Land Powers vested in the Provincial Councils: Dayan misses the boat

Gerald H. Peiris, in The Island, 16 October 2013, where the title is “

GERRY PEIRISThe reader of Dr. Dayan Jayatilleka’s ‘Disinformation, Devolution and the Presidency’ (Midweek Review of 2 October 2013) has ample reason to wonder whether the caption refers to the doctor’s own disinformation or to what he has attributed to others. I am not concerned with the mildly amusing autobiographic trivia with which Dr. DJ often finds it necessary to embellish what he has to say on genuinely important issues. My focus here is on his observations on the recent Supreme Court clarification of the limits of the powers over ‘Land’ vested on Provincial Councils through the 13th Amendment to the Constitution, and on the links he has tried to establish between the resurgence of the Tamil National Alliance (a potentially secessionist political force backed by India) and prevarication on the part of the government of Sri Lanka he perceives in implementing to the fullest the provisions for devolution of power to the Provincial Councils.

The rhetorical opening of Dr. DJ discourse on the SC judgement reads as follows: “Would you believe that the entirety of Sri Lanka’s mass media got it wrong about the provincial councils and devolution?” The story carried in our dailies, according to him, “…was that the Supreme Court has ruled that powers over land were not vested in the provincial councils but in the Government”. Warning us of the disastrous consequences of Provincial Councils being divested of “land powers” through a court judgement, he says: “Had the story (carried by the press) been true, it would have meant that a landmine had exploded under the prospect of political reconciliation and perhaps Indo-Lanka relations. Luckily it was not”. Expecting, no doubt, a thankful sigh of relief from his readership, Dr. DJ says that the judgement is nothing more and nothing less than a reiteration of the existing provisions of the 13th Amendment pertaining to ‘Land’, and attributes the alleged misreporting by the media to a “melodramatic interpretation” (by an unnamed person) of the judgement at a post-trial press briefing.

With the easy access I have to well-stocked libraries and, of course, the leisure of retirement, it has been possible for me to check in six national newspapers (Sinhala and English) whether there is any substance to Dr. DJ’s indictment of the “entirety of Sri Lanka’s mass media”, and found that the reports they carried were reasonably accurate summaries the Supreme Court’s adjudication on an earlier Appeal Court ruling pertaining to “land powers” of Provincial Councils. I also recollect the TV broadcasts of the media briefing to which Dr. DJ has made a thoroughly disparaging reference. Contrary to what he says, it was an extempore but flawless explanation of the implications of the unanimous decision arrived at by the three judges on a constitutional issue that had evidently been muddied by certain earlier court decisions. Since most of the newspaper reports were more detailed than the disclosures at the press reports, there is no substance (other than personal bile) to the charge of the journalists being misled by the “Sinhala spin of a hawkish person”.

There are several facts which Dr. DJ should grasp before he could comment knowledgeably on constitutional matters pertaining to ‘land’. The most obvious among these is that land legislation is far more complex than that pertaining to most other affairs of government. One reason for this is that the term ‘land’ is definitionally hazy. Another is that statutory powers over land encompass a wide spectrum of governance stretching from an international plane (as it did in Sri Lanka during the nationalisation of plantations in 1975), at the one extreme, to that of the individual citizen (as experienced in the employment of the Land Acquisition Act of 1950 or the Land Reform Law of 1972), at the other. In systems that involve power-sharing between the Centre and sub-national units of government (including local government institutions), moreover, the related constitutional provisions often contain grey areas that require illumination by the courts of law. Innumerable legal disputes in India (some of which continue to remain unresolved) relating to measures such as Zamindari abolition, land-ceiling legislation, tenurial reform, land reserves and reservations etc. illustrate this fact quite vividly.

13 A: Sri Lanka has had its share of statutory disputes on “land powers”, especially since the enforced adoption of the chaotic 13th Amendment. Those among them with significant constitutional ramifications adjudicated by the Supreme Court include the ‘Vasudeva Nanayakkara vs. K. N. Choksy Case’ (aka ‘John Keels Case’) and the ‘Land Ownership Bill’ of 2003. If the judgements in these cases were to be treated as precedents for later interpretations of devolution of ‘land powers’, they could well be construed as substantiating the view that almost unfettered powers over all land occupied by public sector institutions and vacant ‘State Land’ (the latter covering an estimated 40% of Sri Lanka’s total area) have been vested on Provincial Councils. My understanding as a layman (with only a meagre awareness of the related legal intricacies) is that it is in this specific context – i.e. the repudiation of earlier Court interpretations – that the unanimous conclusion of the Bench announced on 26 September 2013 assumes utmost importance. The reasoning through which the need for such repudiation was arrived at independently by each of the three judges was reported albeit briefly in several newspapers including The Island. These surely could not have been based on “melodramatic interpretation” at a press briefing. What they seem to indicate instead is that the journalists concerned had a better understanding of what had transpired in the court than Dayan Jayatilleke. There could be no dispute, however, with Dr. DJ’s statement: “Far from revising or picking at the seams of the 13th amendment, what the Supreme Court had done was to reiterate the letter and spirit of that amendment”. The judiciary, as far as I know, does not revise or “pick at the seams” of constitutions. But what it is often called upon to do in its role as guardian of the constitution is to contextualise and interpret specific constitutional provisions in the larger body of constitutional law.

Following the pronouncements on the “land powers” judgement, Dr. DJ has turned to the declining support for the Rajapaksa regime in the ‘north’ and the resurgence of the TNA in that part of the country since the end of the Eelam Wars in 2009, adding to it the drop in the pro-Sri Lanka vote at the UNHCR from 29 in 2009 to 13 in 2013 presumably in order to illustrate an erosion of support for the regime at an international plane. The relevant extract from his article reads as follows:

“Does anyone remember that the government won the local authorities election in August 2009 with 54% of the vote? How did they crash to 18% in four years? Does it not parallel the decline from 29 votes to 13 at Geneva within the same four years? What does this say of the regime’s post-war policies outside its cultural comfort zone of the Sinhala majority two-thirds of the island (and that too mightily assisted by the catastrophic entrenchment of Ranil Wickremesinghe as the leader of the main opposition party)?”

Yes, we do remember that elections were conducted in 2009 to the local authorities of the Jaffna municipality and the Vavuniya Urban Council (2 out of the total of 34 local authority areas of the Northern Province, which he prefers to forget), but that the government did not win those elections with 54% of the vote – what the UPLF did obtain was 50.6% in the Jaffna MC and 24.8% in the Vavuniya UC (to the latter, one could stretch a point and add the 4.8% polled by the SLMC). We also know that the TNA at the time of those elections was reeling under the impact of the loss of its real leader, Prabhakaran, and that the remnants of its leadership has since then acquired electoral momentum, impelled by support from several sources – irredentist forces in South India, certain countries of the global west and their Sri Lankan lackeys, and a segment of the Tamil diaspora. The other facts we recollect (but Dr. DJ hides) include the less than 20% polls turnout in both Jaffna MC as well as Vavuniya UC, the 49% anti-UPFA vote in Jaffna, and the ITAK obtaining more votes than any other group in Vavuniya. Incredibly, the doctor seems to think that the election results of these two local authority areas in 2009 could be compared to that of the provincial elections of 2013. Most of us are also aware that “government policies outside its cultural comfort zone” include the commendably successful efforts at rehabilitation and reconstruction of the war-damaged areas – the prime ingredient of reconciliation – though falling short of the misguided DJ ideal of a 13A+. His assertion of declining international support for Sri Lanka based on a comparison of the vote-count at the UNHCR in 2009 with that of 2013 is similar to his ludicrous interpretation of the ‘northern’ elections. Disregarding the relevant background differences between 2009 and 2013 that had a vital bearing on the UNHCR polarisations (which I have spelt out in a paper published in The Island of 14 June 2013) he persists with the hallucination that it was his diplomatic wizardry including a declaration of commitment to the 13th A (unauthorised, according to certain critics) that won the day for us tentatively in 2009.

The political acumen claimed for the 2009 forecast of a revival of the TNA is also an absurdity. I remember reading several pieces which made the same prediction, some advocating the implementation of the 13th Amendment as a preventive measure, and others prescribing the abolition of the Provincial Councils system which, as everyone knows, was a by-product of the Eelam effort.

On the lighter autobiographical part of Dr. DJ’s article we note that he does not conceal his fury at being removed from his post as Sri Lanka’s Ambassador to the UN in Geneva, evidently for something he had said at a TV panel discussion. His reasoning for the dismissal could well be correct because, as a person who followed his diplomatic career with benevolent interest, I was often amazed by his ‘free-lancing’ with scant attention to the compatibility of his public utterances with prevailing government policy. Despite His Excellency’s ‘undiplomatic’ lunacy those in authority over Sri Lanka’s foreign affairs were benign enough to reappoint him as our man in Paris (and UNESCO), a position previously held by illustrious persons like Ediriweera Sarachchandra, Sumitra Pieris and Ananda Guruge – an almost sublime honour, one should think. So, sad to say, the alleged victimisation through palace intrigue has to be treated as humbug. President Johnson when asked why he does not get rid of the cantankerous Edgar Hoover from the FBI is supposed to have retorted: “Better to have him inside the tent pissing out than outside pissing in.” This anecdote comes to mind when I think of the possibility of Dr. DJ expecting President Rajapaksa to emulate Lyndon Johnson.

There is in Dr. DJ’s article just one point that should gladden us. He is resentful of the fact that President Rajapaksa has referred to him as someone belonging to “a powerful NGO”. I agree. It is quite outrageous to be identified with the Colombo-based anti-Sri Lankan NGO outfits. But the trouble is that the term ‘NGO’ (like ‘Land’) has a vague connotation – there are NGOs and NGOs of all types and persuasions.


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Filed under constitutional amendments, democratic measures, governance, politIcal discourse, power politics, power sharing, Rajapaksa regime, reconciliation, Sinhala-Tamil Relations, sri lankan society

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