LAND, POLICE AND PROVINCIAL COUNCILS.
Posted on June 24th, 2016

KAMALIKA PIERIS

The 13th Amendment gave the Provincial Councils rights over Land, land tenure, transfer and alienation of land, land use, land settlement and land improvement.” It specifically says Land shall be a Provincial Council subject to certain limitations.” Land is not on the concurrent list either. It was therefore assumed that Land” was the exclusive preserve of the Provincial Councils. If a Provincial Council needed any state land, the government has to hand it over, no questions asked. 

It was further assumed that central government on the other hand, could only use state land with the approval of the Provincial Councils.  Cabinet approved the provision of 15,000 acres of state land for a banana cultivation project in Kantale areas   to be followed by20, 000 acres more to the same company for a cadju plantation.  Eastern Provincial Council cancelled these two orders, saying land was their subject and this was done without consulting them.   Government disagreed. (Sunday Times 26.7.09 p 1).

M Sivasithamparam, A. Amirthalingam, R. Sampanthan of the TULF were not happy about the Land provisions in the 13th Amendment. They wrote to Rajiv Gandhi, Prime Minster of India, in 1987, complaining that though land was a ‘devolved ‘subject, Provincial Councils had no power over state land.  State land was in the reserved list, which only the central government could administer.  State lands inside a province also came under this provision and the President of Sri Lanka, could give these to anyone he wished, subject only to relevant national   laws. They complained that in the case of land development and interprovincial irrigation projects, central government selected the allottees and this could perpetuate   ‘the present pernicious practices’. In 1984, 5150 acres of land around the Trincomalee port was vested in the Port authority, which could result in the creation of a new township ‘with racial overtones’ around the Port, they said.

A Supreme Court decision of 2013 resolved this hotly contested question of Land Powers” under the 13th Amendment.  In the case of Stafford Estate vs. Solaimuthu Rasu ( SC. Appeal 21/2013), Supreme Court having carefully studied the 13th Amendment, the Ninth Schedule and Appendix 2   of the 13th Amendment,   ruled that Land Powers were vested in the Central government   and not in the  Provincial Councils . A three judge bench of the Supreme Court led by Chief Justice Mohan Peiris and comprising Justices K. Sripavan and Eva Wanasundara concluded in three separate judgments that state land is vested in the central government.  All three judgments   supported the final decision.

This judgment will go down in legal history as one of the clearest interpretation of the 13th Amendment, lawyers said.  The judgment came in a case dealing with a relatively minor legal issue, the jurisdiction of the Provincial High Court to hear cases involving state land. The judgment was noteworthy because of its degree of sophistication, previously unmatched, due mainly to its examination of the relationship between different provisions of the Constitution.  It reversed two earlier court decisions, including the John Keells case which said that land belonged to the province.

Hereafter, state land can be used by the Provincial Councils only after it is given to them. Provincial Councils cannot appropriate lands.  The Provincial Council is only subsidiary body exercising limited legislative powers subordinate to that of Parliament.  The President is not bound to follow the advice or requests of the Provincial Councils regarding land either. Land can be disposed of only according to laws enacted by Parliament.

This judgment gives equal rights to any citizen to settle in any part of Sri Lanka. They can come into a province from outside. There cannot be priority for those living in that province.  There is no possibility of this judgment being reviewed again in a court of law. This judgment is everlasting unless someone wants to create mischief, said attorney Gomin Dayasri.

This judgment also sends a message to those who advocate the increased devolution of power to   Provincial Councils through laws designed to by-pass or circumvent the Constitution. The Constitution of Sri Lanka   is a totally different enactment to the statutes inside it, such as 13th Amendment.    It is not possible therefore to ‘adjust’ clauses in the Constitution (derogation) to further separatist ambitions.

The National Land Commission, which must include representatives of all the Provincial Councils   (Clause 3)   has been given the power to set out national policy on state land, but only at the technical level. That is, soil, climate, forest cover and so on, but not at the ‘communal or political’   level. That aspect is dealt with elsewhere in the 13th Amendment. The ethnic percentages of Sri Lanka are defined in the Census of Sri Lanka, using the three ‘races’ created by the British for the purpose:  Ceylon Tamil”, Ceylon Moor” and Sinhalese”. From the 1890s, the Census went beyond population enumeration and declared majority races for each province.

The 13th Amendment now seeks to ‘freeze’ these ‘majorities’.  The Amendment   says that Land must be distributed on the basis of ‘national ethnic ratios’. They must not ‘significantly disturb’ the demographic pattern of the province and  priority must be given to persons in the district( Appendix 2) .This means that   land in the northern province  can only be given to Tamils. This is a direct violation of article 12 of the Constitution of Sri Lanka.

The subject of Law and Order is dealt with in Appendix I of the 13th Amendment. This is an elaborate Appendix with 14 clauses, many sub clauses and extending to five and a half pages in the official booklet (Supplement to Gazette of 20.11.1987).

The 13th Amendment creates two parallel police forces, National and Provincial, with a single National Police Commission and nine Provincial police commissions. The objective was to confer sovereign police powers to the Provincial Councils and reduce the powers of the National police. Provincial Councils  are empowered  to legislate on any matter falling within the subject of  Law and Order. They  could enact  their own Police statutes and could repeal the  Police Ordinance now in operation island wide. The Provincial police would be headed by a Deputy Inspector of Police (DIG) reporting to the Chief Minister, not Governor. The Provincial Council  appointed the DIG. Each Provincial Council could decide on the size of its police and the firearms they could use. They    could recruit, transfer, and promote the provincial police. Observers note that  the LTTE would join the  Northern province police force. They will be a formidable  fighting force.

The National police  would continue with the present structure of Inspector General of Police,((IGP) Deputy Inspectors General, (DIG) Superintendents of Police  (SP)and assistant superintendents (ASP). But national police  would have  jurisdiction only  over a limited number of offences, such as national security. All other offences came under the Provincial Councils .  National police cannot intervene  at provincial level .  When they did go into the provinces, on official business, they would come under the Provincial DIG not their own  DIG. National police cannot wear uniform when in the provinces, even when they are intervening on an offence. Since the whole island is divided into provinces,  it is unlikely that they would ever be in uniform. The  only uniformed law enforcement officer  in the island will  therefore be the  Provincial  policeman. Both national and provincial police had to know Sinhala and Tamil and for promotion must know English as well.  So they will be tri-lingual.

The devolution of police powers  has caused much concern .  It seriously affects national security.  To safeguard national security there has to be an intelligence arm in every part of the island  Under the 13th Amendment , before the National police can intervene in anything, they have to first consult the Chief Minister of the province and also obtain approval of the Attorney general. By   then the culprit would have left the country. Under the 13th Amendment , the entire chain of command of the IGP breaks down. His DIG is  also under the Chief Minister. Even to remove him the IGP has to consult the Chief Minister.

At present the Criminal Procedure Code and Police Ordinance  is applicable all over the island. There is a single police force   and a police officer can exercise his power anywhere in the island.  He has jurisdiction in respect of all offences in all parts of the country.  Under the 13th Amendment  law and order becomes  fragmented.   Police from one province cannot intervene in another province.  When a person commits a murder and flees  out of a province, they cannot be pursued by  the police of that province.  Also, different provinces will have different statutes ( laws)  pertaining to Law and Order, prevention, detection and investigation. (http://island.lk/index.php?page_cat=article-details&page=article-details&code_title=139249)

2 Responses to “LAND, POLICE AND PROVINCIAL COUNCILS.”

  1. Ratanapala Says:

    As regards, it is difficult to imagine who are the idiots who even contemplated Police Powers to the Provinces. Sri Lanka is a very small country and in the span of a few hours one can traverse the entire length and breadth of the island crossing several Provincial Boundaries.

    Policing of the land will become a nightmare and anyone who advocates these provisions are those who are desiring the dismemberment of our motherland. These include the Eelamists and the Christian/Catholic Church.

    Muslims Jihadists want to acquire and form a part of the ISIS Caliphate within Sri Lanka. This is why they are not for division of the country. They want to multiply and increase their population while buying land for themselves with Rupees. They also have become a threat to major Buddhist areas – Anuradhapura, Polonnaruwa, Dambulla Sigirya, Kataragama, Kandy to name only a few.

  2. plumblossom Says:

    We do not need provincial councils which only promotes separatism. The provincial councils only duplicate the already existing system of ministry, district secretary, divisional secretaries, grama niladhari system which has functioned for decades. In addition, there are the municipal, urban councils and pradeshiya sabhas who elect their officials to ensure that there is local government representation and to ensure that local matters are dealt with. The ministry, district secretary, divisional secretaries, grama niladhari system is how government plans get implemented at the district, divisional and the grama niladhari level. The only thing the provincial councils do is duplicate this already existing system and is totally unnecessary. Since Sri Lanka is a small country. Therefore what is agreed at the parliamentary level in terms of plans can be implemented islandwide via the ministries. If anyone in any province wants to suggest anything innovative, they can do so via their MP at the parliamentary level. A small country such as Sri Lanka needs a strong central government and just one plan for the entire island to move forward. For this the existing ministry, district secretary, divisional secretaries, grama niladhari system is sufficient. At the local level there are the municipal, urban councils and the pradeshiya sabhas to take care of local matters.

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