{"id":55936,"date":"2016-06-24T14:15:43","date_gmt":"2016-06-24T21:15:43","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=55936"},"modified":"2016-06-24T14:15:43","modified_gmt":"2016-06-24T21:15:43","slug":"land-police-and-provincial-councils","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/06\/24\/land-police-and-provincial-councils\/","title":{"rendered":"LAND, POLICE AND PROVINCIAL COUNCILS."},"content":{"rendered":"

KAMALIKA PIERIS<\/em><\/span><\/h2>\n

The 13th Amendment gave the Provincial Councils rights over Land, land tenure, transfer and alienation of land, land use, land settlement and land improvement.\u201d It specifically says Land shall be a Provincial Council subject to certain limitations.\u201d Land is not on the concurrent list either. It was therefore assumed that Land\u201d 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.\u00a0<\/em><\/p>\n

It was further assumed that central government on the other hand, could only use state land with the approval of the Provincial Councils.\u00a0 Cabinet approved the provision of 15,000 acres of state land for a banana cultivation project in Kantale areas\u00a0\u00a0 to be followed by20, 000 acres more to the same company for a cadju plantation.\u00a0 Eastern Provincial Council cancelled these two orders, saying land was their subject and this was done without consulting them.\u00a0\u00a0 Government disagreed. (Sunday Times 26.7.09 p 1).<\/p>\n

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 \u2018devolved \u2018subject, Provincial Councils had no power over state land.\u00a0 State land was in the reserved list, which only the central government could administer.\u00a0 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\u00a0\u00a0 laws. They complained that in the case of land development and interprovincial irrigation projects, central government selected the allottees and this could perpetuate\u00a0\u00a0 \u2018the present pernicious practices\u2019. 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 \u2018with racial overtones\u2019 around the Port, they said.<\/p>\n

A Supreme Court decision of 2013 resolved this hotly contested question of Land Powers\u201d under the 13th Amendment.\u00a0 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\u00a0\u00a0 of the 13th Amendment,\u00a0\u00a0 ruled that Land Powers were vested in the Central government\u00a0\u00a0 and not in the\u00a0 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.\u00a0 All three judgments\u00a0\u00a0 supported the final decision.<\/p>\n

This judgment will go down in legal history as one of the clearest interpretation of the 13th Amendment, lawyers said.\u00a0 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.\u00a0 It reversed two earlier court decisions, including the John Keells case which said that land belonged to the province.<\/p>\n

Hereafter, state land can be used by the Provincial Councils only after it is given to them. Provincial Councils cannot appropriate lands.\u00a0 The Provincial Council is only subsidiary body exercising limited legislative powers subordinate to that of Parliament.\u00a0 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.<\/p>\n

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.\u00a0 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.<\/p>\n

This judgment also sends a message to those who advocate the increased devolution of power to\u00a0\u00a0 Provincial Councils through laws designed to by-pass or circumvent the Constitution. The Constitution of Sri Lanka\u00a0\u00a0 is a totally different enactment to the statutes inside it, such as 13th Amendment.\u00a0\u00a0\u00a0 It is not possible therefore to \u2018adjust\u2019 clauses in the Constitution (derogation) to further separatist ambitions.<\/p>\n

The National Land Commission, which must include representatives of all the Provincial Councils\u00a0\u00a0 (Clause 3)\u00a0\u00a0 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 \u2018communal or political\u2019\u00a0\u00a0 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 \u2018races\u2019 created by the British for the purpose:\u00a0 Ceylon Tamil\u201d, Ceylon Moor\u201d and Sinhalese\u201d. From the 1890s, the Census went beyond population enumeration and declared majority races for each province.<\/p>\n

The 13th Amendment now seeks to \u2018freeze\u2019 these \u2018majorities\u2019.\u00a0 The Amendment\u00a0\u00a0 says that Land must be distributed on the basis of \u2018national ethnic ratios\u2019. They must not \u2018significantly disturb\u2019 the demographic pattern of the province and\u00a0 priority must be given to persons in the district( Appendix 2) .This means that\u00a0\u00a0 land in the northern province\u00a0 can only be given to Tamils. This is a direct violation of article 12 of the Constitution of Sri Lanka.<\/p>\n

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).<\/p>\n

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\u00a0 are empowered\u00a0 to legislate on any matter falling within the subject of\u00a0 Law and Order. They\u00a0 could enact\u00a0 their own Police statutes and could repeal the\u00a0 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\u00a0 appointed the DIG. Each Provincial Council could decide on the size of its police and the firearms they could use. They\u00a0\u00a0\u00a0 could recruit, transfer, and promote the provincial police. Observers note that\u00a0 the LTTE would join the\u00a0 Northern province police force. They will be a formidable\u00a0 fighting force.<\/p>\n

The National police\u00a0 would continue with the present structure of Inspector General of Police,((IGP) Deputy Inspectors General, (DIG) Superintendents of Police\u00a0 (SP)and assistant superintendents (ASP). But national police\u00a0 would have\u00a0 jurisdiction only\u00a0 over a limited number of offences, such as national security. All other offences came under the Provincial Councils .\u00a0 National police cannot intervene\u00a0 at provincial level .\u00a0 When they did go into the provinces, on official business, they would come under the Provincial DIG not their own\u00a0 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,\u00a0 it is unlikely that they would ever be in uniform. The\u00a0 only uniformed law enforcement officer\u00a0 in the island will\u00a0 therefore be the\u00a0 Provincial\u00a0 policeman. Both national and provincial police had to know Sinhala and Tamil and for promotion must know English as well.\u00a0 So they will be tri-lingual.<\/p>\n

The devolution of police powers\u00a0 has caused much concern .\u00a0 It seriously affects national security.\u00a0 To safeguard national security there has to be an intelligence arm in every part of the island\u00a0 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\u00a0\u00a0 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\u00a0 also under the Chief Minister. Even to remove him the IGP has to consult the Chief Minister.<\/p>\n

At present the Criminal Procedure Code and Police Ordinance\u00a0 is applicable all over the island. There is a single police force\u00a0\u00a0 and a police officer can exercise his power anywhere in the island.\u00a0 He has jurisdiction in respect of all offences in all parts of the country.\u00a0 Under the 13th Amendment\u00a0 law and order becomes\u00a0 fragmented.\u00a0\u00a0 Police from one province cannot intervene in another province.\u00a0 When a person commits a murder and flees\u00a0 out of a province, they cannot be pursued by\u00a0 the police of that province.\u00a0 Also, different provinces will have different statutes ( laws)\u00a0 pertaining to Law and Order, prevention, detection and investigation. (http:\/\/island.lk\/index.php?page_cat=article-details&page=article-details&code_title=139249<\/a>)<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u201d It specifically says Land shall be a Provincial Council subject to certain limitations.\u201d Land is not on the concurrent list either. It was therefore assumed that Land\u201d was the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[104],"tags":[],"class_list":["post-55936","post","type-post","status-publish","format-standard","hentry","category-kamalika-pieris"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/55936","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=55936"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/55936\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=55936"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=55936"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=55936"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}