The 13th Amendment on watch

The Thirteenth Amendment has introduced a new conception of a unitary – decentralized State based on a system of Provincial Government at a sub-national level. This description is of extreme importance, since the Constitution specifically provides that the Republic of Sri Lanka is a Unitary State and the majority of the people attach much sentiment to the unitariness of Sri Lanka. The 13th Amendment to the Constitution provides for the establishment of Provincial Councils. Basic to the structure of devolution is the competence jurisdiction – the separation of subjects and functions assigned to the Provincial Council and the Centre. This separation is set out in the three lists under the Ninth Schedule to the Thirteenth Amendment to the Constitution: Provincial Council List (List I), Reserved List (List II) and Concurrent List (List III).

There are several Supreme Court judgments which analyzed and interpreted the provisions of the 13th Amendment and Provincial Council system in relation to identification, demarcation and utilization of State land. As decided by the Supreme Court in regarding the 13th Amendment to the Constitution both in respect of the exercise of its legislative powers and in respect of the exercise of the executive powers, no exclusive or independent power is vested in the Provincial Council. Accordingly, the Parliament and the President have ultimate control over them and remain supreme.

The Land Ownership Bill

The Supreme Court stated in the Determination of the Bill titled ‘Land Ownership’ that with the passing of the 13th Amendment to the Constitution, such constitutional power vested with the President was qualified by virtue of the paragraph 1.3 of Appendix II to the Ninth Schedule to the Constitution. By such provision the authority for alienation or disposition of State land within a Province to any citizen or to any organisation was yet vested with the President. In effect even after the establishment of Provincial Councils in 1987, State land continued to be vested in the Republic and disposition of State land could be carried out only in accordance with Article 33(d) of the Constitution read with 1.3 of Appendix II to the Ninth Schedule to the Constitution.

In this Bill titled ‘Land Ownership’ the petitioner had challenged the constitutionality of the Bill by petitions presented to the Supreme Court in terms of Article 121(1) of the Constitution. The Bill provided for the holder of land under a grant made in terms of section 19(4) of the Land Development Ordinance or section 3 of the Land Grants (Special Provisions) Act No.43 of 1979 to apply for his existing rights to be converted into full ownership, free of all encumbrances. The Supreme Court had decided that the Bill in question being of a matter set out in the Provincial Council List, does not become law unless it has been referred by the President to every Provincial Council as required by Article 154 (G) (3) of the Constitution. As noted by the Court, the Bill has totally ignored the concept of the President’s function on the advice of the Provincial Council with regard to the alienation and disposition of State land.

The Supreme Court in Vasudeva Nanayakkara v Choksy & Others Case stated that it is seen that the power reposed in the President in terms of Article 33(d) of the Constitution read with section 2 of the State Lands Ordinance to make grants and dispositions of State land is circumscribed by the provisions of Appendix II cited above. Appendix II in the view of S.N Silva CJ., establishes an interactive legal regime in respect of State land within a Province. While the ultimate power of alienation and of making a disposition remains with the President, the exercise of the power would be subject to the conditions in Appendix II being satisfied. A pre-condition laid down in paragraph 1.3 is that an alienation 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.

Solaimuthy Rasu judgment

Another important judgment of the Supreme Court which analyzed and interpreted the provisions of 13th Amendment to the Constitution, to identify and demarcate between the Centre and the Provincial Councils in relation to the subject of State land is Superintendent, Stafford Estate v Solaimuthy Rasu judgment.

At the beginning the Supreme Court sought to identify the demarcation between the Centre and the Provinces with regard to State land. Here the Supreme Court referred to the observations made by Fernando J., in the Determination of the Agrarian Services (Amendment) Bill, where Fernando J., had stated that it is not possible to decide whether a matter is a List III subject by merely looking at the headings in these Lists. Therefore according to the Court it became necessary to examine and scrutinize the relevant Articles contained in the Constitution in relation to ‘land’ and ‘State land’.

The Supreme Court in the Solaimuthy judgment also referred to the observations made by Sharvananda CJ., in Re the 13th Amendment to the Constitution as follows” ‘….. both in respect of the exercise of its legislative powers and in respect of the exercise of executive powers, no exclusive or independent powers is vested in the Provincial Councils. The Parliament and President have ultimate control over them and remain supreme.’

In the view of the Supreme Court in Solaimuthy judgment, the entirety of State land is referred to in List II (Reserved List) and it is only from this jerminal origin that the Republic could assign to the Provincial Councils land for whatever purposes which are deemed appropriate. It is therefore axiomatic that the greater includes the lessor (Jmme Majus Continent in sc mimus) 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 land to the Provincial Councils. The Supreme Court in the Solaimuthy judgment stated that if there is a reservation in List II, the inescapable inference follows that what is reserved to the Republic could only be the larger entirety out of which the 13th Amendment chose to assign some portions of State land to the Provincial Councils and the pertinent question before the Supreme Court is the parameters with which of what is entrusted to the Provinces.

As noted by the Supreme Court in the Solaimuthy judgment, a perusal of the Lists I and II, unequivacally points to the fact that State land as referred to in List II embraces the comprehensive entirety of the corpus of State land out of what is carved out land. List II connotes the greater mass of State land that includes List I as the lesser. But what has been given as land for purposes to be gathered from Appendix II is itself circumscribed by the qualification – 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 (item 18 of List I).

Having set out the overcharging dominium of State land with the Centre, according to the Supreme Court, Appendix II set out special Provisions which would qualify as further limitations on State land assigned to Provincial Councils. These special provisions apart from demonstrating the limited extents of Provincial Councils over land also display unmistakably that State land continues to be a subject of the Centre. Having grafted the brooding presence of the Republic on all State land in List II, List I and then Appendix II and subject to these pervasive provisions, State land is declared to be a Provincial council subject in the second paragraph of Appendix II, but that declaration is only explanatory of the purposes for which the Provincial Councils have been assigned with land. Those purposes are evident in the special provisions 1.1, 1.2, and 1.3 of Appendix II. In the view of the Court these special provisions also strengthen the position that State land continues to be a subject located in the Centre.

As further stated by the Supreme Court in the Solaimuthy judgment , Appendix II in paragraph 3:4 provides that the powers of the Provincial Councils shall be exercised having due regard to the national policy formulated by the National Land Commission. The National Land Commission which includes representatives of all Provincial Councils would be responsible for the formulation of the National Policy with regard to the use of State Lands. Moreover If and when a National Land Commission is in place, the guidelines formulated by such Commission would govern the power of the Provincial Councils over the subject matter as interpreted in this judgment in relation to State Lands. In the view of the Supreme Court in the Solaimuthy judgment, National Land Commission strengthens the contention that State land lies with the Centre and not with the Provincial Councils.

The judgment also reveals that there are other provisions that indicate that State land lie within the legislative competence of the Centre: Article 154 (G) 7 of the Constitution provides that a Provincial Council has no power to make statutes on any matter set out in List II. One of the matters referred to in that List is ‘State land and Foreshore’ except to the extent specified in item 18 of List I. According to the Supreme Court all these features referred to above featured the unitary nature of the State. The Supreme Court also referred to Sharvananda CJ., in Re the 13th Amendment to the Constitution, who referred to two essential qualities of a Unitary State as (i) the supremacy of the Central Parliament (ii) the absence of subsidiary sovereign bodies.

Limitations on Provincial Councils

The following pronouncements in summary form on the nature and content of State land under the 13th Amendment have been outlined by the Supreme Court in the Solaimuthy case.

Firstly, Appendix II imposes the restrictions on the land powers given to Provincial Councils. The Constitutional limitations imposed by the legislature shows that in the exercise of its legislative powers, no exclusive power is vested in the Provincial Councils with regard to the subject of ‘land’.

Secondly, the Provincial Councils do not therefore exercise sovereign legislative powers and are only subsidiary bodies, exercising limited legislative powers subordinate to that of Parliament.

Thirdly, Provincial Councils can only make statutes to administer, control and utilize State land, if such State land is made available to the Provincial Council by the Government for a Provincial Council subject. When the State makes 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.

On further examination of the Solaimuthy judgment, the following points can be presented.

(a). Even if the Government makes available State Land to a Provincial Council, the title to the land still vests with the State.

(b). State land required for the purposes of the Government in a Province, in respect of a reserved or concurrent subject may be utilized by the Government in accordance with the laws governing the matter. The Government shall consult the relevant Provincial Council with regard to the utilization of such land in respect of such subject.

(c). Consultation would mean conference between the Government and the Provincial Council to enable them to reach some kind of agreement.

(d). Alienation or disposition of the State land within a Province to any citizen or to any organization shall be by the President, on the advice of the relevant Provincial Council in accordance with the laws governing the matter.

(e). State Land will continue to vest in the Republic and may be disposed of by the President in accordance with Article 33(d) and written laws governing the matter.