center, PCs and even other government institutions. Though the NLC was the institution to do this job by constitutional empowerment and when there was no attempt even to frame a law to establish the NLC, how could it perform? How could extraneous authorities be restrained from acting in this manner in such lacuna? If one argues that this was deliberate usurpation of constitutional power and thus a violation of the Constitution, it shall hold water.

Ad hocism was observed through out. As mentioned earlier there were political and positive bureaucratic interventions just after the PCs Act was passed. Immediately after the change of presidency in 1989 this commitment lapsed and all institutional arrangements were directed towards centralizing, affecting good performance of devolution and land was one area thus affected heavily. I may list a few of these actions for reference sake to prove that there were negative attitudes against devolution exhibited by all successive governments.

1. Withdrawing Assistant GAs from PCs to the center, creating Divisional Secretariats responsible to the center and allowing them to handle land issues, appointment of Provincial Land Commissioners faithful to the center (during President R. Premadasa’s term)
2. Withdrawal of Grama Niladharis from the PCs (during President D. B. Wijetunga’s term)
3. Appointing Committees to decide on land policy issues comprising only of central government representatives and without a representative from the Ministry of Provincial Councils at the center (PM Ranil Wickremasinghe’s term)
4. Issuing of orders, guidelines and adherence notes to PCs and central agencies etc by the Presidential Secretariats (during Presidents D.B. Wijetunga’s, Chandrika Kumaratunga’s and Mahinda Rajapaksa’s terms)
5. Gazetting of Land Use Policy Planning Department by executive fiat by the Ministry of Lands[43] encroaching in to a portion of NLC powers endowed by the Constitution under item 3.2 of Annex II. (President Mahinda Rajapaksa’s term)

These show the extent of centralized encroachments and interference on the constitutionally provided devolution of powers. Similarly it affected the National Land Policy formulation mechanism authorized by the Constitution.

Proposition for consideration

The basics of State land are unknown to the general public. Similarly, they are in the dark on devolution and centralization. They will face the same amount or more of less of similar injustices, favoritisms, political interventions, corruption etc, as they had been for ages whether the land powers are shared with the PCs or not. As a former land administrator I have seen these happening under all political regimes.

The current lack of dialogue on land power sharing in all quarters other than among politicians proves the narrow understanding and disinterest the public have on this issue. It is mostly the politicians in the government and Tamil groups who are interested in the cause for land power sharing. They are the affected groups from sharing or non-sharing of powers on land. For political expediency parliamentarians and even those in the PCs who would gain more power by devolution reject and refuse land power sharing, as observed from the statements made by parliamentarian Deputy Minister Karuna Amman who had vociferously demanded power sharing earlier when he was a Tiger and PC Chief Minister of the East and PC Chief Ministers even in the South. Are they speaking their hearts out? I doubt the integrity of their intentions. How politicized the issue is proved by such behavior. Hence, the propositions are to sort out a crucial political issue on the table.

I may summarily state on a step by step basis the way out of this embroiled status, leaving space for improvements by the Executive and other political, legal and administrative hierarchies.

1. On parliamentary approval of the NLC law the government can establish the NLC according to the requirements of Clause 3:1 of Appendix II to formulate the National Land Policy and create the Technical Secretariat as per Clause 3.2 of Appendix II with persons possessing expertise to handle land issues.
2. Let the NLC initially review the current national land policies and their implementation status to identify the strengths and weaknesses. It should find the threats for devolution and opportunities for further improvements.
3. Find out from the above exercises the areas where the government should make revisions to State land use, land release, alienation and disposition processes. The National Land Policy should be an outcome of these deliberations and perhaps by serious studies undertaken by the NLC Technical Secretariat, and not on ad hoc decisions and stipulations.
4. A White Paper on National Land Policy should be prepared by the NLC which could be discussed with the PCs and at the Parliamentary Consultative Committee before it is presented to the Cabinet for approval. Large amount of information mentioned above on past interventions could be made use of as appropriate in the preparation of this White Paper. This process will fulfill the constitutional requirement of List II Preamble for policy making and erase the suspected negative inhibition that the Cabinet will be secondary to the Provinces.
5. The Attorney General will have to observe and unambiguously advise the NLC on the application of the National Land Policy from its formulation to implementation, monitoring and reviewing stages to ensure conflicts are minimized to the maximum in implementation and to support drafting a common Land Administration Statute that should balance and erase the suspicions in the minds of the government and PCs. A senior representative from Attorney General’s Department should be seconded to this Secretariat on full time basis or at least nominated to assist the NLC.
6. The NLC should carry on as an ongoing and continuing exercise by way of monitoring and evaluating the progress or digressions or deviations that occur in the implementation of the National Land Policy and propose revisions and amendments as required making it an efficient and effective work process. NLC will advise the government (i.e. Cabinet) on areas which will need future policy and implementation revisions, for the Cabinet to decide on legal and operational amendments, as required.

This issue is not as simple as one could present in a paper. It is a much more serious legal, political, socio-economic and ethical issue. However, if the government is interested in sharing power with the PCs on land administration, these may be initial steps that could be considered. These could be the foundation for change of attitudes and actions. One may note that compromises have to be reached if the ends in the 13^th Amendment are to be achieved. It cannot be achieved by demanding the pound of flesh as done mostly by devolutionists and Tamil politicians, especially in the Tamil National Alliance or by denials alone as done by some pro-centralists opinion makers and southern politicians. “Give and take” mentality has to be adored.

I believe that the government currently thinks in the same pose as seen from the stance of President Mahinda Rajapaksa who had requested Democratic People’s Front leader Mano Ganesan to convince the TNA to drop its hard line stance, be flexible and cooperate with the government to find a solution to the national issue.[44] Cannot one consider the earlier quoted Daily News statement by the President a show of flexibility and cooperation? Any way clapping with one palm is impossible!

Conclusion

If the government is determined not to share power in anything and carry on with centralization whatever the opposing political demands are, and give a backroom position to devolution and reconciliation, the propositions given here can be instantly ignored. Perhaps, erasure of the 13^th Amendment may solve the issue of devolution for good! The day it happens the validity of this paper will exist no more. The manner in which the government is acting even gives the indication that it could be on the way, if too much pressured. One should not push the President to the wall and expect him to succumb when he is in total control of the Parliament and the country. Until then the hope is that the case for land power sharing could and should be revisited under the nagging circumstances mentioned above.

It will be very embarrassing and difficult for the government to run away from giving a fair deal for sharing land powers. This demand has constitutional validity, backed by recorded judicial decisions from the most superior courts, some decided by the very same luminaries who will sit on judgment on the issue. It is pursued relentlessly by Tamil political authorities and the internationals, in an environment where a government appointed Commission recommends devolution and when the government is exploring avenues of proving its genuineness of the commitment for change to Sri Lankans –especially to Tamils- and internationals.

Since the demand is made by political negotiators like parliamentarians R. Sampanthan and M.A. Sumanthiran (at government initiated negotiations) who do not carry suicide bombs like Velupillai Prabhakaran, it will be difficult for the government to throw down the gauntlet calling them terrorists, as the government did with the Tigers. I believe that one day –sooner than later- the government and Tamil negotiators will come to terms on an agreed basis of power sharing in land administration.

It has to invariably happen irrespective of fears in the mind of Minister Douglas Devananda as quoted earlier and the negative stances taken by Ministers like Wimal Weerawansa and Champika Ranawaka on land power sharing. It has to happen even though professionals like Attorney Gomin Dayasiri or Dr. Gunadasa Amarasekara reason out for the rejection of this demand. The important million dollar question will be to what extent can the government and Tamil politicians agree on devolving land powers to the PCs and how. In that context the above proposal may be basic, but could be considered as an initial approach to answer this query.

Concurrently, it is the war victory that gives the strength to reconcile and take convinced extremely bold decisions. Such decisions can be marketed to the nation only by the victor. In the current context it is President Mahinda Rajapaksa who can take this challenging uphill task and none other. It appears that the time has come for him to volunteer for such stance even to go beyond the 13^th Amendment.[45]

I am aware that one may find loop holes in this proposition and arguments. If so, let them discuss and improve the proposition. It is required because it is a constitutional obligation and all these politicians have declared to uphold the Constitution by signing the Fourth Schedule to the Constitution.

I wrote the paper with the conviction that this is one way to rationally think of reconciling and bring justice after the Great War victory. This paper may be a miniscule contribution for reconciliation, but, it is drops of rain that form streams, water falls, reservoirs, rivers, estuaries, seas and oceans.

To conclude, I am reminded of what Mark Twain said once- i.e. ‎”A man cannot be comfortable without his own approval.” This saying applies to those who cannot approve what is in their own Constitution. As long as they do so they will be uncomfortable and will be carking, because they are violating the basic law of the country. A broader consultation and dialogue for approval may make things comfortable for everyone.

Long Reads brings to Groundviews long-form journalism found in publications such as Foreign Policy, The New Yorker and the New York Times. This section, inspired by Longreads, offers more in-depth deliberation on key issues covered on Groundviews