| by Laksiri Fernando
(
October 18, 2012, Sydney, Sri Lanka Guardian) 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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