DIVINAGUMA DEVELOPMENT BILL Can it be made applicable to the Northern Province?

By Lal Wijenayaka-Attorney-at-law
The Bill bearing the title ‘Divineguma’ which was published in the Government Gazette on 27th July 2012 and placed in the Order Paper of Parliament was challenged in the Supreme Court in terms of Article 121(1) of the Constitution. The Bill intends to repeal the Samurdhi Authority of Sri Lanka Act No. 30 of 1995, Southern Development Authority Act, No. 18 of 1996 and the Udarata Development Authority Act, No. 26 of 2005, in order to form one Department known as the Divineguma Development Department. The Bill deals with several subjects that are set out in the Provincial Council List of the 9th Schedule of the Constitution. Therefore the Bill was challenged on the grounds that it did not comply with Article, 154 G(3) of the Constitution which sets out that ‘no Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its’ views thereon, within such period as may be specified in the reference.’

The Supreme Court held that it is mandatory to follow the procedure laid down in Article 154 G(3) as the subjects dealt with in the Bill were dealing with several subjects contained in the Provincial Council List. In fact it is seen that the Bill over-rides at least 16 subjects in the PC list. This would in fact mean that the powers of the PC’s in respect of these subjects will be vested with the ‘Department of Divineguma.’ Constitutional Provisions in Article 154 G(3) lays down special procedures where an infringement of the powers of the PCs are envisaged in a Bill placed before Parliament.

The Government has withdrawn the Bill from the Order Paper and is in the process of getting the PCs to agree to the passing of this Bill. In fact what is being asked is for the PCs to agree to amputate its limbs. But, the Government is faced with one problem regarding the Northern PC which is not functioning. Therefore there is no way of getting the Northern PC to agree to the passing of the Bill. Which will mean that the ‘Divineguma Development Act’ will not be in operation in the Northern Province.
 

The Government seems to be of the view that since the Governor is the authority appointed by the President to administer the Northern PC, the agreement of the Governor to passing of the Bill amounts to the Northern Provincial Councils’ agreement to the passing of the Bill by Parliament. It is the view of the writer that this contention is legally untenable and goes against the letter and spirit of the Constitutional Provisions.

The requirement under Article 154 G(3) of the Constitution cannot be equated to the provisions regarding the enactment of statutes. When the PC agrees to a Bill under Article 154 G(3) of the Constitution, what in fact it does is agreeing to the curtailment of some of its powers by vesting an authority outside the PC to use the relevant powers regarding subjects devolved on the PC. This is a more serious decision than enacting a statute by the council under the Provisions of Constitution.
There is no specific provision in the Constitution which substitutes the agreement of the Governor to that of the council at a time that the Governor is the administrating authority.

Article 154 L of the Constitution empowers the President to assume to himself all or any of the functions of the powers exercisable by the governor or any other authority other than the powers of the Provincial Council after making a proclamation as envisaged in the Article or the President may declare that the powers of the PC shall to exercisable by or under the authority of Parliament under Article 154 M of the constitution.

Under Article 154 M(1), in an instance when the President under 154 L declares the powers of a PC shall be exercisable by Parliament or under the authority of Parliament, the Parliament may confer the powers of the PC to the President including the powers to make statutes and to authorize the President to delegate such powers to any authority.

It is seen that the only instance where the statute making powers of the PC is conferred on the President or an authority to which such power is delegated is under the above Article.

But what is conferred under Article 154 M(1) is the statute making power of the PC. When a Bill of Parliament is referred to the PC it is not a statute of the PC and cannot be considered to be statute of the PC. Therefore, it is not possible under the provisions of the constitution to substitute the agreement of an authority delegated with the powers under Article 154 M to that of the agreement of the PC as it is not a statute of the PC.

It will also amount to the executive indirectly encroaching on an important power of the PC when the PC is not functioning.

This will in fact amount to the president and the cabinet presenting a Bill to Parliament and the President himself acting on behalf of PC to agree to Bill under Article 154 G(3).

This goes against the spirit of the 13th Amendment, which was brought about as a means of devolving some of the executive and legislative powers on PCs as a political settlement to a National Question.