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The Bill was then withdrawn and referred to the eight Provincial Councils which have been constituted and to the Governor of the Northern Provincial Council.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.