Full Implementation of the 13A: The Need for a Fresh Approach
The President has said that he is amenable to the full implementation of the 13th Amendment to the Constitution, which means conceding land and police powers to the provinces. (Sunday Times, 29th January 2023.) Critics of this move say that the President has no mandate to take such action. However, supporters claim that the law in question is already ‘in the books’ and the President has only to enforce it. However, the matter is more complicated that what these parties suggest.
There are both good and bad aspects to full implementation. On the one hand, there is a definite danger of politicization in relinquishing police and land powers in racially or ethnically charged areas. On the other, there is merit in the claim that these powers should be vested in institutions situated closest to the people who are most affected by them. This will be conducive, among other things, to combating corruption and inefficiency.
Unfortunately, there is very little discussion in local newspapers and academic journals about ways of bridging this divide and it is in the public interest to start one. I argue that, the President must bear moral responsibility for any adverse consequences of conceding land and police powers to the provinces. Therefore, he should do it only after a consensus is reached among all stakeholders about the minimum requirements of national security. In this article, I shall discuss:
i) the main issue in the present controversy and ii) some insights that one can glean from the judgment in Vasudeva Nanayakkara v Choksy and others (2008) 1 SLR 134 (‘John Keels case’) that can help in finding a way forward.
i) The Main Issue
The main issue in the present controversy is whether the President has the power to concede land and police powers to the provinces, not whether he has a mandate to do it. The President certainly has the power. But, as with all power, the exercise of it involves a moral choice. So, he will be morally responsible for any adverse consequences that follow from the act.
2 The basic law necessary to relinquish land and police powers to the provinces is contained in ‘Appendix I’ and ‘Appendix II’ of the 13A. However, these appendices set out detailed and intricate instructions that, in turn, require further regulations and enabling legislation in order to be enforced effectively. This is where the problem arises. The concern that many people have is that in producing these regulations and/or legislation the government will cater to the self- serving agendas of interested parties while sacrificing the long-term interests of the nation.
These fears are not entirely unfounded. Anyone even remotely familiar with communal politics in Sri Lanka over the past few decades will appreciate that the concerns raised by some opponents of full implementation, i.e. that it might exacerbate rather than alleviate racial and ethnic tensions, cannot be dismissed out of hand. Of course, reasonable people may disagree on the exact extent of the danger. One must also consider the history of the 13A itself.
It is not in dispute that, the 13A would never have been enacted into law were it not for the pressure that India exerted on the then Sri Lankan government. One must also recall the context in which the 13A became law. The late Mr. Anura Bandaranaike MP, Leader of the Opposition at the time, in a document that was subsequently suppressed by the government, discusses some of the conditions that followed the signing of the Indo-Lanka Accord in July 1987. He says, “A peaceful sathyagraha in Colombo on the day before the signing was brutally attacked by the police with tear gas and later by unprovoked shooting that left over 80 people dead including Buddhist clergy. A twenty-four hour curfew was imposed of several days followed by further curfew for several weeks. There has been a ban on public meetings until very recently. Only UNP ministers favouring the Accord were allowed to address meetings, in the guise of public functions and given wide publicity in state-controlled press, radio and T.V.” (Anura Bandaranaike, M.P. ‘The Indo-Lanka Agreement: An Analysis,’ Sampath Printing Organization, 1987, p. 2) Therefore, if the President is going to proceed with the full implementation of the 13A, he must do it with maximum transparency. The vital question, is whether there is a standard, or criteria, that would be helpful to the President in ensuring that full implementation, if it is done at all, is done as transparently and fairly as possible.
I wish to submit an idea. The main antagonists, or rather protagonists, in this drama are: a) the President, b) the proponents of full implementation and, c) the opponents. They are all adamant in claiming that they have the best interests of the country at heart. If each party genuinely has the best interests of the country at heart, it should be possible for them to generate a list of requirements that would constitute in their opinion the bare minimum of the things that would be needed to ensure the national security. In other words, the ‘red lines’ that everyone would agree must not be crossed under any circumstances.
Such a list, then, would be an invaluable guide when formulating the regulations and/or enabling legislation for the 13A.Now, someone might object that these parties would never agree on a standard. In that case, it would be an admission that the President should not proceed at all with full implementation at this stage, or at any rate, it should be done slowly and gradually rather than in a rushed or expedited fashion.
ii) Vasudeva Nanayakkara v Choksy and others (2008) 1 SLR 134.
The facts of the case are briefly as follows. On or about 2002, the Chairman of the Public Enterprise Reform Commission, a statutory body, endorsed the sale of Lanka Marine Services Corporation (LKMS), a publicly held company, to John Keels Holdings, a private company.
LMKS was a subsidiary of the Ceylon Petroleum Corporation, which had a monopoly on bunkering at the Colombo port.
‘Bunkering’ is the supplying of fuel to ships anchored in the harbour and in the waters outside. It is a highly lucrative and profitable business. The sale included the transfer of roughly 8 acres of land within the Colombo port. The petitioner challenged the sale on grounds that it was done contrary to law and also without the approval of the Cabinet of Ministers. The court held for the petitioner.
In coming to its conclusions, the court relies on two outstanding ideas. First: “The principle enunciated in Articles 3 and 4 of our Constitution is that the respective organs of government, the Legislature, the Executive and the Judiciary are reposed powers as custodians for the time being to be exercised for the people…there is a positive component in the right to equality guaranteed under Article 12(1) and where the executive the custodian of the people’s power acts ultra vires and in derogation of the law and procedure that are intended to safeguard the resources of the state, it is in the public interest to implead such action.” (p. 181)
Second, and this has to do with land powers: “The powers reposed in the President in terms of Article 33(d) and Section 2 of the State Lands Ordinance to make grants and dispositions of state land are circumscribed by the provisions of ‘Appendix II’ [of the 13A]. ‘Appendix II’ establishes an interactive legal regime within a Province. Whilst the ultimate power of alienation and of making a disposition remains with the President, the exercise of the power would be subject to conditions in Appendix II being satisfied. A precondition is that alienation or 4 disposition of state land within a Province shall be done in terms of the applicable law only on the advice of the Provincial Council.” (p. 172)
One can apply these ideas to the present controversy in two ways. First, it seems that, our courts have now laid the intellectual foundation for the possible expansion, at a future time, of the ‘Public Trust Doctrine’ to cover policy decisions that could cause irreparable harm to the national security in the circumstances of the devolution of power prescribed under the 13A. If there is a possibility that relinquishing land powers to the provinces might increase the likelihood of state land being alienated or disposed of in biased ways (i.e. ethnically-charged ways), it is incumbent on the President to anticipate such problems and make a good faith effort at resolving them before relinquishing the powers involved.
Therefore, a way forward would be for the President to initiate a public discussion into the legal apparatus including institutions that could facilitate a fruitful interaction between the President and the Provincial Councils in the implementation of the relevant appendices to the 13A. The resulting proposals could then be judged against the minimum standards for national security that, as I suggested earlier, should
first be produced.
Sri Lankans cannot afford to have this country plunged into further crisis and turmoil. The President must do everything in his power to prevent such a slide if there is the slightest risk that full implementation of the 13A will lead to an exacerbation rather than diminution of ethnic rivalries. He will be judged by history. One cannot help but recall Shakespeare’s famous words, “The evil that men do lives after them; the good is oft interred with their bones.”
The writer is an attorney at law.