WRITTEN SUBMISSIONS OF COUNSEL GOMIN DAYASRI IN THE LANDMARK SUPREME COURT CASE IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
Posted on October 2nd, 2013

SC/ Appeal No: 21/13

SC/Spl./LA No: 203/2012

C.A/PHC/Appeal No: 37/2001

HC/CP/Certi/No: 42/97

 

In the matter of an Application for Special Leave to Appeal against Judgement of Court of Appeal dated 08.08.2012 in Case No: CA (PHC) Appeal 37/2001 and in the High Court (Kandy) of the Central Province Case No: Certi 42/97 

 

  1. The Superintendent,

Stafford Estate,

Ragala, Halgranaoya.

  1. S.C.K. de Alwis,

Consultant/ Plantation Expert,

Plantation Reform Project,

Ministry of Plantation Industries,

Colombo 04.

  1. The Attorney General,

Attorney General’s Department,

Colombo 12.

Respondents-Respondents-Petitioners.
Vs.

SolaimuthuRasu,

Dickson Corner Colony,

Stafford Estate, Ragala, Halgranaoya.

Petitioner-Appellant-Respondent.

WRITTEN SUBMISSIONS ON BEHALF OF THE

2nd PETITIONER

 

                                        PART I

1.  Prologue

a. The 13th amendment introduced the element of ‘Land’ (in list 1) and ‘State Land’ (in list 11) into the Constitution and created many misconceptions; primarily, because it has been shrouded in controversy on interpretation. This led to misgivings in court, as in the present case, where the Court of Appeal erred in determining the jurisdiction of the High Court. Many learned High Court Judges have resorted to usurping the jurisdiction of the Court of Appeal, sometimes in their enthusiasm of extending their authority to the provinces but more often due to their being misdirected by diverse and conflicting judgments of the superior courts. The time has arrived and justice requires a revisit to the relevant provisions in the Constitution and for Your Lordships/Ladyship be pleased to determine with a measure of finality, the proper jurisdiction of the High Court and the Court of Appeal, on matters pertaining to the subject of ‘Land’ and ‘State Land’ as envisaged in the 13th amendment.

b. The reason for misinterpretation is mainly because the judgments have not examined all the relevant provisions in the constitution; probably because learned counsel have failed to bring it to the attention of the Their Lordships of the multiple aspects embedded in the constitution relating to pivotal words. It is the sacred obligation of counsel to assist the apex court to reach a correct decision as the consequences impact the nation in view of the the many superficial pronouncements made by the Supreme Court/Court of Appeal.

c. In a jigsaw puzzle where only few of the pieces are fitted, a comprehensive picture fails to surface: indeed, such a blurred miniature visual emerged with the learned judges of the High Court and Court of Appeal refitting few of those distorted pieces and disturbing the jurisdiction of the courts. Those honourable judges obligingly followed a pattern that was set for them by a few selected ill determined decisions of the apex court.

d. It is with this intention uppermost, mindful of the background, counsel for the 2nd Petitioner felt obliged to fit all the pieces in the jigsaw puzzle and present a comprehensive picture to enable Your Lordships/Ladyship to reach a wholesome conclusion. Counsel for the 2nd Petitioner respectfully offers gracefully his gratitude to Their Lordships/Ladyship who in their wisdom and fortitude permitted him with Their Lordships/Ladyship great courtesy and much patience, to present all necessary building blocks to help Their Lordships to determining the respective jurisdictions of the appellate courts that will help to solve a problem that has snowballed into virtually a national issue.

 

2.Facts and issues in the Present Case

i.        The 2nd Petitioner the Competent Authority initiated proceedings to recover a State Land in respect of an illegal occupation in the Magistrate Court in terms of the provisions of the State Lands Recovery of Possession Act No 7 of 1979.

ii.        The Respondent filed an application in the Provincial High Court of Kandy praying for a writ of certiorari to quash the quit notice filed in the case. The 2nd Petitioner by way of a preliminary objection stated that the issue related to State Land and that the Provincial High Court did not have jurisdiction since the subject did not come in the Provincial Council list- namely List 1.

iii.        Provincial High Court held it had no jurisdiction to hear the matter and upheld the objection.

iv.        Thereupon on an appeal the Court of Appeal held that since the subject of State Land is in appendix II of the Provincial list in the 9th schedule to the 13th amendment to the Constitution, State Land becomes a subject of the Provincial Council list even though State Land continues to vest in the State. The Court of Appeal held in consequence of the said finding, the Provincial High Court had the necessary jurisdiction.

v.        The Court of Appeal in reaching its finding based itself on the judgement of the Supreme Court in the Land Ownership Bill decided on 10.12.2003 wherein the Supreme Court stated ‘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 with the 13th Amendment” [copy of this determination was handed to Court]. Having adopted the aforesaid incorrect principles on a superficial interpretation of the Constitution by Chief Justice Shirani Bandaranayake, the Court of Appeal in this case pronounced: “It is therefore seen from this judgment that the matters dealing with transfer of ownership of State Lands to citizens of Sri Lanka comes within the Provincial Council list. Then how can this court accept the contention that subject of State Lands does not come within the Provincial Council List”.    There is no infirmity on the part of the Court of Appeal as they are bound by the rules of stare decisis to follow decisions of a superior court; not so counsel, who is obliged to place the correct position in law, according to the best of their knowledge and to assist the Supreme Court to reach a correct decision. It is for the Supreme Court to act with wisdom insight and perception to extend the frontier to its rightful extent.  Flaws, at times, can be fatal.

vi.        The learned judge of the Court of Appeal also took into consideration the judgement of Supreme Court in Vasudeva Nanayakkara vs Choksy and others [John Keels case][a copy delivered] and set out a portion of the said judgment as follows: “A pre condition laid down in paragraph 1:3 is that an alienation of land or disposition of State Land within a province shall be done in terms of the applicable law only on the advice of the Provincial Council. The advice would be of the Board of Ministers communicated through the Governor, the Board of Ministers being responsible in this regard to the Provincial Council” and then the learned judge of the Court of Appeal, in the present case adopted this position where Chief Justice Sarath N Silva rushed to judgment on a cursory interpretation of the Constitution causing much harm to the rules of constitutional interpretation. The Court of Appeal obligingly observed: “I am bound by this judgement.” The Court of Appeal also stated in the present case   ‘Thus when one applies the principles laid down in the above judicial decisions it has to be concluded that State Land becomes a subject of the Provincial Councils”.

vii.        The Court of Appeal thereupon sent it back to the Provincial Council High Court for rehearing.

viii,        It is from the said judgement the 2nd Petitioner together with the other two petitioners lodged an appeal and the two issues in contention are-

a.  Did the Court of Appeal err by deciding that the Provincial High Courts have jurisdiction to hear cases where dispossession or encroachment or alienation of State Lands is/are in issue?

b.  Did the Court of Appeal err by failing to consider whether there is a right of appeal against the order of the High Court dismissing the application in limine for want of jurisdiction?

ix.    The counsel for the 2nd Petitioner together with all other counsel in this case before Your Lordships Court made submissions on issue (a) above alone; therefore these submissions are limited to the said issue. It is submitted respectfully to determine the said issue, the four corners of the Constitution require examination as the Supreme Court has made varying and conflicting decisions, without a thorough examination of all the relevant provisions, possibly because it was not brought to the attention of Their Lordships Court by counsel appearing in those cases. It is most opportune for this Court, for His Lordship the Chief Justice and other two eminent Lordship/Ladyship, to consider every aspect and reach a conclusive and inclusive judgment to ease the prevailing state of confusion in law and especially in the interpretation of the Constitution that has troubled many a mind of judges, lawyers, academics, administrators, members of the civil society, political authority, intellectuals and the thinking public.

Submission No 1

In list 1 (Provincial Council) appearing in item 18 the sentence reads –

“Land – Land that is to say, rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement to the extent set out in Appendix II”

In list 2 (Reserved) it reads as

“State Lands and Foreshore Except to the Extent specified in item 18 of List 1.”

POINT ONE-

“State Land” and “Land” are situated in two distinct and different lists. List II holds the entirety of the content of State Land – “except to the extent specified in item 18 of List 1”

POINT TWO–

There is no doubt that ‘State Land’ is comprehensively set out in List II Reserved Subject- with the Centre ‘except to the extent specified in item 18 of List 1’. The portion excluded from State Lands in the Reserved List (List II) is embedded in item 18 in list 1 which sets out the extent delivered to the Provincial Council, which details are outlined in list 1. The portion extracted out of the subject State Lands in list II sits in List 1, calling itself LandLand that is to say, rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement to the extent set out in appendix II”.

It is posted under the heading ‘Land’ in List 1 to avoid any misnomer since List II carries the heading State Lands. Both List 1 and II cannot carry the same subject of State Lands. [This is explained more fully later]. So List 1 carried the heading ‘Land’.

 POINT THREE –

How should the distinct and different allocations on land power between Lands and State Lands be interpreted in the manner set out in list 1 item 18 and List II in terms of the Constitution?

[A].     There are several guidelines afforded by the Constitution to assist in the interpretation –for example- by the phrase- “that is to say”. What does it mean? Clearly- the first usage of ‘land’ in item 18 is a reference to the Subject of Land; then the word ‘land’ is repeated again (second usage in the same sentence), followed by the words ‘that is to say’. Undoubtedly that is to make the word ‘land’ restrictive, to narrow the extent by the phrase “that is to say”-emphasised and stressed to give a construction that is precise: that land in item 18 in List 1, means this much and no more. It narrows the scope of ‘land’ in item 18 by the usage of words ‘that is to say’ as to make it abundantly clear the limitation the Constitution desires to impose emphatically, by usage of the said phrase, so as to limit the confines of the land power conferred to the Provincial Councils.

 If so what is the extent the Constitution intends to extend land powers to the Provincial Council list? The next phrase provides the answer to the query- “that is to say rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement to the extent set out in Appendix II”.

 [B].     The phrase  “that is to say “rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement to the extent set out in Appendix II” is further boxed by the usage of “to the extent set out in appendix II”. The Constitution mindfully has limited the extension of land powers for the Provincial Councils by sandwiching it at both edges of the heading ‘Land’ (a) by the repetition of the word ‘land’ twice as to make it emphatic that the Constitution is not prepared to travel the full distance on land, in a conveyance to the Provincial Councils (b) by the usage of words ‘that is to say’ is to set out the distance the Constitution is prepared to travel on the restrictive limited land powers conferred on the the Provincial Councils (c) finally it places a road block on the travel path by limiting it to the extent set out in Appendix II. This is an imposing terminal constructed on reaching Appendix II- that faces the subject of “land” in List 1.

 Therefore the reasoning of the Court of Appeal in this case, is faulty in following the decisions in the Land Ownership Bill determination and John Keels case in classifying State Lands as a Provincial Council subject. The Supreme Court in those cases referred to, never analysed these provisions because counsel never directed court to the salient aspects or the Supreme Court lackadaisically did not care to think it necessary to go beyond the border, counsel were prepared to venture. This was the origin of the confusion and the ensuing harm is colossal. Consequently the exercise of land power between the centre and province became disturbed with the lesser courts being crippled by following the said hasty decisions sending the provincial administration berserk with wrongly acquired land powers. Therefore an opportune moment has arrived for Your Lordships to make the Constitution regain its lost territory and reset it to its rightful and lawful framework which is set out in the four corners of the Constitution. The law must precede and prevail overcoming all obstacles caused by the improper construction:  the true intention of the Constitution is reachable by an enlightened interpretation of the Constitution.

Submission No 2

 POINT FOUR-

The zone allocated on land to the Provincial Councils is firmly fenced by the Constitution. The zone has three fence posts in the following order of priority (a) THE FIRST FENCE POST- List II that states on State Lands Except to the Extent specified in item 18 List 1. This reveals the limitations imposed on State Lands in so far as Provincial Councils are concerned (b) THE SECOND FENCE POST-Land as per the submission 1 above is restricted to “rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement and is further reinforced by the phrase “to the extent set out in Appendix II.” This shows how the constitution circumscribed land powers awarded to the Provincial Councils.  (c) THIRD FENCE POST; There is no scope for Provincial Councils in stretching the boundaries beyond Appendix II in terms of the Constitution. The restrain and curb imposed by the above (a) and (b) fence posts further constrains, confines and encircles the subject of ‘Land’ by a great wall erected in Appendix II – on a plain reading of the Constitution.

It is a misfortune that the learned Judges of the Supreme Court did not look beyond shallow and narrow confines in interpreting the Constitution in the judgments in the Land Ownership Bill and the John Keels case much to the peril of the nation. It’s the obligation of Your Lordships to rectify the faults of the past and maintain the Constitution in its purity.

Submission No 3

 Land in Sri Lanka consists of land belonging to individuals, corporate bodies, unincorporated bodies, charitable, social institutions, local authorities, temples, kovils, churches, mosques and trusts etc. Bulk of the land is vested in the State as state lands and are held by the State and/or its agencies. Local authorities (including Provincial Councils) have had grants of land from the State of State Lands and more often these local authorities (including Provincial Councils) have purchased lands from individuals/corporate /unincorporated bodies etc. and have become land owners on their own right.

State can make grants absolutely and more often it does so provisionally with conditions attached or by way of leases, permits, licenses as per sec 2 of the State Lands Act. Such conveyances can be made by the State to any person/organisation entitled to hold land including Provincial Councils according to law.

POINT FIVE –

Much of the land in the country is State Land and the demarcation between the centre and the periphery is eventually over the said State Land. It must be noted private lands in the hands of individuals, companies, organisations, corporate and unincorporated bodies would not fall into the equation of distribution of power/authority on land between the Centre and Periphery. In this background it must be noted though there are decisions of courts to the contrary, the Constitution unequivocally in List II and in Appendix II has placed State lands with the Centre, “Except to extent specified in item 18 of List 1” [quoted from List II]. Obviously the Constitution is the supreme document since courts too, comes into existence also from the constitution

 POINT SIX

Therefore it is necessary to examine the extent that is so excluded from State Lands as specified in List II and in List 1. On an examination of List 1 it reads as follows: Item 18 in list 1-“Land-Land that it say, rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement to the extent set out in appendix II”. Obviously these rights cannot be held by Provincial Council or by the State over Private Lands but could over State Lands. Obviously these rights in item 18 in List 1 are in respect of State Lands only as these listed rights cannot relate to private lands. This contention is further reinforced as Item 18 in List 1 has the phrase as “to the extent set out in Appendix II”. In so far as Lands are concerned in Appendix II it relates specifically to Public Lands [ State Lands and Inter-Provincial Irrigation and Land Development Projects etc]; and not to lands held in any other manner such as privately owned or otherwise owned land (Private Lands).  

In recognising the term ‘State Land’, it is defined in the State Lands Act and the State Lands (Recovery of Possession) Act and in the several amendments to these Acts. No previous judgment defining the term ‘State Lands’ in the Constitution has taken cognizance of the said statutory definitions of State Lands, which is of importance to identify what constitutes State Land and to whom it belongs and/or possessed. [For the convenience of Courts all such definitions on ‘State Lands’ together with the amendments of the Acts referred to relating to State Lands is annexed hereto in Schedule I]

Submission No 4

List II (Reserved list) has an exhaustive clause attracting all subjects and functions not assigned under the Provincial Council and Concurrent Lists which are assigned to the Reserved List wherein list II states “All Subjects and Functions not specified in List 1 and List 3 including….”-{items (a) to (u) are set out therein}. Furthermore the same phrase is utilized in conferring National policy on all Subjects and Functions in list II.

 POINT SEVEN-

This shows the intention of the legislature was that there should be no “casus ommissus’ situation- namely List II (Reserved List) was compiled to take over any subject or function not dealt with in List 1 and List 3.

In other words there is no grey area – there is no vacuum whatsoever. List II picks any hiatus inclusive of all the missing functions dealing with Land not listed in list1. So this is an additional bonus to the Reserved List on land amongst other matters; gaining added value to the  Reserved List on the subject of state land especially since the term ‘land’ is confined to a few aspects in list 1. (which has being elaborated previously). The word ‘including’ is meaningful because it shows items (a) to (u) listed in list II therein are particularised items which are not exhaustive. The word ‘including’ will extend beyond any area untouched because it proceeds with the phrase: “All Subjects and Functions not specified in List 1 and List 3 including…” This supplements list II being invested with National Policy on all Subjects and Functions. Thus the list II carries hypo power with all untouched surpluses on all subjects and functions reverting to List II.

Justices Mark Fernando, Dr A.R.B. Amerasinghe and S.W.B. Wadugodapitiya in the determination on the Agrarian Services Bill {a copy delivered} stated:

“It is also important that List 2 includes “All Subjects and Functions not specialized in List 1 or List 3” as this indicates that what is devolved is only what is expressly specified in List 1 or List 3.”

This establishes the catchment area of List 1 is very narrow and confined unlike List II which is overwhelming with subjects and functions.

Ironically, neither the meaning that should be assigned to subjects and functions nor the surrender of all subjects and functions not included in List 1 and list 3 to list II were sadly not considered by the Supreme Court, possibly being not brought to its attention in either the Land Ownership Bill or the John Keels case, where there has being a mere surface scratching of the relevant clauses of the Constitution, without a deep penetrative examination, as required by the supreme body. It is indeed strange that the term “All Subjects and Functions not specified in List 1 and List 3 including…” makes no appearance in either the Land Ownership Bill or John Keels cases for that reveals a major component in the formulation of the three lists has gone unnoticed or unobserved by the Supreme Court.

Unfortunately the Court of Appeal, which followed the aforesaid judgments, to the last letter omitted to consider the Agrarian Services Bill case

POINT EIGHT

A statutory definition is necessary in determining the phrase ‘State Lands’ in the Constitution. More so, as the functions set out in the said Acts, becomes relevant in the exercise of interpreting the Constitution and in the search for guidelines; for the said Acts are a part of a larger legislative process. It must observed in the absence of a definition of the term “State Lands” in the Constitution, one must access the Acts of Parliament in the search of meaning of words and other guidelines such as to the disposition of State Lands. Both Article 33 [d] of the Constitution in respect of disposition of State Lands/Immoveable Property reads that the President can do so “as he is by law required or empowered to do; while Appendix II states: “ 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”. Therefore disposition of State Land will have to be by way of law with access to the State Land Act or any other statutory instrument.

Leave a Reply

You must be logged in to post a comment.

 

 


Copyright © 2017 LankaWeb.com. All Rights Reserved. Powered by Wordpress