1 December, 2020

Blog

What’s Wrong With The Divineguma Bill?

By Laksiri Fernando

Dr 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.

Distorted Objectives

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.

Other Points

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.

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Latest comments

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    Since 2005 November when the Rajapaksa family came into power, things in Sri Lanka have gone from bad to worse to horrendous…it’s so sad to see most of the people scream blue murder when the cricket team loses one more WC final but act like deaf, dumb and blind zombies when thuggery, murder, rape, corruption and the hijacking of democracy takes place in broad daylight. How did our people become like this? Is it just a fear psychosis that they acquired after the 30 year war or is it just a “The Rajapaksas’ can do anything to the country because there are no longer any bombs going off” attitude that has taken hold of these people or is it just plain “Sinhalaya modaya kavun kanna sooraya” foolishness of the majority?

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      Quite right!
      The Rajapakse regime is using the rhetoric on “poverty alleviation” to destroy local governance and democracy in Lanka.
      Poverty alleviation programs from Jana Saviya (funded by World Bank) to Samurdhi have been politicized exercises for the ruling regime to build support bases at the village levels and a means to give hand outs to supporters. This is bad for democracy and REAL poverty alleviation in Lanka.
      The DN bill takes the politicization of poverty alleviation programs one step further than Samurdhi. It centralizes poverty funds in the hands of Basil the uneducated LA petrol pump attendant so that he can use poverty funds as a UPFA slush fund to buy votes and win local and national elections while the family dictatorship concentrates ALL POWERS in their hands and effectively destroys local and provincial governance and institutional structures by starving them and creating the Divi Neguma structure. All those who work in the field of poverty alleviation must stop this bill.

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        Gota and Basil are in a succession competition after MR goes and each one wants to get as much control of power and national funds – hence Gota the white van goon took over Urban Development Authority under Defense and now the uneducated Basil is taking over funds for RURAL development.
        Lets see how the Rajapakse siblings fight to the finish after MR the dynasty will murder each other in the succession struggle!

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      MR PDB
      OH NOOO not like that:

      AS COLLOQUIAL SAYING,COMING COLOUR IS VERY GOOD.

      YOU SEE,we are going to be the miracle of asia, sorry not asia, but miracle of the world.
      WE ARE GOING TO BE THE PARADISE OF THE WORLD.
      as government says we have the biggest untapped oil and gas in our territory of sea.
      and this year we are self sufficient IN food [forget about the refugees with out food, they were supposed to die at the war /shelling. but sinners did not die].
      we do not have internal displaced people in miracle of asia. those reports are bias to tamil diaspora.
      dont listen to foreign conspiracies done by west / N G Os.

      government is going to import foreign labor and maids to help our masses from U S A and Middle east.
      those americans and Arab sheiks are queuing to come to work in this miracle of asia

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    Sri Lanka is firmly on the way to become a totalitarian state. It is uncanny the resemblance with the European experience of Nazism and Fascism. You have an intolerant nationalistic ideology, thugs violence at the service of a political party. But the most dangerous example is precisely the Divineguma Bill. The other phenomena can be considered transitory, but the Divineguma aspires to become part of the State. The label of lifting from poverty is propaganda branding to appeal the poorest social level, while its real aim is to empower a political movement with state institution. The secrecy requested is a clear threat for the transparency of a healthy democracy.
    The question now is simple: can you really oppose within the system a political movement that is by far out of control of institutional check and balances of power? It is often reminded that majority of Italians and Germans didn’t radically oppose the extremist movement because they thought they could win them out in accordance with the rule of the system. Would you consider now a terrorist someone who rebelled against Mussolini and Hitler?

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    Divineguma should be opposed tooth & nail, or the executive presidency , alas our SriLankans are selfish shameful cowards, unlike the Syrians who is putting up a brave fight against a dictator just like Rajapakses.

    Never in the history of SriLanka cost of living has risen to this level.

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      In Sri Lanka Cost of Life is Cheap and Cost of Living beyond the reach of the average wage earning masses. While this Bill will be ‘DIVI NAGUMA’ for the Rajapaksas, it will be ‘DIVI NASUMA’ for the masses.

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    No doubt that this is an attempt of ensuring the Rajapakshe,s ruling for ever without any hindrance. It is also to strengthening the regime with public funds as in most of the other cases.This act will provide a very clear space for a political structure in which all appointments for positions and selection of beneficiaries will be appointed or selected by the ruling party hierarchy.The transparency and accountability which is the key element of the good governance will be completely lost in this situation. Unfortunately,the country(People) is abandoned without a real genuine leadership to counter this debacle.

  • 0
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    An excllent article.

    However I disagree with one of his interpretation of 13A.

    Even if one or more of the Provincial Councils disagree with the bill then if the bill is passed by the special majority ie two third majority, then the act is applicable throughout the country- even in those provinces that have not approved.

    This is the true interpretation of 154G 3 OF 13A

    • 0
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      Dear Mr Sri Krishna,

      Yes, I agree by interpreting the last paragraph of 154 G (3), as referring only to the instances where a simple majority is obtained, which I have not quoted or failed to quote.

      Thanks for the correction and apologise to the readers.

      Laksiri Fernando

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    Laksiri You have quite understood the objective behind the D N Act. Rajapaksas family very well know that next elction would not that easy for them to win.In the name of Divinaguma they will build an army of civilian to do all sort of illegal forcible act to treaten people who have realised that brothers company are marching towards polpot system and keep them silence and prevent them them comming forward to protect the democracy. In the next couple of years all the people in Sri lanka will become the slaves of brothers company.

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      One of the Brother is supposed to have a floating aresenal of weapons
      in the Southern seas. RAW will have this ship marked for a drone attack
      in due time as it may be within the Indian Coast Guards radar?
      The Regime has to make all preparations in good time to out-do any
      Gaddafi/Hussain/Mubrak play!!

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    An intelligently analysed phenomenon that most ordinary citizens would probably not have the capacity to comprehend, ponder or evaluate.

    • 0
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      An intelligent analysis in order to meet certain objectives and awaken his camp.

      If he was doing the same thing in the west I know what his would be destiny is.

  • 0
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    The DG Bill has been put forward via the Cabinet with the so-called Senior
    SLFP Ministers being aware of the hidden Agenda – they will not dare oppose any obvious shortcomings therein as they wish to go along with
    their ill-gained Status as long as it is possible. The advantage in a
    Cabinet with more of the younger generation will work against such
    hidden activities I guess? The older Politicians will hang on for the
    perks and not principles.
    A Dr. Vijitha Nanayakkara has all praises for this Bill, written on
    Basils request no doubt? (see DBS of 15-10-12) as much as the Protest
    organised by him in the North, of all places!

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