Constitutionality of ‘Divineguma’ Bill challenged before Supreme Court

By S.S. Selvanayagam

The Supreme Court will send its special determination to the Speaker of the Parliament on 6 September on the constitutionality of the Bill titled ‘Divineguma,’ which has been challenged by three petitions.

The Petitions were taken up yesterday (29) before the Bench comprising Chief Justice Shirani A. Bandaranayake, Justices Priyasath Dep and S.E. Wanasundera.

The General Secretary of the Samurdhi Development Officers’ Union Chamara Madduma Kaluge, Centre for Policy Alternatives (Guarantee) Ltd and a citizen Nanayakkara have filed the Petitions.

The said Bill was placed on the Order Paper of the Parliament on August 10 which inter alia seeks to establish a Department to be called Department of Divineguma Development by amalgamating the Samurdhi Authority, Southern Development Authority and the Udarata Development Authority and to establish Divineguma community based banking societies.

The Petitioners stated the Bill have the effect of amending and/or repealing items in the Provincial Council List and therefore they contended it requires to be passed by not less than two-thirds of the whole number of the members of Parliament.

They also stated the objects, powers and functions of the Divineguma Development Department are in respect of matters set out in the Provincial Council List and maintained that therefore it is required to be referred to every Provincial Council for expression of its views thereon.

They stated the Bill provides for the composition of the Divineguma National Council and the Minister (to whom the subject of Divineguma is assigned) is conferred with unqualified power to nominate 5 out of 11 members of the said Council and the Secretary to the Ministry of the Minister or his representative is also a member of the said Council.

They complained thus the said Council is under direct control of the Minister, permitting the Minister to resort to inter alia illegal and partisan functions, contrary to the Constitution.

They maintained the Bill permits the Minister to utilise the Divineguma Development Fund arbitrarily and for purposes outside the scope of the Act, which is contrary to the Constitution.

They stated the Bill provides that the Director General, Additional Directors General, every Director, Deputy Director, Assistant Director and officers and servants of the said Department shall before entering upon his duties sign a declaration pledging himself to observe strict secrecy except when required to do so by a Court of Law.

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 for gratuity.

The effect of the Bill is to create a legal scheme whereby the Minister together with few entities to decide on national policy, without adverting to the Cabinet, therefore the Bill is contrary to the Constitution, they complained.

The Bill confers untrammelled and unfettered powers/discretion on the Minister and several entities, therefore inconsistent with the Constitution.

The Bill in effect has a chilling effect on the protection of public finance and also permits unauthorised abuse of such finance and hence it in its totality is inconsistent with the Constitution.

J.C. Weliamuna, M.A. Sumanthiran and Senany Dayaratne respectively appeared for the Petitioners.

Solicitor General U.J. Wijetilake with Assistant Solicitor General Bimba Tilakaratne appeared for the Attorney General.

Faisz Musthapah PC with Sanjeeva Jayawardena as well as Manohara de Silva PC, Jayatissa de Costa PC, Ikram Mohamed PC Kushan D’Alwis Ali Sabry and Chandana Liyanapatabendi appeared for the Intervenient Respondents who opposed the Petitions.