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By P. Anandanayagam

The word united is common, but often seen to be ineffective where people are gathered together in organizations, groups, clubs, associations, societies etc. This is basically due to the lack of co – operation in these gatherings where insufficient knowledge of human behaviour is predominant; and this in turn causes disharmony and chaos that can hamper the progress of a nation in general, and increase the number of unsatisfied minds who are capable of creating unpleasant situations not only for themselves but for others too. We fail to see and recognize the word unity which means joined together to help one another, irrespective of caste, creed or religion.

In this context, if we are to have a deeper understanding and a clearer perspective of the prevailing situation of our country, Sri Lanka, whose unity is essential in all aspects, in its progress as a nation, we are certainly expected to see her people free of racism. In the abundance of innovations, social scientists, through long years of striving and effort, to study human nature, have brought us a definite statement that race is not a reference point among the developing aspects of a nation.

We intend building a united Sri Lanka, free of racism, which definitely means one form of development within the concept of human resources, and we would all agree that when our minds are at peace it will certainly lead to all other aspects of development as well, considering the nation as a whole.As stated earlier, the central theme that brings about a new and promising outlook into the matter as a whole is a systematic analysis of the nature of human behaviour in all its aspects where individuals are gathered in order to engender a sympathetic and questioning attitude towards each other which would enable people to understand one another with clarity of mind.

One is likely to get disappointed or discouraged by having to face problems day in and day out; but life without problems is not going to activate any of our drives that can improve our intellectual capacities which would definitely enable us to cope with the existing environment. Problem solving behaviour which is also seen in animals proves man is capable of solving most of his problems. Besides as a group or a nation for that matter, people should be capable of meeting today’s challenge of building a united Sri Lanka, free of racism.

As a nation Sri Lankans is home to a variety of people belonging to different cultures. Our culture as we know it is about man in a certain group which exposes his talents and capabilities using various expressions, as the behavioural scientists call it. These expressions are ever changing and we cannot deny the fact that we encounter similar expressions in different groups. These similarities to a certain extent, prove the origin of man to be unified and any explanation regarding his behaviour is found to be cohesive and something that could be comprehended as a unit. When we continue to analyze human behaviour we come across enculturation which means that a human being is initially expected to improve within his or her own groups before he or she makes an attempt to learn of other groups.

In the event of the latter there is a tendency to leave room for ethnocentrism to a certain degree, which would prevent deeper insight into other groups which is not favourable due to the probabilities of forming feelings of superiority. Although this attitude is inherent in human nature, it can be brought under control for all practical purposes by active participation in activities of as many groups as possible. This phenomenon which is termed ‘acculturation’ helps us build a healthy attitude and a better frame of mind, where one would be able to see genuine concern among human beings for one another, which would contribute to a large measure towards the eradication of racism.

When we function as a unit or even make an attempt to function as unit the phenomena stated above could be observed or received, retained and recollected at times of necessity, so as to make good use of them for the betterment of our country and basically to the enhancement of peace and harmony among human beings.One may include religion and the principles it propagates within a religious sect as long as men are led to behave sensibly and with a certain degree of authenticity when it comes to civic consciousness where any human being is confronted with the existence of another as long as we are alive in this world.We must not be oblivious to the fact that religious activities too contribute towards the culture patterns of groups. Sri Lanka is a democratic country and we are expected to respect and regard the voice of people of this nation as a whole if we are to build a united Sri Lanka free of racism. This is a must and an essential aspect of the matter discussed; but one should also take into account the fact that we at times do not know for certain what we are asking for.

In the sequel the authorities concerned are expected to implement certain specific functions of control which may appear at the first sight as restrictions that are unpleasant, but later be revealed to us as goodwill and genuine efforts to maintain law and order in the country. We must realize the fact that in any nation the majority speaks and the decisions taken by them collectively, considering the fair representations of all sects of the country are tested for their feasibility adherent to democracy in every sense of the word. Even constitutional amendments are subjected to a rigorous test by throwing it open for thorough analysis and discussion before they are affected, largely safeguarding the interests of the people, not forgetting the minorities. Sociologically speaking this is a process of interaction between groups of people, bearing in mind that any process of interaction, whether it is between two individuals or between two groups of individuals or between an individual and a group of individuals, is beneficial to both parties or to be precise to all concerned.

Alienation or a mass mental derangement is acutely increasing among our people. From a psychological point of view this derangement could be explained in terms of the phenomenon called ‘the ideal self and the real self’ of an individual in society. It is a natural tendency for us to want something; or to be more precise we view ourselves to be in a higher position; but our actual or real position is below this imaginary self. It is learnt that there should be a certain amount of disparity, between the ideal self and the real self in order to have sufficient motivation that could activate our exploratory drive or the so called curiosity, to prosper in life through an insatiable appetite to learn and to build up an appropriate background of knowledge to cope with the ever changing environment. But when the disparity is not within comfortable or healthy limits, it gives rise to chronic anxiety, nervous tension, feelings of inferiority and self hate. This malfunctioning of our nervous system, with the above mentioned complications, deprives us of functioning effectively in society and among people of various categories, who are on the alert over our progressive attempts and the methods employed by us to achieve higher positions in life.Those of us who are philosophical about religion whatever denomination we may belong to are apt to think that purity of heart will definitely invoke God’s blessings upon us.

The general opinion of the masses that are undergoing a mental derangement is in the form of an expectation of revival in their thinking pattern.This obviously means a necessity to implement sufficient, effective remedies to bring about a disparity between the ideal self and the real self under healthy and comfortable limits, in order to help people progress in life. We are, when confronted with such malfunctioning of our system, expected to work hard, to keep our minds occupied in whatever field of activity that interests us, which will control our thinking patterns and create in us originality and productive thought that will enable us to achieve our aims and aspirations in life.Having analyzed the situation that confronts us here in Sri Lanka today we are apt to think of our literacy rate. The fact that it is higher than many countries brings about an understanding that unity can be achieved by being industrious in our endeavours and by maintaining a problem solving attitude towards life. This will be rewarding in the long run.These actions will act as incentives for further development.

Our intention should be to unite Sri Lanka and we are therefore expected to behave sensibly and do the right things in order to bring about a friendly atmosphere among people of all walks of life, who consequently must equip themselves to be of use to themselves as well as to others, under whose observation and watchful eyes we have to exist as long as we live in this world

By Dr. Jayampathy Wickramaratne [President's Counsel]

There is renewed interest in the Thirteenth Amendment to the Constitution. The Government states that it is keen to ‘fully implement’ the Thirteenth Amendment. Even those like the writer who agree with Prof. G.L.Peiris’s oft-quoted statement made in the nineties in the course of the Navaratnarajah Memorial Oration that the Thirteenth Amendment is ‘fundamentally flawed’ and who believe that any solution offered to the Tamil people must go beyond even the Constitution Bill of 2000 will be happy if the Thirteenth Amendment is in fact fully implemented.

But there are many who believe that all talk of fully implementing the Thirteenth Amendment is mere eye-wash.In this article, I suggest the Government show its bona fides by beginning with agrarian services and restore to Provincial Councils the powers relating to agrarian services that were taken away illegally by them.

[Paddy field in Sammanthurai, Ampara district-Pic:HumanityAshore]

The Thirteenth Amendment introduced three lists of subjects.The Provincial List (List I), the Reserved List (List II) and the Concurrent List (List III). Provincial Councils may make statutes on any matter set out in the Provincial List but have no power to make statutes on matters set out in the Reserved List.

Both Parliament and Provincial Councils can legislate on any matter set out in the Concurrent List but after consulting the other/s and in case of inconsistency between the law of the land and a statute put forward by a Provincial Council, the law prevails. Parliament can pass a law on any matter set out in the Provincial List against the wishes of a Provincial Council but such a law needs to be passed by a two-thirds majority if it is to operate within a Province which has not consented to it.

[A fram in Sigiriya-pic: by Dushiyanthini Kanagasabapathipillai]

The first item in the Reserved List is ‘national policy on all subjects and functions.’ One would expect this to mean that Parliament may lay down national policy even relating to a matter in the Provincial List by a simple majority and Provincial Councils should abide by such national policy in making statutes. In view of the express provision that a Parliamentary law on a matter in the Provincial List would apply in a Province which has not consented to it only if the law has been passed by a two-thirds majority, there can be little doubt that Parliament cannot legislate on matters set out in the Provincial List without the consent of the Provincial Council concerned by a simple majority, in the guise of laying down national policy.

In short, national policy on matters set out in the Provincial List amounts only to framework legislation that Provincial Councils should conform to.

Item 8 of the Concurrent List reads:

8. Agricultural and Agrarian Services

8: 1 Establishment and promotion of agro-linked industries, the establishment and maintenance of farms and supervision of private nurseries;

8: 2 Soil conservation;

8: 3 Plant pests.

Item 9 of the Provincial List is as follows:

9. Agriculture and Agrarian Services

9.1 Agriculture, including, agricultural extension, promotion and education for provincial purposes and agricultural services (other than in inter-provincial irrigation and land settlement schemes, State land and plantation agriculture);

9.2 Rehabilitation and maintenance of minor irrigation works;

9.3 Agricultural research, save and except institutions designated as national agricultural research institutions.

Under Article 154C, the executive power of a Province extends to the matters with respect to which a Provincial Council has the power to make statutes.

Thus, executive power relating to matters covered by Item 8 of the Concurrent List and Item 9 of the Provincial List are with the Provincial Councils.With the establishment of Provincial Councils, Provincial Departments of Agrarian Services were set up to deal with matters that were devolved under the Thirteenth Amendment.

In 1991 the Central Government introduced a Bill to amend the Agrarian Services Act No. 58 of 1979. The Bill sought, inter alia, to amend several sections of the original Act that dealt with matters relating to tenant cultivators and to introduce new sections that dealt with matters such as inquiry officers and Boards of Review.

The Bill was challenged in the Supreme Court on the ground that the Bill dealt with matters set out in the Provincial Councils List and as such, should have been referred to Provincial Councils for them to express their views thereon.

The Supreme Court, in its determination, while observing at one point that the Bill did not deal with Items 9.1 to 9.3 of List I and Items 8.1 to 8.3 of List III, nevertheless stated that it was not desirable that the question whether land rights and land tenure is a provincial subject should be decided without the benefit of a full argument.

However, the Court held that the matters dealt with in the Bill were all matters of national policy in regard to the rights and liabilities of owners and tenant cultivators and thus fell within the Reserved List.It is not necessary for the purpose of this article to discuss the correctness or otherwise of the Court’s determination.

What needs to be emphasized is that the Court only held that the Bill dealt with national policy. The Court did not hold that the matters dealt with did not come under the Provincial List.

The Supreme Court had the benefit of a full argument on the question in Madduma Banda v Assistant Commissioner of Agrarian Services reported in [2003] 2 Sri LR 80.The facts briefly were as follows.

An Assistant Commissioner of Agrarian Services made an order under section 18 of the Agrarian Services Act that a tenant cultivator had defaulted paying agricultural rent and was therefore liable to be evicted.

The tenant cultivator challenged the order in the High Court by way of a writ. Under Article 154 P (4) of the Thirteenth Amendment, a High Court has jurisdiction to issue a writ against any person exercising power under a law or statute in respect of any matter in the Provincial List.

The landlord took up the objection that in view of the determination of the Supreme Court on the Agrarian Services (Amendment) Bill, the matter in issue did not come under the Provincial List. The High Court upheld the objection. The Court of Appeal affirmed the judgment of the High Court and granted leave to appeal to the Supreme Court.

In the Supreme Court, the appeal was heard by a Bench consisting of Chief Justice Sarath N. Silva and Justices Shirani Bandaranayake and Hector Yapa. The Court allowed the appeal unanimously. The judgment was delivered by Justice Bandaranayake.

The main question that arose for determination by the Supreme Court was whether matters relating to tenant cultivators came under the Provincial List. The Court had no hesitation in holding with the appellant. ‘The word ‘agrarian’ relates to landed property and such property no doubt would attract paddy lands and tenant cultivators of such land’ the Court held.

The earlier determination on the Agrarian Services (Amendment) Bill was also commented upon. The Court took the view that it would not be correct to say that the matters dealt with by the Bill were all maters of national policy.

Stating that the Provincial Councils List should not be narrowly interpreted, Justice Bandaranayake held that paddy lands fell within the Provincial Councils List.

Despite the ‘clarification’ by the Attorney General and the clear interpretation given by the Supreme Court in Madduma Banda’s Case, Provincial Councils still do not exercise powers relating to agrarian services. The Government would do well to begin by restoring powers relating to agrarian services to Provincial Councils.