President Gotabaya Rajapaksa
Finally, the 22nd Amendment to the Constitution which seeks to repair the damage caused by the 20th Amendment imposed by the Rajapaksas has been published. It is likely to fall short of the 19th Amendment. Those who want to repair the damage will have to seek further amendments at committee stage.
Under 19A, the president was not allowed to hold portfolios. Under an interim arrangement, President Sirisena who was in office at the time the amendment was approved was authorized to assign to 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.
Proposals to restore political and economic stability made by the Bar Association in April 2022 and endorsed by many others, stated that “the President should not hold any portfolio (as stipulated in the 19th Amendment to the Constitution)”. However, it looks like the president will be allowed to hold one or more portfolios (defense, at least) according to 22A which was approved by Cabinet on June 27.
No portfolios for the president
The argument that the president’s constitutional role as commander-in-chief compels him to serve as defense minister is fallacious. If that were the case, the 19th Amendment that barred the president from holding a portfolio could not have received permission 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 Defense in the United States.
But in the spirit of necessary compromise, it may be possible to concede a ministry to the President. But care must be taken to prevent him from stuffing everyone into his authorized wallet (as shown below).
Evidence of incompetence
But the problem is that he has repeatedly proven himself incapable of rationally assigning subjects and functions to ministries. The latest example is the three-stage allocation of subjects and functions to the new Minister for Investment Promotion.
1.At first, all kinds of random subjects and functions that have nothing to do with defense were assigned to the Ministry of Defense by Gazette 2281/41 of May 27. Entities ranging from the National Dangerous Drugs Control Board, through the Department of Meteorology, the ICT Agency and the Department of Registration of Persons were placed under the supervision of the Ministry of Defence. If he wanted to keep them unassigned so he could assign them to someone new to the Cabinet, all he had to do was cross them off the lists. For example, even now the data protection law is not assigned. But no, this random set of statutes and agencies has been assigned to Defense.
2.Secondly, an Extraordinary Gazette (2283/34) was published less than two weeks later, on June 9, modifying the original posting of the subject. The following acts have been removed from Defense and assigned to a new Ministry of Technology and Investment Promotion:
a. Immigrants and Emigrants Act No. 20 of 1948
b. Nationality Act, No. 18 of 1948
c. Indian Descent Citizenship Act No. 35 of 2003
d.Grant of Citizenship to Stateless Persons Act No. 5 of 1986
e.Granting 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. Law No. 11 of 1994 on the development of science and technology
j. Sri Lanka Standards Institute Act No. 6 of 1984
k.Registration of Persons Act No. 32 of 1968
I. Greater Colombo Economic Commission Act (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 catch-all than in the first stage, but one still has to wonder why legislation relating to citizenship dating back to 1948 is entrusted to a Ministry of Technology and Investment Promotion. There is a tenuous (and shallow) rationale for keeping people registration and border control issues under technology, due to the emphasis on a unified technology-centric identification system.
3.Thirdly, the amending Gazette was again amended by Gazette 2286/12 of June 27. From now on, another ministry has been created (without a minister) with the following task: “Formulation, implementation, monitoring and evaluation of policies, programs and projects, in relation to the subject of technology, and subjects that fall under the jurisdiction of departments, statutory institutions and public enterprises listed in Column II based on the national policies implemented by the government, and in accordance with the policy statement “Prospects for Prosperity and Splendor”.
This seems to leave only investment promotion to the new minister on the national list. But according to the latest Gazette, the Minister of Investment Promotion is also responsible for formulating digital government strategies, establishing technology parks and dealing with issues related to the expansion of digital technology businesses. However, the relevant statutes and organizations are not attributed to it. The ICT Agency, which has the mandate to help develop digital strategies for the public and private sectors, is under the Minister of Technology, who has not yet been appointed. And what does this ministry do, while its main missions are entrusted to the Minister for the Promotion of Investments?
The above illustrates the total incompetence of the president. If he blames his officials, we have to wonder why he appointed and retained such incompetent officials. It is also proof that he is not up to it.
The solution is to remove the malleability of assigning subjects and functions. As many have argued over the years, our system for allocating cabinet portfolios is dysfunctional. The Cabinet of Ministers is, under the terms of article 42 of the Constitution, “responsible for the direction and control of the Government of the Republic”. The formation of the government prioritized giving individuals and political parties opportunities for enrichment and growth over effective governance. As a result, the government has lacked proper direction and control, resulting in the unprecedented and multi-faceted crisis in which we find ourselves mired.
Ideally, Cabinet portfolios will be fixed, not changing from government to government (or even more frequently) and will be few in number (ideally 15) as is the case in countries with effective governance. Then, all officials will have to do is remove departments and agencies that have been closed and laws that have been repealed (rare cases) and add new ones that have been created. This they should be able to handle.
If this is done, the discretion of the President (under 20A) and the Prime Minister (under 19A, and possibly under 22A) will be reduced. If changes are 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.