Mega Development Project in Hambanthota...In whose interest....?

HAPPY NEW YEAR 2014 FOR ALL PRAJA ABHILASHA FAMILY

No tectonic shift in ‘state land being vested in the Republic’

President Mahinda Rajapaksa’s repeated claim, (pronounced with appropriate gravitas most recently to Al Jazeera), is that Sri Lanka does not exhibit authoritarian or dictatorial tendencies as it holds regular elections at which his government is comfortably elected into power. Unitary nature of the State never disputed Predictably, the recent elections to the Northern Provincial Council was held out as the classic illustration of this liberality; yet, the government scheme behind holding these elections to appease powerful voices over the Palk Straits in the same breath as it tries to practically confine the reach of that electoral victory is amusing if it was not so disingenuous. The Supreme Court’s ruling last week on an otherwise innocuous matter concerning the jurisdiction of a Provincial High Court in the issuing of a quit notice under the State Lands (Recovery of Possession) Act No 7 of 1979 (as amended) is of singular interest in that regard. The Court’s pronouncements on the ‘unitary nature of the state’ invite critical scrutiny in the factual context of this case which concerned a jurisdictional matter involving the operation of a decades old law. Indeed, it must be said quite strongly that past precedents of the Supreme Court on the nature of power given to Provincial Councils by the 13th Amendment never disputed the unitary nature of the state. Neither did those judges contest the fact that State land continued to be vested in the Republic, or that the President was empowered to make grants and dispositions of state land or that the Provincial Councils only have the legislative competence to administer, control and utilise state land. These are obvious provisions of the 13th Amendment, evident on the face of that amendment itself. Misconceptions regarding the 2003 Lands Bill The question that arose in earlier instances, most notably in the Lands Bill in 2003, calls for some mention given misconceptions that have been deliberately created on the nature of that proposed amendment. In late 2003, the then United National Front (UNF) Government placed a Bill titled “Lands Ownership” before Parliament with the aim of “providing for the disposal of the ownership of lands by the transfer of ownership of State lands to citizens of Sri Lanka; for the removal of certain restrictions attached to grants and transfers made under the Land Development Ordinance (Cap. 464) and the Land Grants (Special Provisions) Act, No 43 of 1979…” The Bill was successfully challenged in the Supreme Court on the principal objection that it had been referred to Parliament without being first referred to every Provincial Council duly established under the Constitution and was therefore inconsistent with Article 154(g) 3 of the Constitution read with item 18 of List 1 of the Ninth Schedule (the “Provincial Council List) Appendix 11. Interestingly for the purposes of this discussion, one argument placed before Court was that the President of the Republic is constitutionally vested with the power to “make such grants and dispositions of land and immovable properties vested in the Republic”[Article 33(d) of the Constitution] but that Clause 8 of the Bill would have the effect of compelling the President to abide by a decision made by the Minister of Lands. This was contended to amount to an infringement of Article 33(d) read with Article 3 and 4(b) of the Constitution. The offending clause therefore had to be passed only with a two thirds majority of Parliament but also after being put before the people at a Referendum. This argument which was upheld by the Supreme Court (SC/SD No 26/2003, 10.12.2003), in fact, buttressed the authority of the Centre vis a vis the Provincial Councils, rather than vice versa. The Bill was then withdrawn from the Order Paper of Parliament. No wildly adventurous notion of devolved powers The point is that, rather than propounding some wildly adventurous notion of devolved land powers as is sought to be mischievously propagated by rabble rousers now, the Determination in the Lands Bill was only notable in its insistence, (similar to later precedents), that the technical condition of the Provincial Councils giving approval to draft laws dealing with subjects coming under their purview should be complied with. It is this aspect that did not find agreement with the three judge Bench of the Supreme Court last week. It was held firstly, that in instances where State land is required by the Central Government in a Province, consultation between the Centre and the Province does not imply concurrence on the part of the relevant Provincial Council. It only means that there would be conference between the Central Government and that Provincial Council to enable them to reach some agreement. Secondly, the term ‘advice’ in Item 18 of List 1 of the Ninth Schedule (the “Provincial Council List) Appendix 11 (“alienation or disposition of state land within a Province to any citizen or any organisation shall be by the President on the advice of the relevant Provincial Council in accordance with the laws governing the matter” vide section 1:3 of Appendix 11), was held not to imply binding advice based on the omission of the word ‘only’ before the words ‘…on the advice of the relevant Provincial Council….’ Unseemly posturing by nationalists In a general sense, this judgment marks the narrowing down of the consultative process contemplated by the 13th Amendment between the Centre and Provincial Councils in respect of dealing with state land. Yet it does not reflect a tectonic shift in ‘state land continuing to vest in the Republic’ notwithstanding bold headlines to that effect and somewhat unseemly posturings by nationalists. In a strictly legal sense, it needs to be viewed within those confines. The danger is of course, the political uses that this decision may now be put to. Grandstanding on the part of the Centre will only, from a long term point of view, disprove the very boast of this Presidency that the holding of those provincial council elections is an irrefutable sign of Sri Lankan democracy. Dispelling complicity in attacks on minorities At another level, President Rajapaksa’s interview with Al Jazeera would leave even a largely open-minded observer feeling bemused if not bewildered. His disconcerting claim that attacks by racist mobs on religious minorities had been provoked by alleged incidents of rape of (supposedly Sinhalese) children is one illustration. The central issue in Sri Lanka is the undeniable state protection afforded to such attackers while the police look idly on. This is a phenomenon not seen in any of these ‘other countries’ where a system of investigations, prosecutions and judicial scrutiny swings into action, as imperfect as sometimes this may be. In contrast, the Sri Lankan state structure encourages such attacks by its silence if not complicity in such happenings. It is this perception that needs to be effectively tackled if a vastly skeptical international audience is to be persuaded otherwise. Krishali Pinto Jayawardana

Biofuels Industry strong arms Governments at UN Food Security conference

Press release 11 October 2013 ROME, Italy – Today Civil Society movements blamed Governments negotiating on biofuels at the Committee on World Food security for defending the interests of the biofuels industry rather than the interests of people pushed into hunger by biofuel policies. They refused to endorse the recommendations on biofuels as any references to Human Rights, links with food price spikes and land grabbing have been systematically refused. Governments acknowledged that biofuels crops compete with food crops and influence food prices but did not have the courage to recommend any action to stop this. The domination of pro biofuel countries in talks has resulted in decisions heavily favorable for biofuels expansion. Governments who spoke expressing strong misgivings have largely been ignored. "Small scale food producers have spoken powerfully here about the reality they are confronted with every day: that biofuels crops compete with their food production, for the land they till and for the water that sustains them. They called on this assembly to take action to defend the right to food from the impacts of biofuels; instead the recommendations overwhelmingly defend the interests of the biofuels industry and legitimise violations of the right to food." In June the High Level Panel of Experts (HLPE), on the request of the CFS, released its report on biofuels policies to inform the negotiations. The report clearly concluded that there is a link between the energy policy and food security and that biofuels have been a key driver behind steep food price spikes and food price volatility in recent years. Other independent research such as by the European Commission has confirmed such findings. Estimates suggest about six million hectares of land in sub-Saharan Africa is already controlled by European biofuel companies and about 293 land grabs covering more than 17 million hectares worldwide have been reported due to biofuels. On Monday more than 80 civil society organizations sent a letter to CFS members warning that the current recommendations would fail to uphold the Right to Food or stop hunger caused by biofuels. ### [1] The CFS serves as a forum in the UN System for review and follow-up of policies concerning world food security. Civil Society participates at the CFS through the largest international mechanism of civil society organizations seeking to influence agriculture, food security and nutrition policies and actions. [2] The mandate and spirit of the reformed CFS is to create a body that includes all countries and stakeholders. A Global Strategic Framework rooted in the Right to Food is at the heart of the reformed CFS and provides clear guidance to coordinate actions on food security and nutrition. The HLPE provides scientific and knowledge-based analysis to inform governments on priority issues. [3] Open Letter on Biofuels in the CFS www.csm4cfs.org/news/open_letter_on_biofuels_in_the_cfs-139/ [4] Civil Society intervention after the CFS Biofuels Decision Box is adopted www.csm4cfs.org/news/civil_society_intervention_after_cfs_biofuels_decision_box_adoption-151/