The assigning subjects and functions to the new Minister of Investment Promotion in 3 Steps By President Rajapaksa has once Again proved that Gotabaya is incapable of rationally assigning subjects and functions to ministries.

By

Prof.Rohan Samarajiva

Finally, the 22nd Amendment to the Constitution that seeks to reverse the damage done by the 20th Amendment rammed through by the Rajapaksas has been gazetted. It is likely to fall short of the 19th Amendment. Those who want to undo the damage will have to push for further amendments at the committee stage.

Under the 19A, the President was not allowed to hold any portfolios. Under an interim provision, President Sirisena who was in office at the time the amendment was approved was permitted to assign himself the subjects and functions of Defence, Mahaweli Development, and Environment. According to the amended Constitution, his successor could not assign himself any subject or function.

The proposals to restore political and economic stability made by the Bar Association in April 2022 and endorsed by many others, stipulated that “the President should not hold any portfolio (as stipulated by the 19th Amendment to the Constitution).” However, it appears that the President will be allowed to hold one or more portfolios (Defence, at least) according to the 22A that was approved by Cabinet on 27 June.


No portfolios for President

The argument that the President’s Constitutional role as Commander-in-Chief requires him to serve as Minister of Defence is fallacious. If that was the case, the 19th Amendment which prevented the President from holding any portfolio could not have received clearance from the Supreme Court. The most powerful Commander-in-Chief in the world is the President of the United States of America. It is well-known that there is a Secretary (Minister) of Defence in the United States.

But in the necessary spirit of compromise, it may be possible to concede a Ministry for the President. But precautions must be taken to prevent him from stuffing all and sundry into the portfolio he’s allowed (as illustrated below).

Evidence of incompetence

But the problem is that he has repeatedly proved that he is incapable of rationally assigning subjects and functions to ministries. The latest example is the three-step assigning subjects and functions to the new Minister of Investment Promotion.

1.In the first step, all sorts of random subjects and functions that have nothing to do with defence were assigned to the Ministry of Defence by Gazette 2281/41, dated 27 May. Entities ranging from the National Dangerous Drugs Control Board, through the Meteorology Department, to the ICT Agency and the Department of Registration of Persons were placed under the Ministry of Defence. If he wanted to keep them unassigned so that he would be able to assign them to a newcomer to Cabinet, all he had to do was to leave them out of the lists. For example, even now the Data Protection Act is unassigned. But no, this random collection of statutes and agencies was assigned to Defence.

2.In the second step, an Extraordinary Gazette (2283/34) was published less than two weeks later, on 9 June, amending the original subject assignment. The following acts were taken out of Defence and assigned to a new Ministry for Technology and Investment Promotion:

a.Immigrants and Emigrants Act, No. 20 of 1948

b.Citizenship Act, No. 18 of 1948

c.Grant of Citizenship to Persons of Indian Origin Act, No. 35 of 2003

d.Grant of Citizenship to Stateless Persons Act No. 5 of 1986

e.Grant of Citizenship to Stateless Persons (Special Provisions) Act, No. 39 of 1988

f.Sri Lanka Telecommunications Act, No. 25 of 1991

g.Information and Communication Technology Act, No. 27 of 2003

h.Electronic Transactions Act, No. 19 of 2006

i.Science and Technology Development Act, No. 11 of 1994

j.Sri Lanka Standard Institute Act, No. 6 of 1984

k.Registration of Persons Act No. 32 of 1968

l.Greater Colombo Economic Commission Law (Board of Investment of Sri Lanka Law, No. 4 of 1978)

m.Colombo Port City Economic Commission Act, No. 11 of 2021

This list is less of a grab bag than in the first step, but still, one must wonder why legislation pertaining to citizenship going back to 1948 is being assigned to a Ministry of Technology and Investment Promotion. There is a tenuous (and shallow) logic to keeping registration of persons and border control related matters under technology, because of the importance given to a technology-centric unified identification scheme.

3.In the third step, the amending Gazette was further amended by Gazette 2286/12 of 27 June. Now, another Ministry was carved out (without a Minister) with the following task: “Formulation, implementation, monitoring and evaluation of policies, programmes and projects, in relation to the subject of Technology, and those subjects that come under the purview of Departments, Statutory Institutions and Public Corporations listed in Column II based on the national policies implemented by the government, and in accordance with the policy statement ‘Vistas of Prosperity and Splendour.’”

This appears to leave only Investment Promotion to the newly appointed National-List Minister. But according to the latest Gazette, the Investment Promotion Minister is also tasked with formulating digital government strategies, establishing technology parks, and dealing with matters related to expansion of digital technology ventures. However, the relevant statutes and agencies are not assigned to him. The ICT Agency, which is mandated to assist in developing digital strategies for both the public sector and the private sector, is assigned to the not yet named Minister of Technology. And what does that Ministry do, when its principal tasks have been assigned to the Minister of Investment Promotion?


The solution

What the above illustrates is the complete ineptitude of the President. If he shifts blame to his officials, we have to ask why he has appointed and retained such incompetent officials. That too is evidence he’s not up to the job.

The solution is to remove the malleability of assigning subjects and functions. As many have argued over the years, our system of assigning Cabinet portfolios is dysfunctional. The Cabinet of Ministers is, under Article 42 of the Constitution, “charged with the direction and control of the Government of the Republic.” Cabinet formation has given primacy to giving individuals and political parties opportunities to enrich and aggrandise themselves instead of effective governance. As a result, Government has lacked proper direction and control, thereby giving rise to the unprecedented and multi-faceted crisis we find ourselves mired in.

Ideally, Cabinet portfolios will be fixed, will not change from government to government (or even more frequently), and will be few (ideally 15) as is the case in countries with effective governance. Then all that the officials will have to do is to delete the departments and agencies that have been closed down and the laws that have been repealed (rare occurrences) and add the new ones that have been created. This they should be able to handle.

If this is done, the discretionary power of the President (under 20A) and the Prime Minister (under 19A, and possibly under 22A) will be reduced. If changes have to be made, rigid procedures such as those found in the United States for the creation of a new Department (Ministry in our terms) should be specified. There will be continuity in government operations and, hopefully, better governance.

Courtesy:Daily FT