LAND

Most wars, be they 'civil' or otherwise, are fought over land - for dominion over land. Our own civil war is no different. It was and is being fought by the Secessionists for no reason other than to establish in an area comprising 28.7% of Sri Lanka's land surface and about 60% of her sea coast and territorial waters, a sovereign, mono-ethnic, fascist state of Tamil Eelam as an "exclusive homeland of the Tamils". An essential pre-requisite to the establishment of such a state is dominion over that parcel of Sri Lanka's territory.

Successive governments and thousands of our troops, police officers and loyal citizens have fought and continue to fight the secessionists to defend the dominion of the Republic of Sri Lanka over that territory . So many have died, been maimed, impoverished and suffered so much and countless billions of rupees have been expended so as to defend the Republic's dominion over such lands because it must be defended and preserved at all costs.

The dominion of the Republic over all land in the North and East would doubtless be secured by the Military defeat of the LTTE. The 'Package' would, equally doubtless be capable of implementation only after such defeat of the LTTE. If, therefore, dominion over all land in those two Provinces is to be taken away from the Republic and vested in the Regional Administration for the Northern and Eastern Provinces by the 'Package', it will necessarily amount to fighting the war to preserve the Republic's dominion over Land in those Provinces and then giving it away on a platter to those who sought to rob the Country of that very dominion no sooner a hard fought victory was achieved in that war.

The end result of losing dominion over that territory would be identical whether it was lost on the battle field or voluntarily ceded by constitutional amendment. If dominion over that territory is to be ceded after the war to preserve it is won, several questions inevitably arise. Why was the war fought ? For what did so many sacrifice so much at such cost ? Did our troops and our loyal citizens sacrifice so much for so long in order to enable the Government to give away 'politically' what they preserved 'militarily' with their blood, their guts and their devotion to the Country ? Yet this is precisely what the 'Package' envisions.

Dominion over land means, not only title to and the right to use and alienate State Land, but also the right to regulate the use of land that is privately owned. It also includes the right to acquire land that is privately owned when it is needed for a public purpose. The 'Package' envisions the vesting of title to all State Land within each Region in such Region. Where lands that are privately owned are concerned, every purpose for which such land is capable of being used, such as agriculture, housing, animal husbandry, and industry falls within the ambit of a subject in respect of which exclusive jurisdiction is proposed to be given to the Regions by the 'Package'. The Republic will, therefore, be deprived of all dominion over such land. Each Region will be free to enact such laws and implement such policies as it wishes in respect of all lands situated within it - so that a person owning land falling within the areas of two or more Regions may well have to contend with and obey different laws in respect of subjects pertaining to land in different parts of his own property.

The basic and insurmountable problems that would be caused by the implementation of 'the Package' however, relate not so much to privately owned lands as to State Land which comprise the vast bulk of the Country's real estate.

The provisions of the 'Package' relating to 'State Land' read:-
"24 (1) State land within a region shall vest in the Region and shall, subject to this Article, be at the disposal of the Regional Council for the purposes set out in the Regional List.

(2) The Regional Administration shall be entitled to exercise rights in or over such land, including land tenure, transfer or alienation of land, land use, land settlement and land improvement in accordance with applicable laws. Provided that priority in future land settlement schemes shall be accorded first to persons of the district and then to persons of the Region.

(3) If the Centre is satisfied that State Land in a Region is needed for the purpose of a reserved subject, the Centre may, after consultation with the relevant Regional Administration, require the Regional Administration to make available to the Centre, or to such public authority as the Centre may specify, such land as may be required for such purpose, and the Regional Administration shall comply with such requirement.

(4) Inter-regional irrigation projects are schemes where the command area falls within two or more Regions. These shall be the responsibility of the Centre."

The most pernicious aspect of these provisions is that title to all State Land within a Region coupled with exclusive rights in respect of land tenure, transfer and alienation of land etc, will vest in the Regions. The position that would result from this provision is that the Republic of Sri Lanka will have title only to such state land as is located within the grossly over-populated cities of Colombo and Kotte and the sea coast that lies between Crows Island and the mouth of the Dehiwela Canal !!

Although Article 24(3) of the 'Package' provides that the Centre may, when satisfied that any State Land in a Region is required for any purpose of a subject in the Reserved List, require the Region after consultation with the Administration of that Region to make such land available to the Centre, the powers sought to be vested in the Central Government by this Article will be grossly limited in their application.

Today, the Government not only has the power to use any State Land wherever situated for any purpose at its sole discretion, but also has the power to acquire under the Land Acquisition Act (4), any privately owned land when such land is required by it for any 'public purpose.' Whenever privately owned land is acquired under the Land Acquisition Act it becomes State Land. Since title to State Land in any Region will vest not in the Centre but in the Region, it must follow that the 'Package' envisions the powers of the Government in terms of the Land Acquisition Act being transferred in their entirety to the Regions. The 'Package' contains no provision which would empower the Central Government to require a Regional Administration to acquire any privately owned land and make it available to the Centre for any purpose of a subject in the 'Reserved List', however badly such land may be required by the Central Government for such purpose. Thus, the Central Government will be restricted to using only land that is already State Land for any purpose in the 'Reserved List' including 'Defence' and be precluded from using any privately owned land in any Region for any such purpose. This, in turn would provide any recalcitrant Regional Administration which is hostile to the Central Government with the ability to thwart the exercise by the Centre of its powers under Article 24(3) of the Package by using the Region's plenary powers over the alienation of State Land and alienating to some 'friendly' person or organisation, any parcel of State Land within its Region which it knows to be required by the State for the purpose of a subject in the Reserved List, upon becoming aware of such fact.

These matters apart, many of the subjects supposedly reserved to the Centre are so shrouded in ambiguity and so denuded of substance by the specific powers enumerated in the Regional List [see Chapter 1 of this Part] that any Region would, in most instances, have ample room for challenging directives given by the Central Government in terms of Article 24(3) of the Package on the ground that the purpose for which the Centre 'requires' State Land does not relate to a subject in the Reserved List, resulting in the Central Government's demands for land becoming the subject of tiresome and time consuming litigation.

It is axiomatic that the Natural Resources of the Republic wherever situated are equally the property of all Her citizens regardless of race, caste, creed or place of residence. A necessary corollary of this principle is that where State Lands are to be alienated, allottees of such lands must be selected on objective criteria such as the economic circumstances and need for land of the applicants and their ability to cultivate such lands, and that no citizen should be discriminated against in this regard on the grounds of his race, caste, creed or place of residence.

The 'Package', however, seeks expressly to make constitutional provision for discrimination among citizens in the matter of the alienation of State Land. Article 24(2) of the 'Package' not only vests exclusive jurisdiction in respect of the alienation of State Land in the Regions but also provides that "priority in future land settlement schemes shall be accorded first to persons of the District and then to persons of the Region." Thus, in terms of this provision all citizens would not be equally eligible to vie for allotments of State Land according to the objective merits of their respective claims in any future Land Settlement Scheme. Their eligibility to receive or to even be considered for such allotments would be principally dependant on the place of their residence.

One consequence of this provision would be that even a person living in close proximity to such a scheme would, however good the merits of his application for Land may be, have to suffer discrimination by preferential treatment being given to others residing far away from such scheme including those, the merits of whose claims are less, merely because there happens to be a District or Provincial Boundary created for purely administrative purposes lying between his residence and the scheme in question. Thus, for example, in a Land Settlement Scheme in Cheddikulam in the Vavuniya District, a resident of Nedunkerni located over 75 kilometers away in the Vavuniya District; or of Point Pedro, located over 150 kilometers away in the Jaffna District; or of Batticaloa located over 300 kilometers away, in the District by that name, would by law receive preference over a resident of Thanithirimale in the Anuradhapura District located barely 10 kilometers away, regardless of the merits of their respective claims.

The availability of State Land for alientation would obviously be in the sparsely populated Districts of the Country rather than in the densely populated Districts. Similarly, land hunger would be most acute in the densely populated Districts rather than in the sparsely populated Districts. Thus, the end result of this provision in the Package would be to effectively prevent citizens of the densely populated Districts where land hunger is most actue from ever being the receipients of allotments of State Lands.

It is pertinent in this context to examine the statistics relating to the density of population per square kilometer in each of the Country's 25 Districts, the North and East, the other seven Provinces and the whole Country respectively. These statistics according to the last Census of 1981 are set out in the table below in which the area of each District covered by inland waters has been excluded for the purpose of computing the density of population:-

It would be observed from these figures that out of the eight Districts that comprise the Northern and Eastern Provinces seven are among the ten Districts with the lowest density of population in the Country, that the two Districts with the lowest density of population are in the Northern Province; and that the density of population of the Northern and Eastern Provinces is approximately half that of the entire Country and 41.45% of that of the other seven Provinces. The figures relating to the density of population in the Central, Uva, Sabaragamuwa, Southern, North Western and Western Provinces are, in real terms understated since 1,245,149 out of the 1,330,032 Acres of Estate Land in the Country - i.e. 93.62%, are located in those six Provinces (6) and the forest cover for the Country's principal water sources in the Central and Southern Highlands are located mainly in the Central, Uva Sabaragamuwa and Southern Provinces rendering a substantial acreage of those Provinces incapable for use for human settlements.

On the other hand about 63% of the lands to be benefited under the Mahaweli Programme (7) and most of the reservoirs yet to be constructed under that scheme such as the Malwatu Oya, Parangi Aru, Pali Aru, Kanagarayan Aru and Yan Oya reservoirs are located in the Northern and Eastern Provinces (8). It is therefore patently evident that the vast bulk of the State Land available for alienation lies within the Northern and Eastern Provinces.

The legal effect of the mandatory provision in the Package requiring priority to be accorded first to 'persons' [i.e not even citizens] of the District and then to 'persons' of the Region in all future land settlement schemes would be to virtually exclude all residents of the seven Provinces outside the North and East [who comprise 85.82% of the Country's population of whom the Sinhalese comprise 83.93%] from being allotted any State Land in the two Provinces of the Country where the greatest availability of State Land for alienation exists. Any resident of any of those seven Provinces could only hope to get an allotment of State Land in the Northern or Eastern Provinces if nobody in those two Provinces wanted it and then too only if the Regional Administration of the Northern and Eastern Provinces [which he had no hand in electing] decided to grant him such allotment. How even handed would the Regional Administration of the Northern and Eastern Provinces be in dealing with applications from residents of other Regions for allotments of State Land in those Provinces ??

Beginning with the ITAK in 1949 every racist Tamil Political Party has, over the past 47 years been unequivocal and unyielding in its opposition to any Sinhalese being allotted State Land in any 'Peasant Settlement Scheme' (which they categorize as 'State Aided Colonisation Schemes') in the Northern and Eastern Provinces. However none of these parties have voiced opposition to the principle of implementing such schemes or to Tamils or even Muslims being granted State Land in such schemes. Their opposition is only to Sinhalese being allotted land in those schemes which are located in what they have, at various times, described as being the 'exclusive homeland of the Tamils' and of the 'Tamil Speaking People'. It is evident that none of these Parties have ever subscribed to the view that the Sinhalese have any rights whatsoever in respect of State Land in the Northern and Eastern Provinces - the very thought of the rights of the Sinhalese in respect of State Land in those areas being equal to those of the Tamils has always been anathema to them. There is no difference between the LTTE and the so called 'moderates' in this regard. The most they have been willing to concede is that any Sinhalese is perfectly entitled to purchase land in and settle down in the North or East provided he does so with his own resources. Since the purpose of Peasant Settlement Schemes is to alleviate poverty by granting State Land free of charge to indigent citizens who are unable to buy land, this 'concession' only amounts to saying that while those Tamil Parties would countenance the rich and the affluent among the Sinhalese settling down in the North and East, they would not tolerate the poor and the indigent among them doing so. But how could the poor and the indigent gain land unless it is given free of charge ? Thus the policy of these Tamil Chauvinists in respect of the Sinhalese settling down in the Northern and Eastern Provinces is "rich Sinhalese are welcome, poor Sinhalese keep out" !!

The virulence of the opposition of the Tamil Chauvinists to any Sinhalese being allotted any State Land in the North and East is best exemplified by some utterances made by that so called 'moderate' and 'apostle of non-violence' who has even been described as "their (the Tamils) Moses who had to lead them to the promised land"(9), S.J.V.Chelvanayakam Q.C. In 1955 he described the settlement of Sinhalese in such schemes located in the North and East as "high handed political aggression" and said that one race "should not encroach upon the land of another race living in the same country" (10). Three months before the General Election of 1956 "he was emphatic that the Sinhalese, after independence `had proceeded to plunder Tamil lands by colonising the rich agricultural districts in Tamil Provinces like Gal Oya and Kantalai....which even Sinhalese kings during the days of their most autocratic rule never dared to do.......The Tamils held these provinces for the last three thousand years and now the Sinhalese, not satisfied with the seven provinces they occupy, are trying to usurp our lands as well." (11)

It remains a mystery how this latter day 'Moses' leading his People to a 'Tamil Zion' conceived of the ridiculous notion that State Land in the different provinces of the same Country belonged or was capable of belonging to different races; or how he concluded that the "Tamils" (not the `Tamil Speaking People') had "held" lands in the Eastern Province for the last three thousand years when according to the Tamil historian Professor Karthigesu Indrapala, the first permanent Tamil settlements in Sri Lanka came into being only about a thousand years ago in the 10th Century, and that those too were in the present Northern Province where such early settlements were sparse !! (12)

Be that as it may it is evident from these utterances, so grossly fanciful as they are extreme, of this so called 'moderate', that his 'political descendants' in the several Chauvinistic Tamil Political Parties and Groups are at one in regarding the Sinhalese settlers in Peasant Settlement Schemes in the North and East as 'encroachers', 'usurpers', 'trespassers' and 'illegal immigrants', as well as in their determination to prevent any Sinhalese from any part of the Country from being given a single allotment of State Land in the Northern and Eastern Provinces. It is worthy of note that not one of the racist Tamil Parties has ever given any undertaking to protect and ensure that all Sinhalese living within the Northern and Eastern Provinces will enjoy equal rights with the Tamils in all respects in the event of their achieving a Separate or Federal State.

The only function reserved to the Central Government in respect of State Land within the Regions is the responsibility for "Inter-Regional irrigation projects" - namely, "schemes where the command area falls within two or more Regions" such as the Mahaweli Project - [See Article 24(4) of the 'Package'].This Article will only vest in the Central Government the right to invest its funds to build reservoirs, irrigation channels and other hydraulic works so as to irrigate the lands falling within the ambit of such schemes and make them suitable for agriculture and human settlement.

The functions of the Central Government in respect of such projects would not, however, extend to deciding who should be alloted any State Land that is so irrigated by its investment and its endeavours, for all powers in that regard would be the exclusive preserve of the Administration of the Region in which such land is situated. Since the funds of the Central Government would be the funds of all the People of all nine Provinces of the Country, 74% of whom are Sinhalese, it could fairly be said that 74% any such investment would consist of the funds of the Sinhalese. The resultant position as regards the implementation of a scheme such as the Mahaweli Scheme in the North or East would, therefore be, that while the Sinhalese would bear 74% of the investment in such a scheme no percentage of the dividends of such investment would accrue to any of them.

One inevitable result of the implementation of the provisions in the 'Package' relating to land deserves special mention. The 'Package' will be capable of implementation only after our troops, the vast majority of whom are Sinhalese, succeed in defeating the LTTE. Yet, in the implementation of 'the Package', those troops who are Sinhalese and their descendants would, for all time, be disqualified from being the recipients of any allotment of State Land in the Northern and Eastern Provinces which they liberated from the Tigers by their patriotism, dedication and sacrifice. Those self-same Tigers and their descendants would, however, not only be fully entitled to be recipients of allotments of such State Land but would also be entitled to a constitutional right to 'priority' in the matter of the alienation of such allotments !! Is this what are troops have been fighting to achieve ??

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