Reinventing The Wheel?
by Austin Fernando, Colombo Telegraph, January 12, 2025
Last week, news appeared titled ‘Inter-linked mechanism mooted for lands.’ The Deputy Minister of Lands and Irrigation Dr. Susil Ranasinghe was quoted in it. Ranasinghe rightly lamented the absence of a proper land policy that creates disorganization of institutions involved in land use, i.e., due probably to land-related issues created by the Forest Department or Railway Department causing complications in decision-making.
Hurrah, in recent times this is the first attempt in my memory of a government politician seriously thinking of formulating a ‘land policy!’ Additionally, it is by a politician whose party was inimical to power-sharing as in the Constitution. He surely should know it has constitutional and political relevance and thus implications. Of course, politicians have a right to change their stances, if irrelevant while in power.
His integrated vision of attending to land use issues is also proactive. Of course, moving away from unspecified traditional ‘land policy’ with conflicting stakeholders, and mixing the adhered Marxist ideology in government leadership with the currently demanded free market land use operations, is a challenge, especially when the government is keen on investor attraction.
The Deputy Minister is invited to visit Appendix II of the Ninth Schedule of the 13th Amendment (13A) for clarification lest he has not, and consultations such as in Thimpu and between other political dignitaries and emissaries like G Parsasarathi, Romesh Bhandari, P Chidambaram, et al and proceedings in our Parliament, the Lok Sabha and Rajya Sabha in India.
Blurred history of Land Administration
Our old and new large-scale irrigation systems were developed from Prime Minister DS Senanayake’s days, and the state lands were a vital component of such development, based on a centralized land administration system. The flip side of it brought severe political criticisms that have not ceased, and hence focusing on positive and negative concerns is important in drafting an NLP, to avoid repeating mistakes.
Politicians demanded powers for the local population to manage their affairs including land, education, irrigation, agriculture, health, etc. They bargained on the Principle of Subsidiarity, and their perceived political and fundamental rights. For such demands made by Mr. SJV Chelvanayakam, a solution was sought through the Bandaranaike-Chelvanayakam, and Dudley-Chelvanayakam Pacts, respectively. Chelvanayakam addressed these issues with complaints of ethnic discrimination.
Concurrently, the Sinhalese politicians from Senanayake were keen on solving the emerging population increase, a grave social problem in the South. Of course, they might have had publicly undeclared intentions of using excess land in the North and East for the use of Sinhalese.
This was countering the Tamil politicians’ concept of an “area of historical habitation” or “homeland.” The “homeland” concept was never accepted and not acceptable to the Sinhalese even today. Still, no one was interested in fixing a national policy for land use. Whatever action on land use was done as adventurous ad hoc exercises. This status provokes reviewing the build-up to the present context.
Bandaranaike-Chelvanayakam Pact and Land Use
This Pact agreed that the proposed Regional Councils (RCs) should have powers over specified subjects including agriculture, cooperatives, lands and land development, colonization, etc. Considering the expenditure required for large irrigation and land development projects, Chelvanayakam would not have expected those to be undertaken by RCs.
Further, it was agreed that in the matter of colonization schemes, the powers of the RCs shall include the powers to select allottees to whom land within their area of authority would be alienated, and to select personnel to be employed on such schemes. This appeared as the ‘agreed NLP,’ but its sudden erasure forbidding implementation proved lacking consensus. Adventurism compounded!
Dudley Senanayake- Chelvanayakam Pact and Land Use
The Dudley Senanayake- Chelvanayakam Pact focused on the establishment of District Councils instead of RCs, the use of the Tamil language, and land administration in the main, and provided for the amendment of the Land Development Ordinance to provide that Ceylonese citizens be entitled to the allotment of land.
Senanayake further agreed to grant land in the colonization schemes in the Northern and Eastern Provinces, observing the following priorities:
(a) First, land be granted to landless persons in their districts.
(b) Secondly, to Tamil-speaking residents in these Provinces.
(c) Thirdly, for other citizens in Ceylon, preference is given to Tamil residents in the rest of the island.
This also appeared as the ‘agreed NLP’ for settlement or agricultural purposes, but its sudden erasure forbidding implementation proved a lack of consensus as policy. Again, adventurism compounded!
The outcomes of these two pacts prove ad hocism in policymaking, instability of policymaking, lack of consultation, and consequences of policymaking only on political preferences. Let politicians loudly hear the last consequence.
Vaddukkodai Resolution and lands
The Vaddukkodai Resolution (May 14th, 1976) exposed the viciousness, as perceived by Tamils, of land administration, stating: “Making serious inroads into the territories of the former Tamil Kingdom by a system of planned and state-aided Sinhalese colonization and large scale regularization of recently encouraged Sinhalese encroachments calculated to make the Tamils a minority in their own homeland.” This was the conceptual birth of Tamil Eelam! Still, with that threat looming we did not possess an NLP to counter or even moderate.
Drawing Indians to power-sharing for land
After the July 1983 Riots, Tamil politicians conveyed to the Indians, the ‘injustices’ caused to them by land administration, and requested Indian interventions to benefit Tamils, through power-sharing.
As a passing remark, I am reminded that a memorandum was presented to the All-Party Conference by President JR Jayewardene on July 23rd, 1984, exactly on the first anniversary of the Black July Riots, which suggested: “A national policy on land settlement to be worked out.”
Therefore, what the Deputy Minister envisages is not an oven-fresh cake, but sadly a 40-year-old stale cake! It is not his fault but that of all governments since Jayewardene, except an attempt in 1992, which I will refer to later. Nevertheless, it may accelerate an always-hyped Minister Lal Kantha to become the “hero” of formulating an NLP.
In the Joint Statement (December 16th, 2024) after President Anura Kumara Dissanayake visited India, the focus was laid on reconstruction, reconciliation, and the hope of PM Narendra Modi that “the Sri Lankan government shall fulfill the aspirations of the Tamil people.” It is “shall” and not “may”! Modi’s statement is not impulsive, but a cumulative impact of earlier representations of four decades of reported discrimination made by domestic and Indian politicians, especially from Tamil Nadu, and very distinct. Their concerns are imprinted and solidified, and hence land policy, factored into reconciliation, cannot be considered flippantly. Hence the initiative of the Deputy Minister is appropriately timed.
Except for Land, for other subjects, there is no special constitutional direction provided for national policy making. For Land, it is provided through the 13A, concluded consequential to long-drawn consultations with Indians (quoted below), of which we must be mindful when formulating an NLP. It becomes mandatory since the NLP is a constitutional fallout of Appendix II of the 13A, authored by Indians.
Tamil political representations to India
I may quote a few references post-July 23rd, 1984, to understand the value of this historic process.
a) In his statement at the All-Party Conference (September 30, 1984), Mr. A Amirthalingam described land alienations in Dollar and Kent Farms, infrastructure development to colonize the Sinhalese in selected northern villages and Trincomalee and forcing Grama Sevakas in Trincomalee to register newly settled Sinhalese voters.
b) Letter sent to PM Rajiv Gandhi by Amirthalingam and Mr. M Sivasiththamparam (July 26th, 1985) alleged that successive Sri Lankan governments were making serious inroads into their ‘homelands’ by a “policy of planned colonization with Sinhalese.” The colonization issue was raised in more detail by Amirthalingam on August 13th, 1985, at the Thimpu Talks.
c) In a letter addressed to Gandhi by the duo, (September 9th, 1985), the demand was made regarding lands under Mahaweli development within the Eastern Province to be reserved only for Tamils and Muslims of the Province. They also mentioned that Mr. S Thondaman (Ceylon Workers Congress) has indicated to the government to reserve land from the Eastern Province for Tamils of recent Indian origin.
d) In another letter to the Indian PM, (October 1st, 1985), the TULF leaders divided the subjects of a ‘Linguistic State’ into two lists. List 1 was for functions of the government, and List 2 was for the Linguistic State, in which the subject “Land’ was placed totally under List 2. This placement was repeated by a letter to Gandhi by the TULF (December 1st, 1985). It is incompatible with the Sinhalese mindset.
e) Pressured, the government’s ‘Final Proposals’ (July 9th, 1986) included a Note on Land Settlement. These proposals have some aspects of land settlement appearing in 13A- Appendix II. An Enclosure to the Note on Land Settlement under Mahaweli was incorporated giving allotment numbers based on ethnicity. However, the 13A has dropped it and made provision for ethnic ratios under 2:5 of Appendix II, guiding NLP framers.
f) Another communication to Gandhi (October 4th, 1986) provided for rights in or over land, tenure, transfer, alienation, land use, settlement, and improvement to the extent set out in ‘Appendix II’ of the proposals. The contents of Appendix II here show similarity to Appendix II in the 13A.
As the above quotes are related to Tamil political representations in the North and East, one could perceive that devolving land is only to benefit Tamils. It is not so, as observed when the Land Ownership Bill was published by Ranil Wickremesinghe Government in 2003, where all Southern PCs led by Sinhalese went before the Supreme Court (S.D. 26/2003), arguing that alienation of state land is a devolved constitutional right of the PCs.
In this proceeding, the Supreme Court held the proposed Bill was infringing the 13A powers, which is a legal abhorrence. It proposed to pass the Bill with a special majority (2/3), and approval at a referendum. Hence, an NLP framer shall be mindful of the Constitution, past practices, and court determinations, however much they are confident even winning a referendum.
Adherence to 13A – Appendix II
The Deputy Minister’s concern also appears as issues related to the use of land, whether alienated to the Military, Railway Department, Highways, Forest Department or Muthubanda, Lechchami, or Mohammed to construct a house or a factory, or to cultivate manioc or for a cooperative housing scheme. Hence it is safe to adhere to Appendix II if guidance from the existing Constitution is tolerated by the incumbent government.
The 13A- Appendix II 3:3 envisages land utilization under the NLP would be based on “technical aspects and not on political and communal aspects.” However, the summary contents of (a) to (f) above have a streak of ethnicity, racism, and discrimination, most probably due to the condensed ‘ethnicity factor.’
Appendix II in 1:1 and 1:2 leaves space for the departmental (Government and Provinces) land use, about which the Deputy Minster is more focused, and leaves 2:5 to do justice to ethnic ratios in land distribution, on which Tamil politicians and all civilians are more concerned.
The 13A-Appendix II in summary directs:
(a) The Government to establish an NLC responsible for the formulation of an NLP;
(b) Once the NLC is established, appoint PC representatives. If the need is to appoint elected Councilors as PC representatives to the NLC, delay is imminent until PC elections are held. In the interim senior bureaucrats (e.g., Chief Secretary, Provincial Secretary Lands, or Provincial Land Commissioner) could represent, justified by the Doctrine of Impossibility and Doctrine of Necessity;
(c) To establish a Technical Secretariat;
(d)The NLP is to be based on technical aspects, not on political or communal aspects;
(e) The NLC to lay down general norms in land use, having regard to relevant factors; this may clear many issues related to the military, lands for investors, etc; and,
(f) The PCs to give due regard to the NLP in the implementation of devolved powers.
Available alternatives
The first alternative is to adhere to 13A- Appendix II.
The second alternative is if the government wishes to withdraw the Appendix II mechanism, repealing the Constitution with the two-thirds majority the government enjoys.
Thirdly, one must be cautioned of framing an NLP in the manner other ministries could legally do, because without repealing Appendix II if the NLP is framed, it may embarrass the government if the Supreme Court responds in the manner the Wickremesinghe government was treated. One cannot predict the Supreme Court.
Conclusion
The above-detailed explanation is made to (a) understand the longstanding demands and commitments in land administration, (b) political complexity, (c) stakeholder involvement, (d) Indian interest, and (e) existing constitutional arrangements, which will certainly influence the formulation of an NLP, as anticipated by the Deputy Minister.
The Janatha Vimukthi Peramuna vociferously opposed 13A, and hence, the Lands Ministry may check with Pelawatta Headquarters whether the existing constitutional path should be followed to formulate an NLP, or just formulate a random NLP like national policies of other Ministries, and face the consequences in Courts for lack of constitutional due diligence; or, whether the identification tag ‘NLP’ could be changed to skip National Land Commission (NLC) legal requirements.
As promised, I mention that a draft Bill for an NLC was presented by the Minister of Lands, Irrigation and Mahaweli Development on July 21st, 1992, and lapsed on June 24th, 1994, with the dissolution of the Parliament. I suspect that the Appendix II- NLC mechanism was not a palatable dish to the then politicians in power, and they allowed lapsing.
When the Party that was instrumental in introducing 13A shows reluctance to adhere to Appendix II, it is tough to believe that another left-wing political Party that vehemently opposed 13A, devolution, reformed land alienation, free-market operation in lands, etc. would follow Appendix II.
For whatever reason if the government is pushed to the wall demanding an NLP, let Minister Lal Kantha, bravely take the challenge, act constitutionally, and formulate the NLP. We look forward.
Best wishes to Ministers Lal Kantha, and Deputy Dr. Ranasinghe!
*Austin Fernando – Former Secretary to the President