The Development (Special Provisions) Bill and the Coalition Government

“The proposal made by Hon. Prime Minister, Ranil Wickremesinghe, in his capacity as the Minister of National Policies and Economic Affairs, to publish the Sri Lanka Sustainable Development Bill in a gazette and present the same in Parliament for approval, which was prepared with the view of promoting and implementing the Sri Lanka’s national policy and strategy on sustainable development, establishment of the Sustainable Development Council and making other provisions on other matters, was approved by the Cabinet of Ministers,” stated the Government announcement regards decisions taken by the Cabinet on 12 July. 

Regrettably however, the public at large have no knowledge at this stage of the scope, contents and any consequential socio-political and economic impact of the Bill on the country and its citizens. This is despite, Right to Information being a fundamental right as per the Constitution and a specific Right to Information enactments having recently been legislated. 

A few months ago, a discussion draft of a bill titled ‘Development (Special Provisions) Bill’ was available in public hands. This draft bill had several provisions which gave rise to significant concern in the mind of Yahapalana activists. They were concerned that this bill could easily result in the Coalition Government, constantly at play at the edge of the marshy land and tossing bond scams, imported high cost metal housing for displaced persons, coal tenders, highway contracts to entities owned by Ministers and controversial VAT impositions, in danger of a fall in to the bog and risk beginning to sink! Let us hope not; as what the nation needs is a government committed to real Yahapalanaya, rule of law, justice, effective public communications, economic resurgence positively touching all segments in society and reconciliation amongst all citizens.

The aforesaid draft bill had a provision to appoint a panel of eminent persons to be consulted by the President and Prime Minister on formulation of National Policies. A Policy Development Office is established (there is such an office already in the Prime Minister’s Office?). The Minister (the Prime Minister as the Minister in Charge of National Policy and Economic Affairs) may make regulations in respect of all matters relating to policy development office, including the appointment of staff and Committees and the functioning under the Office. 

The Policy Development Office (PDO) is to assist the Minister to plan, formulate and develop National Policies on all subjects having regard to the provisions of the Act; prepare the macro-economic Policy framework for economic development; set goals and targets to be achieved by every sector of the economy and by every government institution; co-ordinate the implementation of government policies approved. 

The Minister is empowered to appoint Committees for PDO on

1.    Economic Policy Committee – to review economic policies and to analyse and interpret current economic development;

2.    Domestic Policy Committee – to coordinate domestic policies with a view to ensuring that they are consistent with the Government-stated goals;

3.    Global Affairs Committee – to review global economic, political, social and environmental developments and their impact on Sri Lanka

4.    Development Coordination and Monitoring Committee – to coordinate and monitor the implementation of the government policy (including proposals in the annual budget) and ensure that decisions and programmes of the Government are consistent with National Policies and to discharge other functions assigned by the Cabinet.

The PDO is required to assist the Cabinet Ministers by submitting reports on Policy Development/Review and Coordination and Implementation of Government Policy.

The Minister will submit the national policy formulated on a subject (or any subject in effect?) to the Cabinet and be placed before parliament for approval and on approval; such policy shall be the National Policy as per the Reserved List of the Constitution

The bill sets the objective of economic development to be “to promote the emergence of a highly competitive social market economy” and empowers the Minister with approval of Cabinet to present to Parliament a Policy Framework for Economic Development to achieve the aforesaid objective. Upon approval of the framework, it becomes the National Policy on Economic Development of the Reserve List of the Constitution. All plans, programmes and schemes for economic development of the Government and Boards of Ministers of the Provinces have to conform with the Policy framework; and its strategies; and the Minister is empowered to issue such strategic directions in order to seek such compliance. Minister is required to present an Annual Report in March each year on Economic Development of the Country during the preceding year

Where a statute passed by a Provincial Council is inconsistent with the Policy framework the Secretary to the Ministry is to make an application to the Supreme Court to make a declaration on the validity of such statute. 

The Minister is empowered by a Gazette notice to declare any area, which can be developed for economic activities of manufacturing, tourism, science and technology, finance services, logistics, business and services, and modern fisheries/agriculture or agro business and the order will in addition specify objectives to be achieved and government institutions required to undertake such activities. Every economic development area dedicated to development of modern agriculture and agro business shall be of such scale to ensure the cultivation, production, manufacture, storage and distribution of agricultural products. Similar empowerments apply to modern fisheries being in scale enabling the planning and implementation of coastal fisheries and fish farming, off shore and the construction of ports for deep sea fisheries, infrastructure for value addition manufacture, storage and distribution.

Minister is also empowered with cabinet concurrence to make regulations to give effect to plans, programmes, strategies and schemes approved under the Act, make provision for eliminating delays and administrative barriers and facilitating investment approvals at a single point; it will in addition specify, the procedure and authority for granting tax incentives. These regulations prevail over any other and will come in force on approval by Parliament.

Authorised officers of PDO are empowered to call for any such information as required from any person.

The above provisions are those reflected only in Part 1 Chapters 1 and 2 of the Bill and it repeals the National Planning Council Act of 1956

Though other parts of the bill are time bound with a sunset clause, Part 1 referred to herein is a permanent legal framework.

The critical questions and issues, requiring urgent clarification in the above context are;

1.    Is the Sustainable Development Bill now approved derived from the earlier draft titled ‘Development Special Provisions Bill’?

2.    Will the bill once gazette be placed before the public for review, critique, debate and negotiation and reaching a meeting of minds?

3.    If the response to 1 above is in the affirmative, will the Prime Minister publicly clarify;

a.    What if any will the role of the President be, in connection with policies, decisions and regulations made by the Minister under the Act?

b.    How will the views of the eminent panel be acted upon; will these views be transparently communicated apprising the public; and where the advice of the panel is overlooked, will the Minister publicly provide justifications for such action?

c.    Will the eminent panel be consulted before the Minister makes regulations?

d.    Will the officers of the PDO be public officials or be recruited from outside the public service?

e.    What role and how, will the President and other Cabinet Ministers participate in making policies on all subject; setting goals and targets in all sectors and public institutions; in preparing the macro-economic framework; coordinate implementation of government policies; recognising cross cutting issues impacting on subjects assigned to other Ministers?

f.    What is the role of the Secretary of the Ministry in the PDO or will PM’s handpicked resource persons run it?

g.    Could it be that the former Governor of the Central Bank will hold a prominent position in the PDO?

h.With the Minister, PDO and Committees in place, what roles are left for Ministers and their Chief Accounting Officers?

i.    With the Development Coordination and Monitoring Committee in place, the PDO takes supreme accountability in governance and even marginalises the Finance Minister (as budget proposals also come within the Committee oversight)

j.    Will the PDO assisting Ministers in policy development, policy review, coordination and implementation and submitting the National Policy on a subject result in Ministers and Ministries being made subordinate to the PDO?

k.Will the powers of the Minister to set in place, with cabinet and parliamentary approval, ‘A Policy Framework for Economic Development’ binding the Government, Boards of Ministers of the Provinces; with additional powers to issue strategic directions to assure implementation; and also to have empowerment to compel the Supreme Court to rule on statutes passed by Provincial Councils inconsistent with such policy framework be Constitutional; will its enactment, require special majority and/or approval by a referendum; and will it dilute the genuineness in upholding the principles of subsidiarity? 

l.    Will similar issues of Constitutionality arise in regard to the declaration of areas within the control of Provincial councils as Economic Development areas, where operations, scale and activities will be as directed by the Minister?

It will be hard to imagine the Coalition partners, who will find their position in Government and Cabinet so significantly undermined and power centralised in the Prime Minister, will accept this bill as worthy of support without amendment! The centralisation now attempted by this bill may even go beyond the centralised power enjoyed collectively by the previous President( who was also the Finance Minister), the Secretary to the Treasury, Governor of the Central Bank and Minister of Economic Affairs.

Supreme Power of Centralised Governance is what the Prime Minister is hoping for to solve the development challenges of this nation?

This policy and power concentration thunderbolt from the Prime Minister comes at a time the Civil society activists’ are canvassing for Constitutional change to make way for the under noted Reform;

“Defining the Role, Responsibility and Accountability of Chief Accounting Officers

“There is a need to define by way of a Constitutional amendment, the role, responsibilities and accountability division between the head of department (the chief accounting officer) and the political head (called the ‘executive authority’ being either the Minister or the Deputy Minister).

“The executive authority is responsible for policy choices and outcomes, while the chief accounting officer implements the policy and achieves the outcomes by taking responsibility for delivering the outputs defined in the departmental budget. In this way, the Act empowers accounting officers by unambiguously conferring on them a clear set of responsibilities. The accounting officer prepares the departmental budget (specified in terms of measurable objectives) for the Minister to approve and present to the legislature for voting. The accounting officer is then responsible for implementing and managing the budget.”

If the Prime Minister proceeds on the planned lines and are not cautioned and restrained by his coterie of friends and party wise persons, he may have a fall like Humpty Dumpty! And if so what happens to those in civil society, who installed this Yahapalanaya Government in power?