By Rusiripala Tennakoon –

Rusiripala Tennakoon

Threatening ‘Radical restructuring’ programs following the last LG elections debacle experienced by the government appears to be consigned to cold storage. The hullabaloo created with a big noise by the general Secretary of UNP, Kabir Hashim has ended up with the window dressing of a cabinet reshuffle falling far short of people’s expectations. His earlier rhetoric may have been designed to diffuse the antipathy that was building against certain ministers. !

Proposal for Sarath Fonseka as the minister designate for Law and Order also looks like another ostensible watershed, at a time when the government is badly pressed for a survival tactic to tide over a difficult situation. It is very unlikely that master strategists concerned to be unaware of the utterly confused consequences such a step will lead to. But the predicament they are in now is forcing them to take such steps.

Fonseka factor appears to serve another purpose, rather a sinister move to scare the Joint Opposition which is also not in a good wicket due to several impending cases and revelations by commissions of inquiries against some of their leading characters. Sometimes a threatened “throwing to the wolf” can take the steam off the on-going  polarizations that may be more damaging if they succeed.

The strategy appear to have succeeded because the main focus of public concern has been diverted in the direction of the ethical and moral issues centered round the Fonseka vs Law and Order factor than  the major issue.

But according to the turbulent political situation centered round the longstanding stagnation the main coalition party of the Government, the UNP, is experiencing, it has reached a point of no return! The principal issue, changing of the party leadership and the entire cabinet headed by the Prime Minister, included, cannot be submerged any longer.

Chapter VIII of the Constitution deals with the Executive and the Cabinet of Ministers. This Chapter of the constitution happens to be one among the major changes effected under the 19th Amendment.

In the metamorphosis the constitution has undergone, Chapter VIII has been repealed and a new chapter substituted in its place. In the context of ambiguities and the consequential effects of the 19th Amendment, currently quoted and heavily debated, we have to focus our attention on some of the articles in the old constitution and the 19th Amendment.

Article 42 of the constitution has been inserted as a new article immediately after article 33 as 33A. Hence in the replaced chapter there is a change in the numbering.

Old Constitution – 44(1) The President shall from time to time, in consultation with the Prime Minister where he considers such consultation to be necessary.

1. Determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions of such Minister and
2. Appoint from among the MPs, Ministers to be in charge of the Ministries so determined.

44(3) The President may at any time change the assignment of subjects and functions and the composition of the cabinet of ministers.

New Constitution – 43 (1) The President shall in consultation with the PM where he considers such consultation to be necessary, determine the number of Ministers of the Cabinet of Ministers and the Ministries and the assignment of subjects and functions to such Ministers.

(2) The President shall on the advice of the PM appoint from among MPs, Ministers to be in charge of the Ministries so determined.

(3) The President may at any time change the assignment of subjects and functions and the composition of the cabinet of ministers.

There are certain significant issues arising from the above comparison. They are viz:

1. The prerogative that the President had under the constitution to appoint any MP has been curtailed with a condition that President can do so only under the advice of the PM.
2. Ministers, Ministries and the assignment of subjects and functions to such ministers remain under the powers of the President.
3. The President retains the powers to change the assignment of subjects and functions and the composition of the cabinet of ministers at any time on his own.

On the 18^th of January, 2015 by an Extraordinary Gazette notification President amended the duties and functions of the Ministers, whereby the functions and assignments allocated on 10^th January 2015 immediately after the formation of the new government were amended.

Under this amendment, among others the CBSL, ETF and National Insurance Trust Fund  were brought under the Minister of Policy Planning, Economic Affairs, Child Youth & Cultural Affairs, a heavily loaded Ministry that was established under a new Ministry given to the Prime Minister – CBSL was under the Ministry of Finance and ETF under Labour.

Why it was thought necessary to bring the Employees Trust Fund, the second largest fund which was under the Labour Minister, into the Policy Planning and Child & Youth is something that needs a better and specific explanation.  Whether such clarifications were sought and were given by the PM who decided on the matter when allocation of functions and subjects of Ministries was done is also something worth clarifying for two reasons:

1. In the final analysis the responsibility of assignment of subjects and functions falls on the President.
2. The subsequent events and questionable happenings related to the CBSL Bond Scam points a very suspicious finger towards the manipulations of big captive funds such as Insurance, ETF and EPF, besides the 3 State Banks.

It is interesting to note how the State Banks too were moved away from the control of the Ministry of Finance under which they survived from the very inception.  The Peoples Bank, Bank of Ceylon and the National Savings Bank were attached to a Ministry created for State Enterprises Development.  This was done by special gazette notification issued on 21/09/2015 after the formation of the National Government following the 2015 August General Election.

Even under this new assignment of functions  the CBSL, National Insurance Fund, Employees Trust Fund continued to remain under the purview of the PM until by Extraordinary Gazette notification of 09/06/2017 the ETF was transferred to be among subjects assignment assigned to Minister of Development Assignment.

Another extremely strange amendment was announced under this gazette of 09/06/2017. That is the highly comical and heavily criticized allocation of National Lotteries Board, Development Lotteries Board to the new Minister of Foreign Affairs. It is history now how this matter was viewed with sarcasm by the public.

The assignment of functions and subjects  in this manner to the ministries have lead to enormous practical and other problems. The new cabinet change should necessarily address this issue and the new allocations to be done with extreme care towards the smooth, correlated functioning of ministries rather than sinister power concentrations designed with ulterior motives.

As the entire responsibility of the assignment of functions and subjects falls under the President in terms of the constitutional provisions Presidential advisers have to pay more attention to such matters?

In retrospect, with the revelations by the Commission of Inquiry appointed to investigate Central Bank Bond Scam, things appear rather fossilized, run by a closed circle in a carefully designed system towards a centralized structure. Trust the people have in governments and politicians is fast evaporating on the one hand destroying the harmony of the nation and on the other the trust one could place on Democracy itself.

The seers who constantly advocate and promote “West Minister System of Government” with a touch of “lichchavies” of ancient India should at least for a short while take a look at the concerns expressed by recognized British authorities on the cabinets and the gentlemanly atmosphere that is expected to be maintained by the Lords.

Walter Bagehot, the recognized authority on the (unwritten) British constitution has put it this way.

Quote – “The Cabinet……….. is a board of control chosen by the legislature out of persons whom it trusts and knows to rule the country? The particular mode in which limits the choice of the cabinet to the members of the legislature – are accidents incidental to its definition………  A cabinet which included persons not members of the legislative assembly might still perform all useful duties”.

The highly marginalized role of the opposition in the context of unholy coalitions should not eventually lead towards an “elected dictatorship”.

The accountability of the President who is responsible to Parliament should be safeguarded to the utmost. As it stands the whole system is confusing. But when President needs to effect any changes to his earlier plans it has to be done with the firmness required at times of confusions in the national interest.

“The most prudent step is to prorogue the parliament, decide on a new cabinet with functions clearly defined in keeping with good governance principles, appoint a PM preferably from the UNP as it was the party that helped most in bringing about the change, if seniority or protocol is applicable next to the PM is the Speaker in the order, and get the new PM to advice who the members of the cabinet are, the new composition with the assignment of functions and subjects fully reviewed and carry on the government.”

*The writer can be contacted at rusiri21@gamail.com