federalidea.com

By Dr. Jayampathy Wickramaratne [President's Counsel]

There is renewed interest in the Thirteenth Amendment to the Constitution. The Government states that it is keen to ‘fully implement’ the Thirteenth Amendment. Even those like the writer who agree with Prof. G.L.Peiris’s oft-quoted statement made in the nineties in the course of the Navaratnarajah Memorial Oration that the Thirteenth Amendment is ‘fundamentally flawed’ and who believe that any solution offered to the Tamil people must go beyond even the Constitution Bill of 2000 will be happy if the Thirteenth Amendment is in fact fully implemented.

But there are many who believe that all talk of fully implementing the Thirteenth Amendment is mere eye-wash.In this article, I suggest the Government show its bona fides by beginning with agrarian services and restore to Provincial Councils the powers relating to agrarian services that were taken away illegally by them.

[Paddy field in Sammanthurai, Ampara district-Pic:HumanityAshore]

The Thirteenth Amendment introduced three lists of subjects.The Provincial List (List I), the Reserved List (List II) and the Concurrent List (List III). Provincial Councils may make statutes on any matter set out in the Provincial List but have no power to make statutes on matters set out in the Reserved List.

Both Parliament and Provincial Councils can legislate on any matter set out in the Concurrent List but after consulting the other/s and in case of inconsistency between the law of the land and a statute put forward by a Provincial Council, the law prevails. Parliament can pass a law on any matter set out in the Provincial List against the wishes of a Provincial Council but such a law needs to be passed by a two-thirds majority if it is to operate within a Province which has not consented to it.

[A fram in Sigiriya-pic: by Dushiyanthini Kanagasabapathipillai]

The first item in the Reserved List is ‘national policy on all subjects and functions.’ One would expect this to mean that Parliament may lay down national policy even relating to a matter in the Provincial List by a simple majority and Provincial Councils should abide by such national policy in making statutes. In view of the express provision that a Parliamentary law on a matter in the Provincial List would apply in a Province which has not consented to it only if the law has been passed by a two-thirds majority, there can be little doubt that Parliament cannot legislate on matters set out in the Provincial List without the consent of the Provincial Council concerned by a simple majority, in the guise of laying down national policy.

In short, national policy on matters set out in the Provincial List amounts only to framework legislation that Provincial Councils should conform to.

Item 8 of the Concurrent List reads:

8. Agricultural and Agrarian Services

8: 1 Establishment and promotion of agro-linked industries, the establishment and maintenance of farms and supervision of private nurseries;

8: 2 Soil conservation;

8: 3 Plant pests.

Item 9 of the Provincial List is as follows:

9. Agriculture and Agrarian Services

9.1 Agriculture, including, agricultural extension, promotion and education for provincial purposes and agricultural services (other than in inter-provincial irrigation and land settlement schemes, State land and plantation agriculture);

9.2 Rehabilitation and maintenance of minor irrigation works;

9.3 Agricultural research, save and except institutions designated as national agricultural research institutions.

Under Article 154C, the executive power of a Province extends to the matters with respect to which a Provincial Council has the power to make statutes.

Thus, executive power relating to matters covered by Item 8 of the Concurrent List and Item 9 of the Provincial List are with the Provincial Councils.With the establishment of Provincial Councils, Provincial Departments of Agrarian Services were set up to deal with matters that were devolved under the Thirteenth Amendment.

In 1991 the Central Government introduced a Bill to amend the Agrarian Services Act No. 58 of 1979. The Bill sought, inter alia, to amend several sections of the original Act that dealt with matters relating to tenant cultivators and to introduce new sections that dealt with matters such as inquiry officers and Boards of Review.

The Bill was challenged in the Supreme Court on the ground that the Bill dealt with matters set out in the Provincial Councils List and as such, should have been referred to Provincial Councils for them to express their views thereon.

The Supreme Court, in its determination, while observing at one point that the Bill did not deal with Items 9.1 to 9.3 of List I and Items 8.1 to 8.3 of List III, nevertheless stated that it was not desirable that the question whether land rights and land tenure is a provincial subject should be decided without the benefit of a full argument.

However, the Court held that the matters dealt with in the Bill were all matters of national policy in regard to the rights and liabilities of owners and tenant cultivators and thus fell within the Reserved List.It is not necessary for the purpose of this article to discuss the correctness or otherwise of the Court’s determination.

What needs to be emphasized is that the Court only held that the Bill dealt with national policy. The Court did not hold that the matters dealt with did not come under the Provincial List.

The Supreme Court had the benefit of a full argument on the question in Madduma Banda v Assistant Commissioner of Agrarian Services reported in [2003] 2 Sri LR 80.The facts briefly were as follows.

An Assistant Commissioner of Agrarian Services made an order under section 18 of the Agrarian Services Act that a tenant cultivator had defaulted paying agricultural rent and was therefore liable to be evicted.

The tenant cultivator challenged the order in the High Court by way of a writ. Under Article 154 P (4) of the Thirteenth Amendment, a High Court has jurisdiction to issue a writ against any person exercising power under a law or statute in respect of any matter in the Provincial List.

The landlord took up the objection that in view of the determination of the Supreme Court on the Agrarian Services (Amendment) Bill, the matter in issue did not come under the Provincial List. The High Court upheld the objection. The Court of Appeal affirmed the judgment of the High Court and granted leave to appeal to the Supreme Court.

In the Supreme Court, the appeal was heard by a Bench consisting of Chief Justice Sarath N. Silva and Justices Shirani Bandaranayake and Hector Yapa. The Court allowed the appeal unanimously. The judgment was delivered by Justice Bandaranayake.

The main question that arose for determination by the Supreme Court was whether matters relating to tenant cultivators came under the Provincial List. The Court had no hesitation in holding with the appellant. ‘The word ‘agrarian’ relates to landed property and such property no doubt would attract paddy lands and tenant cultivators of such land’ the Court held.

The earlier determination on the Agrarian Services (Amendment) Bill was also commented upon. The Court took the view that it would not be correct to say that the matters dealt with by the Bill were all maters of national policy.

Stating that the Provincial Councils List should not be narrowly interpreted, Justice Bandaranayake held that paddy lands fell within the Provincial Councils List.

Despite the ‘clarification’ by the Attorney General and the clear interpretation given by the Supreme Court in Madduma Banda’s Case, Provincial Councils still do not exercise powers relating to agrarian services. The Government would do well to begin by restoring powers relating to agrarian services to Provincial Councils.