The Supreme Court, after two days of deliberation, concluded hearing three petitions that challenged the Divineguma Bill and would send itsdetermination on the constitutionality of the Bill to the Speaker during the coming week. There had been around ten intervenient petitions in support of the Bill. When Chief Justice Shirani Bandaranayake made an inquiry from [...]

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Divineguma Bill: SC determination on petitions goes to Speaker

By Wasantha Ramanayake
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The Supreme Court, after two days of deliberation, concluded hearing three petitions that challenged the Divineguma Bill and would send itsdetermination on the constitutionality of the Bill to the Speaker during the coming week.
There had been around ten intervenient petitions in support of the Bill.

When Chief Justice Shirani Bandaranayake made an inquiry from Solicitor General Y. Wijetilleke PC., the Court was told the draft Bill was not sent to the provincial councils for their perusal.The petitions were taken up before a Bench comprising Chief Justice Dr.Shirani A.Bandaranayake, Justices Priyasath Dep and Mrs. Eva Wanasundera.

Petitioners, Samurdhi Development Officers’ Union General Secretary Chamara Madduma Kaluge, Centre for Policy Alternatives(Guarantee)Ltd., and P.B.D.J.W. Nanayakkara of Pita Kotte challenged the Bill saying certain clauses of the Bill are inconsistent with the Constitution.

The petitioners sought the Court’s declaration that it needed to be passed by the two-thirds special majority of Parliament and approved by the people at a referendum before it could become law.They also sought a determination that the President ought to have sent the Bill to all provincial councils before it was placed on the Order Paper of Parliament.

The petitioners stated that the Bill was placed on the Order Paper of Parliament on August 10, seeking to establish a Department of Divineguma Development by amalgamating the Samurdhi Authority, Southern Development Authority and the Udarata Development Authority.

It also proposed to establish Divineguma community based banking societies.Counsel M.A. Sumanthiran for the Centre for Policy Alternatives argued that the Bill has the effect of amending and/or repealing items in the Provincial Council List of the Constitution.

He also contended that the objects, powers and functions of the Divineguma Development Department are in respect of matters set out in the Provincial Council List and is required to be referred to every Provincial Council for their opinions.
Counsel J.C. Weliamuna told Court that the Bill provides for the setting up of the Divineguma National Council with the subject Minister conferred with unqualified powers to nominate 5 out of 11 members to the Council, which he argued is in violation of the constitutional provisions.

He pointed out that the Secretary to the Ministry would also be appointed to the council, thus placing the Council under the direct control of the minister enabling him to resort to illegal activities, contrary to the provisions of the Constitution.
He argued that that the Bill also would allow the Minister to utilize the Divineguma Development Fund arbitrarily for activities outside the scope of the Act.

Counsel told court that while the Bill requires all the employees of the new Authority sign a declaration of secrecy, they are entitled to seek information from other State institutions. The Bill has no provision on the rights of the officers and servants of the Samurdhi Development Authority, Southern Development Authority and the Udarata Development Authority regarding payments of gratuity to them, argued counsel.

The overall effect of the Bill is to create a legal scheme whereby the Minister together with a few others decide on national policy, without referring to the Cabinet. Therefore, the Bill is contrary to the Constitution, counsel further argued.
The Bill in effect has a chilling effect on the protection of public finance and also permits unauthorized abuse of such finance and hence in its totality it is inconsistent with the Constitution, he contended.

Counsel Senany Dayaratne submitted that the members of the Community based organizations (CBOs) which are sought to be set up in terms of Clause 9 of the Bill cannot be vested with statutory powers since statutory powers can only be vested in persons who hold public office or are appointed.

“As the members of the proposed CBOs are all volunteers, they cannot be deemed to hold public office and consequently, they cannot be vested with statutory powers, counsel argued.

Counsel Manohara de Silva PC., appearing for the first respondent, Community Development Minister Basil Rajapaksa, said that the ‘Divineguma Bill’, when passed by Parliament, would ensure the unitary status of Sri Lanka, as stated in Article(2) of the Constitution of Sri Lanka.

He said Government’s control was needed to preserve the sovereignty of the people. The provinces should share resources through the formulation of the National Policy implemented by the Central Government. The Bill sought to alleviate poverty by improving the living standards of the masses and did not refer to rural development specifically, but only referred to grass roots development and therefore did not distinguish between rural and urban development.

He argued as the items on the Provincial Council list were not referred to in the Bill, it was not necessary to send the Bill to the Provincial Councils for approval.

Appearing for a group of intervenient respondent Samurdhi employees who supported the Bill, President’s Counsel Faiz Mustapha, argued that the Divineguma Department has enough financial supervision since it is subject to the supervision of the Auditor General. The Bill, he said, would create people driven voluntary agencies, ’which is a refreshing departure from the existing laws.’

The Minister in charge of the department would be controlled by Parliament, and the property of the authority would be vested in the department, he argued.

President’s Counsel Ikram Mohamed appearing for intervenient respondents in support of the Bill said the secret oath is nothing new as it had been incorporated in a number of Bills including the one on the Banking Act.

Appearing for a beneficiary in support of the Bill Counsel Ali Sabry submitted that the Bill only sought to amalgamate three existing laws and the Bill would be only a continuation of the same. He argued there is nothing new in the Bill that should be referred to the provincial councils for their approval.

He also submitted that customers of the Divineguma Banks would be the poorest of the poor. Therefore, the strict supervision of the Central Bank would not be necessary because it does not involve any guarantees as securities for the loans they obtain.
J.C. Weliamuna, M.A. Sumanthiran and Senany Dayaratne appeared for the Petitioners.

Faiz Mustapha PC, appeared with Sanjeewa Jayewardena, Mrs. Faizer Markar and Rajiva Amerasuriya for the intervenient respondents from a trade union of Samurdhi employees.Solicitor General Y.Wijetillake PC., appeared with Additional Solicitor General Mrs. Bimba Tilakaratne PC., and Additional Solicitor General Suhada Gamlath PC for the Attorney General.
Manohara de Silva PC., appeared for the Minister of Economic Development.

Jayatissa de Costa PC.,Ikram Mohamed PC., Kushan D’Alwis, Ali Sabry and Chandana Liyanapatabendi appeared for the Intervenient Respondents in support of the Bill.




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