by Verite Research, Colombo, October 2016
Devolution of Land Powers_A guide for decision-makers
Executive Summary
This is a practical guide for decision-makers on devolving land powers in Sri Lanka. It is meant to help comprehend the complex and sometimes contradictory provisions in relation to the devolution of powers over land. The guide is presented in three parts.
PART 1: THE FRAMEWORK examines the constitutional, legislative, administrative and institutional framework with respect to land in Sri Lanka, both prior to the Thirteenth Amendment and after.
The Constitutional Framework pertaining to land powers is contained in the Thirteenth Amendment to the Constitution. The subject of ‘land’ is devolved to the Provinces under Item 18 of the Provincial Council List. To the extent set out in Appendix II of the Ninth Schedule to the Constitution, rights in or over land, land tenure, transfer and alienation of land, land use, land settlement and land improvement are reserved for the Provincial Councils (PCs). There are two conditions to this general rule. First, State land continues to vest in the Republic and therefore may only be alienated under the seal of the President and written law governing the matter, but on the advice of the relevant PC. Second, they are subject to other special provisions set out in Appendix II regarding State land, inter-provincial irrigation and land development projects.
The Legal, Administrative and Institutional Framework stipulates the various authorities empowered under existing law to exercise powers relating to land. These authorities wield considerable powers in relation to ‘State land’. State land applies to all land in Sri Lanka to which the State is lawfully entitled or which may be disposed of by the State and includes all rights, interests and privileges attached or appertaining to such land.’ Under the existing framework, the Sri Lankan State is the largest landowner in the country, owning 82% of land. Moreover, powers over Policy Formulation on all subjects and functions are vested in the Centre, regardless of whether or not the subject has been devolved to the Provinces. However, the responsibility of policy formulation on land is given to the The NLC (National Land Commission) composed of representatives of the PCs. Despite these constitutional provisions, successive governments have failed to appoint a NLC. Consequently, the Central Executive has usurped this role. The most recent attempt by the central government to lay down guidelines for management of State land is the Interventions by the Central authorities on National Policy formulation titled ‘Accelerated Programme on Solving Post-Conflict State land Issues in the Northern and Eastern Provinces’.
Appendix II reaffirms the authority of the Centre in relation to State land required for the purposes of the government in a Province and State land utilised for inter-provincial irrigation and land development projects. In both instances, the PCs are to be consulted, which appears to support the participation of the PCs to a certain extent. Moreover, the central government makes State land within the Province available to PCs on request.
Meanwhile, both the Central and Provincial governments can exercise powers over acquisition and requisition of land, as they are Concurrent List subjects. Such powers are yet to be exercised by PCs. However, the Centre has wide powers of acquisition under the Land Acquisition Act No. 9 of 1950 (as amended), Requisitioning of Land Act No. 33 of 1950, State Lands (Recovery of Possession) Act No. 7 of 1979 and the Land Resumption Ordinance No. 4 of 1887.
Appendix II also states that Powers over Acquisition and Requisition of the State land within a Province to any citizen or to any organisation shall be by the President, on the advice of the relevant PC. According to the Supreme Court’s decision in the LMSL Case, no alienations may be made without the advice of the PC. Further, the Land Development Ordinance No. 19 of 1935 (LDO) provides for the systematic development and alienation of State land and provides for the issuing of permits and grants of land to deserving persons. Similarly, the Crown/State Lands Ordinance No. 8 of 1947 provides the President with the power to grant State land, issue long-term leases, and issue annual land permits. Moreover, the Land Grants (Special Provisions) Act No. 43 of 1979 provides that land already vested in the Land Reform Commission is vested in the State, thus enabling such lands to be easily transferred to the landless. However, much of the procedure for alienation of State land is provided for under the Land Circular No. 2008/4.
Pre-1989 land administration structure, land administration in Sri Lanka was managed within a completely centralised structure. The Minister of Land was the head of the structure and the Land Commissioner’s Department was responsible for administration. However, under the Post-1989 land administration structure, the Centre has continued to maintain substantial influence over provincial land administration directly and indirectly. For example, the Minsitry of Lands has since appointed ‘Provincial Land Commissioners’ as Additional Land Commissioners within the Ministry, thus bringing these provincial functionaries directly under the control of the Centre. Though the Governor of each Province appoints Provincial Land Commissioners, these officers have been circumvented by the Land Commissioner General, who relies directly on Divisional Secretaries for execution of functions within the Province.
PART 2: TO MAXIMISING THE FRAMEWORK of this guide, two issues have been focussed on. First, the manner in which the Centre has expanded its control over powers relating to land, and second, the manner in which provincial administrations and legislatures may attempt to assert some measure of control over land powers. It explores the potential for expanding the extent of control over land exercised PCs through the devolution of land powers. Such expansion involves simultaneously limiting central control over land under the existing constitutional framework.
The Centre maintains overriding control over land mainly through powers dealing with National Policy and Urban Development. Because ‘National Policy on all subjects’ is a reserved subject, there is a danger of the Centre claiming that any given Bill is based on ‘National Policy’, despite it being in respect of a subject in the Provincial List. National policy on land ought to be formulated by the NLC. However, the NLC is yet to be appointed. Hence a range of institutions at the Centre, including the Cabinet and the Land Commissioner’s Department, currently formulate national policy on land. Further, the Urban Development Authority (UDA) Act has resulted in a large-scale appropriation of powers over land. It also grants the UDA the power to take over land belonging to a local authority or acquire private property, which and acquisition could be expedited under the Urban Development Projects [Special Provisions] Act.
The Centre also maintains control over land through the process of refusal to make available State Land required for Provincial Council Subjects. In terms of the Constitution, even where land, which is a devolved subject, is required for another devolved subject, such land must first be made available to the PC by the central government. Additionally, the Centre controls land through the alienation of State land, land utilised for reserved or concurrent subjects and regulation of private land.
In the above context, targeted interventions may be necessary to maximise devolution. Such interventions mainly relate to national policy and urban land. The primary avenue available to restrict the Centre’s arrogation of the power to frame national policy is to challenge each instance of national policymaking in the absence of the NLC. Moreover, the UDA Act clearly deals with the Provincial Council List subjects of land and local government. Hence two types of initiatives may need to be taken to ensure that these powers remain with the PCs. First, the Act may be interpreted to mean that the Minister and public servants specified in the Act are in fact the Provincial Minister and provincial public servants. Second, PCs may pass their own Urban Development Authority Statutes or remove the powers of the Urban Development Authority within its Province. If they were to do so, Article 154G(8) deems that the statute would override the provisions of the Act within the Province. Yet, the Centre may still stall such a statute if the Governor refuses to assent to the statute and the President subsequently refuses to refer the statute to the Supreme Court.
PART 3: REFORM: This guide offers comparative models for land devolution from past constitutional reform proposals within Sri Lanka and federal jurisdictions such as India, Canada and Australia.
Due to the inadequacy of the Thirteenth Amendment as a power-sharing model for Sri Lanka, several proposed constitutional reforms for devolving land powers have been proposed from time to time. Significantly, almost all such proposals refer in depth to the issue of devolution of land powers. This part examines several such proposals: the Mangala Moonesinghe Interim Report (1993), Proposals of the Movement for Constitutional Reform (1994), The Government’s Proposals for Constitutional Reform (1995-2000) and Reports of the APRC (2006-2007). A close look at these constitutional reform proposals permits two main conclusions. First, devolution of powers relating to land is an important and sensitive issue, which needs special attention in a power-sharing model in Sri Lanka. Second, almost all proposed models recommended that land powers be devolved comprehensively to the Provinces or Regions.
A comparative analysis of devolution of land powers in federal jurisdictions relevant to the Sri Lankan situation requires an analysis of countries that have powers dealing with State land. This guide attempts to look at the federal constitutional models of India, Canada and Australia to exemplify constitutional arrangements that have devolved powers over land successfully. The Indian model grants substantial powers over land to the States. It bears some resemblance to the Thirteenth Amendment. Yet the major difference between the two Constitutions is that the Sri Lankan Thirteenth Amendment contains Appendix II, which substantially limits the devolution of powers in respect of land and reserves a number of important powers for the Centre. Moreover, the structural limits of the Thirteenth Amendment, which is placed within an explicitly unitary context, limits devolution. The Canadian Constitution Act of 1867 allocates powers between the federal and provincial governments. Accordingly, in relation to land powers, management and sale of public lands (Crown lands) is fully assigned to the Provinces. These provisions are extensive considering the fact that about 89% of Canada’s land area constitutes Crown land. Hence the Provinces own the majority of such land. Moreover, in Australia, administration of Crown land is completely within the purview of the States and is governed effectively by the laws and institutional structures of the State governments. These structures provide a frame of reference for future reform and reinforce the notion that devolving land power is both a desirable and feasible endeavour.