Divi Neguma: Will the Judiciary make its stand?

As hostilities between the Government and Judiciary rage on, the controversial Divi Neguma Bill may prove the tipping point

The battle between the Judiciary and the Government looks set to intensify with the Tamil National Alliance yesterday firing another salvo at the controversial Divi Neguma Bill proposed by the Government by seeking to prohibit the Northern Province Governor G.A. Chandrasiri from approving the bill in the absence of a provincial council in the North. The case filed by TNA General Secretary and Jaffna District MP Mavai Senathirajah seeks to prohibit the Governor from deciding on the Divi Neguma Bill and to make ineffective any decisions made by him in that regard.

The TNA MP is making the case that the Governor is not the competent authority to give an opinion about legislation proposed by the Central Government and cannot exercise the powers of a democratically elected body in the absence of a provincial council in the north, especially with regard to powers vested with that council.  

The Court of Appeal hearing has been put off for today (4) to give the Governor’s lawyers time to respond.

The TNA filed its case shortly before the Government Information Department announced last evening that with North Central, Sabaragamuwa and Southern Provincial Councils voting in favour of the Divi Neguma Bill, all nine councils had extended their support for the proposed legislation. The Government Information Department is counting the Northern Province Governor’s nod as sanction of the bill.

How the Judiciary moves on the issue therefore, based on the TNA’s case, will make or break the Government’s hectic bid to have the controversial legislation enacted as soon as possible.

Standing in the way

While the battle between the Executive and the Judiciary commenced some time ago, the most proximal reason for the regime’s displeasure at the conduct of the judges stems from the Supreme Court’s decision to disallow the passage of the Divi Neguma Bill without the sanction of every provincial council. The Divi Neguma Bill seeks to amalgamate the Samurdhi Authority of Sri Lanka, the Udarata Development Authority and the Southern Authority, to form a single body called the Department of Divineguma Development. The Divi Neguma Department would function under the Ministry of Economic Development, headed by Basil Rajapaksa.

Critics of the bill claim it is the regime’s latest attempt to usurp the powers of the provincial council as a means of further diluting the 13th Amendment to the Constitution. With the international community and New Delhi specifically pushing hard for provincial council elections to be held in the north, where the TNA is likely to sweep the polls and set up a provincial government, the Administration is eager to get the Divi Neguma legislation passed before it runs out of excuses for postponing the poll.

In other moves to subvert the powers of the provincial and local councils, the Government attempted to enact a Jana Sabha Bill to bring provincial and local councils under unelected Jana Sabhas that would have also come under the purview of Minister Basil Rajapaksa. It also attempted to set up a corporation under the Defence Ministry to usurp the functions of the Colombo Municipal Council and even tried to amend the Town and Country Planning Act which would have allowed it to expropriate non-state land simply by declaring it a sacred area. Every single time, the Judiciary has stood in the way. Needless to say, none of this is sitting well with the regime.

A confident Government

But despite the Supreme Court ruling on Divi Neguma and now the case filed against the Northern Province Governor deciding on behalf of the provincial council in that province, the Government believes it is on solid legal ground. According to senior Government sources, in the absence of a council, the governor of a province can sanction a bill, and there is legal precedent for the move. The question of whether obtaining approval from the governor is entirely ethical however, remains unanswered.

Critics of the Government’s attempts to circumvent the consequences of the Supreme Court ruling, claim that abiding by the decision is important not only because the Sri Lankan constitution has no provision for judicial review of legislation and therefore must be checked for constitutionality before being enacted, but also because the Divi Neguma Bill has a secrecy clause that gags bureaucrats and prevents them from revealing information about the institutions that will be under the Divi Neguma Department. Department officials will be required to sign non-disclosure agreements, (except when stipulated by a court of law) that carry a punishment of imprisonment and fine.

The secrecy clause, usually reserved for legislation connected with national security and intelligence, is a crushing blow to the peoples’ right to know and speaks to the heart of the desperate need for Right to Information laws in Sri Lanka. With public funds amounting to Rs. 80 billion under its direct purview, the secrecy clause is a gateway to massive state sector corruption that will go largely unchecked unless challenged in court. And the question arises as to how legal challenges could be brought against the activities of the Divi Neguma Department when whistle-blowing is taboo and information about the department itself will not be in the public domain.

All this notwithstanding, the Government is obtaining provincial council sanction for the bill with considerable speed. Already, the councils in the Western, Central, Sabaragamuwa, Uva, North Western, Southern, North Central and Eastern Provinces have granted their approval for the Divi Neguma Bill.  With the Northern Governor’s nod, it will argue that it has fulfilled the Supreme Court pre-requisite to have the bill passed.

Impeachment and a resolution

Even as President Rajapaksa last week assured newspaper editors that there was no tension between his Government and the Judiciary, on 28 September Secretary Judicial Services Commission Manjula Tilekaratne told the media at the JSC’s monthly press conference that the lives of the highest members of the judicial system was under threat. “I absolutely reject the malicious and baseless allegations levelled against me and the Judicial Services Commission these days. We see the only reason for this malicious mudslinging campaign was the media statement issued by me on the directions of the Judicial Services Commission,” Tillekaratne said.

Meanwhile, speculation abounds that President Mahinda Rajapaksa is irked at External Affairs Minister G.L. Peiris because it appears it was the Professor that was largely instrumental in having Chief Justice Shirani Bandaranayake appointed to the Supreme Court bench in 1996. Soon after the retirement of Sarath N. Silva, a controversial Chief Justice appointment made by Chandrika Kumaratunga, Asoka Silva was appointed as Chief Justice but served a brief stint before Justice Bandaranayake took over the reins as head of Sri Lanka’s Judiciary.

On Wednesday, 26 September, President Mahinda Rajapaksa met with his senior ministers to discuss the stand-off between the Judiciary and his administration, and at the recommendation of Environment Minister Anura Priyadarshana Yapa, set up a ministerial committee headed by Leader of the House, Nimal Siripala De Silva. The committee is tasked with two key missions - firstly to prepare a parliamentary resolution to remove the Secretary of the Judicial Services Commission (JSC) Manjula Tilekaratne and secondly, and more crucially, to determine whether there is sufficient grounds to bring an impeachment motion against the Chief Justice. While it has become customary for the regime to unceremoniously clip the wings of dissidents and detractors whether by legal or other means, constituent parties within the UPFA coalition are reportedly wary of taking such a drastic step.

During the United National Front tenure between 2001-2004, under the premiership of Ranil Wickremesinghe, moves were underfoot to impeach Chief Justice Sarath N. Silva. At the time, political observers recall, Sri Lanka Muslim Congress (SLMC) Leader Rauff Hakeem, and UNP Cabinet members, K.N. Choksy and Tilak Marapana stood in the way of the UNF tabling the motion. Ultimately even Wickremesinghe felt that impeaching a Chief Justice would have repercussions internationally on the Government’s reputation. If the Rajapaksa administration opts to bring charges of impeachment against Chief Justice Bandarayanake, it remains to be seen what Hakeem’s position on the issue will be, this time around.

The bad bargain

Earlier in the week, political observers wondered what position SLMC Leader Hakeem would take on the Divi Neguma issue when the matter went before the Eastern PC. The Justice Minister is currently in New York attending the UN General Assembly (UNGA) sessions alongside Minister G.L. Peiris. President Rajapaksa has assigned Hakeem the task of meeting with officials in the Big Apple on the sidelines of UNGA for briefings about his Government’s progress on reconciliation and post-conflict development issues.

On the sidelines of the General Assembly on Tuesday (2) Hakeem met with US Assistant Secretary for Central and South Asian Affairs Robert O. Blake. Hakeem is believed to have listed his grievances out to Assistant Secretary Blake, saying his attempt to create a national governing council for the east failed because the proposal was rejected by both the TNA and the Rajapaksa Government. The SLMC Leader is still smarting from the Eastern PC fiasco, during which he was effectively checkmated by the President. Having agreed to support the UPFA in the East, although he got none of his own demands met in exchange, the Justice Minister finds himself in an awkward position both with the Muslim voters and his own party High Command. The party is displeased at Hakeem’s unconditional support to the Government in the east, with many party stalwarts convinced that the SLMC had betrayed the voter by contesting independent of the Government and subsequently handing the votes over to the UPFA with nothing to show for it. Although there has been some speculation that in their discussions with Hakeem the Government agreed to split the Chief Minister’s term two ways, giving a UPFA nominee and a SLMC nominee two and a half years each, the fact remains that there was no final deal reached on this or any other issue the SLMC wanted addressed. In fact, Hakeem is reported to have admitted in certain senior diplomatic circles that he was effectively coerced by the regime on the basis that since its leader was a cabinet minister in the UPFA, the SLMC had no option but to support the coalition in the East or risk losing everything.

Hakeem is however finding little sympathy among his political colleagues. UNP Leader Ranil Wickremesinghe who was already peeved with the SLMC Leader for reneging on its election MoU with the UNP and crossing over to the Government, is said to be irate about Hakeem’s latest decision to support the UPFA in the East after having contested independently to garner greater support with the voters. The TNA also feels wrong-done by Hakeem, whose party was offered the Chief Ministerial slot in the Eastern Provincial Council if it had supported the opposition, even though the TNA had more seats at the council. In the end, the SLMC and Hakeem, got nothing in return for giving the Government control over another provincial Government and its decision resulted in a poor bargain for the Muslim voters as a whole.

Having once relished their positions as kingmakers in the Sri Lankan parliament, parties like the SLMC and the CWC are beginning to the feel the pinch from extending unconditional support to a Government that has shown unwillingness to compromise and even belligerence in making concessions to minority communities residing in the island. In many ways, these parties founded on an ethnic basis, have strengthened the regime’s hand only to find that the first to feel the repression of an all powerful executive are the minority ethnic groups. Hakeem not only voted with the Government of President Rajapaksa, to repeal the 17th Amendment which was a constitutional safeguard unanimously agreed to by every party in the 225 member legislature and sought to de-politicize state services and facilitate free and fair elections; he also voted to enact the 18th Amendment to the constitution. The 18th Amendment is one of the most undemocratic, authoritarian pieces of legislation ever enacted in the country, removes presidential term limits and gives the President final authority on appointments to the civil service, Judiciary and Police. In short, it gives the Executive President of Sri Lanka absolute and unbridled power and reduces and subverts the relevancy of parliament. The amendment was presented as an Urgent Bill and lawmakers only viewed the draft on the morning of its enactment. Hakeem and the SLMC, which assisted the UPFA to obtain the two-thirds majority it needed to pass the 18th Amendment, are getting their first taste of untrammelled executive power. No longer desperate for the SLMC’s support, the Government is showing its willingness to part company with the Muslim party in the full knowledge that quitting the coalition would effectively leave Hakeem high and dry. Understanding that when it comes to the SLMC Leader, his personal political gain almost always trumps his desire to do right by the community he represents was the regime’s recipe for success when it came to coercing the SLMC to throw their lot in with the UPFA in the East. Critics of the SLMC Leader claim that his penchant for putting his personal interests first was going to make it difficult for him to contest in the East again, just like his kingmaker deals in the past has cost him a support base in the Central Province.

Limiting nepotism

The regime is demanding things from its coalition partners and MPs lately that displays its supreme confidence about getting its way in all governing battles. Soon after the provincial polls last month, President Rajapaksa demanded the resignation of his Agrarian Services Minister S.M. Chandrasiri in exchange for appointing his brother S.M. Ranjith Chief Minister of the North Central Province. Although his brother had a legitimate stake to the Chief Minister claim, having gained the most number of preferential votes at the 8 September election, Minister Chandrasiri obliged and Ranjith was subsequently sworn in as Chief Minister. Similarly when Technology and Research Minister Pavithra Wanniarachchi went to the President to request that her husband, Kanchana Jayaratne who is a Councillor in the Sabaragamuwa PC be granted a portfolio, an angry President Rajapaksa demanded her resignation from the Cabinet in exchange.

The President’s argument, ironically, is that family members cannot hold positions within the Government simultaneously. The argument has come in for strong criticism from sections of the SLFP, that are already seething about the concentration of power in the hands of a privileged few in the administration. SLFP seniors have allegedly quipped in private that nepotism is banned within the party except in the case of the first family.  

The ‘Berty’ factor

Although the Government is riding high on most fronts, it is still dealing with lingering issues from the last provincial council poll. While the regime has managed to silence Rauff Hakeem, it is having less success with its own partyman in Anuradhapura, the infamous Berty Premalal Dissanayake. Dissanayake demanded the Chief Ministership in the North Central Provincial Council, but was denied. There were attempts made to placate ‘Berty’ by offering his son a cabinet position in the impending reshuffle, but when the deal fell through, Dissanayake vowed to support the opposition along with seven or more councillors to avenge the slight. Overtures were made by several of Dissanayake’s emissaries to the UNP, to join forces with the Berty faction and control the council. However, Dissanayake’s political record being dubious, the UNP opted to forego the offer but will likely garner the support of the Berty faction on a case by case basis.

And so it transpired that in a Machiavellian move – worthy of the Rajapaksa Administration which has used the tactic to great success in the past – that the opposition nominee was elected as Chairman of the North Central Provincial Council on Tuesday by a majority of 11 councillors. Earlier this week, UNP Leader for the Polonnaruwa District, Kings Nelson met with the party’s National Organizer Daya Gamage. Nelson briefed Gamage about the latest developments at the council, including the cold war between Dissanayake and the Government, and sought his advice about the UNP extending its support to a Dissanayake loyalist for the position of Chairman of the council. Gamage advised Nelson to nominate T.M.R. Siripala and use the ensuing leverage with Dissanayake to make the opposition’s voice heard within the Council. The UPFA meanwhile mooted Amarakeerthi Athukorale for Chairman but thanks to the dissident Berty faction, he received a mere 10 votes in the 33-member body. The composition of the council is as follows: UPFA - 21 seats, UNP - 11 seats, JVP - 1 seat. Accordingly at least 09 UPFA members voted for the UNP nominee, possibly more if any opposition members were absent in the council on Tuesday.

This makes things slightly precarious for the Government in the North Central Provincial Council. As a potential safeguard, it is learnt that the Government is engaged in a fact-finding mission into Berty Premalal Dissanayake’s activities in the Anuradhapura area, which it hopes it will be able to use against the ruling party politico if he proves difficult. Be that as it may, ‘Berty’ is already creating the sense that the UPFA’s hold on some of its membership will prove tenuous as time goes on.

Indian dilemmas

The President meanwhile returned from a relatively uneventful trip to Sanchi in India’s Madhya Pradesh last week. The Sri Lankan President’s visit came just weeks after a group of Sri Lankan pilgrims was attacked in Tamil Nadu by pro-LTTE support groups in the state. President Rajapaksa was in Madhya Pradesh to lay the foundation stone of a Buddhist Studies University in Sanchi, a sacred site of Buddhists all over the world. Tamil Nadu politicians predictably came out strongly against the Sri Lankan President’s visit and lobbied the Madhya Pradesh officials so hard that the Chief Minister of the state was about to cancel the visit because of security concerns.

However, at this point, the Indian Central Government intervened and instructed the state officials to go ahead to prevent any embarrassment being caused to the Lankan Head of State. Elaborate security arrangements were put in place for Rajapaksa’s visit in view of the protest by pro-LTTE groups that had brought busloads of people to Madhya Pradesh in protest. Despite taking pains to facilitate President Rajapaksa’s visit, diplomatic sources claim that New Delhi is somewhat perturbed about the establishment of a religious university. Espousing secular values, India views as dangerous any attempt to single out religious faiths for special treatment while it is attempting to build a pluralist society.