No Defence Minister still; new President faces constitutional conundrum

President Gotabaya Rajapaksa appears restrained by a constitutional conundrum on whether he can take on the portfolio of Defence Minister.

As President, the Constitution makes him the Commander- inchief of the Armed Forces, but the 19th Amendment arguably prohibits him from holding a ministry. In the 15-member caretaker cabinet that has been appointed there is no Defence Minister included, but on Friday, the President issued a Gazette keeping the tri-forces to assist the police in maintaining law and order under the Public Security Ordinance.

The new Government's legal advisers are seeking ways and means of resolving this either by bringing the armed forces as subjects under the President, or seeking an opinion from the Supreme Court, the Sunday Times learns.

At present, there is a Defence Secretary without a Defence

Minister. A state or deputy minister will likely be appointed tomorrow to answer questions relating to defence matters in Parliament.

A former senior Attorney General’s Department official requesting anonymity said the 19th Amendment passed in April 2015 was aimed at achieving political ends. “This is why now the interpretation of the Constitution has become a tough job,” he said.

A Sri Lanka Podujana Peramuna ( SLPP) spokesman said yesterday that President Gotabaya Rajapaksa was Defence Minister.

But the situation is not that straightforward, legal sources said.

Even President Rajapaksa’s own team did not seem sure. On Friday, the first notice regarding Cabinet appointments on President Rajapaksa’s official Facebook page said that his brother, Mahinda Rajapaksa, held the defence, public security and law and order portfolios in addition to finance, economic and policy development, Buddha Sasana and religious affairs, urban development, water supply and housing.

But a second notice on the same page later removed the defence, public security and law and order portfolios from Prime Minister Rajapaksa’s portfolios. These subjects are now not against anybody’s name.

“The 19th Amendment prevents any President after Maithripala Sirisena from holding a Cabinet portfolio,” said the expert earlier quoted. “But there is another school of thought that thinks as the President is the Commander-in-Chief of the armed forces and is able to declare war and peace, he has by implication the right to hold the defence portfolio."

The defence forces and police could fall under the purview of the President as subjects, lawyers said, and there is still provision for all subjects not assigned to any minister to be with the President.

Ali Sabry, PC, one of President Rajapaksa’s lawyer’s told the Sunday Times, that defence was clearly with the President under the Constitution's Article 4(b) which reads: “The executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People”.

“That was not changed by the 19th Amendment,” Mr Sabry said.

But Jayampathy Wickramaratne, MP, one of the key shapers of the 19th Amendment, insisted that the President could not hold any ministerial portfolio. He said 4 (b) refers to the “overall defence” of the country. He cited Article 43(2) to support his position. It states: "The President shall on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined". He said Mr Gotabaya Rajapaksa was not a Member of Parliament.

Dr Wickramaratne also cited Article 51 which singled President Sirisena out for privileges that those after him would no longer have. It states that, “...the person holding office as President on the date of commencement of this Act, so long as he holds the Office of President may assign to himself the subjects and functions of Defence, Mahaweli Development and Environment and determine the Ministries to be in his charge for that purpose ...”

“This applies only to the President in office at the time,” Dr Wickramaratne said. “Only to President Maithripala Sirisena.”

The counter argument, however, is that Article 4(b) should be read with Article 30(1) and 33(2)(g). The first states: “There shall be a President of the Republic of Sri Lanka, who is the Head of the State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces”.

The second states: “In addition to the powers, duties and functions expressly conferred or imposed on, or assigned to the President by the Constitution or other written law, the President shall have the power...to declare war and peace.”

Article 42(3) also specifically states: "The President shall be a member of the Cabinet of Ministers and shall be the Head of the Cabinet of Ministers”.