The Landmark Supreme Court judgement on State Land and Land
Posted on October 8th, 2013

RANJITH SOYSA

The recent judgement delivered by the Supreme Court on the subject of State Land and land is a ‚ critically important ruling‚  pertaining to the important subject of devolution of power under the The 13th Amendment. It conclusively added ‚ ‚ a nail in‚  the coffin of endless discourses, debates , research papers ‚ on the subject of ‚ devolution of land powers to the regions.

Sri Lanka with a land area of approximately 25000 sq miles is hardly the place for division based on land. It has varied geographical features interdependent on her land utilization and land development. Her‚  population‚  is unevenly distributed‚  compelling‚  the planners to adopt a holistic approach in determining‚  the long term development goals.

In short, it is inconceivable even to‚  contemplate in terms ‚ of exclusive ghettos or traditional homelands for groups in these challenging times.‚  The land should not be an item to satisfy the whims and fancies of a few but, should be a resource to be utilized in the long term development of the country.

The landmark judgement‚  concluded ..-‚  The 13th Amendment to the Constitution refers to State Land and Land in two different and distinct places. In my view the entirety of State Land is referred to in List 11 (Revised List) and it is only from this germinal origin that the Republic could assign to the Provincial Councils land for whatever purposes which are seemed appropriate. It is therefore axiomatic that the greater includes the lesser (Omne majus continent in se minus) 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 LANDS TO THE PROVINCIAL COUNCILS except in some limited circumstances as would appear in the judgement-¦.-

CJ Mohan Peiris discussed in detail the‚  issue of Land in Sri Lanka referring‚  to the matters submitted by the‚  Learned Counsel for the 2nd Petitioner and mentioned that the bulk of the land is vested in the state as state lands and are held by the state or its agencies.‚  Then ‚ he referred‚  to Appendix 11 and states ..- Appendix 11 begins with an unequivocal opener — State Land shall continue to vest in the Republic and may be disposed of, in accordance with Article 33 (D) and written laws governing the matter-‚  Further he states -Ëœ This peremptory declaration is a pointer to the fact that State Land belongs to the Republic and not to a Province-â„¢

The CJ also discusses the‚  structure of power sharing based on previous judgement of Sharvananda CJ in The Thirteenth Amendment to the Constitution (1987) 2 Sri L.R 312..‚  The judgement referred to essential qualities of a federal state and compared them with those of unitary states.‚  ..- The term -unitary – in article 2 is used in contradistinction to the term -Federal-â„¢ which means association of semi-autonomous units with the distribution of sovereign powers between the units and the Centre. In a Unitary State the national government is legally supreme over all other levels. The essence of a Unitary Government is that this sovereignty is undivided-in other ‚ words , that the powers of the Central Government power are unrestricted. The two essential qualities of a Unitary State are (1) the supremacy of the Central Parliament and (2) the absence of subsidiary sovereign bodies. It does not mean the essence of subsidiary lawmaking bodies, but it does mean that they may exist and can be abolished at the discretion of the central authority. It does, therefore , mean that by no stretch of meaning of words can subsidiary bodies be called‚  subsidiary sovereign bodies and finally , it means that there is no possibility of Central and other authorities come into conflicts with which the Central Government‚  has not the legal power to cope-¦.-

..-On the other , in a Federal State the field of Government is divided between the Federal and State Governments -¦.The Federal Government is sovereign in some matters and the State Governments are sovereign in others. Neither is subordinate to the other, -¦in a Unitary‚  Constitution -¦the sovereignty rest only with the Central Government-

The CJ concludes‚  – Having adopted the above analysis and in the light of the structure and scheme of the constitutional settlement in the 13th amendment to the Constitution , the irresistible conclusion is that the Provincial Council subject matter in relation to State Lands would only mean that the Provincial Councils would have legislative competence to to make statutes only to administer , control and utilize State Land if such State Land ‚ is made available to the Provincial Councils by the Government for a Provincial Council subject-¦-

Another very important aspect of this case is the copious, intense and fruitful submissions made by Manohara Silva , the Attorney at -“Law for the 1st Petitioner and Gomin Dayasri‚  , the Attorney at Law for the 2nd Petitioner.‚  It is a veritable treasure trove for the persons interested in the Constitutional Law and general administration structures in the country.

In the prologue to his submissions , the Attorney Gomin Dayasri‚  very strongly argues that - The 13 the amendment introduced the element of Land and State Land 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 judgements of the superior courts. The time has arrived and justice requires a revisit to the relevant‚  provisions in the Constitution and for Your Lordship / 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 subjects of -ËœLand-â„¢ and -ËœState Land-â„¢.

-¦- In a jigsaw puzzle where only a 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 the Court of Appeal refitting a few of those distorted pieces and disturbing the jurisdiction of the courts-¦.It is with this intention uppermost , mindful of the background ,counsel for the 2nd Petitioner felt obliges to fit all the pieces of the jigsaw puzzle and present a comprehensive picture -¦.to present all necessary building blocks to help their Lordships to determining the respective jurisdiction of the appellate courts that WILL HELP TO SOLVE A PROBLEM THAT HAS SNOWBALLED INTO VIRTUALLY ‚ A NATIONAL ISSUE-

Then he proceeds ahead in presenting persuasively and methodically the facts and issues applicable to the case under 12 points from the filing of the application by the Second Respondent in the High Court , the judgement of the Court of Appeal, recommended interpretation of the Land and the State Land with reference to the Provincial Council and the Centre, the reasoning of the Court of Appeal was faulty, Reserved list and the Regional list ,powers vested in the Republic

Attorney Gomin Dayasri was at his brilliant best when he refers – to the zone‚  allocated on land to the Provincial Council is FIRMLY FENCED BY THE CONSTITUTION. -‚  The first fence being List 11 . The second fence post , the Land as per stipulated uses and the third fence post is the inability of the Provincial Council in stretching the boundaries beyond appendix of the Constitution. ..-â„¢ the fence posts further constrains ,confines and encircles the subject of -ËœLand-â„¢ by a great wall erected in Appendix 11-.

To end my note on this‚  landmark ‚ judgement , I would like ‚ to‚  refer to the relief felt by the country‚  at large and the Nation through proper understanding ‚ ‚ of the 13th amendment‚  vis a vis the State Lands in Sri Lanka

 

 

3 Responses to “The Landmark Supreme Court judgement on State Land and Land”

  1. Charles Says:

    But what is happening to the Parliamentary Special Committee set up to examine the 13A for its removal or removal of some of the provisions therefrom. India still wants the full 13A implemented. there is nothing done by the Government. JHU left the PSC on the issue.

    Land issue is now settled we think because a court decision has been made. But can the TNA appeal to set it aside? And what is happening to police powers ?

    Gunadasa Amarasekara is said to have filed a FR Case against the 13A- nothing has since been heard.

    Everything is vague and undecided. But the Parliament wants the Casino Bill passed ? May be there is money in it for some.

  2. Lorenzo Says:

    A UNITARY STATE OF GOVERNMENT NO CESSION OF DOMINIUM TAKES PLACE, THE CENTRE HAS NOT CEDED ITS DOMINIUM OVER STATE LANDS TO THE PROVINCIAL COUNCILS.

    Can we use the SAME LOGIC to bust police powers to provinces as well.

    A UNITARY STATE OF GOVERNMENT NO CESSION OF DOMINIUM TAKES PLACE, THE CENTRE HAS NOT CEDED ITS DOMINIUM OVER POLICE POWERS TO THE PROVINCIAL COUNCILS.

    This is a SC declaration and it is valid in a legal case.

    JR was not a fool after all. The cunning FOX fooled the dumb Endians. A good lesson for MR.

  3. Lorenzo Says:

    Charles,

    PSC is happening in the background. Their report is due only in April next year. AFTER the UNHRC CIRCUS. AFTER the commonwealth circus.

    IF UNHRC again votes against SL, the president has the TRUMP CARD to play. Get the PSC to recommend putting the 13 amendment to a referendum. That will teach all meddlers a good lesson.

    SL govt. supports BJP over congress. By busting 13 amendment just before Tamil Madu election, Manmoron Singh will be displayed like a loser to Tamil people. That will be the punishment for REPEATEDLY voting against SL. BJP is not as bad as congress in asslicking the west.

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