By Wasantha Ramanayake
When the Divineguma Bill was taken up by the Supreme Court on Thursday to determine its constitutionality, counsel for a petitioner said that for the very reason the Supreme Court had decided that the Divineguma Bill should not have been placed on the Order Paper of Parliament on August 10, it should not have been placed on the Order Paper for the second time on October 9.
M.A. Sumanthiran appearing for Jaffna Parliamentarian M. Senathirajah told Court that the Court on its first determination of the Bill conveyed to the Speaker on September 18 held that the Bill should not be placed on the Order Paper of Parliament until every Provincial Council was consulted.
He argued that Clause 154 (g) of the Constitution required the Bill to be passed by all nine Provincial Councils. Since the Bill has not been passed by the Northern Provincial Council which is non-functional, the Governor of the Northern Province who is an appointee of the President could not say it has been so passed. He further argued the Governors of Provincial Councils do not have legislative powers to do so. He questioned whether Parliament could make laws when it was dissolved.
He said in 2006 the Supreme Court decided the non-constitution of the Eastern Provincial Council was in violation of the people’s rights. He argued that in terms of that judgment it would follow likewise the rights of the people of the North too had been so deprived by the denial because of the failure to set up the Northern Provincial Council (NPC).
Solicitor General Y. Wijethilake contended that the Governor could express views since it is not purely legislative in nature. Therefore, he contended that the Bill has been so passed by every Provincial Council including the NPC.
He said that in a hypothetical situation where the Northern Provincial Council is constituted and even if that council did not approve the Bill, still Parliament could go ahead to pass the Bill.
The Court observed it was discriminatory of the other councils when the view of the Governor of Northern Provincial Council was taken, whereas in others, the decisions of the members were obtained.
According to Article 154 (c) of the Constitution, the devolved executive powers of the provincial councils could not be exercised by the minister of the central government but the executive functions of the powers devolved to the provincial councils should be exercised by the relevant ministers of the provincial councils, argued Mr. Sumanthiran.
He argued the term ‘the minister’ in the Bill should be replaced by the “nine ministers of the provincial councils.”
“I am for the maximum devolution of power,” he said adding he was against unchecked and unlimited powers being conferred even on the provincial ministers concerned.
The Divineguma Bill would create an extraordinary department with powers never seen before where there is more than one head in the department. There would be zonal heads of equal standing as the head of the department, Counsel J.C. Weliamuna appearing for petitioner Chamara Madduma Kaluge of Piliyandala said.
The Divineguma community based organisations which would be set up under the Bill are voluntary organizations but they are statutorily given powers to hold property, counsel pointed out, whereas other government departments could not hold property with such property being vested in the government, he said.
These Divineguma banking societies created under the Bill could supervise the lower level of the banks. Usually the Monetary Board of the Central Banks would supervise the banks. But it could not play its usual supervisory role here, he told court.
Counsel Weliamuna argued that the Minister is the creator and the regulator of the entire Divineguma banking system and thereby its accountability has been completely taken away.
He told court that one would get the impression the banking system is a micro-finance arrangement. What purpose would the Micro-Finance Division of the Central Bank serve if it could not supervise any micro-finance arrangements of the Divineguma banks, counsel queried.
“This is not the money of the officers, but of the poorest of the poor. The banks are only the custodians,” he pointed out.
Although they are poor these people frequent the banks more often and a lot of money would be collected by the banks. He said the Samurdhi Authority alone has some Rs.4,900 million. This is very profitable business in addition to owning property.
“We know how important the supervision of the Central Bank is,” he said adding that the lack of proper supervision would lead to the collapse of financial institutions.
“It is a gamble with private money. Very interestingly the minister could decide how the money should be disbursed,” he said.
He could even ask the banks to make donations but his decisions could not be challenged, he submitted.
Without any policy document, without any guidelines and bypassing Parliament, money belonging to the poor people of this country is being used, counsel alleged.
Counsel said the Secretary to the Ministry is the public officer heading the Ministry. In terms of Article 52 of the Constitution overall control of the ministry comes under the ministry secretary. He is also the chief accounting officer of the ministry. But in the Divingeguma Department, he is required to play a subordinate function, which contradicts the Constitution. Certain clauses of the Bill would also be in conflict with the Establishment Code, counsel said.
Clauses 38 and 39 are the secrecy clauses and the public officer of the department, under oath, could not give information regarding the Department. As a result much corruption would not come to light. Secrecy in all matters could not be justified. These are not privacy issues. Articles 10 and 14 (1) (a) of the Constitution would be violated, he pointed out.
“There is no necessity for blanket secrecy,” he told court.
Clause 39 compelling the public or any institution to disclose their information to the Divineguma Department would also violate the rights of the public, he said.
The Divineguma National Council could also make rules and have financial regulations as it pleased, he charged.
The National Council which would be created by the Bill and formulate national policy, would be presided over by the Minister.
There is no other exclusive and extraordinary department where the national council of the department formulates policies for the country which functions are clearly with the Cabinet of Ministers. This would amount to taking away the executive powers of the Cabinet granted under Article 4 of the Constitution, counsel argued.
At this point Chief Justice Shirani Bandaranayake observed that in the recent Z-score case the Court held that formulation of national policies is the task of the Executive – the Cabinet.
It was also pointed out that the head of the Divineguma Department is not appointed by the Cabinet but by the Minister concerned.
Counsel argued that there is no Parliamentary control of the Divineguma funds. Any fund of the republic should be a part of the Consolidated Fund. The Consolidated Fund belonged to the republic and the republic belonged to the people, he said.
Parliament could not alienate its legislative powers given by the people because the sovereignty of the people included fundamental rights, public finance and the franchise, he said.
“This is a privileged department, a monster created among the other departments,” counsel stated.
The petitioner Chamara Madduma Kaluge who challenged the Bill is an employee of the Sri Lanka Samurdhi Authority and the General Secretary of the Samurdhi Development Officers’ Union. He had stated that the Bill titled “Divineguma,” was first placed on the Order Paper of Parliament on August 10, to establish the Department of Divineguma by amalgamating the Samurdhi Authority, the Southern Development Authority and the Udarata Development Authority.
He stated that several petitioners challenged the Bill on several grounds that it was not consistent with the Constitution and therefore it requires to be passed by not less than two-thirds of the whole number of members of Parliament and approved by the people at a referendum.
“The Bill has been placed on the Order Paper without compliance with provisions of Article 154 (g) (3) of the Constitution and that no determination would be made at this stage on the grounds challenged, stated the decision of the Supreme Court on September 18.
“This pronouncement has clearly held that the initial placing of the Bill on the Order Paper was invalid and null and void,” argued the petitioner. He stated that the President thereafter presented the Bill to all the Provincial Councils except the Northern Provincial Council and it was approved by them.
Since the Bill has now been tabled in Parliament again, the petitioner is now challenging the Bill as certain provisions of it are not consistent with Constitution. He sought the court to determine that certain provisions of the Bill were not consistent with the Constitution; therefore, it needs to be passed by not less than two-thirds of the whole number of members of Parliament and approved by the people at a referendum.
Among other things, Section 7 of the draft Divineguma Bill sought to set up a Divineguma National Council to assist the Department, he stated. This section gives the Minister concerned “unqualified power to nominate five out of eleven members.
Also the Secretary to the Ministry to which the Divineguma Department belongs, is also an ex-officio member of the Divineguma National Council, thereby giving the Minister direct control permitting him to resort to illegal and partisan political functions which were violative of Article 12 of the Constitution.
The Divineguma Revolving Fund to be established by the Bill is contrary to the Constitution while also provisions of the Bill allow the minister to use the funds arbitrarily for purposes outside the scope of the Act.
The secrecy clause that the employees of the Department should sign pledging they would not divulge any information relating to the Department, except when required by a court of law, is in violation of the Constitution, argued the petitioner.
He also pointed out that Clause 39 of the Bill makes it compulsory for all persons and entities to disclose any information, even outside the scope of the proposed Act, would have ill effects on the privacy and legitimate interests of such individuals and entities and is in violation of the Constitution.
The Bill has no provision for the payment of a gratuity to the employees who had worked in the three Authorities for a number of years.
These employees have contributed 8 percent of their monthly salaries to the EPF and the lack of provision for the payment of a gratuity is in violation of the Constitution, he argued.
Counsel Viran Corea for the Centre for Policy Alternatives also made submissions that the Bill is inconsistent with the Constitution.
The Bench comprised Chief Justice Ms. Shirani Bandaranayake, Justice Nimal Gamini Amaratunga and Justice K. Sripavan.
The Court will hear counsel for the petitioners, respondents and intervenient petitioners on Monday (22) and on Tuesday(23) and will send its determination to the Speaker on October 31 courtesy: The Sunday Times