Was Rajiv Gandhi Deceived By Jayewardene?
By M. A. Sumanthiran -October 6, 2013 |
M A Sumanthiran
The timing of the Supreme Court’s judgment last week on devolution of land powers—just two days after a historic election for the Northern Provincial Council—gained significant attention within and outside Sri Lanka. Inevitably, the focus has shifted to the Tamil National Alliance and how the party—and the Provincial Council it controls—would respond to the judgment.
While I intend to comment on the political repercussions of this judgment, a few observations on its legal implications may be in order. The first is that the judgment contains three separate opinions and they arrive at the same conclusion—that the power of issuing a quit notice in terms of the State Lands (Recovery of Possession) Act lies with the centre, and not the Provincial Council—which was the only question before court. The Supreme Court granted Special Leave to Appeal on two questions of law but decided to stick to only the first question. The constitutional provisions dealing with the Provincial High Court’s jurisdiction are separate and distinct from the provisions dealing with devolution of powers. Thus any pronouncement other than on the question before court would tantamount to obiter dictum and does not form the ratio decidendi, or “the reason for the decision”. Secondly, although all three judgments arrive at the same conclusion they follow divergent lines of reasoning. For instance, while one opinion explicitly rejects the existing statement of the law laid down in the Land Ownership Bill Determination and Vasudeva Nanayakkara vs. N. Choksy that the President’s power to dispose state land is qualified by the Thirteenth Amendment—which states that such power should be exercised “on the advice of the Provincial Council”—another cites with approval the very passage taken fromthe Land Ownership Bill Determination rejected in the other.
Thus, at least in terms of the question of whether the President requires the approval of the Provincial Council to dispose state land, existing law appears not to have been disturbed. This is the case because, as stated in the case of Bandahamy vs. Senanayake, the rules of precedent require that “three Judges as a rule follow a unanimous decision of three Judges, but if three Judges sitting together find themselves unable to follow a unanimous decision of three Judges a fuller bench would be constituted for the purpose of deciding the question involved.” Since the Land Ownership Bill Determination and the judgment in Vasudeva Nanayakkara’s case were both issued unanimously by benches comprising three judges, it is seriously doubtful that the recent judgment—which did not follow existing precedent—changes the law in respect of the disposition of state land. This question is critical because successive Sri Lankan governments have continued to settle ethnic Sinhalese from southern Sri Lanka in the North and East by disposing state land to them, with a view to changing the demographic composition in these areas. That programme has been intensified under the Rajapaksa regime.
