Basil’s Empire


When the UNP parliamentary group met last Tuesday in Parliament, the main topic of discussion was the Divineguma Bill and Tissa Attanayake informed the UNP MPs about certain unacceptable provisions in the proposed legislation. His criticism centred around the fact that the Southern Development Authority and the Udarata Development Authority will both be abolished if the bill is passed and the money in the Samurdhi Banks will be taken over by the government and that the bill makes no mention about what will happen to the Samurdhi animators once the Samurdhi Authority is abolished.

If one takes these issues one by one, the Divineguma bill does indeed seek to abolish not just the Southern Development Authority and the Udarata Development Authority but the Samurdhi Authority as well and amalgamate all those functions in a Department of Divineguma Development which will function on an island wide basis. The fact is that the Janasaviya programme had to make way for the Samurdhi programme when power changed hands in 1994 and a government should have the discretion to make changes in the way things are to be run. There is basically nothing objectionable in amalgamating all these bodies because all three institutions that are to be scrapped function under the Economic Development Ministry in any case and bodies like the Southern Development Authority were not really playing any useful role anyway.

The Divineguma Bill will thus eliminate some white elephants and streamline poverty alleviation and microfinance activities throughout the country. The other issue raised in the UNP parliamentary group meeting is that the money in the Samurdhi banks will be taken over by the government. This however is not true. It could be that the UNP was misled by clause 43 (b) in the Divineguma bill which said that all property movable and immovable of the abolished Samurdhi, Southern Development and Udarata Development Authorities will be deemed to be the property of the government. (Through clause 43 (c) the government also takes over the liabilities of the abolished authorities.)  They may have assumed that whatever money was in the Samurdhi bnaks was included in this blanket takeover of assets and liabilities of the abolished Authorities.

This however is not the correct position. According to clause 43(g) of the Divineguma Bill, the Samurdhi Banking Societies and Samurdhi Banking Federations will seamlessly turn into Divineguma Banks and banking societies. The money in the Samurdhi banks will be taken over by the Divineguma banks and will continue to belong to the depositors. It could be that the UNP was genuinely misled or this could just as well be a case of an opportunistic opposition raising the cry that "the government is after the people’s money!" which is calculated to evoke an unthinking,  knee- jerk response from the public.

The third issue raised by the UNP was the uncertain future of the Samurdhi animators. This criticism however has some substance to it.  There are thousands of Samurdhi animators but there is no equivalent post of Divineguma animator specifically provided for in the Divineguma bill. However according to clause 43(e) of the Divineguma bill, it is said that the permanent officers of the Samurdhi Authority can opt to join the Divineguma department. But there is nothing said to the effect that they will be retained in the same positions that they hold at present. A further cause for concern especially among Samurdhi animators is that clause 43(e) (ii) talks about a voluntary retirement package for employees of the abolished authorities including the Samurdhi Authority. In Sri Lanka whenever a government servant hears the term ‘voluntary retirement package’ his first instinct is to climb the nearest tree or water tank in protest  and the opposition is going to take full advantage of this primeval instinct.

Of course there’s another side to this as well. Given the nature of the Divineguma project with its community based organisations, and the need to organise members of these organisations at grassroots level, the promotion of livelihood activities, implementing vocational skills programmes, organising sramadanas, providing facilities for production and marketing, the probability is that that they will need a large number of village level animators to coordinate all these activities. This is obvious to anybody who looks at the scope of the activities of this proposed Divineguma Department. But the problem is that this has not been spelled out in the Divineguma Bill and the government may have to politically convince the Samurdhi animators that their services will be retained in a different form.

The opposition will in the meantime, do their damnest to spread consternation among Samurdhi animators and indeed nobody can blame the UNP for wanting to make use of a rare opportunity like this. So the government is going to face some turbulence ahead until the Divineguma Department can show through its working that present employees can be retained in similar roles.  This is one issue that the UNP will plumb for all they are worth. The Samurdhi animators have long been seen as an integral part of the government’s political machinery. One of the stories that went around in UNP circles after the defeat at the presidential elections of 2005 was that a statement made by Sajith Premadasa about Samurdhi animators had angered them and made them go all out against the  UNP.  Some individuals in the UNP probably still think that it was the wrath of the Samurdhi animators that blasted their chances in 2005 and since they ascribe such power to the humble village Samurdhi animator, when the UNP sees an opportunity to galvanise the same Samurdhi animators against the UPFA, they are going to make the maximum use of that opportunity.

 The NGO sector

 At the same time, some foreign funded NGOs like the Centre for Policy Alternatives have expressed a different set of criticisms about the Divineguma Bill saying that firstly, the bill allows the Minister of Economic Development to decide on subjects that come within the purview of the provincial councils and that it provides for the ‘take over’ of subjects provided in the provincial councils list in the 13th Amendment. Thus the Divineguma bill is seen as a blow struck by the Rajapaksa government against the concept of the devolution of power.  Secondly, they hold that Divineguma bill seeks to take away oversight mechanisms in the areas of financial control and accountability. The third issue that the NGOs have is that the bill provides for the officers of the Divineguma Department to be established under the bill to take a ‘pledge of secrecy’ with regard to the work of the department and that this requirement is highly suspicious and cannot be with good intentions in mind.

These issues too need to be looked into. The first question is whether the Divineguma Bill encroaches on the powers of the provincial councils. Even the most cursory reading of the 13th Amendment of the constitution will show that it does not provide for any of the activities aimed at by the Divineguma Bill. So there is no conceivable way that the Divineguma bill will be taking away powers that rightfully belong to the provincial councils. The preamble of the Divineguma Bill states very clearly that its objective is to mobilise people into a "national development process at community level". Clauses 5 & 6 of the Bill  states that the objectives of the Divineguma Department will be, carrying out development activities with a view to alleviating poverty, promoting family and group related livelihood activities, improving income generation, increasing employment opportunities,  ensuring food security for individuals and families, providing microfinance to promote livelihood development, to promote savings habits,  to develop physical and social infrastructure required for the development of livelihood of the people and to establish facilities for the storage, marketing and processing of the products of Divineguma beneficiaries etcetera.

This whole concept of poverty alleviation projects on a countrywide basis came into vogue only after the 13th Amendment was passed in 1987. The provincial councils list of powers in the 13th Amendment does mention "rural development" as a function that belongs to the provincial councils. But what they mean by "rural development" is not defined at all in the 13th Amendment. The Divineguma Bill aims at a national development objective which cannot be dealt with by a provincial council. The Divineguma project does not aim at rural development. It makes no differentiation between rural and urban areas and aims at a national development process at community level. What is aimed at through Divineguma is obviously an elaborate ‘Premadasa style’, countrywide poverty alleviation scheme. 

Until President Premadasa came into power in 1989, the term ‘poverty alleviation’ was rarely heard of in this country.  It first started off as handouts with elements like microfinance and self employment coming in later. After the People’s Alliance government assumed power in 1994, the whole concept was taken to a higher level with the Samurdhi project and the proposed Divineguma Department is only a fine tuning of the Samurdhi project. If what is aimed at in the Divineguma Bill is deemed to be in violation of the 13th Amendment, then so is the Samurdhi Authority of Sri Lanka Act, No. 30 of 1995. According to the Samurdhi Act, its objectives are, the improvement of the economic and social conditions of youth, women and disadvantaged groups of society by broadening their opportunities for income enhancement and employment and linking them with development projects at village, district, divisional and provincial levels.

Like the Divineguma project the Samurdhi Authority also had island-wide applicability and if the Divineguma bill is unconstitutional, how is it that the Samurdhi Authority which had much the same objectives could function for so many years? The difference perhaps is that the Samurdhi Act was brought by a pro- NGO government and at that time nobody thought of challenging it in courts on the grounds that it seeks to usurp powers that rightfully belong to provincial councils. The Samurdhi Authority Act in fact compels the Secretary to the Ministry of Rural Development to sit on the Samurdhi Authority board as an ex-officio member. Thus even though rural development is a subject that belonged to the provincial councils, the Chandrika Kumaratunga government even had a line ministry dealing with rural development and nobody ever raised a peep about it at that time. But today we have a government that is not NGO-friendly and so the NGOs are out in force opposing what has long been an established reality in this country. What is sauce for Chandrika is not sauce for Mahinda.

Another NGO criticism of the Divineguma bill is that it seeks to take away ‘oversight mechanisms’ in the areas of financial control and accountability. This may be a reference to clause 34 of the bill which states that the Banking Act No: 30 of 1988 and the Finance Business Act No: 42 of 2011 will not apply in respect of banks and banking societies formed under the Divineguma Bill. At present, the Samurdhi banks too do not come under the banking or finance companies acts and the Divineguma bill only seeks to continue the present practice. However unlike the Samurdhi Act, the Divineguma bill has five full pages reserved for the regulation of the Divineguma bank. The Divineguma banks moreover will have a board of management which will include among others two representatives of the ministry of finance and the central bank.  A representative of the ministry of finance will be sitting on the main council of the Divineguma Department as well.

There was a representative of the ministry of finance on the Samurdhi Authority board but there was nobody from the central bank.  Besides, the Samurdhi Authority never had a separate board of management for their banks with ex-officio representatives of the ministry of finance and the central bank which the Divineguma bill does have.  Thus, the Divineguma Bill will not be reducing supervision of the Samurdhi/Divineguma  banks but actually increasing it. Hence the NGO criticism that the bill seeks to take away oversight mechanisms with regard to financial control and accountability is unwarranted.  

 The secrecy issue

 Then we come to the question of the pledge of secrecy that employees of the Divineguma Department have to take according to clause 38. This once again is a carry forward of section 18 of the Samurdhi Authority Act which has the identical secrecy pledge provision. The curious thing is that many Chandrika Kumaratunga-era Acts setting up authorities and departments seem to have these pledge of secrecy provisions – even the National Child Protection Authority Act No: 50 of 1998 has the same stock provision. But J.R.Jayewardene era acts of similar nature such as the Sri Lanka Ports Authority Act (No. 51 of 1979) or the Airports Authority Act (No. 46 of 1979) don’t have this secrecy pledge clause. The pledge of secrecy is actually superfluous because in terms of Chapter XLVII of the Establishments Code which deals with the topic of ‘General Conduct and Discipline’, public servants are in any case prohibited from disclosing official information to the public.

The Establishments Code has elaborate provisions to prevent the leakage of information to the media. For example, Article 6.3 of Chapter XLVII even stipulates that if the media publishes a report stating that an officer of a department gave certain information to them without mentioning any names, the head of department has a right to ask his employees whether any of them had supplied that information and his subordinates can be asked to name the person they suspect to have supplied the information and he should provide a confidential report to the secretary of his ministry! With such provisions in the Establishments Code these Chandrika-era pledges of secrecy with regard to those deemed to be public servants, were in any case superfluous.

But why is this ‘secrecy pledge’ that has always been a part of Chandrika Kumaratunga’s legislation suddenly unacceptable when the Rajapaksa’s copy and paste the same clause into their legislation? The opinion of the present columnist is that this secrecy pledge is superfluous because it is already adequately provided for in the Establishments Code. However, since it basically follows the same trajectory as the Establishments Code, there is nothing morally reprehensible or objectionable in including it in this legislation which is why nobody ever said anything all these years about the identical provisions appearing in the Samurdhi Authority Act and the Child Protection Authority Act among others.

Thus, these criticisms that are being levelled against the Divineguma bill even by the NGO sector are politically motivated. The real concern of those critical of this bill is none of the issues mentioned above but the power that the implementation of this bill will confer on Basil Rajapaksa. The Divineguma bill envisages an all pervading system which will penetrate into every nook and corner of the country. The Divineguma beneficiaries at the Grama Niladhari level will be organised into Divineguma community based organisations. Five or more of these community  based organisations will be formed into regional organisations and these regional organisations into district committees and above the district committees will be the Divineguma National Federation. At the apex of this system will be Basil Rajapaksa who will be able to funnel government patronage to the remotest villages in the country through this mechanism. And there will be village level Divineguma activists to do the implementation and they may double as political activists as well.

The political gains from being able to operate a streamlined system like this can be enormous and that is what is really at issue here.  Those who don’t want to see the Rajapaksa’s consolidating their power have every right to oppose the Divineguma bill citing even non-issues as concerns. But the government has an equal right to go ahead with this because what has been said against the Divineguma bill is mostly rubbish and because we used to admire people like Premadasa who conceived of similar schemes to funnel patronage down to the grassroots. At that time, everybody thought Premadasa was a people’s man for doling out patronage and even the Colombo crowd admired him for his common touch.

 Rishad’s men harassed by police

 The Law and Society Trust in Colombo sent a three member fact finding team to Mannar on the 8th and 9th August comprising of Dr. Devanesan Nesiah,  Ms.Chulani Kodikara, and Ms. Nafiya Khalik to look into the Uppukulam fisermen’s issue which resulted in that famous fracas outside the Mannar magistrates court. They have published a seven page report on their findings regarding the Uppukulam issue which basically echoes everything that what was said about that issue in this column five weeks ago. We wrote about this issue in July. The team headed by Dr Nesiah went there in August and the post-disturbance situation they had observed was the opposite of what is believed in Colombo. The feeling in Colombo is that the government was backing Minister Rishad Baithiudeen and taking a position against the magistrate Judeson and the Mannar Bishop Rayappu Joseph. What the LST team had observed was exactly the opposite. According to them, it’s the other way about – the Muslim party is being harassed by the police on complaints made by the Tamil side. Nesiah et al say in their report:

"We observed a significant police presence in the Uppukulam village. Women complained that they are harassed day and night since the police is looking for their men who are in hiding. Many families are suffering as the men are the breadwinners. The village looks deserted and the women we met complained about their men being away and their livelihoods being severely impacted. Many women said that without the husband providing for their day-to-day expenses they are finding it difficult to even eat a meal before beginning the Ramadan fast. They also said that on the day before our visit there was a police round up during which a hand grenade was found by the side of a pond that is being used by the people on a day to day basis. Women suspected that the police had planted this explosive to come to the village and do a cordon and search operation."  

Nesiah et al; have arrived at the following conclusions as well:

*  The Muslims feel that they are being unfairly treated in Mannar. They have no faith in either the civil administration or this particular magistrate in Mannar (Judeson).

*    There is a perception that they have been marginalized through civil mechanisms. An earlier case was cited in our meeting with the leaders of the Mosque relating to a piece of land in Moor Street (near the Muslim burial ground). The land in question was allocated for 27 poor Muslim families prior to 1990 and part of this land was acquired by St. Xavier’s Boys College for a swimming pool. When the Muslims protested against this, the police filed a civil disobedience case and Magistrate Judeson ordered the civil administration to find an alternative land for the Muslim returnees.

*   The problems of those (Muslims) who have been accused and arrested with regards to the damage to the (Konthaipiddy) fishing huts and the incidents at the protest have to be addressed urgently.  A bail application has been filed in Vavuniya court, but so far the 13 arrested have not been granted bail. It is worrisome that these suspects have been jailed for over a month without bail. 

*    Further the police has since been arresting suspects arbitrarily and sending them to remand custody through a special hearing. This has been done while Mannar lawyers are on protests and the court’s normal function has been suspended. These arbitrary arrests and denial of bail to the suspects has further impacted the surrender of the other 27 suspects, for whom warrants have been issued. 

If what Dr Nesiah’s team is saying is true (it probably is because the contents of his report basically follows the same trajectory of our own article on this matter five weeks ago) the victim in this case is Minister Rishad Baithiudeen.  His men are still being hunted by the police in Mannar and have not been able to celebrate Ramazan in peace, while  Rishad himself is being hounded by the media and the opposition and the NGOs for having allegedly threatened the Mannar magistrate.

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