By Lasanda Kurukulasuriya
The government’s recent move to do away with an important land circular, announced by the Cabinet Spokesman, Minister Bandula Gunewardena on 02.07.20, has opened up a can or worms that can tunnel into many areas of government policy. Circular 5/2001, issued in August 2001 by the Ministry of Forest Resources and Environment at the time, was intended to protect hundreds of thousands of acres of forest cover that were not regulated under existing Acts of Parliament by bringing them under the Forests Department. With the impending revocation of the circular, these forests will lose this protection and revert to the control of District and Divisional Secretaries, who will not be bound by the strict conditions spelt out for the release of these lands for ‘other purposes.’
The rationale given by the Cabinet Spokesman who claimed that activities of chena cultivators were being hampered by the circular, is extremely disingenuous. It presents the revocation of circular 5/2001 as a move to help poor farmers, whereas it is part of a much larger ongoing project that seeks to do just the opposite – by releasing land to private investors for large scale commercial agriculture (‘economically productive purposes’). This is a policy that has long been pushed by the World Bank and western governments, that many analysts say will harm the interests of Sri Lanka’s farmers, who are mainly smallholders. Environmentalists have with one voice deplored the move to do away with circular 5/2001.
It is now clear that the objective of opening the floodgates to make land readily available to serve foreign capital, is embedded in many other projects touted as ‘development.’ A case in point is the Millennium Challenge Compact (MCC) which, in the US ambassador’s own words, is intended “to help the government to identify which state lands are underutilised and available for investment …”
A new report released mid July by a US think tank, the Oakland Institute, identified the United States as “a key player in in an unfettered offensive to privatize land around the world via US blockchain corporations, government agencies, and the World Bank.” Sri Lanka is one of the six case studies in the report titled Driving Dispossession: The Global Push to “Unlock the Economic Potential of Land.” It warns that the compact between Sri Lanka and the United States Millennium Challenge Corporation (MCC) “could potentially shift millions of hectares of land into private control.”
According to Frederic Mousseau, its lead author and Policy Director of the institute, “In Sri Lanka, the Millennium Challenge Corporation, a US government entity, is targeting state land—it intends to map and record up to 67 percent of the country to “promote land transactions that could stimulate investment and increase its use as an economic asset.”
Mousseau goes on to say: “Governments are being pushed to adopt the Western notion of private land ownership to give corporations access to natural resources—land, water, and minerals—just the opposite of the drastic shift we need to win the struggle against climate change.” The report’s other five case studies are Ukraine, Zambia, Myanmar, Papua New Guinea and Brazil.
There has been a public outcry against any move to sign the MCC – which got Cabinet approval under the previous government. But there is less awareness that the process of transformation sought by the agreement – through introduction of new laws, amendments to existing laws and policy shifts – is already underway. A case in point is the State Land (Special Provisions) Bill, which would have fulfilled a pre-condition of the MCC if not for a timely Supreme Court ruling which blocked its passage.
Revoking circular 5/2001 is but one point in the trajectory of a process that exploits our natural resources, says environmentalist Sajiwa Chamikara, among the first to sniff out the imminent move. This did not come out of the blue, but is part of a carefully planned strategy, he said. World Bank reports of 1996 and 2015 clearly state that laws must be changed to introduce commercial agriculture. A Land Ordinance of 2014 was amended in 2017 to enable foreigners to buy land. “It is a step-by-step process, and revoking circular 5/2001 is yet another step,” he explained. If protests were of no avail he said environmentalists could challenge the move in court.
The FTA with Singapore too provides for land acquisition according to Chamikara, who is Environment and Legal Officer of MONLAR (Movement for National Land and Agricultural Reform). He said 62,500 acres earmarked for sugar cane cultivation under this FTA, lie in areas protected by circular 5/2001. And China has sought 15,000 acres for industrial zones in Hambantota and Moneragala. He said these projects need to be challenged.
In the Northern Province too ‘the difficulty of obtaining suitable land to commence business operations’ was identified as the main constraint for investors, in a recent study by Ernst & Young. “Owing to the dense forestry in the Northern Province, a significant portion of the land comes under the purview and protection of the Department of Wildlife Conservation and the Department of Forestry of Sri Lanka” the study is reported to have said.
Around the time of the Cabinet decision relating to circular 5/2001, president Gotabaya Rajapaksa had also instructed officials to speed up the process of digitizing land transaction records (‘e-land registration’). Those conversant with this subject warn that this programme dating back to the 1998 ‘Bimsaviya’ Act, is fraught with danger, as the records once digitised cannot be changed or challenged in court. “Once your name is on the title register to a property, you are the legal owner even if you acquired the property through fraud. It is a state-backed guarantee that the owner is genuine” wrote Priyanga Boschmans, a barrister of The Honourable Society of the Middle Temple and a solicitor of the Supreme Court of England and Wales, in ‘A critical appraisal of Bimsaviya’ (Daily Mirror, 07.12.19). Part of the MCC’s funds are for ‘cadastral mapping’ and surveying required for digitizing a mega-number of land title documents.
It is puzzling why President Rajapaksa, who has shown readiness to meet various professional groups to discuss issues relating to government policy, has not met environmentalists, who are deeply troubled by these developments. There is a strong thread running through the SLPP’s 2019 presidential election manifesto that emphasizes the need to protect national resources. It decried “foreigners being able to buy lands, a scarce resource, without any hindrance” (page iii). It pledged to “take proactive measures to increase national forest cover by 30% (page 64). It said the main aim of its economic policy was to uplift the farmers. But a clear statement on land policy is conspicuous by its absence.
The January announcement that the new government had decided to integrate elements of the the National Physical Plan 2017 – 2050 (NPP) in its policy declaration (‘Vistas of Prosperity and Splendour’) created further ambiguity regarding government policy on land. This writer has, in previous columns, shown that there is a nexus between the NPP and the MCC (‘All is not Wells Part I: Nexus between MCC and National Physical Plan – http://www.dailymirror.lk/opinion/All-is-not-Wells/172-183495 (Daily Mirror 21.02.20); ‘Mega Land grab imminent?’- http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=205229 (The Island 03.06.19). This ambiguity would be exacerbated by revocation of circular 5/2001.
With farmers’ woes having figures prominently in President Rajapaksa’s meetings with the public across the country ahead of the general election set for 5th August, it may be predicted that controversies relating to land will take centre stage in the political arena, in the years ahead.
Thomians triumph in Sydney
Nothing is happening for us, at this end, other than queues, queues, and more queues! There’s very little to shout about were the sports and entertainment scenes are concerned. However, Down Under, the going seems good.
Sri Lankans, especially in Melbourne, Australia, have quite a lot of happenings to check out, and they all seem to be having a jolly good time!
who puts pen to paper to keep Sri Lankans informed of the events in Melbourne, was in Sydney, to taken in the scene at the Sri Lanka Schools Sevens Touch Rugby competition. And, this is Trevine’s report:
The weather Gods and S.Thomas aligned, in Sydney, to provide the unexpected at the Sri Lanka Schools Sevens Touch Rugby competition, graced by an appreciative crowd.
Inclement weather was forecast for the day, and a well drilled Dharmaraja College was expected to go back-to-back at this now emerging competition in Sydney’s Sri Lanka expatriate sporting calendar.
But the unforeseen was delivered, with sunny conditions throughout, and the Thomians provided the upset of the competition when they stunned the favourites, Dharmaraja, in the final, to grab the Peninsula Motor Group Trophy.
Still in its infancy, the Sevens Touch Competition, drawn on the lines of Rugby League rules, found new flair and more enthusiasm among its growing number of fans, through the injection of players from around Australia, opposed to the initial tournament which was restricted to mainly Sydneysiders.
A carnival like atmosphere prevailed throughout the day’s competition.
Ten teams pitted themselves in a round robin system, in two groups, and the top four sides then progressed to the semi-finals, on a knock out basis, to find the winner.
A food stall gave fans the opportunity to keep themselves fed and hydrated while the teams provided the thrills of a highly competitive and skilled tournament.
The rugby dished out was fiercely contested, with teams such as Trinity, Royal and St. Peter’s very much in the fray but failing to qualify after narrow losses on a day of unpredictability.
Issipathana and Wesley were the other semi-finalists with the Pathanians grabbing third place in the play-off before the final.
The final was a tense encounter between last year’s finalists Dharmaraja College and S.Thomas. Form suggested that the Rajans were on track for successive wins in as many attempts. But the Thomians had other ideas.
The fluent Rajans, with deft handling skills and evasive running, looked the goods, but found the Thomian defence impregnable. Things were tied until the final minutes when the Thomians sealed the result with an intercept try and hung on to claim the unthinkable.
It was perhaps the price for complacency on the Rajans part that cost them the game and a lesson that it is never over until the final whistle.
Peninsula Motor Group, headed by successful businessman Dilip Kumar, was the main sponsor of the event, providing playing gear to all the teams, and prize money to the winners and runners-up.
The plan for the future is to make this event more attractive and better structured, according to the organisers, headed by Deeptha Perera, whose vision was behind the success of this episode.
In a bid to increase interest, an over 40’s tournament, preceded the main event, and it was as interesting as the younger version.
Ceylon Touch Rugby, a mixed team from Melbourne, won the over 40 competition, beating Royal College in the final.
Marked stress on Asia in US foreign policy
US President Joe Biden’s recent tour of some Asian powers is indicative of a renewed and enhanced interest the US is beginning to take in the Indo-Pacific region. In this his first Asian tour the President chose to visit Japan and South Korea besides helming a Quad meeting in Tokyo and there is good reason for the choice of these venues and engagements.
The first phase of these bridge-strengthening efforts by the US began in late August last year when US Vice President Kamala Harris visited South-east Asia in the wake of the US troop withdrawal from Afghanistan. Besides being driven by strong economic compulsions, the US intention was also to ensure that too much of a power vacuum did not open up in the region, following its pull-out from Afghanistan, since China’s perceived expansionist designs are a prime foreign policy concern of the US.
However, the US President’s recent wide-ranging tour of East Asia seems to have been also prompted by some currently intensifying trends and tensions in the wider stage of international politics though the seeming power vacuum just referred to has a significant bearing on it. The immediate purpose of the US President’s tour seems to have been to bolster his country’s backing for Japan and South Korea, two of the US’ closest allies in East Asia. This is necessitated by the ‘China threat’, which, if neglected, could render the US allies vulnerable to China’s military attacks on the one hand and blunt US power and influence in the region on the other.
While Taiwan’s airspace has reportedly been frequently violated by China, sections in Japan have reasons to be wary of perceived Chinese expansionist moves in Japan’s adjacent seas. Moreover, many of China’s neighbours have been having territorial disputes with China, which have tended to intensify the perception over the decades that in the Asian theatre in particular China is a number one ‘bogey’. For historical reasons, South Korea too has been finding the increasing rise of China as a major world power considerably discomforting.
Accordingly, the US considers it opportune to reassure South-east Asia in general and its allies in the region in particular of its continuous military, economic and political support. Though these are among the more immediate reasons for Biden’s tour of the region, there are also the convulsions triggered in international politics by the Russian invasion of Ukraine to consider.
Whereas sections of international opinion have been complacent in the belief that military invasions of one country by another are things of the distant past, the brutal Russian invasion of Ukraine in February this year proved them shockingly wrong. We have the proof here that not all authoritarian rulers are prepared to adhere to the international rule book and for some of China’s neighbours the possibility is great of their being attacked or invaded by China over the numerous rankling problems that have separated them from their economic super power neighbour over the decades. After all, China is yet to condemn Russia’s invasion of Ukraine and is increasingly proving an ‘all weather friend’ of Russia. Right now, they are the strongest of allies.
The ‘China threat’ then is prime among the reasons for the US President’s visit to East Asia, though economic considerations play a substantive role in these fence-strengthening initiatives as well. While South-east Asia is the ‘economic power house’ of the world, and the US would need to be doubly mindful of this fact, it would need to reassure its allies in the region of its military and defense assistance at a time of need. This too is of paramount importance.
President Biden did just that while in Tokyo a couple of days back. For instance, he said that the US is ‘fully committed to Japan’s defense’. Biden went on to say that the ‘US is willing to use force to defend Taiwan.’ The latter comment was prompted by the perceived increasing Chinese violations of Taiwan’s air space. After all, considering that Russia has invaded Ukraine with impunity, there is apparently nothing that could prevent China from invading Taiwan and annexing it. Such are the possible repercussions of the Russian invasion.
Meanwhile, North Korea is reportedly carrying on with its development of weapons of mass destruction, including nuclear weapons. On this issue too, South Korea would need to have US assurances that the latter would come to its defense in case of a North Korean military strike. The US President’s visit to South Korea was aimed at reassuring the latter of the former’s support.
However, as mentioned, economic considerations too figured prominently in the US President’s South-east Asian tour. While being cognizant of the region’s security sensitivities, bolstering economic cooperation with the latter too was a foremost priority for the Biden administration. For example, the US is in the process of formalizing what has come to be referred to as the Indo-Pacific Trade Treaty. The US has reportedly already inducted Japan and South Korea as founding members of the Treaty while, Thailand, the Philippines, Vietnam, Singapore, Australia and New Zealand are mentioned as prospective members to the treaty.
The perceived threat posed to Western interests in South-east Asia by China needs to be factored in while trying to unravel the reasons for this region-wide endeavour in economic cooperation. It needs to be considered a Western response to China’s Belt and Road initiative which is seen as having a wide appeal for the global South in particular.
While the Russian invasion of Ukraine is having a divisive political and economic impact on the world, international politics will increasingly revolve around the US-China stand-off on a multiplicity of fronts in time to come. Both sides are likely to try out both soft and hard power to an exceptional degree to exercise foremost influence and power in the world. As is already happening, this would trigger increasing international tensions.
There was a distinct and sharp note of firmness in the voice of the US President when he pledged defense and military support for his allies in Asia this week. Considering the very high stakes for the US in a prospering South-east Asia, the US’ competitors would be naive to dismiss his pronouncements as placatory rhetoric meant for believing allies.
A Majoritarian Constitution
1972 Constitution in Retrospect – II
By (Dr) Jayampathy Wickramaratne, President’s Counsel
In this the second part of a three-part article on the 50th anniversary of Sri Lanka becoming a republic, the writer submits that the 1972 Constitution paved the way for constitutionalising majoritarianism in multi-cultural Sri Lanka.
The unitary state
Although Tamil parties expressed their support for the Constituent Assembly process, they were to be disappointed by the substance of the new constitution.
Basic Resolution No. 2 proposed by the Government called for Sri Lanka to be a unitary state. The Federal Party (FP) proposed an amendment that ‘unitary’ be replaced by ‘federal’.
In a memorandum and the model constitution that it submitted to the Steering Committee of the Assembly, the FP proposed that the country be a federal republic consisting of five states made up as follows: (i) Southern and Western provinces, (ii) North Central and North Western provinces (iii) Central, Uva and Sabaragamuwa provinces (iv) Northern Province and the districts of Trincomalee and Batticaloa and (v) Ampara district. The city of Colombo and its suburbs were to be administered by the centre. A list of subjects and functions reserved for the centre, with all others going to the states, was included. Interestingly, law and order and Police were to be reserved subjects.
However, Assembly proceedings show that the Tamils were clearly for a compromise. Dharmalingam, who was a main speaker of the FP under Basic Resolution No. 2, stated that the existing constitution had failed as it was not designed for a multi-ethnic country. He pointed out that in ethnically heterogeneous countries where unitary constitutions had been in operation, concessions to the federal principle have been made to meet the demands and aspirations of the minorities. Where there has been a refusal to concede the federal principle, there have been movements for separation. The FP distanced itself from secessionists such as C. Sunderalingam and V. Navaratnam, referring to them by name, and stated that it was not asking for a division of the country but for a division of power.
Dharmalingam made it clear that the FP’s draft was only a basis for discussion. Stating that the party was only asking that the federal principle be accepted, he suggested that as an interim measure, the SLFP, LSSP and CP should implement what they had promised in the election manifesto, namely that they would abolish Kachcheris and replace them with elected bodies. He stated: “If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralising the administration, not in the manner it is being done now, but genuine decentralisation, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.”
Sarath Muttetuwegama of the Communist Party, the first political party in the country to propose federalism, in 1944, followed Dharmalingam and stated that ‘federal’ had become a dirty word not because of the federal system of government but because of what the FP had advocated. He was clearly referring to the FP’s association with the UNP and the conservative policies it had followed, such as voting against nationalisations, the takeover of private schools and the Paddy Lands Bill. Seemingly oblivious to the offer that Dharmalingam had made, he asked why the FP had not used the phrase ‘regional autonomy.’ Speakers from the UF who followed Muttetuwegama made it clear that the UF was in no mood to consider the FP’s offer to settle for much less.
Consequently, Basic Resolution No.2 was passed, and the FP’s amendment was defeated in the Steering and Subjects Committee on 27 March 1971.
Dr Nihal Jayawickrama, who was the Secretary of the Ministry of Justice, under the UF Government, and played an important role in the constitutional reform process, has said that the first draft prepared under the direction of the Minister of Constitutional Affairs did not contain any reference to a ‘unitary state’. However, Minister Felix Dias Bandaranaike proposed in the Ministerial Sub-Committee that the country be declared a ‘unitary state’. The Minister of Constitutional Affairs did not consider this to be necessary and argued that while the proposed constitution would have a unitary structure, unitary constitutions could vary a great deal in form. Nevertheless, the proposed phrase found its way to the final draft. ‘In course of time, this impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogenous Sinhalese state on this island’ Dr Jayawickrama observed. ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice vol 1 (Centre for Policy Alternatives 2012) 43.
It is significant that the FP continued to participate in the Constituent Assembly even after its amendment was rejected. Records show that its leader, S.J.V. Chelvanayakam, regularly attended the meetings of the Steering and Subjects Committee.
With the advantage of hindsight, it could be said that acceptance of the FP’s proposed compromise for a division of power would have proved to be a far-reaching confidence-building measure on which more could perhaps have been built later. Moreover, such an acceptance would have ensured the continued participation of the FP in the Constituent Assembly. Even had the FP, as the UNP eventually did, voted against the adoption of the new constitution, their participation in the entire constitution-making process would have resulted in greater acceptance of the 1972 Constitution by the Tamil people.
Although they discontinued participation at a later stage, Federal Party MPs nevertheless took oaths under the new Constitution. Tamil parties soon united under the banner of the Tamil United Front (TUF), which later became the Tamil United Liberation Front (TULF). At the famous Vaddukoddai conference of 1976, the TULF embraced separatism and adopted a resolution calling for a separate state called ‘Tamil Eelam’ in the Northern and Eastern provinces. At the 1977 elections, the TULF contested on a separatist platform and swept the Tamil areas.
The place of Buddhism
According to Dr Jayawickrama, Dr. de Silva’s original proposal called for the guarantee of freedom of thought, conscience and religion to every citizen. However, the Prime Minister requested that this proposal be added with a provision for the protection of institutions and traditional places of worship of Buddhists.
Basic Resolution No. 3 approved by the Constituent Assembly was for Buddhism to be given its ‘rightful place’: ‘In the Republic of Sri Lanka, Buddhism, the religion of the majority of the people, shall be given its rightful place, and accordingly, it shall be the duty of the State to protect and foster Buddhism, while assuring to all religions the rights granted by Basic Resolution 5 (iv).’
Basic Resolution 5 (iv) referred to read: “Every citizen shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have and adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”
But by the time the final draft was approved, the proposal had undergone a further change. Article 6 of the 1972 Constitution is as follows: ‘The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18 (1) (d).’ Section 18 (1) (d), in the chapter on fundamental rights, assures to all citizens the right to freedom of thought, conscience and religion.
To the question of whether constitutionally guaranteeing special status to Buddhism not available to other religions of the land might adversely affect the non-Buddhists, Dr de Silva retrospectively responded in the following manner: “The section in respect of Buddhism is subject to section 18 (1) (d) and I wish to say, I believe in a secular state. But you know when Constitutions are made by Constituent Assemblies they are not made by the Minister of Constitutional Affairs. I myself would have preferred (section 18(1) (d)). But there is nothing…And I repeat, NOTHING, in section 6 which in any manner infringes upon the rights of any religion in this country. (Safeguards for the Minorities in the 1972 Constitution (Young Socialist 1987) 10.)
Dr Jayawickrama has been more critical. ‘If Buddhism had survived in the hearts and minds of the people through nearly five centuries of foreign occupation, a constitutional edict was hardly necessary to protect it now’, he opined. (‘Colvin and Constitution-Making – A Postscript’ Sunday Island, 15 July 2007).
Basic Resolution No.11 stated that all laws shall be enacted in Sinhala and that there shall be a Tamil translation of every law so enacted.
Basic Resolution No.12 read as follows: “(1) The Official Language of Sri Lanka shall be Sinhala as provided by the Official Language Act No. 32 of 1956. (2) The use of the Tamil Language shall be in accordance with the Tamil Language (Special Provisions) Act No. 28 of 1958.”
Efforts by the FP to get the Government to improve upon Basic Resolutions Nos. 11 and 12 failed. On 28 June 1971, both resolutions were passed, amendments proposed by the FP having been defeated. S.J.V. Chelvanayakam informed the Constituent Assembly that they had met with both the Prime Minister and the Minister of Constitutional Affairs, and while the meetings had been cordial, the Government had refused to make any alteration to the Basic Resolutions. He stated that the FP would therefore not attend future meetings. “We have come to the painful conclusion that as our language rights are not satisfactorily provided in the proposed Constitution, no useful purpose will be served in our continuing in the deliberations of this Assembly. By taking this step, we mean no offence to anybody. We only want to safeguard the dignity of our people.” There was not even a dramatic walk out. ‘We do not wish to stage a demonstration by walking out’, he added.
That Dr Colvin R. de Silva, who prophetically stated in 1955, ‘one language, two countries; two languages, one country’, should go so far as to upgrade the then-existing language provisions to constitutional status has baffled many political observers. In fact, according to Dr Jayawickrama, the Prime Minister had stated that it would be unwise to re-open the language debate and that the better course would be to let the ordinary laws on the subject operate in the form in which they were. By this time, the Privy Council had reversed the decision of the Supreme Court in A.G. v Kodeswaranthat a public servant could not sue the Crown for breach of contract of employment and sent the case back for a determination on other issues, including the main issue as to whether the Official Language Act violated section 29 (2), as the District Court had held. Dr. de Silva did not wish the Supreme Court to re-visit the issue. ‘If the courts do declare this law invalid and unconstitutional, heavens alive, the chief work done from 1956 onwards will be undone. You will have to restore the egg from the omelette into which it was beaten and cooked.’ He had, however, resisted a proposal made by Minister Felix R. Dias Bandaranaike that Sinhala be declared the ‘one’ official language of Sri Lanka.
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