Issues in fully implementing 13A: Land powers

By C. A. Chandraprema

Many of those who call for the ‘full implementation of the 13th Amendment’ believe that all State land should be completely under the control of the provincial councils. The actual extent of the devolution of land powers would depend on the language used in the text of the 13th Amendment, and the interpretation given to that text by the Supreme Court which has exclusive jurisdiction in respect of Constitutional matters. Provisions with regard to land are to be found in the Ninth Schedule of the Constitution and they cascade from the national government’s list of powers, to the provincial councils’ list of powers and finally onto Appendix II of the Provincial Councils’ list of powers.

The list of powers of the national government expressly includes the subject of State lands with the proviso “except to the extent specified in Item 18 of the provincial councils list”. Item 18 of the provincial councils list states that the provincial councils wield power over land in the form of ‘rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement. Appendix II of the provincial councils’ list has the opening statement that State land shall continue to vest in the Republic and may be disposed of in accordance with Article 33(d) of the Constitution and written law governing this matter. (Article 33(d) refers to the President’s power to make and execute under the public seal, grants and dispositions of lands vested in the Republic.)

Subject to all of the above, Appendix II declares land to be a provincial councils’ subject. Under Item 1.1 of that Appendix, if the national government requires a State land for a subject coming under the national government or the concurrent list, it may utilize a land after consulting the relevant Provincial Council. Item 1.2 stipulates that if a Provincial Council requires State land for a Provincial Council subject, the national government will make such land available to the provincial council. Under Item 1.3, Alienation or disposition of State land within a Province to any citizen or to any organisation shall be by the President, on the advice of the relevant Provincial Council.

Interpreting the land powers provisions

For many years, Supreme Court interpretations of the above-mentioned provisions appeared to confirm the view that the 13A had accorded complete power over land to the provincial councils. In the 2003, the Supreme Court Determination on the Land Ownership Bill, Justice Shirani Bandaranayake stated, “With the passing of the Thirteenth Amendment to the Constitution, such Constitutional power vested with the President (under Article 33(d) of the Constitution) was qualified by virtue of paragraph 1.3 of Appendix II to the Ninth Schedule…” In Vasudeva Nanayakkara v Choksy and Others (the John Keells case of 2008) Chief Justice Sarath N.Silva stated that whilst the ultimate power of alienation and of making a disposition remained with the President, a pre-condition laid down in paragraph 1.3 is that the exercise of that power shall be done on the advice of the Provincial Council.

However, in the landmark 2013 case of Solaimuthu Rasu vs. State Plantations Corporation, the Supreme Court gave a very different interpretation of the land powers provisions in the 13A. The three-member bench—Chief Justice Mohan Peiris and Justices K. Sripavan and Eva Wanasundera—which heard this case delivered three separate judgments – all coming to the same conclusion that even under the provisions of the 13A, the Centre has not ceded its dominium over State Lands to the Provincial Councils except in some limited circumstances. For the sake of brevity, only the judgment delivered by Justice K. Sripavan will be taken up here.

Justice Sripavan explained the tilt of the land powers in the 13A towards the national authorities as follows:  a) Under Article 154 (G)(7) of the Constitution, a Provincial Council has no power to make statutes on any matter in the national government’s list of powers. State land is in fact a subject on the national government’s list. b) Appendix II of the Provincial Councils List opens with the statement that State land shall continue to vest in the Republic and may be disposed of in accordance with the President’s powers.  c) Item 9.1 of the Provincial Council list titled ‘Agriculture and Agrarian Services’ also excludes State land from the legislative competence of provincial councils. d) Item 3.4 in Appendix II provides that the Provincial Councils shall adhere to the national policy on the use of state lands formulated by The National Land Commission appointed by the national government.

In contradistinction to the above, the limitations imposed on provincial councils in the exercise of land powers are as follows: a) Under Item 1.2 of Appendix II, a Provincial Council can utilize State land only if the national government makes that land available to the Council for a purpose coming under Provincial Councils List. b) Land is a Provincial Council subject only to the extent set out in Appendix II and no exclusive power over land is vested in the Provincial Councils. c) Under Item 1.1, the national government can utilize State Land in respect of a subject coming under it only in consultation with the relevant Provincial Council. (But as Chief Justice Mohan Peiris held in his separate judgment, ‘consultation’ would not mean ‘concurrence’). d) While Item 1.3 states that the alienation or disposition of State land within a Province shall be by the President, on the advice of the relevant Provincial Council, Justice Sripavan held that ‘It cannot be construed that the advice tendered by the Provincial Council binds the President’.

Conventional wisdom upended

The judgments in the Solaimutthu case upended the conventional wisdom that had prevailed up to that time with regard to the land powers in 13A. As a result of the Solaimutthu case, the interpretation of the land powers provisions in the 13A have taken a trajectory very different to that desired by the parties that have traditionally called for the full implementation of the 13A. Some continue call for the full implementation of the land powers in the 13th Amendment due to long ingrained habit, but the Solaimutthu case has made the ground shift under them. There is of course the possibility that a judgment by a three-member bench of the Supreme Court could be superseded by a bigger bench at a later date. However, it’s not going to be easy to vitiate some of the pivotal arguments made in the Solaimutthu case. For example how do you make the word ‘consult’ in Item 1.1 of Appendix II acquire the meaning of ‘concurrence’, or the word ‘advice’ in Item 1.3 acquire the effect of a legally binding ‘instruction’ or ‘order’ as would be required by those who hold the political position that the provincial councils should have complete control over land?

One of the ideas being mooted these days is that National Land Commission for which provision has been made in Appendix II of the Provincial Councils List should be instituted without delay. The setting up of this National Land Commission will reinforce the trajectory taken by the Solaimutthu case, because the National Land Commission will be an institution of the national government even though it will include representatives from all provincial councils. Item 3.3 of Appendix II specifically stipulates that national policy on land use will be based on technical aspects (not on political or communal aspects), and the Commission will lay down general norms in regard to the use of land, having regard to factors such as soil, climate, rainfall, soil erosion, forest cover, environmental considerations, economic viability, etc. As pointed out earlier, one of the considerations that led Justice Sripavan to the conclusion that the provincial councils had not been ceded complete power over land, were the provisions relating to this National Land Commission in the 13th Amendment.