By Laksiri Fernando –
It overtly appears innocuous; just to create a Department called Divineguma Development. But it intends to amalgamate three authorities and not departments. The authorities are Samurdhi, Southern Development and Udarata (up-country) Development. This is not the way the government departments are usually created. For example, in 1955, the Department of Elections was created amalgamating the then existing Department of Parliamentary Elections and the Department of Local Body Elections.
While it is not unusual to create a department or amalgamate departments by an act of Parliament, the Divineguma Bill however can be considered unusual or in fact dubious for several reasons. Earlier, Divineguma was one programme under Samurdhi to uplift one million families. Now it intends to devour the ‘mother,’ in addition to two other ‘sisters,’ Southern and Udarata.
When you go through the names of the existing 81 departments of government, those are generally created for permanent functions of governance (i.e. police, elections, agriculture, commerce etc.) and not for transitory or short-term tasks like Mahavelli, Samurdhi or Divineguma in this instance. One exception already is the odd Department of Commissioner General of Samurdhi! This is in addition to the Samurdhi Authority. Only God knows why we have a Department in Barnes Place in addition to the Authority in Sethsiripaya, Battaramulla. A Department is under the tutelage of a Minister, but the Authorities generally are more independent, flexible and efficient.
More seriously, the Divineguma Bill is absolutely encroaching into the sphere of the Provincial Council functions. This is happening under the initiative of one Rajapaksa (Basil), while another Rajapaksa (Gotabhaya) fervently advocating these days the abolition of the Provincial Council system and the 13th Amendment altogether. It is also another Rajapaksa (Chamal) who as the Speaker launched a recent barrage against the Supreme Court, largely angered by its decision to refer the Bill for the approval of the Provincial Councils. He is the only person among Rajapaksa’s who had some valid points for his advantage. All these strange things are happening when the President Rajapaksa is promising India, the international community and the Tamil people that he is ‘seriously pursuing’ reconciliation and a political solution to the ethnic problem, if not the conflict.
This article argues that both the Divineguma Bill and the so far pursued and intended procedure of its adoption, now partly squashed by the Supreme Court, might spell disaster to many of the democratic norms and development efforts of the government itself.
There is no question that the main objective of Divineguma (meaning ‘uplifting lives’), when taken in abstract, can be considered correct. As the Bill says, “in furtherance of the economic development process and in giving effect to the national policy of alleviating poverty and ensuring social equity, it has become necessary to improve the individual, family and group centred livelihood development activities.”
But then the ‘cat jumps out of the bag’ when it declares, “Divineguma intends to mobilize people into a national development [really meaning political] process at community level establishing Divineguma community based organizations thus building up regional, district and national level co-ordinating networks and developing and promoting a micro- finance banking system.” This is primarily a partisan political objective. The worst aspect of the Bill is the involvement of huge amounts of money (estimated 80 billion rupees) through Divineguma banks which would not come under the Central Bank rules and supervision.
Article 34 of the Bill says that “The provisions of the Banking Act, No.30 of 1988 and the Finance Business Act, No.42 of 2011 shall not apply in respect of banks and banking societies established under the provisions of this Act”! This is quite suspicious by all means.
Moreover, “The Minister shall appoint for the purpose of the supervision and regulation of the financial activities of the Divineguma community based banks and Divineguma community based banking societies, a Board of Management…” and then “The Board of Management shall, in the discharge of its duties, be subject to such regulations as may be prescribed by the Minister.” I am merely quoting the Bill, only capitalising the D for divineguma.
We here have a most privileged Minister in the Cabinet, with more powers on money matters given under this Bill who would mobilize a selected group of citizens or voters aiming at the next Presidential and Parliamentary elections in the coming years. The Divineguma Bill is nothing but a political Bill. I cannot understand why the other Ministers, the ‘Senior’ ones included, cannot understand this reality and oppose it.
There is another ‘hidden’ objective of the Bill. That is to terminate and abolish the Udarata Development Authority and the Southern Development Authority. All of the desirable objectives and activities of these two authorities would unceremoniously be ‘cremated.’ There are concerns that even the Samurdhi objectives will largely be abandoned or distorted.
It has been already pointed out about the danger of the Secrecy Cluse in the Divineguma Bill on good governance and transparency, if not corruption. It is important to repeat and quote it fully, which says, “The Director-General, Additional Directors-General, every Director, Deputy Director, Assistant Directors [how many are they?] and officers and servants of the Department, shall before entering upon his duties sign a declaration pledging himself to observe strict secrecy respecting all matters connected with the working of the Department and shall by such declaration pledge himself not to disclose any matters which may come to his knowledge in the discharge of his functions, except – (a) when require to do so by a court of law; or (b) in order to comply with any of the provisions of this Act or any other written law.”
This secrecy also might encompass auditing matters, already thwarted by strong political interferences.
It is true that this clause was there even in the Samurdhi Authority Act which apparently escaped the attention of the critics, and even the Courts in 1995. But the first mistake is not reason for the second mistake, after it has now been detected as a major impediment for democratic and good governance. There is something else which is there in the Samurdhi Act, but conspicuously absent in the Divineguma Bill and that is the scheduling of the Divineguma Department as a scheduled institution within the meaning of the Bribery Act.
The Samurdhi Act very specifically stated that “The Authority shall be deemed to be a scheduled Institution within the meaning of the Bribery Act and the provisions of that Act shall be construed accordingly.” It may be argued that since the Divineguma is a Department, and therefore it comes under the definition of the Government under the Bribery Act. But the structure of the Divineguma operation is far far away from an usual departmental structure, even going beyond the Samurdhi Authority structure, towards quasi political organization and in that sense provision should have been there as a precaution and deterrent for any nefarious activities.
The structure of the so-called Divineguma ‘Department’ is undoubtedly prone to dubious activities. In addition to the Department, there is a Divineguma National Council. There are Administrative Zones peculiar to the Divineguma operations, headed by an officer equivalent to a Head of a Department. Then there are Community based Divineguma Organizations. Also are Divineguma Regional Organizations. There are Divineguma District Committees as well! Then there is a Divineguma National Federation. All these are in addition to the Divineguma community based Banks and also Divineguma community based Banking Societies which also handle banking functions.
There are two funds: (1) Divineguma Development Fund and (2) the Divineguma Revolving Fund. No one would know how the funds would revolve! Undoubtedly, the public administration specialists would be flabbergasted to see the mammoth and byzantine structure proposed for the creation of a government department. There are all possibilities to make various appointments outside the public service rules, cadre positions and the accepted norms and qualifications. This is a matter that the SLAS Union should look into.
As it has been already pointed out before the Supreme Court and elsewhere, the Divineguma Bill has encroached into many of the functions of the Provincial Councils. The structure of the operations completely by passes the Provincial Councils giving emphasis on the District, as if the abolition of the provincial council system is a forgone conclusion.
Otherwise, a genuine poverty alleviation and grassroots economic upliftment program could have been implemented in coordination and cooperation with the Provincial Councils. That could have addressed many noble objectives such as (1) balanced regional development (2) ethnic reconciliation and (3) greater transparency and accountability, of course with agreed strict rules and procedures on financial handling. The credibility of financial management both at the Centre and in the Provinces are extremely suspect at present from the point of view of the public, for abundantly valid reasons. For example, the estimated 80 billion rupees could have been allocated, 8 billion each to a province and retaining a similar amount for the central administration of the program. The implementation of Divineguma is much easier and less expensive through the provincial level, of course going down to the district and then to the divisional and community levels.
What has been proposed instead is a parallel structure not only to the Provincial Councils but also to the District Administration. This would be a peculiar animal, which intends to work through its own District Committees and not with the District Secretariats like the other government departments. This would be a considerable waste funds and an administrative nightmare.
Procedure and Stalemate
The Bill conveniently intended to bypass the provisions of the 13th Amendment and that means the country’s Constitution. It was not referred to the Provincial Councils in the first place. Then the Supreme Court correctly determined that it should be approved by each Provincial Council before placing before Parliament and now it has been taken out from the Order Paper as it entails on matters set out in the Provincial Council List.
The ruling was given under Article 154 G (3) which says, “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 ‘expression of its views’ here means the approval or disapproval of such a Bill after discussion and that is clear from the subsequent sections.
When the Bill was referred to the Provincial Councils under the above provisions, there was no Provincial Council in the Northern Province! That is the correct status. It has rather been ‘forced to disappear’ by the Government, which to me is extremely unconstitutional. There are clear provisions in the Constitution, if all Provincial Councils approve the bill or one or more Councils disapprove such a bill. Those are as follows.
(a) Where every such Council agrees to the passing of the Bill, such Bill is passed by a majority of the Members of Parliament present and voting; or
(b) Where one or more Councils do not agree to the passing of the Bill, such Bill is passed by the special majority required by Article 82.
But neither condition applies to the present situation and the relevant sections are silent on the matter. Under such conditions, interpretation should be sought, in my opinion, referring to the fundamental provisions of the Constitution and the intent and substance of the above sections (154 G (3)) also should be taken into consideration.
The Governor undoubtedly is an important institution in the Provincial Council system. However, he or she is a ‘representative’ of the President and the Centre, but not a substitute to the people’s representatives of the Province or the Provincial Council at all. By now, all other 8 provinces have approved the Divineguma Bill by debating it and voting ‘yes’ and ‘no.’ That is the mechanism which is anticipated by the above Article 154 G (3) which says the ‘expression of views.’ It is a democratic process anticipated not only by the 13th Amendment or the Chapter on Provincial Council system, but by the whole Constitution of the Democratic Socialist Republic of Sri Lanka, unless it is changed through due process.
There are no ‘special circumstances’ that could be considered, such as ‘war or natural disaster,’ for the ‘absence’ of the Provincial Council in the North. Under such circumstances, the correct procedure for the approval of the above analysed ‘obnoxious Bill,’ if the Government is so determined, would be to hold the elections for the Northern Provincial Council and wait for its approval or disapproval. Even if it is disapproved, Divineguma Bill could be passed in Parliament, but then it will not applicable in the Northern Province. Therefore, the Government should consider the consequences.
The most honourable thing for the Government would be to withdraw the Bill and proceed for the promised ethnic reconciliation with the TNA and others in an amicable manner. For Divineguma, the existing Samurdhi Authority is good enough. Why make the political matters in the country more complicated and conflictual? It is hoped that saner counsel will prevail, at least among the non-family leaders of the constituent parties of the UPFA on this crucial issue.