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Supreme Court Ruling on Divineguma Bill Stipulates Two-Thirds Majority and Referendum

By D.B.S.Jeyaraj

The Supreme Court determination on the Constitutionality of the proposed bill on establishing a Divineguma Department for Development has proved to be adverse in certain aspects to the Government of President Mahinda Rajapaksa ,it is learnt.

The Supreme Court ruling by Chief Justice Shirani Bandaranayake,Justice Nihal Gamini Amaratunga and Justice K.Sripavan that was delivered to Prliament on October 31st 2012 is to be presented to the House by Speaker Chamal Rajapaksa on Tuesday November 6th.

Several petitions had been submitted to the Supreme Court challenging the Constutionality of the Divineguma bill which if passed would confer “unlimited”powers to the minister in question namely Economic Development Minister Basil Rajapaksa who is a sibling of the President.

It is learnt that the Supreme Court has ruled that certain provisions of the proposed bill require a two thirds majority to be passed in Parliament.

The Supreme Court has also ruled that the envisaged bill impinges on certain entrenched clauses of the Constitution thereby requiring an Island wide referendum to be passed and made law.

The three judge bench of the Supreme Court has also said that the Governor of a Province does not reflect the opinion of the Provincial Council but has not specifically debarred the bill from being placed on the order paper of Parliament without the consent of a duly constituted Provincial Council.

An earlier ruling by the Supreme Court stated that the Divineguma bill had to be sent to the Provincial Councils for consent as some powers of the Divineguma Dept related to certain specific powers conferred upon Provincial Councils.

Thereafter the Govt sent the envisaged bill to all the Provincial councils and obtained their assent easily as all of them are controlled by the Governing United Peoples Freedom Alliance.

The issue in this case was about the Northern Province Council which is yet to be set up and elections conducted. The Rajapaksa Govt sought to circumvent this hurdle by obtaining the consent of orthern Province Governor General (retd) Chandrasiri.

The Tamil National Alliance went to courts challenging this move by filing two petitions in the Supreme Court While the ruling on the specific Challenge on this issue is yet to be delivered the SC ruling handed over to the Speaker does not deal with this matter directly in detail it is learnt.

In the absence of the Supreme Court specifically ruling that the Divineguma bill must not be placed on the Parliamentary order paper without the consent of the Northern province the Govt resolved to place the bill on the order paper for November 6th.

The Govt sought to deal with the Northern provincial council issue on the basis that consent had not been given by the Northern PC. In such situations where a PC has not given assent there is Ambiguous provision to push it through by a two –thirds majority in Parliament. At the same time there is an element of confusion as the 13th Constitutional Amendment provides for a simple majority in Parliament too.

This “confusion” is attributed to the hasty improvisation of the UNP government led by President JR Jayewardena in 1987 to get the 13th amendment approved by the Supreme Court. Certain provisions were hastily amended and deleted to obtain Justice Parinda Ranasinghe’s consent. This enabled the UNP govt to get it approved by five of the nine Judge bench in 1987.

In any event the Rajapaksa Govt resolved to treat the issue as one where the yet to be Constituted Northern PC had not given its assent instead of trying to rely on the Provincial Governors ratification as planned earlier.

When the Govt made its intentions known at the Party leaders meeting on Nov 5th the opposition parties objected strongly saying the Divineguma bill should not be presented in Parliament before the Supreme Court ruling was made known to officially by the Speaker to Parliament.

This resulted in the Govt backing down from its earlier stance and not placing the bill on the order paper.

It is however very likely that it would do so after the Supreme Court ruling is disclosed to Parliament by the Speaker today (Nov 6)

It is also possible that the Speaker will formally announce that he has received a petition signed by MP”s calling for an Impeachment motion against Chief Justice Shirani Bandaranayake

The Rajapaksa regime intends appointing a seven member Parliamentary select committee to delve into the impeachment motion signed by more than a 100 Govt MP’s.

Political observers have opined that the project of impeaching the Chief Justice was a method used by the Rajapaksa regime to intimidate and exert pressure on the Chyief Justice and by extension the Supreme Court to deliver a favourable ruling on the Divineguma bill.

Despite this injudicious pressure on the judiciary the Supreme Court has refused to be cowed down and delivered a free and fair verdict proving to be adverse to the Govt objectives.

It is also felt that the Chief Justice would not cave in to Govt pressures and quit her post. Against the backdrop of a courageous ,impartial ruling delivered by the Supreme Court it appears that Chief Justice Shirani Bandaranayake would resist the attempts to impeach her through acceptable norms.