Continued from last week
The Land Ownership Bill Determination (2003)
In the year 2003, the then Government tabled a Bill titled ‘Land Ownership’ to amend the Land Development Ordinance and Land Grants (Special Provisions) Act. This Bill was opposed by all the Provincial Councils of the country other than the North and the East which did not have a functioning elected Provincial Council at that time. All the other Provincial Councils submitted their objections to the Bill. It is pertinent to examine this judgment in view of its relevance to the subject of ownership of State land by the highest Court of Sri Lanka – the Supreme Court. 10 petitioners have challenged the constitutionality of this Bill by petitions presented to the Supreme Court and have thereby invoked the jurisdiction of the Supreme Court in terms of Article 121(1) of the Constitution.
The Bill according to its long title is “to provide for the disposal of 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 (Chapter 464) and the Land Grants (Special Provisions) Act, No. 43 of 1979.” The petitioners contended that the provisions of the Bill in its entirely and the procedure followed in having the Bill placed on the Order Paper of Parliament are inconsistent with the Constitution. The Bill provided for the holder of land under a grant made in terms of section 19(4) of the Land development Ordinance or section 3 of the Lands Grants (special Provisions) Act to apply for his existing right to be converted into full ownership, free of all encumbrances.
The procedure for such grant of ownership of State land was found in Part I of the Bill. The holder was required to forward an application requesting that the right conveyed to him under such grant or transfer be converted to full ownership and the right title and interest in such land free from all encumbrances to the Land Commissioner with a copy to the Divisional Secretary , Designated Officer or to an authorised officer. Such officer shall thereafter forward his observation to the Minister who shall, after satisfying himself on the correctness of the observations, forward all the relevant documents and the application to the President with his recommendation to the effect that in his opinion a certificate in terms of this Act may be issued granting the applicant full ownership in respect of such land free from all encumbrances.
Reserved List
The Bill under reference according to the Supreme Court dealt with the subject areas that are referred to in item 1 of Appendix II of the Provincial Council List. Item 1.3 in Appendix II refers to alienation or disposition of State land within a Province. The Supreme Court stated that this reaffirms the position that State lands shall continue to vest in the Republic while the subject of land is a matter for the Provincial Council. The Supreme Court also referred to the Reserved List, where reference is also made to State lands and provides that,
“State lands and Foreshore except to the extent specified in item 18 of List 1”
Such extents, are set out in Appendix 11 of the 9th Schedule, which specifically states that, “Land shall be a Provincial Council Subject”. In considering the aforementioned contents, the Supreme Court stated that it is abundantly clear that the matter in question is a Provincial Council subject that has been devolved to the Provincial Councils in terms with the Thirteenth Amendment. Article 154(G) of the Constitution refers to the statutes of the Provincial Councils and Article 154(G) 3 describes the position with regard to the law making power of the Central Government in respect of a subject given in the Provincial Councils List. Accordingly, in terms of Article 154(G) 3 of the Constitution, no Bill with regard to any matter set out in the Provincial Councils List shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed on the Order paper of Parliament, to every Provincial Council.
The necessity of such reference to Provincial Council is for the purpose of expression of their views on the Bill within the specified time period. After such reference, in the event where every such Council agrees to the passing of the Bill, such Bill is passed by a majority of the Members of Parliament present and voting. In a situation where one or more Councils do not agree to passing of the Bill, such Bill is to be passed by the special majority required by Article 82 of the Constitution. In consequence of this decision, the then government did not further proceed with the Bill.
Solaimuthy Case
Another important judgment of the Supreme Court which analysed and interpreted the provisions of 13th Amendment to the Constitution, to identify and demarcate between the Centre and the Provincial Councils in relation to the subject of State land is Solaimuthy Rasu v Superintendent, Stafford Estate judgment . In the view of the Supreme Court in the Solaimuthy judgment, the entirety of State land is referred to in List II (Reserved List) and it is only from this jerminal origin that the Republic could assign to the Provincial Councils land for whatever purposes which are deemed appropriate.
It is therefore axiomatic that the greater includes the lessor (Jmme Majus Continent in SC mimus) and having regard to the fact that in a unitary state of government no cession of dominium takes place, the Centre has not ceded, its dominium over State land to the Provincial Councils.
His Lordship Peiris CJ., in the Solaimuthy judgment stated that if there is a reservation in List II, the inescapable inference follows that what is reserved to the Republic could only be the larger entirety out of which the 13th Amendment chose to assign some portions of State land to the Provincial Councils and the pertinent question before the Supreme Court is the parameters with which of what is entrusted to the Provinces.
Having set out the overcharging dominium of State lands with the Centre, according to His Lordship Peiris CJ., Appendix II set out special Provisions which would qualify as further limitations on State lands assigned to Provincial Councils. These special provisions apart from demonstrating the limited extents of Provincial Councils over State lands also display unmistakably that State lands continue to be a subject of the Centre. Having grafted the brooding presence of the Republic on all State lands in List II, List I and then Appendix II and subject to these pervasive provisions, State lands are declared to be a Provincial Council subject in the second paragraph of Appendix II, but that declaration is only explanatory of the purposes for which the Provincial Councils have been assigned with land. Those purposes are evident in the special provisions 1.1, 1.2, and 1.3 of Appendix II. In the view of Peiris CJ., these special provisions also strengthen the position that State lands continue to be a subject located in the Centre.
As further stated by the Supreme Court in the Solaimuthy judgment, Appendix II in paragraph 3:4 provides that the powers of the Provincial Councils shall be exercised having due regard to the national policy formulated by the National Land Commission. The National Land Commission which includes representatives of all Provincial Councils would be responsible for the formulation of the National Policy with regard to the use of State Lands. Moreover if and when a National Land Commission is in place, the guidelines formulated by such Commission would govern the power of the Provincial Councils over the subject matter as interpreted in this judgment in relation to State Lands.
In the view of His Lordship Peiris CJ., on behalf of the Supreme Court in the Solaimuthy judgment, National Land Commission strengthens the contention that State lands lie with the Centre and not with the Provincial Councils.
The findings of the study also reveal that there are other provisions that indicate that State lands lie within the legislative competence of the Centre : Article 154 (G) 7 of the Constitution provides that a Provincial Council has no power to make statutes on any matter set out in List II. One of the matters referred to in that List is ‘State land and Foreshore’ except to the extent specified in item 18 of List I. According to Peiris CJ., all these features referred to above featured the unitary nature of the State.
Concluding Remarks
• In the 13th Amendment the subject of State land is included in the Provincial and Reserved Lists. Provincial Councils can only make statutes to administer, control and utilise State lands, if such State lands are made available to the Provincial Council by the Government for a Provincial Council subject.
• Since inter - provincial schemes are placed under the Centre, Provincial Councils will have control over only small irrigation schemes that use water from the Province and whose command area falls within the Province.
• The provisions in the Appendix II show a concern about disturbing the patterns of population distribution due to irrigation schemes, which have been a major factor for the present ethnic conflict. In the case of schemes controlled by the Province, settlement is to be on the basis of Province, provincial ethnic ratio. However, in the case of land under the Province, the Provincial Councils will have to follow the guidelines given by the National Land Commission. It is essential that in deciding on a suitable basis for land settlement, drastic changes to the existing demographic composition need be avoided. Whether to decide on the district ethnic ratio or Provincial ethnic ratio is a crucial decision impacting on communal harmony.
• The National Land Commission, is to have the responsibility for determining national policy on land use. In exercising powers devolved on them, Provincial Councils should have ‘due regard’ to the national policy.
• The ability of the Centre to control land in the regions come first of all from the powers vested in the President by the 1978 Constitution. Article 33(d) of the Constitution gives overall powers of disposition of land to the President of the Republic. This provision is reiterated in Appendix II of the 13th Amendment, which sets out the limits of a Province’s power over land.
• A devolution of power which falls well within the unitary framework is agreeable to vast majority in the country as generally evidenced through recent elections. Similarly, devolution of power is worthless if there is no utilisation of it by the provincial councils. Therefore a fine balance has to be struck between the two within the unitary framework which is possible.
• Examining the 13th A Bill 1987, the Supreme Court in the majority took the view that the unitary nature of the Constitution was intact. Provincial Councils were bodies subordinate to Parliament and the President. The minority took the view that Bills, inter alia, destroyed the unitary character of the State and also affected sovereignty and the foremost place given to Buddhism.
• In such circumstances, the idea of ‘maximum’ devolution of power even within the broad unitary framework need be clearly defined subject to agreement. Because it may work negatively in its later operation in course of time fueled by the ground circumstances. Similarly the idea of 13th plus, although it looks sound, need also be clearly defined as to its content and scope through national concensus, as it may also lead to further worsening of this national issue.
The central control of State land is useful for the environmental and public law considerations as well as to maintain the territorial integrity of the country. State land is also a symbol and hallmark of unity and integrity of the people as one nation. Any law leading to break it up to pieces would undermine such unity and integrity of the nation.