WRITTEN SUBMISSIONS OF COUNSEL GOMIN DAYASRI IN THE LANDMARK SUPREME COURT CASE IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA – PART II
Posted on October 2nd, 2013
ANALYSIS OF APPENDIX II
[A].Ã‚Â Ã‚Â Ã‚Â Ã‚Â List 1 and List II pivots around Appendix II on the subject of State Land and Land. Appendix II is an attachment to List 1. In the case of List 1– the words are: Ã¢â‚¬Å“the extent set out in Appendix IIÃ¢â‚¬Â directly bringing in Appendix II; while in List II it is redirected to Appendix II through List 1 – Ã¢â‚¬Ëœexcept to the extent specified in item 18 of List 1Ã¢â‚¬â„¢– where item 18 in List 1 refers it back to Appendix II in List 1. In any event, List II subject Ã¢â‚¬ËœState LandÃ¢â‚¬â„¢ holds the prime position in appendix II in List 1.
As stated previously, details in List 1 relating to Land namely- Ã¢â‚¬Å“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 IIÃ¢â‚¬Â can be applied only to State Lands and not to private lands. Neither the State or a Provincial Council can exercise the above mentioned aspects over private lands. Furthermore being a national and a provincial body it would be state lands that would attract both bodies. In any event, Appendix II relate only to State Land and not to private lands. As stated previously it is posted under the heading Ã¢â‚¬ËœLandÃ¢â‚¬â„¢ in List 1 to avoid any duplication/misnomer since List II carries the heading State Lands. Both List 1 and II cannot carry the same heading State Lands. It was the intention of the Makers of the Constitution to give an exalted position to State Lands in List II and leave it in the hands of the Centre and deliver a specified portion of State Lands to the Province namely rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement Ã¢â‚¬â€œ and call it Ã¢â‚¬ËœLandÃ¢â‚¬â„¢ in List 1. It was not possible to duplicate state lands in list 1 and II therefore it was given the lesser status of Land in List 1. The meeting place of List 1 and List II is Appendix II where Ã¢â‚¬ËœlandÃ¢â‚¬â„¢ in List 1 get submerged into State Lands in list II and thereupon Ã¢â‚¬Å“LandÃ¢â‚¬Â places a submersed subsidiary role role. This becomes more obvious on reading Appendix II.
Ã‚Â Analysing the Clauses in Appendix II
Ã‚Â Ã‚Â i.Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â The phraseÃ‚Â Ã¢â‚¬Å“State land shall continue to vest in the Republic and may be disposed of, in accordance with Article 33(d) and the written laws governing this matterÃ¢â‚¬Â(hereinafter referred to as the Ã¢â‚¬Å“opening sentence of Appendix IIÃ¢â‚¬Â)- establishes State Land is a subject of the Centre.
ii.Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â The words above Ã¢â‚¬Ëœshall continue to vest inÃ‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â the RepublicÃ¢â‚¬Â carries the connotation that it is vested in the Republic at all times Ã¢â‚¬â€œ(i) past, (ii) present and (iii)in the future- making it positively perennial till the present Constitution reigns. It proves that State Land belongs to the Ã¢â‚¬ËœRepublicÃ¢â‚¬â„¢ (Article 2) at all times and not to a Province.
iii.Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â The word Ã¢â‚¬ËœdisposalÃ¢â‚¬â„¢ in terms of article 33(d) and Appendix II require that it had to be executed under the Public Seal of the Republic, an act that can be done only by the President, as the sole repository of the Public Seal. Article 33 (d) reiterates that land and immoveable property is vested in the Republic. Only the President could divest such land and immoveable property by written law. Written law has a definition in the Constitution [Ã¢â‚¬Å“written law” means any law and subordinate legislation and includes statutes made by a Provincial Council, Orders, Proclamations, Rules, By-laws and Regulations made or issued by any body or person having power or authority under any law to make or issue the same] which enables the President to dispose under any law or statute or under any subordinate or subsidiary legislation. Therefore the President can dispose land under laws passed by Parliament or statues of the Provincial Council or any subordinate/subsidiary legislation. It is only the President that can do so and not a Chief Minister or Minister of a Provincial Council. Therefore State Land vests in the State and is disposable by the holder of office of the President.
There is the word Ã¢â‚¬ËœandÃ¢â‚¬â„¢ between Article 33(d) and unwritten laws in the opening sentence of Appendix II (quoted above) thereby conferring the right of disposal under article 33(d) only to the President who could dispose under any written law. There are two fundamental requirements to fulfill with the introduction of the word Ã¢â‚¬Å“andÃ¢â‚¬Â– namely it must be an (i) act by a person named in Article 33 (d)- namely the President and (ii) in must be in terms of the written laws. It is significant that the word Ã¢â‚¬ËœandÃ¢â‚¬â„¢ is used instead of Ã¢â‚¬ËœorÃ¢â‚¬â„¢-making it conjunctive – leaving it exclusively in the hands of the President who must attend to it under written laws. The President is a creature of the national executive making it conclusive that State Lands are with the Centre thereby demolishing the findings of the Court of Appeal, in this case, in handing it to the Provincial Council List, following previous judgments/determinations of the Supreme Court.
Ã‚Â POINT ELEVENÃ¢â‚¬â€œ
The fact that Article 33 is invoked in Appendix II shows, accessing the pinnacle of executive power in Article 3 (b) as resorted to by the phrase in Article 33 [Ã¢â‚¬Å“In addition to the powers and functions expressly conferred on or assigned to him by the Constitution or by any written law whether enacted before or after the commencement of the Constitution, the President shall have the power-Ã¢â‚¬Â] which is to mount on the summit of the powers of the President provided by the Constitution, who is made the executive head of the Central Government Ã¢â‚¬â€œthe Chief Agent of the Republic Ã¢â‚¬â€œ sole holder of State Lands for Republic of Sri Lanka. Notwithstanding all these attributes provided by the Constitution, Two Chief Justices of this Republic placed State Lands in the provincial column in the hands of a Provincial Minister of Lands, with the flimsiest analysis: respectfully not worthy of the esteemed Supreme Court! Cry for my Country! Cry in anguish!! Solace is found from a quotation from John Cannon Ã¢â‚¬Å“In the last analysis sound judgment will prevailÃ¢â‚¬Â.
Ã‚Â POINT TWELVE Ã¢â‚¬â€œ
I.Ã‚Â The opening sentence of Appendix II (previously quoted above) reveal the intention of the Constitution in positioning Ã¢â‚¬ËœState LandÃ¢â‚¬â„¢ in an exalted status and in the hands of the Head of the National Executive.
II.Ã‚Â Thereupon having recited the above, thereafter twice subjected it [Ã¢â‚¬Å“Subject as aforesaid land shall be Provincial Council subject to the following special provisions: -Ã¢â‚¬Â] to show the devaluation accorded to Provincial Councils on State Lands. Indeed, Land is a Provincial Council subject (for reasons above – in jure it is state lands that is in the equation) with barriers fixed around it in the Constitution, and given a short shrift. Ã¢â‚¬Å“ 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 IIÃ¢â‚¬ÂÃ‚Â – displays its limited potency. Thereupon the subject of Land is further circumscribed in Appendix II as shown in Part II of these written submissions.
POINT THIRTEEN Ã¢â‚¬â€œ
With all these limitations and restrictions on Ã¢â‚¬ËœLandÃ¢â‚¬â„¢ in List 1, it plays a secondary / subordinate role to Ã¢â‚¬ËœState LandÃ¢â‚¬â„¢ in List II, that holds a superior status and is the major player and has State Lands vested in the Republic in the hands of the President. Courts by erroneous judgments tilted the power that the Constitution had otherwise determined creating much confusion and chaos in the country.
Role of the Ã¢â‚¬Å“PresidentÃ¢â‚¬Â and the Ã¢â‚¬Å“GovernmentÃ¢â‚¬Â is visible in analyzing the opening sentence and 1.1,1.2 and 1.3 in Appendix II. While the term President appears in the opening sentence in Appendix II and 1.3 the term government appears in 1.2 and 1.3.It is done meaningfully with a purpose.
(a)Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã¢â‚¬Å“PresidentÃ¢â‚¬Â is featured in the opening sentence of Appendix II by reference to Article 33 (d) and specifically in clause 1.3 under State Land. The term Government is used in item 1.1 and 1.2 under State Land and also appears in item 220.127.116.11,2.4 and 3.I in the Appendix.
(b)Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â What is the difference between President and Government? Is it significant? How is the term government recognized in the Constitution?
In fact Government is recognized as a distinct entity in Article 30 (1) of the Constitution along with such entities as the State, Executive and Commanders- In -Chief of the Armed Forces. The distinction appears in Article 30(1)
(a)Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â where Government is made an entity separate from the Executive with President described as the Head of the Executive/Government. There is significance in that – Government is not confined to an individual or a holder of office like the President. Government has wider catchment area being numerically stronger – in the broad spectrum to include members of the administration especially Ministers of non-Cabinet rank & High officials of the Administration. The significance lies in the fact, President in article 33 (d), in the opening sentence in Appendix II and at 1.3 of Appendix II is specifically given the authority to dispose or alienate State Land but such a right in not conferred on the Government: in law Government does not have the right and/or power to convey State Land. In fact in terms of article 33 (d) such power is only vested in the Keeper of the Public Seal who could make grants and dispose of land and immoveable property vested in the Republic. The keeper is the President the Head of the Executive. Therein lies the difference between the Government and the President who as the Head the Government holds a position/character exclusively of his own that even the Government does not possess under the Constitution. Any person in Government will have to seek the President in obtaining a grant or disposition of state land. In a capsulated form- all state land is vested in the Republic in hand of the President.
(b)Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â It attracts great significance as 1.2 states:
Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã‚Â Ã¢â‚¬Å“Government shall make available to every Provincial Council State land within the Province required by such Council for a Provincial Council subject. The Provincial Council shall administer, control and utilize such State land, in accordance with the laws and statutes governing the matter.Ã¢â‚¬Â
Even if the Provincial Council requires a state land for a Provincial Council subject assuming it is for a reasonable reason, in law, Government has no power and/authority to make available State Land, as it is the exclusive function of the President. That is why a neutered word such as Ã¢â‚¬Ëœmake availableÃ¢â‚¬â„¢ instead of Ã¢â‚¬Ëœgrant and disposeÃ¢â‚¬â„¢ [as in Article 33(d)] is used. Word Ã¢â‚¬ËœAvailableÃ¢â‚¬â„¢ is used since Provincial Council would have to obtain the consent of the President, as it is the President alone, who could alienate or dispose of such land under article 33 (d) and/or the opening sentence of Appendix II or under item 1.3 of appendix II. The President cannot be compelled or coerced to so since he could exercise his supreme discretion to determine whether it is available and/or reasonable. It is with this intention the word Ã¢â‚¬ËœGovernmentÃ¢â‚¬â„¢ is placed instead of the Ã¢â‚¬ËœPresidentÃ¢â‚¬â„¢ at 1.2 making the requested state land by the Provincial Council left at the discretion of the President. It is not compulsive or mandatory for the President to adhere to the request. This is so provided to be consistent with the all-powering provisions in the opening sentence of Article 33 where executive powers is firmly entrenched and the opening sentence in Appendix II on the President exercising his discretion he would make state land available to the provincial council for a List 1 purpose. In any event the deemed request by the Provincial Council will have to be a Ã¢â‚¬Å“reasonable requestÃ¢â‚¬Â for the President to consider in terms of laws or written laws. However the final decision is dependent on the discretion of the President as the ultimate authority to grant or alienate or dispose of State Land. President cannot do so contrary to law, for amongst other grounds, it will fail the test of reasonableness. For the many reasons adduced the word Ã¢â‚¬ËœshallÃ¢â‚¬â„¢ should read Ã¢â‚¬ËœmayÃ¢â‚¬â„¢ in the context of 1.2 of Appendix 1I at the point Ã¢â‚¬Å“Government shall make available to every Provincial CouncilÃ¢â‚¬Â¦.Ã¢â‚¬Â
e)Ã‚Â Ã‚Â The same construction will be applicable to clause 1.1 in Appendix II where State Land is required for the purposes of the Government.
f)Ã‚Â Ã‚Â Ã‚Â However at 1.3 of the Appendix II the Provincial Council can directly advise the President: difference here is that the Provincial Council in respect of an individual or organization on state land situated in a Province can access directly and offer advise to the President – and not to the Government. There is good reason: since there could be situations where Provincial Council will have intimate knowledge of individuals and organizations deserving of state land (for example: for a charitable or social purpose) and this is to pave the way for a fast track operation. It must be noted in the case of a 1.3 situation in Appendix II there is no application of List 1 or II or 3 subjects but purely for an individual or organization.
Particulars of items under Ã¢â‚¬Å“State LandÃ¢â‚¬Â in appendix II
[A].Ã‚Â Ã‚Â Ã‚Â Ã‚Â The government will have to act according to laws in giving effect to matters in item 1.1.The laws would mean according to the definition referred to in the Constitution in Article 170 relating to Ã¢â‚¬ËœlawÃ¢â‚¬â„¢. [“law” means any Act of Parliament and any law enacted by any legislature at any time prior to the commencement of the Constitution and includes an Order in Council]. In other words statues of the Provincial Council are taboo in respect of 1.1 where the subject matters in List II and list 3. This means it is in respect of legislation enacted by Parliament or its predecessors. This specifically excludes statutes pass by Provincial Council.
[B].Ã‚Â Ã‚Â Ã‚Â Ã‚Â The government is also required to consult the relevant Provincial Council in terms of clause 1.1 in the matter of utilization. If the government requires state land it too will have to obtain such land via the President, as he is the Keeper of the Public Seal and only authorized grantor under the Constitution
[A].Ã‚Â Ã‚Â Ã‚Â Since this deals with a provincial council subject both laws and statues can be utilized to achieve its objectives. It must be noted that Provincial Council have the powers such as those mentioned in Item 18 List 1 Ã¢â‚¬Å“ 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 Ã‚Â Ã¢â‚¬Â These rights are conferred to the Provincial Council as stated before.
[B].Ã‚Â Ã‚Â Ã‚Â The provision in item 1.2 permits the Provincial Councils in respect of the matters referred to in item 18 List 1- Ã¢â‚¬Å“Rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvementÃ¢â‚¬Â and where state land is made available to administer, control and utilize Ã¢â‚¬Â (1.2 in appendix II) such lands. Ã‚Â
Ã‚Â [C].Ã‚Â Ã‚Â Ã‚Â IN A NUTSHELL: Provincial Councils in exercising 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 (conferred by List 1) are limited to administering, control and utilizing the aforesaid powers conferred on Provincial Councils by item 18 in List 1 and 1.2 from Appendix II
Ã‚Â [D].Ã‚Â Ã‚Â Nevertheless land related to Ã¢â‚¬Å“Inter-Provincial Irrigation and Land Development ProjectsÃ¢â‚¬Â [item 2 in Appendix II]is out of reckoning for Provincial Councils due the provisions in 2.2 and 2.8 of AppendixII and the exception relating to Irrigation (List 1 Ã¢â‚¬â€œitem 19) where Ã¢â‚¬Å“Inter-Provincial Irrigation and Land Development Projects is ousted from List 1 item 19 under the subject of Irrigation.
Disputed Area and Dispute Resolution
There is a fine distinction on the selection of alottees since it appears in paragraph 2.4 of appendix II, which read as follows:
To the Government–
Ã¢â‚¬Å“The selection of allotters for such lands [Ã¢â‚¬Å“Inter-Provincial Irrigation and Land Development ProjectsÃ¢â‚¬Â] will be determined by the Government of Sri Lanka having regard to settler selection criteria including degree of landlessness, income level, size of family and agricultural background of the applicantsÃ¢â‚¬Â. [Bracket is Ours and not in the Constitution]
To the Provincial Council–
The actual application of these principles, selection of allottees and other incidental matters connected thereto will be within the powers of the Provincial Councils.Ã¢â‚¬Â
[Paragraph 2.4 powers are subdivided between Government & Provincial Council]
Ã‚Â POINT FIFTEEN-
Who actually does the selection of allottees?
It appears the selection of the allottees are to be determined by the Government in respect of lands associated with Inter-Provincial Irrigation and Land Development Projects on the criteria stated therein on matters of policy. It seems that Government must determine the policy having regard to the suggested criteria. Determining the Policy relating to the selection of the allottees is the function of the Government.
A possible meaning is required of the following words:
Ã¢â‚¬Å“The actual application of these principles, selection of allotteesÃ¢â‚¬Â¦Ã¢â‚¬Â¦. will be within the powers of the Provincial Councils.Ã¢â‚¬Â(2.4) It means that the actual application of those policy criteria including the actual selection process of allottees is with the Provincial Council for lands associated with Inter-
Provincial Irrigation and Land Development Projects within the Province.
However, any anomaly, if any, is cured by the National Land Commission in clauses 3.1 and 3.4
Ã¢â‚¬Å“3.1 The Government of Sri Lanka shall establish a National Land Commission which would be responsible for the formulation of national policy with regard to the use of State land. This Commission will include representatives of all Provincial Councils in the Island.Ã¢â‚¬Â
Ã¢â‚¬Å“3.4 In the exercise of the powers devolved on them, the powers shall be exercised by the Provincial Councils having due regard to the national policy formulated by the National Land Commission.Ã¢â‚¬Â
Ã‚Â POINT SIXTEEN-
Therefore finally national policy formulated by the National Land Commission Ã‚Â has to be effected by the Provincial Councils in the selection of allotees, in respect of these lands in line with the directions given by the National Land Commission: mindful that the National Policy on all Subjects and Functions are in the Reserved List and vested with the Centre.
Though there is no Act of Parliament on National Land Commission there is a Bill prepared on it. It would be prudent, in the interest of over coming many existing problems, to enact such legislation.
If the Provincial Councils deviate from implementing the guidelines in selecting allottees formulated by the National Land Commission in respect of lands associated with Inter Provincial Irrigation and Land Development Projects, courts with writ jurisdiction have the right to supervise and rectify any errors.
RESPONSES TO OTHER COUNSELÃ¢â‚¬â„¢S SUBMISSIONS
Ã‚Â Learned Counsel for the 1st Petitioner brought to the notice of Court item (g) under list II under Ã¢â‚¬Å“State Land and ForeshoreÃ¢â‚¬Â relating to the Property of the Government of Sri Lanka. It is submitted since Ã¢â‚¬Ëœstate landÃ¢â‚¬â„¢ appears in List II and Ã¢â‚¬ËœlandÃ¢â‚¬â„¢ in list 1, and there being provision that all subjects and functions not specified in List 1 or list 3 revert to List II that makes the word Ã¢â‚¬ËœPropertyÃ¢â‚¬â„¢ referred therein, could only mean Ã¢â‚¬ËœMoveable PropertyÃ¢â‚¬â„¢ as Immoveable Property, as aforesaid, is fully exhausted and covered in the Constitution. Therefore this submission is irrelevant.
Learned Counsel for Respondent did not make any learned submission worthy of a response except in making a few remarks that lacked substance.
For the reasons aforesaid, it is necessary for YourÃ‚Â Ã‚Â Lordships/Ladyship to re-state the law relating to the 13th amendment on List 1 item 18, List II on State Land and the contents in Appendix II with special emphasize on Article 33 (d) and interpret the Constitution correctly. To do so the entire gamut of the quoted Articles, Sections, Clauses Phrases and Words need examination. If done piecemeal or in isolation, the structure will collapse and fall. Even if, bulk of the pieces in the jigsaw are fitted, if there is one missing piece the emerging picture will become disturbed. Many mistakes have been made in the past and its best avoided.
Therefore respectfully it is urged that Your Lordships be pleased to undertake a major surgery on curing the constitution from its many maladies.
In the circumstances the decision of the Court of Appeal cannot stand for the aforesaid reasons.
for the 2nd Petitioner