26 September, 2020

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Amend Divineguma Bill, Don’t Impose It On North

By Friday Forum

Dr. Jayampathy Wickramaratne PC

The Divineguma Bill now before Parliament provides for the setting up of a new department called the Divineguma Development Department, the main object of which is the administration of a poverty alleviation programme. The Bill was challenged before the Supreme Court and the Court held that as much as fifteen clauses of the Bill dealt with matters enumerated in the Provincial Council List. Article 154G (3) of the Constitution requires every Bill in respect of any matter set out in the Provincial Council List to be referred by the President to every Provincial Council for the expression of its views before it is placed in the Order Paper of Parliament. The Divineguma Bill had not been so referred to Provincial Councils and, as such, the Supreme Court held that the Bill could not become law unless so referred. As the Bill had been placed in the Order Paper without complying with Article 154G (3), the Court made no determination on the other grounds of challenge.

The Bill was then withdrawn and referred to the eight Provincial Councils which have been constituted and to the Governor of the Northern Provincial Council. All existing Provincial Councils agreed to the passing of the Bill. The Northern Provincial Council not being constituted yet, the Governor of that Province purported to express agreement to the passing of the Bill, on behalf of the Council. The Bill was then placed in the Order Paper and was challenged before the Supreme Court. On the ground of challenge that the Bill has not been referred to all Provincial Councils and therefore could not have been placed in the Order Paper, the Supreme Court held that “every Provincial Council” must be interpreted to mean every Provincial Council that had been established and constituted. It follows from the decision of the Court that the Bill could therefore have been placed in the Order Paper.

Divineguma- Implications for Devolution

If the Divineguma Bill becomes law, many functions of Provincial Councils will be taken over by the Divineguma Development Department. Among the matters that the Supreme Court observed to have a co-relation to items in the Provincial Councils List are: implementation of provincial economic plans, rural development, food supply and distribution, construction activities, roads, bridges and ferries within a Province, rehabilitation of destitute persons and families, rehabilitation and welfare of physically, mentally and socially handicapped persons, market fairs, co-operatives, regulation of unincorporated societies and associations, agriculture, promotion and establishment of agricultural, industrial, commercial and trading enterprises and other income generating projects and relief for the disabled and unemployable. The Divineguma Development Department will become a super-department not only at the expense of other central government departments but Provincial Councils as well.

While programmes for poverty alleviation and guaranteeing social equity may be undertaken by the Centre, it is important that they be implemented without transgressing on the functional competences of Provincial Councils. In fact, Provincial Councils should be made implementing partners of such national programmes. We therefore call upon the Government to make suitable amendments to the Divineguma Bill to ensure that where functions relating to the programme envisaged are within the competence of Provincial Councils, such functions are carried out by the Provincial Councils and not the Divineguma Development Department. The Department would, of course, co‐ordinate the implementation of such programmes by the Provincial Councils.

The Bill also provides for the setting up of Divineguma organizations at community, regional and district levels under the supervision of the Divineguma Department. The objects and powers of such organizations are mostly related to matters enumerated in the Provincial Council List. We therefore urge the Government to amend the Bill suitably so that Provincial Councils would not be denied of their functions under the Constitution.

An eleven-member Divineguma National Council is to be established to assist the Department in respect of the policy and management of divineguma development programmes. The Council will have no representation from Provincial Councils. We urge that the Council be expanded to include four nominees of the Chief Ministers’ Conference.

The Supreme Court has held that several provisions of the Bill are inconsistent with the Constitution and suggested amendments to make the provisions consistent with the Constitution. We call upon the Government to amend those provisions as suggested by the Supreme Court rather than using the two-thirds majority it has to pass the provisions.

Imposing Divineguma on the Northern Province

Article 154 G (3) of the Constitution provides that where every Provincial Council agrees to the passing of a Bill on a matter in the Provincial Councils List, such Bill could be passed in Parliament by a simple majority. However, where one or more Councils do not agree to the passing of the Bill, such Bill must be passed by a two-thirds majority if the Bill is to become a law that is applicable to all nine Provinces. If passed only by a simple majority in Parliament, the Bill would become a law applicable only to the Provinces which had agreed to the Bill.

An important question that arose before the Supreme Court was whether the Governor of the Northern Province could have expressed agreement to the passing of the Bill on behalf of the Northern Provincial Council. On this issue, the Court held that the views of the Governor cannot be considered as the views of the Northern Provincial Council and as such, the Bill would be required to be passed by a two-thirds majority. What follows from the Court’s determination is that if the Bill is not passed by a two-thirds majority, the Bill would not become a law applicable to the Northern Province.

Under Section 10 of the Provincial Councils Elections Act, the Commissioner of Elections is required to call for nominations within one week of the dissolution of a Provincial Council. However, in the case of the first election to a Provincial Council, the Commissioner could call for nominations only after the President gives him a direction to hold the election. Thus, the Northern Provincial Council has not been constituted only because of the President has not made such a direction. The President has, on more than one occasion, stated that the first election would be held in September 2013.

The importance of holding elections to the Northern Provincial Council need not be emphasized, especially when the Lessons Learnt and Reconciliation Commission (LLRC) appointed by the Government has stated that a political solution is imperative to address the causes of Sri Lanka’s ethnic conflict and that there should be more devolution. Since the end of the separatist war in May 2009, presidential, parliamentary and local elections have been held in the Northern Province but not elections to the Northern Provincial Council.

In the above circumstances, we urge Parliament not impose the Divineguma Bill on the Northern Province by passing it with a two-thirds majority. The people of the Northern Province have not been able to express their views on the Bill through their Provincial Council only because no direction has been made to hold elections to that Council and it would be against the spirit of devolution to impose the Bill on the people of the Northern Province.

Friday Forum especially calls upon those political parties and Members of Parliament who believe in a political solution to the ethnic conflict and have been speaking out on the need to strengthen devolution not to be a part of a two-thirds majority that would impose the Divineguma Bill on the Northern Province and its people. Once the Northern Provincial Council is constituted, appropriate legislation could be brought to extend the new law to the Northern Province and the Northern Provincial Council given an opportunity to express its views on the Bill in the same manner in which the other Provincial Councils were given an opportunity.

In the post-war period, the Centre has found various means of weakening of the Provincial Councils, a good example being pressurizing them not to collect Business Turnover Tax in violation of their own statutes. Passing the Divineguma Bill in its present form and imposing it on the Northern Province would further weaken Provincial Councils and also have a negative effect on efforts at reconciliation.

Jayantha Dhanapala                                                                        Dr. Jayampathy Wickramaratne

On behalf of Friday Forum, the Group of Concerned Citizens

Mr. Jayantha Dhanapala, Dr. Jayampathy Wickramaratne, , Rt. Rev. Duleep de Chickera, Mr. Faiz-ur Rahman, Professor Arjuna Aluwihare, Mr. Tissa Jayatilaka, Mr. Lanka Nesiah, Rev. Dr. Jayasiri Peiris,     Dr. Deepika Udagama, Mr. Ahilan Kadirgamar, Ms. Anne Abayasekara, Dr. U. Pethiyagoda, Ms. Damaris Wickremesekera, Ms. Sithie Tiruchelvam, Ms. Shanthi Dias, Mr. Mahen Dayananda, Dr. A.C.Visvalingam,  Dr. Selvy Thiruchandran, Mr. Javid Yusuf, Mr. Danesh Casie Chetty,  Professor Savitri Goonesekere,     Ms. Manouri Muttetuwegama, Ms. Suriya Wickremasinghe, Dr. Devanesan Nesiah, Mr. J.C. Weliamuna, Dr. Camena Guneratne, Mr. Chandra Jayaratne.

 

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Latest comments

  • 0
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    WE WOULD LIKE TO SEE THIS FORUM FUNCTIONING MORE ACTIVELY AND POSITIVELY MAKING MORE CONTACTS WITH THE RULING THUGS AND BRINGING THEM DOWN TO EARTH.

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    Where were this bunch of ‘educated’ professionals when the terrorists were unleashing mayhem on the whole island for thirty odd years?
    They left it to the ‘uneducated’ poor people of SL to sort out the terrorism problem ….. Even now, they talk about devolution as the only solution to our ‘problems’ … In reality, devolution is a stepping stone to the division of the country … They think that this small island of 268 X 139 miles be free of problems if only divided into small pieces … These people only think about themselves … This is just to protject themselves as best of humanity … at the expense of the country and the poor people who actually make them ‘educated’ for free ….

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      First thank the authors for clarifying the laws and functions of Provincial Council and Divinuguma Department after its creation via passing the bill through parliament.

      Bruno Umbata, are you in favour of implementing and upholding the laws of the land or not? Only oppression and persecution lead to division of any country. Federalism and confederation have been shown successful and prevented division in multi-lingual and multi-ethnic countries such as Canada, India and most of Europe. Can you think of any country where devolution and sharing of powers lead to separation? Even the LLRC clearly says the reason for ethnic conflict is not listening to the ethnic minorities and not implementing the laws relating to them.

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      sinhala terrorism for the best part of 35 years after independence gave birth to tamil terrorism. bruno umbato , you must be an ignorant illiterate idiot. can you name one country in the world where devolution lead to independence. you must be one those black coons who were waiting to attack the lawyers with knives, clubs and machetes. get lost you primitive hybrid mongrel.

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    According to 1978 constitution we vote to political party. Not to candidate. But our supreme court gives wrong interpretation of relevant law. Cunt we go Supreme Court and asked to overrule their earlier decision. Because Sri Lankan people don’t give this government 2/3 or special majority. I think this is essential in this crucial junction

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    My problem with the current situaton is that lawyers are trying to create business for themselves through evreything. Divineguma, impeachment and all.

    THey are rogues who rob poor people.

    What we want is justice, not lawyers rule.

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    I think Friday Forum is doing a laudable service by bringing up these issues. I hope these are translated into all languages and published in the media. Also should be released to the Diplomatic Corp and International Community. Friday Forum consisting of world renown professionals and intellectuals of good standing does have credibility in the eyes of the international community and educated Sri Lankans.

    It is similiar to the World Council of Elders of the world Chaired by Archbishop Desmond Tutu, The Elders is an independent group of global leaders who work together for peace and human rights. They were brought together in 2007 by Nelson Mandela, who is not an active member of the group but remains an Honorary Elder. The Burmese pro-democracy leader Aung San Suu Kyi was also an Honorary Elder, until her election to the Burmese parliament in April 2012.

    The work of the Firday Forum needs to be strengthened by having a web site and more publicity. It needs to be more forceful in highlighting human rights violations etc. It has great potential to become an agent of change in Sri Lanka.

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    Jayampathy Wickremaratne is an articulate exponent of constitutional law and demonstrates those characteristics in his writings. However, an analysis that incorporates other social phenomena related to the political behaviour of the administration is required, in order to obtain a better and more complete picture of these events and processes. Such analyses would be valuable in circumstances that relegate the law to an ancilliary role.

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    Friday Forum is doing a laudable service by the nation in that it educates the people on the infringements that are being perpetrated or framed by the state on the basic freedoms enjoyed by the people and institutions constitutionally established in the enhancement of such freedoms by popular vote.It is opportune that the Forum contemplates linking up with other professional and academic associations in beefing up its activities and effectiveness of its voice.Similar to your very valid issues raised over the Divinaguma Bill there are several issues that have been long lost to the people due to some faulty judgments of the judiciary in the past that need to be highlighted and fought against if this country is to continue to experience a true democratic polity.

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    I disagree with the following recommendation of the Friday Forum regarding Northern Provincial Council.

    “In the above circumstances, we urge Parliament not impose the Divineguma Bill on the Northern Province by passing it with a two-thirds majority. The people of the Northern Province have not been able to express their views on the Bill through their Provincial Council only because no direction has been made to hold elections to that Council and it would be against the spirit of devolution to impose the Bill on the people of the Northern Province”

    The consultation with the newly elected Northern Provincial Council with “Yes” or “No” as done with the other Provincial council is useless.

    What the Government should do is to negotiate with all the Provincial Councils as partners in the poverty alleviation process , redesign the entire Divineguma bill so that the objective of the government is achieved without in any way compromising on the Provincial council List as defined in the 13A.

    None has given any authority to the members of the Friday Forum to decide for the Provincial Councils

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    To continue with my earlier comments,

    Presently Northern Province has Samurthy like in other provinces,but of course, under the purview of the Government at the centre.

    Nobody at that time objected when the Samurthi bill was brought and the Provincial Councils were not consulted.

    No one went to the Supreme Court challenging the Samurthi bill as was done in the case of Divineguma bill.

    The Samurthi also deals with poverty alleviation and infringes on the Provincial council subjects.

    Now Divinegamuva proposes to take over Samurthi along with some other institutes and amalgamate to form DivinEgamuva.

    If the suggestion of Friday Forum is accepted the Northern Province will have neither the benefits of Samurthi nor Devinegamuva and hence the ultimate loser will be the people in the north.

    Is this what the Friday Forum wants?

    Just to validate your theoretical stand you wants the North to suffer.

    What we really need is real democracy more than anything else, ie participatory democracy-grass root democracy-not benevolent democracy that is what the Friday Forum seems to advocate!

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    A Forum without commonsense

    The group of “concerned citizens” called the Friday Forum has been in the habit of issuing statements on Sri Lankan issues. Often these go against “commonsense.” We sense the world with our five senses: see, hear, smell, touch and taste. One without commonsense becomes one who is not reasonable. For example, Mr. Jayantha Danapala, now leading the Friday Forum was known for his PTOM and ISGA deals. Even, Erik Solheim was surprised at what PTOM and ISGA were proposing to do! How can such a person write about 13-A, and suggest to exclude the operation of the Divineguma Bill from the Northern Province? Another Forum leader, the Marxist Jayampathy Wicks was associated with the notorious Vitharana Majority Report of APRC, which suggested a plan to establish Tamil police station in each village in the South! Fortunately, this group meets in a Colombo house, drink coffee and brandy, and issue statements in English. Those mostly with a Eurocentric mind in Colombo read what they write and all are happy. The difference between them and the Tamil/Sinhala village is like the distance between the earth and the moon.
    I do not know how many in this forum was in the boat called “this war was not winnable.” I do not know how many of them know the basic principles or practices in Buddhism. All what projects out of their writings is that they try to hang on to anything they can save to create two countries out of Sri Lanka. The Forum is like a TNA agency in Colombo. There are so many problems with the Mahinda R administration but the Forum should ask new questions, if its intention is to help the poor and victimized people of Sri Lanka and not the promotion of TNA agenda. If it is asking the same old question of how to derail the MR Administration, it will get answers like ‘do not implement the Divineguma Bill in Jaffna.’
    To ask new and reasonable questions, one needs to have an understanding of the burning issues of the man in the street. Forum members ought to know the difference between a Kamatha and a Kumbura. They need to understand the history and geography of Sri Lanka and at least a little bit of global and regional geopolitics before making unrealistic and stupid-looking suggestions. How many forum members travel by bus; how many live in house (not a fortress surrounded by a wall) away from the highly polluted and congested Colombo Area? Then only they will see, smell and hear the moral and social decay, indiscipline, poverty and suffering of people in the name of infrastructure development. I spent eight months in Sri Lanka recently, travelling and walking sometimes covering my nose and mouth to escape from bad smell and dust. Because of this experience in 2012, which I had to face to a lesser extent even in the 1970s, I tend to ask different questions and get different answers. For example:
    1. Did this Forum know that 13-A accepts a Tamil homeland in the NP and EP of Sri Lanka?
    2. Did this Forum know that the World Tamil Forum wants a Tamil country and the best prospects for this is now available under the 13-A?
    3. Did this Forum know that 13-A was based on the Government of India Act of 1935, which accepted communal representation in India sowing the germ for Pakistan?
    4. Did this Forum know that Nehru regretted very much his decision in 1956 to demarcate state boundaries based on language?
    5. Did this Forum know that 13-A type Eurocentric remedies never prevented break-up countries? (Scotland will be latest example).
    6. How can this Forum ignore truth that 13-A was not a democratically passed law?
    7. How can this Forum ignore the fact that Sri Lanka is a scrambled egg of ethnicity mix with no space for any homelands?
    8. How can this Forum ignore that the only real estate for the Sinhalese is Sri Lanka, unlike Tamils and Islamists?
    9. How can this Forum ignore that under the Neelan-GL package of the CBK days, Neelan did not want to accept Muslim or Sinhala pockets inside the combined N-E Tamil homeland? (in India this is called the Pondicherry model of devolution because inside Tamil Nadu there are independent units of former French colonies; Neelan did not want a moth-eaten like homeland!).
    10. How can this Forum blind to the havoc caused by the PC system in the South?
    11. How can this Forum blind to the fact that only those who make money out of PCs are supporting it?
    12. How can this Forum blind to the fact that Sri Lanka is too small for nine jokers called Chief Ministers and mostly local caste-based idiot PC MPs?
    13. How can this Forum blind to the fact that a new set of PC politicians and public servants did not create efficiency but more corruption?
    14. How can this Forum blind to the fact 90% of the country’s present problems can be solved if people are empowered at the village level?
    15. What is this Forum’s answer to landslides, floods and drought in Sri Lanka?
    16. What is this Forum’s solution to crime and corruption in Sri Lanka?
    17. What is Forum’s approach to loss of integrity of all recent CJ’s and almost all politicians and public servants? (the perception is that from the president to the janitors, and from company bosses to security guards all are corrupt).

    If Forum members were concerned with the last three questions they would have come up with a different statement on how to modify the Divineguma Bill (DB). Eurocentric (black-white?) politicians and officers ruined Sri Lanka since 1948 or 1960 or 1978. DB-type grand state projects did not work in the past with the state officer in the driver’s seat. Even state colonization schemes were not that successful where the officer decided things ignoring the farmer. R. Premadasa’s Gam Udava, ended up as ghosts of broken clock towers standing on haphazardly cleared abandoned remote land areas. He increased GSN units from 4,000 to 14,000 but GSN services went from bad to worse.

    Creating a 27,000 or 40,000 Divineguma officers is not going to solve poverty. The purpose should be not the creation of officer-set with pension rights, but the empowerment of the villager. The Samurdhi program was not created to help a set of officers. Politicians become prisoners to striking Samurdhi officers because they are not genuine in their motives.
    Poverty is not just a money matter, poverty in morals, discipline and respect for others rights are all interconnected. At present a village (GSN unit?) has at least 5 full-time government officers. Divineguma will add one more bribe-prone officer to this list. There must be a paradigm change in Ministerial political thinking. Ministers have proposals on these matters, but they ignore these proposals for selfish reasons.

    DB must be modified to empower people at GSN unit level. A body of 10 representatives selected on non-partisan basis at GSN-level must be empowered to decide local matters. Officers at all levels must be made responsible to this local body to implement local decisions. This is what the Gami Diriya program is so successfully doing now. Why did DB ignore this model? Politicians do not like to give up their grip over villagers.

    Another important change is to demarcate boundaries of admin units based on ecology. Thus GSN units need to be ecological units. If hydrology is the basis Sri Lanka will have GSN units that can ultimately connected with the large seven river basins in Sri Lanka. Thus Sri Lanka will have language-blind political units. If any member of the Forum wishes to know more about this kind of thinking, s/he can get it from the author archive of the Lankaweb Website under my name or e-mail cwije7@gmail.com.

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    Colombians that created friday forum has no common sense and also pandering strange ideology based on selected false ideology.

    Our constitution is a mess and to move forward with proper poverty alleviation , each region or district need to be pro active to put their case on their requirements since major imbalances re. resources vs poverty exists within so many districts.

    This group shows downright incompetence re. poverty level and wealth distribution in SL and lack maturity re. good public policy.

    If these people are so called educated, what do we call “idiots” ?

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    All these eminent peoples recommendations will be like casting pearls before swine.In fact their qualifications itself will be an encumbrance when dealing with those having a chip in their shoulder,yearning to become like one of them,like our ‘Dr’ mervyn Silva,but knowing fully well that those heights are really unattainable,like climbing the Alps.

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