22 September, 2020

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Gota And The Ministry Of Defence: What Are The Ways Out?

Although the Government’s official communique on the Cabinet of Ministers named President Gotabaya Rajapaksa as the Minister of Defence, the relevant Gazette notification has no such entry. Article 43(2) of the Constitution, as amended by the Nineteenth Amendment, provides that the President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of Ministries determined. Thus, although the President continues to be the Head of the Cabinet of Ministers, he cannot hold a Ministry; only MPs can. This is fortified by the transitional provision in section 51 of the Nineteenth Amendment, applicable only to the President in office at the time the Nineteenth Amendment was enacted, that the President may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment. The need for such a transitional provision was because President Maithripala Sirisena could not have otherwise held a Ministry.

Gotabaya

An argument has been put forward by lawyers supporting the Government that as the President is the head of both the Executive and the Cabinet of Ministers and Article 4 (b) states that the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President, the President can hold the Ministry of Defence. This view appears not to be shared by the Attorney-General as the Gazette notification referred to above indicates. Also, the Supreme Court which reviewed the Nineteenth Amendment Bill did not consider it essential that the President should necessarily be the Minister of Defence.

The Rajapaksa Government desperately wants the President to be the Minister of Defence. Although a Ministry of Defence has been set up by Gazette notification and a Minister of State and a Secretary appointed under the Ministry, no one has been appointed the Minister of Defence.

A senior lawyer to whom Colombo Telegraph spoke opined that permitting the President to be the Minister of Defence would weaken Parliament as an important Ministry would be taken away from Parliamentarians. Further, if the President could be in charge of Ministries, many subjects and functions which would be otherwise be in the charge of Parliamentarians would come directly under the President. As experience shows, the President may bring any subject or function such as the State Printing Corporation, or even Rupavahini and ITN, under him.

Is there a way out? Colombo Telegraph asked a political scientist. The way out that he suggested was for the Constitution to provide that the President would exercise the functions of the Minister of Defence under any law. That, he opined, would be a satisfactory way out. Then in Parliament, the Prime Minister would answer queries raised about matters relating to defence.

However, he insisted that his personal view was that the Minister of Defence should be a Member of Parliament, so that the Minister of Defence himself would be always in Parliament to answer issues raised in respect of the subject of defence. That would still permit the President to discharge his responsibility towards the defence of Sri Lanka as required by Article 4 (b) as he is the Head of the Cabinet of Ministers and the Commander-in-Chief of the Armed Forces.

Meanwhile Lawyers for Democracy said: “As reported the President retaining the Ministry of Defence in the assignment of ministries to members of the Cabinet is a clear violation of the constitution. The 19th Amendment to the constitution was adopted by Parliament with 224 of the 225 members of Parliament voting for it. It is clear that after the adoption of the 19th Amendment the President cannot hold any ministerial portfolio.”  

Issuing a statement today its Convener Lal Wijenayake said: “If there is any doubt regarding the interpretation of this position Article 50 of the 19th Amendment on special provisions relating to the period commencing of the date on which certain articles comes into force sets out clearly that commencing on the date of the Amendment (that is 19th Amendment) comes into operation and ending on the date on which the next general election of the members of Parliament is concluded the President may with the concurrence of the Prime Minister assign to himself any subject or function. 

“The General Election after the 19th Amendment was held on the 17th of August 2015 and that is the terminal day for the President to hold a ministry.  

“This position is further made clear on reading Article 51 of the 19th Amendment where the President in office (President Maithripala Sirisena) was made by a special provision, to be in charge of certain subjects and functions. That provision ceases with the termination of office of President Sirisena.  What is worrying is the fact that the President has acted in violation of a provision of the constitution.  And that would mean that the President has no respect for the constitution.  

“Lawyers for Democracy views this development as a serious breach of the constitution and there is no reason to believe that it would end with this breach.  Once a breach of a provision of the constitution is accepted as a right one may dare think what lies in store for democracy and constitutional government. Lawyers for Democracy calls upon those committed to democratic rule to voice their protest.”

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Latest comments

  • 12
    7

    For a mentally impaired Kalla kallathoni of a war crim so-called president who had by illicit means passed his 1969 O/L examination to pollute the rank and file of the Lankan then decent respectable army his present stature in life I am told by those close to him that his present position in life as the head of a beggar’s colony is just too much for him to handle and he’s totally lost in the sea of power and is drifting aimlessly.
    #1.
    A little birdy num numb in the present government told me that by the votes not being counted immediately after the cessation of the voting time they the SLPP by using their crooked masterminds were able to commit another Jil mal like what happened from 2005 onwards.
    #2.
    These rural gangsters have now inherited so much of power in all aspects they being originally ignorant coolies the just do not know just what to do.?
    #3.
    If Mrs Mahindan Rajapuka was asked to be the nominee of the SLPP, she had her name on the ballot papers and her by vigorous cheating became the squatter on the right royal latrine, what will be the plight of the ex-lovers or ex-boyfriends of her 3 daughters in law.?

    • 7
      7

      Did you know there is an extradition agreement between Australia and Sri Lanka? I would be very careful about what I put my name to if I were you.

    • 6
      4

      Stanley the mamma’s pussy boy,
      \
      You have tried your best to silence me.?
      \
      On what grounds can I be brought back to the hellhole.?
      \
      As I wrote last week, Foxtel the cable

      Stanley the mama’s pussy kolluwa,
      \
      You have made various attempts to frighten me.?
      \
      Now extradition.?
      \
      On what grounds, for exposing the truth.?
      \
      Last week on Foxtel the cable TV that I subscribe to the presenter Mr.Alan Jones interrupted his programme to pay many a scathing compliment to the Rajapuka power crazy imbecile gang.
      \
      Furthermore the government here only knows too well the human rights track records of the Rajapuk’s.
      \
      +++++++ +++++++++Go- ahead fulfil your desire.
      The mangy moron Stanley can bark but the caravan will go on and on till the Rajauka infidels get kicked out of office.

      • 3
        2

        Rohan, please do not be bothered about that racist Chingkalla Kurangu Stanely. That Kurangu badly wants some nuts , especially Kotapayam’s war criminal genocidal nuts

        • 1
          0

          PK –
          Who’s afraid.?
          Thanks.

      • 4
        0

        Even last night, Alan made more comments stating about home many Rajapuka’s have been given ministerial positions and that good citizen of sad shitty sorriest of them all a Rajapuk creation had foolishly bid goodbye to the freedom/democracy that they have enjoyed for 62 years since independence.
        \
        The Oz yaks are howling in dismay.

  • 13
    6

    Despite all the fancy claims about a special mandate given to GOTA by the people, the truth of the matter is he was elected under the 19th Amendment. That means he has even less powers than what the clown president Sira enjoyed. So until they undo the democratic safeguards provided under the 19th Amendment by enacting an autocratic constitution (ab)using their two-thirds majority – the parliament is still supreme. So Gota is only a figurehead at the moment, which his misguided followers and hangers-on are refusing to see. They are going to pay a heavy price (remember 1988-89 ?) in the not too distant future for their fascination for a “strong leader.”

  • 9
    1

    With a 2/3 majority, GR can rewrite a new constitution anyway he likes it. Hitler did it (maha sanga has already sanctioned it in SL) as did Mugabe, Putin & whole lot more, some successfully, others less so. Patriotic Hitler turned out to be a mad man & paid for his sins by taking his own life but most others, even convicted, never spent a day in prison & lived a content life till the end even with international arrest warrants. If an almighty god does exist, certainly moves in mysterious ways. As for the average folk in SL, wrong place at the wrong time or is it karma?

  • 0
    1

    For a principled view, EP cannot have any ministries or presidency of the cabinet. These are, under the structure of the constitution, considered as the government. As the president can be attached to a party and that party can be the opposition party, and in those circumstances, president holding a ministry is making the opposition running a part of the government. Even if that ministry is the least important, when president wield his executive powers to run that ministry, that ministry exempted out of the combined responsibility of the government. In other words, ruling party is losing the control defeat the checks and balanced the president and the parliament. This was the reason to introduce the 19A. We saw even after 19A, PM Ranil was not able to appoint a law & Order Minister, because president fearing that him and his teams’ crime being investigated.

  • 0
    1

    Further the EP’s ability to stripe the ministry with the attached organization & department makes the ministry completely out of sync with cabinet. In the past, defense was drinking all resources in a peace time, because it was under president and the Budget Department or Finance Ministry had no say on those expenses. That looked the situation of a lion pride in jungle. The female lioness hunt, but male lions eat first. Here all cabinet ministries work together to bring income, but president spends it for his whimsies. In the past, while the people were ding by hunger, president was budgeting for them 5 star defense. It was in Old King time Defense and Law and Order was split. But New King managed to merge and defused all cases against him & certain fellow.

  • 3
    1

    During JR’s period, there were two Ministries namely, Defence & National Security. But after the passing of the 19th Amendment, the President cannot hold that Ministry of Defence and such Ministry of Defence with the President is once and for all terminated after Maithripala Srisena ceases to be President. Now if President wanted to be the Minister of Defence, then it is a clear violation of the Constitution and his deliberate act sends the message that democracy is in crisis. Why is the Minister of Justice silent on this issue?

  • 1
    0

    Even after the 19th amendment, President continues to be the head of the executive. Moreover he is the one who exercises the Executive Power of the people. So whether he holds a Ministry or not his direction must carry through even if the individual minister does not like it at all. Under such circumstances the President holding a minister’s post is neither here nor there. President Mahinda Rajapaksa held Defence and as well as Finance those days. President Sirisena held Defence, Environment and Mahaweli Ministries Why is this clamour for the President to hold certain vital ministries in his opinion? Because the pivot in controlling a Ministry is its Secretary. The JR constitution mandates for the President to appoint the Ministry Secretary and at the same time for the secretary carry out the directions of the Minister. Moreover the power to promulgate regulations and rules under most acts of parliament are vested with the Minister. So to be on the safe side, the Big man wants to be the Minister in certain Ministries of his choice.

  • 1
    3

    There shouldn’t be a way out – for a long time before 19th Amendment Head of State could also become Minister of Defense – there’s no crisis in democracy here – people gave 2/3 mandate largely thanks to the popularity of the President – probably making a mountain out of a molehill?

  • 0
    2

    Thank you CT. Just like any departments is a matter of finding the most suitable person to do the Job. The military has taken responsibility/played a major part in the Covid management too.

    Based on the facts/capabilities why we wan to challenge this roll play by the Excellency President.

    I am sure there will be time and need that may require President to discharge the responsibility in the future. Until then we should focus on how the MP’s are performing to deliver things to the constituents, progress reporting the performance etc.

    Can the experts available to CT put together a Job Scope article for MP’s please for educational purposes for both the elected and the voters please. Can CT ask all the media to take this up and have a Performance Index attached to each MP’s from day one and allocate a page for each day reporting and documenting the deliverables to the respective constituents please.

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