July 6, 2013, 7:25 pm


Last Friday, Minister Basil Rajapaksa was in India in a situation no less crucial than the one in which he left for India in October 2008 when the war was reaching its peak. This time, however, his visit does not seem to have been as successful as the October 2008 visit. If his task was to convince India that the 13th Amendment to the constitution needs to be amended, he does not seem to have succeeded. The Indian External Affairs Minister had been emphasizing that the 13th Amendment should not only be fully implemented but that Sri Lanka should even go beyond it to ensure meaningful devolution to the provinces.

It’s now more than a quarter of a century since the Indo Lanka Peace Accord was entered into and the 13th Amendment enacted. It is highly unlikely that there is even one senior official in the Indian External Affairs Ministry who has read the 13th Amendment in full. The Indian External Affairs Minister is obviously going on briefings he gets from his officials. And the officials themselves would be going on what they hear from the TNA and various Sri Lankan NGOs.  Because the Sri Lankan provincial councils system was modeled on the Indian system of devolution, most Indian bureaucrats would be under the impression that the system forced on Sri Lanka by India in 1987 is identical in all respects to the Indian system. They would not know that there are significant ways in which the Sri Lankan and Indian constitutional provisions on devolution differ.

In India, the powers of the central government, the state governments and the powers that can be concurrently exercised by both are contained in the Seventh Schedule of the Constitution. The Indian Seventh Schedule lists the powers of the central government (the Indian Union list) first, followed by the list of powers of the states and finally the list of concurrent powers. The Indian dictated 13th Amendment to the Sri Lankan constitution saw the addition of the Ninth Schedule to the Sri Lankan constitution which is the equivalent of the Seventh Schedule of the Indian constitution. In contrast to the Indian Seventh Schedule which lists the powers of the central government first, the Sri Lankan Ninth Schedule has reversed this order by stating the powers of the provinces first, and then the powers of the central government followed by the list of concurrent powers.

Does the fact that the order in the Indian constitution has been reversed in the Sri Lankan constitution really matter? Yes it does, and in very significant ways. This is why all this cross talk between Sri Lanka and India has become necessary. The reversal of the Indian order in Sri Lanka clearly reflects a certain attitude of mind. In India, the framers of the constitution wanted a strong central government despite the devolution of power to the states, which is why the powers of the central government have been listed first. In the Seventh Schedule to the Indian constitution, when the powers of the states are listed one by one, one often sees the proviso that these powers are subject to the powers of the central government listed above it. For example, the second item on the list of powers of the states in the Indian constitution deals with police powers. But it is very clearly stated here that the police powers of the Indian states are subject to the provisions of entry 2A of the central governmental powers list. Entry 2A of the of the Indian central government powers list gives the centre the ability to deploy ANY armed force under the command of the central government in any state in aid of the civil power (meaning the governor of that state who is appointed by the central government) without the declaration of an emergency in that province.

Thus in the Indian constitution, state police powers have been made subject to the powers of the centre to act even without a declaration of an emergency. In Sri Lanka however, we see no such provision. What we see here is the very opposite. Entry 11.2(b) of Appendix I of the Ninth Schedule of the Sri Lankan Constitution which was introduced through the 13th Amendment, deals with the president’s power to deploy contingents of the national police force in a province in aid of the civil power without the declaration of an emergency.  When deploying the national police force in a province in aid of the civil power, without declaring an emergency, the Sri Lankan president is bound to consult the chief minister of the province. So we see the difference. In India, any armed force of the central government (and not just the central police) can be deployed in any state without the declaration of an emergency and without so much as a by your leave from the chief minister, whereas in Sri Lanka, even the president has to compulsorily consult the chief minister before deploying a contingent of the national police force in that province without the declaration of an emergency.



The game changing appendices

The Indians imposed burdens on the Sri Lankan central government which are not to be seen in the Indian constitution. The powers allocated to the central government and the provincial governments in the Ninth Schedule of the Sri Lankan constitution have been complicated due to the Appendices that have been included therein. There are no Appendices elaborating on the powers to be exercised by the centre and the states respectively in the Seventh Schedule of the Indian constitution. As a result, in India the powers that appear in the lists of the central government and the states are applied literally even by the courts. In Sri Lanka, things are different.

Let’s just consider one example relating to land powers – one of the main bones of contention at the present moment. The list of powers of the States in the Seventh Schedule of the Indian constitution lists the land powers of the States as follows:

18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.

The Ninth Schedule of the Provincial Councils list in the Sri Lankan constitution has a very similar provision in relation to land powers. Even the number of the provision is the same. The Sri Lankan provision goes as follows:

18. Land. - Land, that is to say, rights in or over land, land tenure transfer and alienation of land, land use, land settlement and land improvement, to the extent set out in Appendix II.

In Sri Lanka, the provisions of the Ninth Schedule have been compounded by making them subject to an Appendix with additional provisions. This in part accounts for the differences between the powers devolved in India and Sri Lanka.

There was an interesting Supreme Court case in India - State of West Bengal v Union

of India (1962) where the State of West Bengal tested the extent of their power over land as against the central government of India. In this case the Indian central government proposed to acquire certain lands bearing coal deposits in the State of West Bengal. The West Bengal government petitioned the Supreme Court claiming that the central government did not have the power to acquire for their purposes state owned land located in the states. But the Supreme Court held in favour of the Indian central government. Two factors worked in favour of the Indian central government in that case. Firstly, items 52 and 54 of the list of powers of the Indian central government clearly gave them authority over mineral resources. Items 52 and 54 in the Indian list of powers of the centre went as follows:

52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.

54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.

Furthermore, Item 42 of the list of concurrent powers in the seventh Schedule of the Indian constitution which related to the " Acquisition and requisitioning of property" clearly left the central government power to acquire property. Based on these provisions, the Indian supreme court threw out the petition brought by the West Bengal government and upheld the right of the central government to acquire land in West Bengal for their purposes. Provisions very similar to items 52 and 54 of the Indian Central government powers list and item 42 of the Indian concurrent powers list are also to be found in the Ninth Schedule of the Sri Lankan constitution. The corresponding provisions in the list of central government powers in the Ninth Schedule of the Sri Lankan constitution go as follows.

* Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Government of Sri Lanka is declared by Parliament by law to be expedient in the public interest.

* Industries, the control of which by the Government of Sri Lanka is declared by Parliament by law to be expedient in the public interest ;

Apart from this, item 6 of the Sri Lankan concurrent list in the Ninth Schedule of the constitution also allows the central government concurrent powers in the "Acquisition and requisitioning of property" just like the Indian constitution. Despite this similarity in the provisions relating to land in the Indian constitution and the provisions in the Sri Lankan constitution introduced through the 13th amendment, the land powers of the Indian central government and the Sri Lankan central government are not the same. Appendix II of the Ninth Schedule of the Sri Lankan constitution changes the entire game.

Clause 1.1 of Appendix II of the Ninth schedule of the Sri Lankan constitution states very clearly that if the Sri Lankan central government needs to utilize a piece of land in a province for a purpose coming under its purview, it has to ‘consult’ the provincial council with regard to utilizing the particular piece of land for that purpose. This is a provision written into the constitution and cannot be derogated from. However, no such requirement burdens the Indian central government. If they need to use a piece of state owned land in any of their states, for a purpose coming under the purview of the Indian central government, they can do so without so much as a by your leave from anybody.

In the 1962 Indian case mentioned above - State Of West Bengal v Union of India, what was in contention was the acquisition by the Indian Central government of land containing coal deposits in the State of West Bengal under the Coal Bearing Areas (Acquisition and Development) Act, of 1957. Section 9(1) of this Act clearly stated that the Indian central government could take over coal bearing areas but in the event where the earmarked land belongs to a state, the state government concerned has to be ‘consulted’ before the proclamation announcing the takeover is issued.

On the face of it, the above mentioned Section 9(1) of the Indian Coal Bearing Areas (Acquisition and Development) Act, 1957 looks very similar to clause 1.1 of Appendix II of the Ninth Schedule of the Sri Lankan constitution which says that the central government should ‘consult’ the provincial government before taking over land within the provincial council for a central government purpose. However, it should be noted that the Coal Bearing Areas (Acquisition and Development) Act of 1957 of India is an ordinary law which does not have the force of a constitutional provision. In fact in the State Of West Bengal v Union of India, the Indian Supreme Court made specific mention of Section 9(1) of Coal Bearing Areas (Acquisition and Development) Act, of 1957, but they chose to ignore it.

In doing so, the Indian Supreme Court was guided more by clauses 52 and 54 of the list of powers of the Indian central government which gave the latter the power to enact laws for the development of mineral resources and Clause 42 of the Indian concurrent list which gave them power to acquire land. Based on the above, the court decided that the intent of Parliament "was to acquire all rights and interests in coal bearing land with a view to prospecting for coal and for exploiting coal-bearing mines" and that to deny the Parliament authority to legislate in respect of property situated in the State, would be to turn the constitution into a dead letter.

With reference to section  9 (1) of the Coal Bearing Areas (Acquisition and Development) Act of 1957, which had a proviso stating that before a coal bearing land is acquired by the central government, they had to ‘consult’ the state government concerned, the Indian supreme court simply dismissed it on the grounds that consultation does not necessarily mean consent! In any event, this latter Act was an ordinary law, not having the force of constitutional provisions in deciding the relative powers of the states vis-a-vis the central government.

Thus we see that while the Indian constitutional provisions allowing the central government to take over state owned land in the states for their purposes, are clear and unencumbered; the provisions introduced by the 13th Amendment to Appendix II of the Ninth Schedule of the Sri Lankan constitution leaves room for varying interpretations – the end result of which will be interminable legal wrangles and arguments.  What complicates matters in Sri Lanka is that the requirement to ‘consult’ the provincial council concerned before a piece of land is taken for the use of the central government is written into the constitution itself. The judgment in the Indian Supreme Court in the West Bengal case has observed that ‘consultation does not mean consent’. To be sure it does not. However, consultation does not mean merely informing the other party and going ahead with your own plans either. Last week we quoted international case law to the contrary.

So in Sri Lanka, much hinges on the interpretation of the word ‘consult’. And the final authority which will decide whether the word consult means simply notifying the other party and going ahead with whatever one has in mind is the Sri Lankan Supreme Court. Recent experience with the Sri Lankan SC should have shown not just the government but the opposition as well, that interpretations which will fundamentally change the way this country is governed should never be left to any court of law. The powers of the central government and the provinces should be clearly stated in the Sri Lankan constitution as they are in the Indian constitution. 

What is very clear is that India has not given us what they have. It is therefore unfair of them to expect Sri Lanka to implement what they themselves would never implement. Can the Indian central government tolerate having to ‘consult’ the chief minister of a state before taking over a piece of state owned land for a matter coming under the purview of the central government? If the chief minister objects to the central government taking over a piece of state owned land in their state, will the Indian central government take that lying down and abdicate the power that has been assigned to the central government through their constitution?



The last resort

 Despite anything that India may say, some changes will have to be made in the 13th Amendment if this country is not to end up in an administrative gridlock. To make changes to the 13th Amendment, the government will need a two thirds majority in parliament. The attempt of the forces in favour of the 13th Amendment, both local and international, will be to make every attempt to deny the government that two thirds majority by inducing government parliamentarians to refrain from voting for the necessary Amendment. If the government has the slightest doubt that they may not be able to muster the necessary two thirds majority due especially to foreign intrigue, they should take the path of least resistance and use Article 154G(11) of the constitution to change the powers on the provincial councils list without a two thirds majority in parliament.

Article 154G (3) of our constitution sets out the procedure for making any amendments to the provincial council’s list of powers. One way to amend the provincial councils list would be to get the approval of each and every provincial council for the proposed changes. In this event, such changes can be made law with just a simple majority in parliament. However if each and every provincial council does not approve of the proposed changes, the only way in which the provincial councils list can be amended is to pass the relevant bill with a two thirds majority in parliament. There is yet another way to make amendments to the provincial powers list and for that you do not need a two thirds majority in parliament or the approval of even a single provincial council. Under Article 154G(11) of the Sri Lankan constitution, the government can make any change to the provincial councils list with just a simple majority in parliament, even if all the provincial councils rise up against it in protest. Article 154G(11) goes as follows:

154G (11) Notwithstanding anything in paragraph (3) of this Article, Parliament may make laws, otherwise than in accordance with the procedure set out in that paragraph, in respect of any matter set out in the Provincial Council List for implementing any treaty, agreement or convention with any other country or countries or any decisions made at an international conference, association, or other body.

 According to this provision, the government can enter into a treaty with Uganda to alienate a piece of land for sugarcane cultivation from the northern province and then to give effect to this treaty, they can take complete control of the land not just in the north province but all provinces by changing the land powers clause in the provincial councils list. Note that according to 154G(11), the government does not need an existing treaty for this purpose. They can enter into a brand new treaty with a friendly country for no other purpose than to take over the land powers of the provincial councils. After entering into the treaty, they can change the powers on the provincial councils list in order to give effect to the new treaty.

Nobody will be able to go to courts saying that a treaty is being entered into in order to take over powers of the provincial councils since no fetter can be placed on the central government entering into treaties with other countries. Nobody will be able to argue in courts that the central government was entering into treaties with foreign nations over subjects that are dealt with by the provincial councils, because Article 154G(11) has been specifically designed to give the central government a free hand in entering into and implementing treaties with other countries even if they encroach on the powers allocated to the PCs.

Article 154G(11) should become the government’s secret weapon. If anybody in the government is trying to deprive the government of a two thirds majority to make the necessary changes, they can be told that if the government is unable to alter the powers of the PCs with the two thirds majority in parliament through Article 154G(3), they will do so through Article 154G(11) without a two thirds majority and since the government is going to have its way anyway, it’s best to fall in line than to break ranks for a futile cause.  Perhaps the message for the foreign powers interested in the matter would be that their efforts and resources would be wasted in trying to deprive the government of a two thirds majority because there are other much simpler ways to do whatever the government wants to do with the provincial powers list.

 island.lk