Divi Neguma Verdict’ Saves Presidency from ‘Executive’?

By . N Sathiya Moorthy, The Sunday Leader, Colombo, 18 November 2012

Much has been written about the Supreme Court’s ‘determination’ on the controversial ‘Divi Neguma Bill’, already. The ruling SLFP-PA coalition’s move to impeach Chief Justice Shirani Bandaranaike too is being attributed to the higher judiciary’s independent stand on issues that undermine the Government’s known or perceived position on issues such as this one Bill, aimed at ‘life upliftment’.

As is known, the Bill seeks to take away from the Provincial Councils the administration of all poverty-alleviation programmes and vests them in a new department under the Economic Development Minister at the Centre. To this end, the Bill provides for the proposed department taking over the existing Samurdhi Authority, the Southern Development Authority and the Upcountry Development Authority, all in charge of specific poverty-alleviation programmes.

In this context, the Bill seeks to set up a Divi Neguma community-based organisation, with power to appointment officials down the line, Divi Neguma community-based banks and banking societies. The political Opposition claimed that these institutions were created either to help out cadres of the ruling coalition or to attract more cadres and voters towards them, as has been the practice in many Third World nations in general, and South Asian countries in particular.

On a series of petitions from various political parties and other interest groups, a Supreme Court Bench under Chief Justice Bandaranaike found flaws in the concept and construction of the Divi Neguma scheme and institutions under it. Straight away, the court has ‘determined’ that the Divi Neguma scheme cannot appropriate to itself the Cabinet’s authority to make appointments. Nor can it be entrusted with monies that should otherwise be handled only through the Consolidated Fund, created under the Constitution at birth. Both are well-established aspects of democratic governance, providing for transparency and accountability.

Among the petitions before the Supreme Court was one from the ITAK, the main constituent of the Tamil National Alliance (TNA). On this one, the court said that the Governor of the Tamil-speaking Northern Province could not replace the Provincial Council for clearing the Bill, as provided for under the Provincial Council Act, 1987, and give assent to the Bill, in its stead.This can be done only through a referendum, the court determined. Extended, the court’s ‘determination’ would require the fast-tracking of elections of the Northern Provincial Council, now promised by November 2013.

The Constitution has two specific provisions conferring the right of choosing the election time on the Executive. It is immaterial if it is the Executive Presidency as now or Prime Minister under the erstwhile Westminster scheme. One permits the President to dissolve Parliament any time after the conclusion of one year from the previous polls. Another confers on the President, the right to seek early re-election at the conclusion of four years of his or her first term. There is a third provision that the late President J. R. Jayewardene, as the author and beneficiary under the Second Republican Constitution, employed to go in for a referendum to extend the term of Parliament by a year, instead of facing fresh polls (for which his party was obviously not prepared, electorate-wise).

The Eighteenth Amendment to the Constitution, after President Rajapaksa returned to power in 2010 deploying the previous clause, in principle, has withdrawn the two-term upper-limit for the incumbent. It has also nullified the effect of the Seventeenth Amendment, which provided for the appointment of Independent Commissions in various areas of public administration, for selecting high-level officials, like the Judges of the Supreme Court and High Courts, the Election Commissioner and the Inspector-General of Police. The idea was to ensure that the administration remained apolitical, transparent and focussed.

Executive President and the Executive

In principle, the demands of political administration and electoral success come with a baggage. The ruler of the day has to have men of his choice and confidence in important positions of decision-making and execution. Or, so goes the perception and need. In the post-Independence era, Sri Lanka had inherited an elitist politico-administration, like most other post-colonial dispensations across the world. Ideological and identical structures, thought processes and a broad-spectrum personal background and upbringing defined the direction in which the Government and governance would travel.

The colonial British masterly class has had its ‘Ox-bridge’ brigade. Closer home in Sri Lanka, the reflection could be found in what came to be known as the ‘Colombo Seven’ elite. In a way, the Tamils formed the second rung of this structure in physical and practical terms – felt and thought as such. They had to pay a very heavy price for it. The first rung has since allowed itself to decay and dissipate, unwilling and/or incapable of adapting to changing political circumstances without changing the value systems that they had inherited. If anything, the reverse has been the truth.

The inevitable result of trickle-down democracy in electoral terms has meant that the structures originally in place had to give place to flexible models based on ‘identity politics’ of one kind or the other. While the political administration changed faster, the embedded system had problems accepting and acknowledging change. To this owes the ruler’s need to amass greater powers in his hands through constitutional means, or by having people of his choice and confidence in critical positions of decision-making.Sri Lanka’s date with Executive Presidency should be seen in this light.

President Rajapaksa’s compulsion to have men of his confidence in key positions meant that his brothers ended up becoming decision-makers or power-centres. During the years of ‘Eelam War-IV’, Gota R as Defence Secretary and later, Basil R as Senior Presidential Advisor in charge of post-war Rehabilitation made value-addition to their jobs in their ways. Chamal Rajapaksa, who became Parliament Speaker, finds his time now, when the Government is engaged in a duel of sorts with the Judiciary. Independent of the fact that the Speaker happens to be a brother of the Executive President in Sri Lanka now, all rulers in democracies elsewhere have had only their confidants as Speakers of the respective Legislatures.

It is easy to argue that President Rajapaksa’s circle of confidants have to be confined to his immediate family. Across the administration, including the Foreign Office, lateral entry has become the order than exception. This again owes to the already argued case for the Head of Government to have men of his choice within the system. It is a reflection on a long history of highly politicised public administration, and not just on the personalised politics of one leader or the other.Patriotic fervour of the post-Independence bureaucracy, over time, has given place to a politicised administration under the multiple-party system and the coalition scheme. It has since been reduced to a ‘personality cult’. It helps/cuts both ways. In the process, court directions and observations on the continued suitability of officials of the Government’s choice have been ignored.

The revived discourse on the Executive Presidency should address such questions, as well. Personalised bureaucracy has its roots not in this scheme, but in the preceding Westminster model. The solution thus lies in de-politicisation of the officialdom. It can begin with the restoration of cadre-centric appointments and promotions. If the Executive Presidency and the electoral system can be reviewed, so should be the bureaucratic scheme. The rot lies there but no one is talking about it.

Restoring the authority

The Divi Neguma Bill does not stop with interfering with the rights and responsibilities of the Provincial Councils, and provincial administration. It interferes even more with the powers and rights, responsibilities and accountability of the Executive President and the Executive Presidency. It has sought to create a super-Executive within the existing Executive branch of the Government.

Before the Divi Neguma Bill, the Seventeeth Amendment in fact divested the Executive of its powers and conferred it on ‘independent institutions’. If the arrangement did not work, there were three main reasons. One, the scheme made the Executive, particularly the directly-elected Executive President, a toothless authority. Two, in doing so, 17-A still retained the responsibilities and accountability in the Executive – a repeat this, of the ‘toothless tiger’ syndrome.

Three, the implementation also exposed the scheme for what it was worth. On the one hand 17-A still provided for the political parties in Parliament to identify the members of the independent institutions, making it all a political affair, after all.  On the other, it exposed the inability of the nation to throw up the names of a handful of people who could be considered apolitical and impartial, efficient and experienced. If President Rajapaksa threw it out, it was only because his predecessors did not have the political will to do so. Their intention showed, nonetheless.

What the President did for his office in the case of 17-A, the Supreme Court has done for it through the ‘determination’ on Divi Neguma Bill. It has restored the authority that now rests in the Executive President and the Executive that he heads, which was sought to be alienated onto a new authority under the proposed law. That way, the Supreme Court’s ‘determination’ may have done greater service to the Government scheme and the office of the Executive Presidency  — and not as some people in the ruling coalition tend to believe.

The court finding, blamed on the Chief Justice, does not touch upon the larger issue of the need for and relevance of Executive Presidency in contemporary Sri Lanka. It has however ensured that the dilution of the inherent authority of the Executive President does not create such other parallel authorities under the existing scheme, with far-reaching administrative and financial powers to call their own. A dangerous precedent has been thwarted – and thereby hangs the tale!

(The writer is Director and Senior Research Fellow at the Chennai Chapter of Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: [email protected])