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.
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.”