Divinaguma Bill: Can It Be Made Applicable To The Northern Province?

Filed under: Colombo Telegraph,MORE OPINION |
 

By Lal Wijenayaka -

Lal Wijenayaka

Lal Wijenayaka

The Bill bearing the title ‘Divineguma’ which was published in the Government Gazette on 27th July 2012 and placed in the Order Paper of Parliament was challenged in the Supreme Court in terms of Article 121(1) of the Constitution.  The Bill intends to repeal the Samurdhi Authority of Sri Lanka Act No. 30 of 1995, Southern Development Authority Act, No. 18 of 1996 and the Udarata Development Authority Act, No. 26 of 2005, in order to form one Department known as the Divineguma Development Department.  The Bill deals with several subjects that are set out in the Provincial Council List of the 9th Schedule of the Constitution.  Therefore the Bill was challenged on the grounds that it did not comply with Article, 154 G(3) of the Constitution which sets out that ‘no Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its’ views thereon, within such period as may be specified in the reference.’

The Supreme Court held that it is mandatory to follow the procedure laid down in Article 154 G(3) as the subjects dealt with in the Bill were dealing with several subjects contained in the Provincial Council List.  In fact it is seen that the Bill over-rides at least 16 subjects in the PC list.  This would in fact mean that the powers of the PC’s in respect of these subjects will be vested in the ‘Department of Divineguma.’  Constitutional Provisions in Article 154 G(3) lays down special procedures where an infringement of the powers of the PC’s are envisaged in a Bill placed before Parliament.

The Government has withdrawn the Bill from the Order Paper and is in the process of getting the PC’s to agree to the passing of this Bill.  In fact what is being asked is for the PC’s to agree to amputate its limbs.  But, the Government is faced with one problem regarding the Northern PC which is not functioning.  Therefore there is no way of getting the Northern PC to agree to the passing of the Bill.  Which will mean that the ‘Divineguma Development Act’ will not be in operation in the Northern Province.  The Government seems to be of the view that since the Governor is the authority appointed by the President to administer the Northern PC, the agreement of the Governor to passing of the Bill amounts to the Northern Provincial Councils’ agreement to the passing of the Bill by Parliament.  It is the view of the writer that this contention is legally untenable and goes against the letter and spirit of the Constitutional Provisions.

The requirement under Article 154 G(3) of the Constitution cannot be equated to the provisions regarding the enactment of statutes.  When the PC agrees to a Bill under Article 154 G(3) of the Constitution, what it in pact does is agreeing to the curtailment of some of its powers by vesting an authority outside the PC to use the relevant powers regarding subjects devolved on the PC.  This is a more serious decision than enacting a statute by the council under the Provisions of Constitution.

There is no specific provision in the Constitution which substitutes the agreement of the Governor to that of the council at a time that the Governor is the administrating authority.

Article 154 L of the Constitution empowers the President to assume to himself all or any of the functions of the powers exercisable by the governor or any other authority other than the powers of the Provincial Council after making a proclamation as envisaged in the Article or the President may declare that the powers of the PC shall to exercisable by or under the authority of Parliament under Article 154 M of the constitution.

Under Article 154 M(1), in an instance when the President under 154 L declares the powers of a PC shall be exercisable by Parliament or under the authority of Parliament, the Parliament may confer the powers of the PC to the President including the powers to make statutes and to authorize the President to delegate such powers to any authority.

It is seen that the only instance where the statute making powers of the PC in conferred on the President or an authority to which such power is delegated is under the above Article.

But what is conferred under Article 154 M(1) is the statute making power of the PC.  When a Bill of Parliament is referred to the PC it is not a statute of the PC and cannot be considered to be statute of the PC.  Therefore, it is not possible under the provisions of the constitution to substitute the agreement of an authority delegated with the powers under Article 154 M to that of the agreement of the PC  as it is not a statute of the PC.

It will also amount to the executive indirectly encroaching on an important power of the PC when the PC is not functioning.

This will in fact amount to the president and the cabinet presenting a Bill to Parliament and the President himself acting on behalf of PC to agree to Bill under Article 154 G(3).

This goes against the spirit of the 13th Amendment, which was brought about as a means of devolution of some of the executive and legislative powers on PC’s as a political settlement to the National Question.

Print Friendly

6 Responses to Divinaguma Bill: Can It Be Made Applicable To The Northern Province?

  1. 0
    0
    The approval of the Bill in Cabinet and now by some Provincial Councils raise some interesting questions. There are a number of Ministers who talk big about devolution. They include Tissa Vitarana (of the LSSP od which Mr Lal Wijenayake is a member, though a dissident) DEW Gunasekera of the CP, Vasudeva Nanayakkara (DLF. Gajadheera (is he still CP?), Rajitha, Douglas Devananda, etc. What did these great pro-devolition Ministers do in Cabinet? Did they utter a word? It appears they looked after their own “Divineguma” rather than opposing the Bill. These people and their parties have not uttered a word against the Bill. It is not without reason that the Rajapakse regime plants stories about impending Cabinet reshuffles every few months. These stories scare the daylights out of these Ministers. And what have the PC members in these parties done? They have all gone and voted for the Bill in their PCs. They also are worried about their own “Divineguma” rather than devolution. Shame on you, so-called Left Ministers! Please Tissa Vitarana, do not talk about devolution and APRC hereafter. Please DEW and Vasu,continue to look after your own ‘Divineguma” but don’t trouble us with your big kathas about devolution.

    Prabath
    October 3, 2012 at 10:48 am
    Reply

    • 0
      0
      Absolutely Prabath, absolutely. All these Socialist/Communist minded are a bunch of Educated Crooks who promise Utopia to the masses for their own gain.

      gamini
      October 4, 2012 at 1:42 am
      Reply

  2. 0
    0
    Mr. Wijenayake, I appreciate your views. But what is your Party (LSSP) and other Left parties doing? Parabath’s comment that Left and so-called pro-devolution Ministers are more worried about their own “divineguma” is very apt. Now almost all functioning PCs have said OK to the Bill. Your party has several memebers in the PCs. So has the CP and Vasudeva’s DLF. They did not have the courage to even abstain. Has Ven. Baddegama Samitha, a champion of devolution, also looked after his own “divineguma”? I know you hold different views to that of the LSSP leaders. I think Tissa Vitarana should not talk about devolution any more. He talks big about the APRC report but is silent on the Divineguma Bill. What did Vitarana, DEW and Vasu (oh! what a disappointment) do in the Cabinet? We cannot expect anything more from Ministers like Rajitha and Devananda but we expected better from the Left Ministers. Now I think I have been a fool to expect even from them. I have been a Left sympathiser from my student days and still am. Hope Mr Wijenayake and the other many dissidents in the Left parties will be able to convince the membership of these parties that they are going the wrong way. If not, these parties will be history soon. Vasu is already history. But I am truly sorry about the LSSP and CP.

    Weera
    October 4, 2012 at 1:47 am
    Reply

  3. 0
    0
    The entire PC system as presently constructed is a cruel joke. It is meaningless, irrelevant and a national burden. It was designed to be an illusion to delude the Tamils who demanded devolution, and is now revealing its worthlessness. The central government yet does everything, either directly or as the ‘ Puppeteer’ and the PCs are an expensive and one more ineffective corrupt layer in our structure of governance. However, they have become a substitue for the byelections of old, in gauging the popularity of the government at the center. Dr.Rajasingham Narendran

    Dr.Rajasingham Narendran
    October 4, 2012 at 3:00 am
    Reply

    • 0
      0
      Rajasingham, you level the PCs as, ‘a substitue for the byelections of old, in gauging the popularity of the government at the center’. I humbly differ. The old by-elections and the present PC elections are held to fool the masses, to show the Centre’s growing popularity, although the reality is otherwise, known to most. These Humbugs have always lived by Lies and Deception.

      gamini
      October 5, 2012 at 2:37 am
      Reply

  4. 0
    0
    This is what happens when solutions for problems are proposed by a third party (India) with out studding the issue with due care. We were compelled to accept it and, now we see the problems in implementation. Best solutions are found when you identify the root cause and take action to rectify. It is always best when all parties get together and reached consensus and own the solutions.

    Najab
    October 16, 2012 at 2:41 am
    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>