The Constitution, Court, Cocker Spaniel and Colombian Haka over Land

October 5, 2013 at 5:04 pm

by Rajan Philips

“It is a pity … the new constitution has all the marks of a  hasty, slip-shod and flabby draft …” – Dr. NM Perera, Critical Analysis

It is not just the constitution of 1978 that NM critically  analysed when it was new and hot off the press, but even the thirteenth  amendment that came ten years later reeks of slip-shod and flabby drafting. And  nowhere more so than on the subject of land. The Supreme Court ruling last week  appears to be circumscribed by the flabbiness of the constitution and has led to  different interpretations of what the Court ruling has said – whether the matter  of land is a Provincial Council or Central Government subject. The ruling has  inspired a haka dance among those who are not happy with the results of the  Northern Provincial Council election. The political twist following the court  ruling has once again targeted JR Jayewardene for over the top polemic abuse.  The former sphinx, the old fox, is now a cocker spaniel – for want of a  nationalist pedigree among Lankan dog lovers. Political clowning has turned the  court ruling into a symbol of national fighting spirit.

More seriously, the Supreme Court ruling gives the context, not  just the pretext, to bring the subject of land under a different, less  adversarial and more comprehensive, microscope. Even as we are respectful of the  court’s ruling on the constitutional rights over land, we must also be mindful  of the other vital dimensions of land that transcend ephemeral legal  interpretations – land as the foundation of human existence and as a fundamental  resource for economic production and environmental protection. It is also  necessary to see in historical perspective how political, social and economic  factors have shaped the evolution of legal and administrative practices in  regard to land and property rights over nearly 200 years.

In fact, the 19th century Wasteland Ordinance could be seen as  the progenitor to subsequent land regulatory legislations both during British  rule and after independence, including the 1979 State Lands (Recovery and  Possession) Act. It was the eviction of Solaimuthu Rasa of Nuwara Eliya under  the 1979 legislation and the ensuing litigation that led to the Supreme Court’s  ruling last week. The ruling incidentally was less about Mr. Rasa and more, if  not entirely, about the question whether land is a Provincial subject or a  Central government subject under the Thirteenth Amendment.

The evolution of land powers

and politics

The modern concept of Crown (now State) land and its application  in Lanka arose under British colonial rule, ironically, in conjunction with the  efforts to establish a firm and freehold system of private property rights. The  institution of property rights was fundamental to the capitalist development of  land, but the British rulers had to navigate through a myriad of pre-existing  mostly shared ownership customs and practices. The development of laws and of  land surveys through the Survey Department formed the basis for the  establishment of titular, freehold property ownership and rights. A parallel  development was the emergence of spurious claims to ownership of unoccupied land  parcels as land became a source of lucrative income. Such ownership claims were  possible given the low population level and plenty of unoccupied land for most  of the British period. The colonial government’s response was to declare  unoccupied lands as Crown land and penalize unauthorized occupation as  encroachment. The legal mechanism was the “Crown Lands Encroachment Ordinance”  enacted in 1840, and better known as the ‘Waste Land Ordinance’. The purpose was  to regularize land alienation and protect it from ownership claims and  contentions.

The legal platform was thus set for the development of private  plantation agriculture using unoccupied Crown land in the central provinces.  That was the beginning and consolidation of plantation capitalism in the 19th  century, in Sri Lanka, as elsewhere in the far flung British Empire under  British companies and using immigrant labour from South India. But the problem  of land alienation could not be fully resolved. The law picked on the poor and  the landless resorting to chena cultivation, while speculators, lawyers and  money lenders involved in the land business made loads of money on land deals or  became major land owners themselves often by default. The patriotism of the  emerging elite was limited to formally resenting the foreign ownership in land  but did not include any impulse to invest in agriculture in any significant way.

The spin-off effects of plantation agriculture including the  increasing demand for staple rice and the monetization of the economy posed  serious challenges to traditional cultivation practices and subsistence food  production. After tentative initiatives in the 19th century, the British rulers  focused more systematically on domestic agriculture after World War I. True to  the maxim that “the problem of agriculture in Ceylon is the problem of  irrigation,” the colonial government allocated significant resources towards two  types of irrigation works: major construction work and minor construction work.  Until 1931, the emphasis was on major work located in the sparsely populated dry  zone areas of North Western, North Central, Eastern and Northern Provinces which  were considered to be conducive to large scale rice production. After 1931, the  emphasis shifted to minor work targeting village tanks throughout the island  including the heavily populated wet zone provinces. The 1927-29 Land Commission  and the 1931 Land Settlement Ordinance created the institutional and policy  framework for land alienation, mapping out and titular ownerships including the  recognition of chena cultivated lands.

Land policies and resource allocations were predicated on two  fundamental principles: the preservation and enhancement of the peasantry as a  social group and the development of the dry zone for expanding food production  and for achieving “a more even balance of population” between the sparsely  populated dry zone and over populated wet zone provinces. But the project of  developing the dry zone through benevolent state sustenance of the robust  peasant has never been able to meet expectations and has never generated a  proportionate return for the decades of substantial state investment.

The North Central Province initially and rightfully attracted  government and political attention for restoring the magnificent irrigation  network of ancient Sinhalese civilization, followed by significant investments  in major irrigation work in the Eastern and Northern Provinces. But there were  no takers – the colonial government tried peasants, middle classes and even  private capitalists – for settling in and developing the dry zone into a  prosperous rice bowl. Colonization of the dry zone could not begin until 1939  and really took off with added incentives and political patronage in the early  years after independence and again as part of the Mahaweli development programme.

Land and political representation

In retrospect, it is fair to say that the dry zone development  project while not delivering on its economic promises went on to create a  somewhat unintended but persistent political problem. Perhaps the only economic  achievement of the dry zone project has been the quantum increase in rice  production. This achievement, although impressive in its own right, came too  late, at high cost and when the consumption patterns of the people were being  irreversibly globalized. What is more, the agricultural sector and rural society  continue to be the nation’s chronic losers in terms of income, productivity and  gainful employment.

The political manifestations of the land and agrarian problem  have been on two separate fronts. One among the Sinhalese, counterposing the  rural society and youth against the urban establishment, and the other pitting  the Sinhalese, the Tamils and Muslims against one another over land politics and  land powers. It is the latter problem that found its way into the Thirteenth  Amendment and precipitated last week’s Supreme Court ruling.

Specifically, the ethnic contestation over land arose out of  Tamil political concerns that state aided colonization of the Eastern Province  was changing the ethnic composition of the Province, and consequently the  proportions of ethnic representation in parliament. In other words, the problem  of land politics originated as a problem of representation and not as an  argument over land as an economic resource. In tandem with the  disenfranchisement of the plantation Tamils, the Sinhalese colonization of the  Eastern Province dramatically altered the ethnic proportions of MPs that the  Soulbury Commission had envisaged based on considerations of population and area  in the different provinces.

This was the context in which the Tamil Federal Party advanced  the notions of traditional homelands and regional autonomy, and was able to  reach agreement with two Prime Ministers, SWRD Bandaranaike and Dudley  Senanayake, in regard to addressing Tamil concerns over colonization and  alienation of state land in the Northern and Eastern Provinces. The federalist  leaders used to say that the principles of their agreement with Mr. Bandaranaike  in regard to colonization and land matters were honoured even after the  abrogation of the B-C Pact and after Mr. Bandaranaike’s assassination by  succeeding governments until the floodgates were opened again with the Mahaweli  development programme.

As is well known the acceleration of the Mahaweli programme  coincided with the emergence of the Tamil separatist demand, and land matters  became a key point of contestation in the search for a political solution after  the catastrophe of 1983. The end results are the provisions in regard to land  matters in the Thirteenth Amendment. But it is not correct to say, as has been  claimed after the Supreme Court ruling, that Tamil political leaders have been  content with the Thirteenth Amendment provisions in regard to land, or that they  have been touting those provisions as a victory for provincial autonomy over the  central government.

On the contrary, the treatment of land in 13A has been a major  source of dissatisfaction to the Tamil political leadership. In fact, the  government of President Kumaratunga tried to address this dissatisfaction in  significant ways through its unsuccessful proposals for constitutional change.  Ironically, President Kumaratunga in her actions hardly respected provincial  powers or gave due regard to Provincial Councils. The even greater irony is that  while a previous Supreme Court ruling faulted President Kumaratunga in a state  land transaction matter for acting without consulting the relevant Provincial  Council as required by 13A, one of the judgments in last week’s Court ruling  stipulates that such consultation is not mandatory.

(To be continued next week)