Sri Lanka is yet to see the appointment of a Minsiter of Defence. It has been nearly a month since the Government was appointed and the appointment of the hawkish Defence Secretary Kamal Guneratne, so far the defence minister portfolio has remained elusive. In the cabinet it is unclear who will bear responsibility as the minister of defence.
Constitutional experts have questioned the legality of the position ‘secretary to the ministry of defence’ when the minister of defence is yet to be appointed.
Despite appointing cabinet ministers, ministers, state ministers and deputy minister nothing has been said so far about the Minister of Defence.
Speaking to Colombo Telegraph a constitutional expert questioned the legality of existence of the defence secretary position without a ministry.
“If you look at the gazette issued its evident that the Ministry of Defence exists. The officials for the ministry have been appointed and functions and duties of the ministry too have been defined. However, it is silent as to who the Minister of Defence is,” she said.
The question remains about who advises the Secretary to the Ministry of Defence. A constitutional lawyer who wished to remain anonymous questioned: “Who will give directions to the secretary in the absence of a minister? Does that mean that he is a ‘Supra-Constitutional Secretary’ where he is above the constitution?” she questioned.
The silence about the Defence Minister has resulted in speculation that President Gotabaya Rajapaksa will appoint himself as the Defence Minster. However, this will be unconstitutional under the terms of the 19th Amendment which provides that only members of parliament shall hold office as ministers. For this same reason a transitional provision was included in the 19A so that former President Maithripala Sirisena could hold the portfolios of defence, mahaweli and environment, exclusively for the duration of his first term of office.
In his maiden speech to the nation soon after taking oaths, President Gotabaya Rajapaksa said, “Today I am here before you as the executive president, Commander in Chief and as the person who is responsible of your security as the Minister of Defence.”
“The president cannot appoint himself as a minister of any portfolio. The transitional clause of the 19 Amendment clearly states that the last president could hold the ministries of Environment, Mahaweli and Defence but, this does not flow on to the next presidency,” the constitutional expert explained.
Before the introduction of the 19th amendment the constitution provided that any subject and functions not assigned to any ministers comes under the president. However, this residual power clause was also removed by the 19th amendment.
Therefore it is clear that even if President Rajapaksa does not assign the post of Defence Minsiter that does not mean that it remains with him.
According to constitutional experts this clearly illustrates the intention of leaving the president away from the ministerial portfolios.
If so, where has the minister of Defence gone?
One school of thought is that the intention of the government is to keep the position vacant until the General Election is concluded within the first quarter of next year. If the government manages to secure a two thirds majority in the parliament the 19th amendment can be easily repealed and replaced, thereby even changing the provisions preventing the President from holding any ministerial portfolios.
Soon after been elected, President Gotabaya Rajapaksa expressed his opinion at few occasions while visiting monks that the 19th amendment is a hindrance to governance and has many limitations.
“We can’t even appoint anyone we wish to as we have to go through other channels to do so,” he complained to the incumbent of the Sunethra Devi Pirivena prof. Medagoda Abeytissa thera. (By Anuruddha Singgapuli)