Supreme Court judgment redraws the new political landscape Posted on October 13th, 2013 H. L. D. Mahindapala In the latest legal battle over the ownership of land three Supreme Court judges – one of whom is a Tamil – delivered a landmark judgment which overturned the previously misinterpreted and misleading judgments that virtually handed the state lands to the Provincial Councils. Reading the separate judgments of the three judges it appears that Justice Sripavan had written his judgment first. Chief Justice Mohan Peiris and Justice Eva Wanasundera had read Justice Sripavan’s judgment subsequently and agreed with its findings and then proceeded to add their separate arguments which leads to the same conclusion – i.e., state land does not belong to Provincial Councils unless they are given by the Centre. The extended consequences of this judgment also reinforces the supremacy of the Centre over the periphery. In fact, CJ Peiris buttresses his argument by citing Chef Justice Sharvananda who had pooh-poohed the concept of separate/subsidiary sovereignties, affirming the overall sovereignty of an undivided, unitary state. The available evidence points to the fact that while the Sinhala judges tended to favour the idea of separate/subsidiary sovereignties within Sri Lanka, in one form or the other, two leading Tamil judges had quashed this myth. Taking off from the legal foundation laid down by CJ Sharvananda the current Chief Justice, Mohan Peiris, goes further and argues impeccably that in a unitary state, unlike in a federal state, neither sovereignty nor land can be taken away from the Center. He argues convincingly that in a unitary state both sovereignty and land belong to the Center and not to the periphery. This is a radical shift from the legal and political myths built around the Indian-imposed 13th Amendment. The current trend seems to be one of law and economics moving steadfastly to close the divisive ethnic gap and promote integration, reconciliation and rehabilitation. However, in the post-Nandikadal period it is the Jaffna jingoists and their pillion riders in NGOs, or those who have jumped into the chrematistic NGO bandwagon, that are locked in the failed politics of the Vadukoddai Resolution and its corollary, the 13th Amendment, that ended in Nandikadal. They are shocked by the over-determining judgment of the judicial troika in the Supreme Court. It is the solid legal foundation laid by the Tamil judges that has taken the winds out of the political sails of the Jaffna jingoists and their pillion riders in the NGOs and Colombo University. Unable to find any credible arguments M. A. Sumanthiran, the legal fugleman of TNA, has taken up cudgels with the judgment in The Hindu, (8/10/13) raising the bogey of a political conspiracy. He sees all kinds of machinations in the timing of the judgment which came on the heels of TNA victory in the North. This is a puerile argument because Gomin Dayasri, the lawyer who initiated the legal challenge, did not time his challenge to coincide with the northern elections. He was challenging the misleading and misdirected interpretations of the previous judgment to set the record straight. A legal challenge of this nature could come at any time and the fact that the judgment came soon after the TNA electoral victory happens to be a sheer coincidence. Reading sinister motives into the judgment is inevitable partly because the atmosphere is charged with racist politics from all sides and partly because law and politics are inextricably intertwined and inseparable. Nevertheless, the fact remains that a challenge to the previous misleading judgments was on the cards. It was only a matter of time. In any case there were several other challenges to the 13th Amendment running concurrently in the Supreme Court all of which were dismissed by the judiciary. Only the legally unassailable and formidable challenge mounted by Gomin Dayasri, exposing the infirmities of the previous judgments, succeeded. Besides, M. A. Sumanthiran, the TNA lawyer, who was in court and did not rise to counter Gomin’s arguments. Nor did the judgments of the three judges mention the politics he represented in their summations. Perhaps, it is fair to conclude that Sumanthiram had no arguments to challenge Gomin Dayasri. In one bold legal stroke Gomin Dayasri won, just by standing on his own two feet in courts, what all the political parties, governments and other parties failed to achieve since 1987 when the 13th Amendment was introduced. One significant aspect of this judgment is that Sumanthiram and the pro-Prabhakaranist lobbies are deprived of decrying the judgment as a coming from the “Sinhala government’s Sinhala judiciary” because, as I said earlier, it is the leading Tamil judges that have blasted the myths of the 13th Amendment creating “subsidiary sovereignties”, including giving land power to Provincial Councils. The overwhelming significance of this judgment is in deconstructing the fictions of the devolutionists which, among other claims, asserted that the 13th Amendment has created a “subsidiary sovereignty” and the Centre should keep its hand off it. This judgment is also a double edge weapon: it not only ties the hands of the devolutionists but also that of the Centre. The judgment has clearly demarcated the boundary lines and the devolutionists, whether they come from 1. Jaffna, 2. Tamil Nadu, 3. India or 4. further north in the so-called international community (the “uthuru sathara” which my friend Dr. Dayan Jayatilleke of the Colombo University presents as the “fearsome foursome”) or from the NGOs and their allies in the Colombo University campus, are left twisting in the wind without any grounds to blame their usual bogey, the “Sinhala state”. In short, the Supreme Court has cut the Gordian Knot and released the nation to some extent from the shackles of the 13th Amendment imposed by the meddlesome Indian government. The writing on the wall before the passing of the judgment indicated that the land issue was going to be explosive. Any move by the state to remove land from the grip of the Provinces, based on misleading interpretations of the Supreme Court, would have led to political turmoil with the “uthuru sathuru” (“northern enemies” and please note not “uthuru sathara”) unleashing hell on earth to oppose what they would say is an anti-minority, anti-Tamil act to deprive the Tamils of their right to self-determination. But the latest Supreme Court judgment has cleared the cobwebs that clouded the politics and revealed with crystal clarity the boundary lines that define the respective territories that can be occupied by all contending parties claiming the land. The judgment, quite unintentionally, has restored the original first principle on which the founding fathers built the nation. It harks back to the broad, liberal, and overarching principle laid down by Missionary Mahinda who said that the land belongs to all, including the birds, beast and sentient beings. The humans, whether they be Tamils, Muslims or Sinhalese, are only temporary custodians of the land. In this sense, handing the land back to the multi-ethnic Centre is an outstanding judgment that is fair and just to all. The TNA, which has now pledged to act non-violently within the democratic framework of a united Sri Lanka, has no reason to go back to the aggressive Vadukoddai Resolution refusing to adhere to their avowed commitment to abide by the law which now includes the 13th Amendment as defined by the Supreme Court. Most of all, the Indian government cannot now intervene and push the GOSL to violate the law and hand over land to the Provinces. The law is supreme and the 13th Amendment cannot be above it even though it came with the direct interventions of the Indian government. The Courts have intervened to redefine the Indo-Sri Lanka Agreement of 1987 in two critical ways: first, it delinked the north and the east and, second, it has taken the land powers from the Provincial Councils. Taken together it has significantly strengthened the unitary character of the state. The Courts have been moving towards centralizing power as opposed to devolving power intended in the Indo-Sri Lanka Agreement. The critical input of Tamil judges that consolidated this trend takes away the sting of it being a predictable outcome of a majoritarian judgment, dominated by “Sinhala judges of the Sinhala government”. The judgment has come down at the correct time to ease the tensions over the land issue which were threatening to come down from the “uthuru sathura”, particularly the new Northern Provincial Council ready to confront the Centre armed with a reinvigorated electoral clout. The appointment of a law abiding former judge of supreme judge as Chief Minister is conducive to uphold and act according to the legal obligations. The task before the Chief Minister and his new council is to work within the legal boundaries and no one can be more conscious of this than the ex-Supreme Court judge. The fact that the Chief Minister has put down his wig and donned the verti does not mean he can take the law into his hands. In fact, it is obligatory on his part to obey the law laid down by the Supreme Court of which he was an outspoken member until the other day. And he must credited for having toned down the Jaffna jingoistic rhetoric (up to a point only) and talking in terms of reconciliation and peace. All in all, the new dynamics emerging in the post-judgment phase should consolidate and increase the chances of leading the Northern Provincial Council to negotiate with the Centre and work out reasonable and sustainable compromises. That is only one end of the political spectrum. From the other end it is quite clear that my friend Dr. Dayan Jayatilleke has been discombobulated by the unexpected consequences of a far-reaching judgment. He had rushed to print denouncing the media for having got the story wrong, meaning that only he has got it right. To summarize his argument roughly, he contends that the Provincial Councils have not lost the ownership of the land. “Luckily”, he says, the Indians and the TNA have nothing to worry about because the judgment has not changed anything. He is jubilant that the status quo of the 13th Amendment, with powers of land devolved to the Provincial Councils, remains intact. Well, in all sincerity, I wish my friend Dayan many more successes like this not only for himself but also for the TNA and his NGO cohorts. He hails the silence of the TNA and India as a confirmation of his theory that the land, as defined in the 13th Amendment, India’s ill-fated baby, remains devolved to the Provincial Councils even after the latest Supreme Court has categorically stated that the so-called “subsidiary sovereignties” do not have rights over land that is not devolved to them. His statement, however, is contradicted by M. A. Sumanthiram, who appeared on behalf of the TNA in the Supreme Court and hardly said a word in defence. If he had any counter argument he certainly would not have hesitated to use them as so much was stake in this case. The silence of the TNA during the case and after the case (for a brief while) is not because of some smug satisfaction arising from their belief that they have “luckily” (Dr. DJ) won. It is the grim silence of losers and not winners. The time to speak was in the courts when Sumanthiram knew that the TNA political agenda was heading for another Nandikadal. The TNA’s task is not only to preserve the 13th Amendment intact but also to accumulate more powers to make it 13+. With a legal Nandikadal staring in his face why was he tongue- tied in Courts? Quite late, after the horses have bolted, Sumanthiram is now crying his eyes out saying that the judgment has undermined the cardinal principles of the 13th Amendment. He sees it as legal explosive while Dr. DJ sees it as rose without any thorns. In his attempt to spin the judgment in favour of the TNA Dr. DJ is exhibiting distressing symptoms of withdrawal into a state of denial, not knowing what had hit him. Luckily, the TNA knows that his judgment is not worth the paper on which it is written. They know that it is the judgment of the Supreme Court that will prevail. .
Posted on: Tue, 15 Oct 2013 06:41:26 +0000
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