The Development (Special Provisions) Bill “Will create a government above the government”
The Chairman of Sri Lanka Podujana Peramuna Prof. G.L. Peiris spoke to Daily Mirror on the provisions of the Development (Special Provisions) Bill. He says it contains provisions even overriding the powers of the President and Parliament.
Excerpts of the interview:
Q : The government is maintaining in their statements during the last few days that the Development (Special Provisions) Bill does not contain anything alarming. What are your views?
The government says this is a figment of the opposition and media. It argues that this is a legitimate measure to accelerate development by encouraging investment, removing roadblocks of various kinds and making it possible for investors to have confidence in decision making. This is the line of thinking articulated by several ministers. Nothing could be further than the truth. It is one of the most dangerous pieces of legislation ever to have been gazetted. The provisions of the bill as gazetted, violate all canons of constitutional governance. It gives short shift to basic values.
We would like to ask what remains for the subject minister to do. His functions evaporate into thin air. If that is the fate of such a powerful minister, one can readily imagine what can be the fate of lesser lights within the government.
It just seeks to create, I would say, not a government within the government, but a government above the government. If it is implemented in this form, the result would be to vest two people with all the core powers of the administration so that all the others become irrelevant. It can easily be shown that the provisions of the bill dangerously erode powers of the President, authority of Parliament, the responsibility of Ministers other than the two super ministers. It restricts the rights of people to invoke jurisdiction, undermining the rule of law. It is presented in a deceptive manner. It does not require much perception to scratch the surface and see what lies beneath.
Q : Why do you make such a conclusion?
Let us examine why we say that it is the death knell of democratic governance! To begin with, the legislation strikes at the very root of the principles of accountability. The entire edifice of the Constitution is constructed on a particular principle. That is the principle of allocation of responsibility and the principle that those who are invested with public power are accountable for the exercise of that power.
Q : How do you elaborate on it?
Article 44 (1) of the Constitution is the pivotal provision in this regard. The effect of that provision is that the President of the Republic is vested with authority to appoint Ministers and to assign subjects to those ministers, and to change those subjects assigned from time to time as circumstances require. It is the President and the President alone who has this power under the Constitution.
Once a minister is appointed by the President, he becomes responsible to Parliament for the proper discharge of the functions of all the institutions coming under his purview. Let us take, for example, the Minister of Trade! The Minister of Trade has many institutions functioning under him.
Those are gazetted by the President. That is the principle on which the government is structured. Now, for the first time, we have a situation under this bill that the line minister is deprived effectively of authority in respect of his own institutions. Another minister comes into the picture to run those institutions. That is the total negation of the principle of responsibility on the part of the ministers appointed by the President and the principle of accountability to Parliament for the proper functioning of institutions under the line minister.
Q : What are the crucial provisions in that regard?
These are the provisions that run directly contrary to that basic principle of constitutionalism. The proposed bill makes provisions for the appointment of super ministers. Actually, there are two super ministers. One is the Minister for National Policy and Economic Affairs. He becomes an omnipotent minister. Under this bill, there is an agency to be established to assist that minister.
The provisions of the bill as gazetted, violate all canons of constitutional governance. It gives short shift to basic values. It just seeks to create, I would say, not a government within the government, but a government above the government.
In terms of section 17 of the proposed bill, the agency has the power to give directions to a vast array of public institutions. Among them are the Board of Investment, the Export Development Board, the Information and Communication Technology Authority, the Civil Aviation Authority, the Sri Lanka Ports Authority, the National Water Supply and Drainage Board and the Sri Lanka Tourism Promotion Bureau. The Super Minister, through this agency, has power to give directions to all these authorities. They are bound to give effect to these directions.
What about the ministers who are invested with constitutional responsibility to those bodies? They virtually become defunct in this regard. Their powers are usurped by the super minister. Section 17 goes to the extent of declaring that powers conferred on these bodies by the statutes creating them cannot be exercised by them. They have to exercise those powers in keeping with the instructions, the directions they receive from the authority functioning under the super minister. It is overriding the power of the line minister concerned.
This is how ridiculous it is. According to Section 17 when the BoI or the Trans Development Authority wishes to develop a project falling within their statutes, they cannot do it on their own. They must apply to the agency for permission to do so. It is only with the permission of this agency that they can formulate a policy falling within their own scope. The super minister’s authority cuts across all these. That makes him more powerful than the President. The President does not control these bodies in that way. The President’s power of appointment, to change subjects from time to time are eroded by this legislation.
It has been the empirical experience that it has been regarded as a presidential function to co-ordinate the implementation of major development plans in the country. It is to be with the super minister now under the provisions of this proposed bill. All that is bad enough. It creates a despotic centre of power within the government. But, there is worse to come - This all powerful agency, functioning under the super minister. What makes it worse is the provision 18 (V). All these powers, daunting and awesome in their range, are to be exercised by a managing director. A managing director is a handpicked official. He can be a friend of the minister. He can be taken from the private sector. It is that official who is clothed with authority to use all these powers. Actually, that goes against the grain of constitutional government.
The super minister creates a category of super investors. They are above the statute laws of Parliament. They are anointed by the super minister. By virtue of that anointing, they enjoy a hugely valuable privilege of not being bound by laws related to land alienation and land use that apply to all other investors
In those circumstances, to vest all these powers in the hands of an official plucked out is a violation of democratic values. There is a well-known principle governing the delegation of public power. The public has to be protected by ensuring that wide ranging powers can be delegated only subject to certain control. That is part of checks and balances inherent in our constitution. But Section 19 of the proposed bill gives all this powerful agency the power to delegate authority to regional bodies at will. That, again, makes the citizens vulnerable because not only the authority enjoying vast powers but also the agency can delegate without limit to regional bodies. The government maintains that there is no desire to maintain a super minister.
Q : How truthful is this claim in your view?
One has to take a superficial glance at the actual provisions contained in this legislation. The Minister of National Policy and Economic Affairs is given authority by sections 12 and 4 to designate any part of the country as an economic development area, and publish it in the gazette. Once he does so, the super minister acquires the right to determine purposes for which economic activity can be conducted in that area.
The minister can determine whether there should be agriculture or non-agriculture activities. Once the minister determines it, no other activity is permissible within that area. That is all encompassing power. The Minister has the power to decide all that. The Minister’s power cynically infringes the principle of equality contained in Article 12 of the Constitution. The registration of investors is to become the power of the super minister. Then, once the super minister registers investors, the lands, restricted on alienation, do not apply to the investor registered by the super minister.
The super minister creates a category of super investors. They are above the statute laws of Parliament. They are anointed by the super minister. By virtue of that anointing, they enjoy a hugely valuable privilege of not being bound by laws related to land alienation and land use that apply to all other investors. That is totally anomalous. This will amount to untrammeled opportunities for corruption. What will an investor not do to get this privilege?
The two Central Bank scams were the most horrendous in this country. Now, the entire economy is open to corruption. This is an invitation to massive corruption. We are appalled that the ministers have not bothered to acquaint themselves with the contents of this bill.
Q : Why do you say so?
Now, we would like to pose a direct question to the Minister of Fisheries and Aquatic Resources. We would like to ask him whether he had a look at this bill. If not, we would like to quote for his benefit. This is in reference to the economic developing areas to be created. There is a sweeping range of functions
If I quote, “Planning and implementation of coastal fisheries and fish farming, offshore fishing and construction of boats for deep sea fisheries, infrastructure value addition, and the manufacture, storage and distribution of fisheries products .”
We would like to ask what remains for the subject minister to do. His functions evaporate into thin air. If that is the fate of such a powerful minister, one can readily imagine what can be the fate of lesser lights within the government. It is abundantly clear that this super minister is not only above the President, the constitution, but also above Parliament.
The super minister has the power to make regulations to be laid before Parliament. Parliament of course has the right to reject those regulations. But, the bill contains startling provisions that even where Parliament rejects regulations made and published in the gazette, all actions taken by the minister, during the interim period, remain valid and binding notwithstanding the rejection by Parliament. In that regard, the Minister stands above Parliament and overrides it. That is contrary to the seminal principle of our Constitution.
It is the President and the President alone who has this power under the Constitution. Once a minister is appointed by the President, he becomes responsible to Parliament for the proper discharge of the functions of all the institutions coming under his purview.
Then, there is another device in this bill to strengthen the super minister. That is anathema in terms of acted constitutional values. That is the policy development office that functions under the
There is a dangerous provision contained in the bill providing for tax incentives to be determined by the Development Strategies and International Trade Minister. That is a function of the Finance Ministry.
There is a totally objectionable provision contained in Section 51 of the bill. That is now under this super minister for Development Strategies and International Trade, there is an authority to be established. Its composition is defined. It consists of government officials and those drawn from the private sector. If those people act in a manner that is unlawful, the damages determined by court, is to be paid out of the Consolidated Fund. What is the deterrent for the offending person? He does not have to pay anything. It is a direct violation of the rule of law.