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| Thursday, 11 December 2003 |
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Land Ownership Bill: SC to determine Constitutionality by Wasantha Ramanayake The Land Ownership Bill should be rejected illumine on the face since it was inconsistent with the Thirteenth Amendment to the Constitution submitted Presidents Counsel Wijayadasa Rajapakse before the Supreme Court yesterday, when the Bill was argued before the court to determine its constitutionality. The Bench comprised Justice Dr. (Mrs.) Shirani Bandaranayake, Justice Asoka de Silva and Justice Nihal Jayasinghe. Counsel Wijayadasa Rajapakse PC, counsel for the North-Central Provincial Chief Minister Berty Premalal Dissanayake submitted that the 13 Amendment was a part and parcel of the Constitution and violation of the 13 Amendment to the Constitution meant the violation of the Constitution and therefore the Bill should be thrown away even without deliberating on the other aspects of it. The Counsel submitted that the Bill was placed on the Order Paper of the Parliament on November 19, and the purpose of it was to provide for the dispersal of ownership of State Land to citizens, for removal of certain restrictions attached to grants and transfers of certain restrictions made under the Land Development Ordinance and the Land Grants (special provisions) Act. He submitted that in terms of the Ninth Schedule to the Constitution the rights over land, land tenure, transfer and alienation of land, land use, land settlement and improvement was a subject of the Provincial Councils. The Government should consult the relevant Provincial Councils in utilizing the State lands within a province. Although in terms of the Constitution the Bill should be refereed to the Provincial Councils, that was not done. The Counsel argued that the procedures laid down by the Constitution had been ignored and the Provincial Councils had been bypassed by the provisions of the said Bill. He contended that since the entirety of the Bill was unconstitutional the Bill would not become law. President's counsel A. A. de Silva for the Sabaragamuwa Chief Minister Mohan Ellawala submitted that it was mandatory to send the draft Bill to the Provincial Councils in terms of the Thirteenth Amendment to the Constitution since the land was a subject coming under the Provincial Councils. And if any such changes to the said subject i.e. Land be brought in, the relevant Provincial Councils should be consulted before placing the Bill in the Order Paper of the Parliament; therefore, it has been illegally placed on the Order Paper of the Parliament. Dr. Jayampathy Wickremaratne, PC for the Western Provincial Lands Minister Lasantha Alagiyawanna submitted that once the Bill was passed the Minister would not seek the advice from the relevant Provincial Councils. Counsel Ms. Ruana Rajapakse for the Environmental Foundation Limited sumbitted that the Bill in its entirety was inconsistent with the 13th Amendment to the Constitution read with Article 33(d) since the process prescribed in the Bill for the alienation of State Lands were contradictory with the said provisions. She submitted that ultimate effect of the Bill was to convert the State Lands into freely marketable commodity; thereby, State would be unable to develop its agricultural lands. She contended that the foreigners and even the transnational companies would be able to buy such lands as well as the lands belonged to the Sri Lankan citizens. The counsel further argued that the future generations of citizens were arbitrary deprived of one of the nations most important natural resources i.e. the agricultural lands, and; therefore, the Bill was not consistent with the Constitution. Ms. Rajapakse submitted that the Bill conferred the Minister of Lands with the arbitrary powers superseding the powers that of the Director General of the Archaeology which would be detrimental to the protection and the upkeep of the archaeological sites. She also submitted that laws governing the environment and the wildlife i.e. Fauna and Flora Protection Ordinance, National Environment Act etc. would be overridden. D. P. Mendis PC, counsel for Sabaragamuwa Lands Minister Y.G. Padmasiri submitted that the Bill sought to amend two laws; the State Lands Ordinance and the Lands Grants Ordinance although the preamble to the Bill had not disclosed so. He submitted that "Parakrama Samudraya, Kawudullu Wewa and the Gregory Wewa in Nuwareliya could be sold to Multinational Corporations, if the purported Bill became a law," State counsel Uditha Egalahewa for the Attorney General submitted that the Supreme Court should first decide on the question whether or not Lands in its entirety was a subject for the Provincial Councils since the power to alienation and disposition was vested with the President. He submitted that the draft Bill could not be referred to the Provincial Councils until it was determined by the Supreme Court. He further submitted that the President should finally sanction the alienation of lands; therefore, President's powers were not curtail with regard to the present Act. Nine petitioners, Sabaragamuwa and North-Central Provincial Chief Ministers Mohan Ellawala and Bertty Premalal Dissanayake, former Central Province Chief Minister Sarath Ekanayake, Western, Southern, Uva, Wayamba, and Sabbaragamuwa Provincial Lands Ministers Lasantha Alagiyawanna, Danny Hittetiyage, Senarath Attanayake, Dharmasiri Dissanayake, and Y.G. Padmasiri respectively, the Environment Foundation Limited and another cited the Attorney General as the respondent. The determination of the SC would be communicted to the President and the Speaker. Counsels S. S. Sahabandu P, Nihal Jayamanna P, Dr. J. de Almeda and Jaufer Hassen also made submissions. |
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