President cannot hold the Defence portfolio

President Gotabaya Rajapaksa 

The President has appointed a new Cabinet of Ministers and there is a confusion over the Defence portfolio. 

Daily FT reported on Saturday 23 November that soon after the swearing-in-ceremony, the list of names and portfolios given to each minister were released in which Prime Minister Mahinda Rajapaksa was named Defence Minister. However, this was retracted shortly, and it was announced that the Prime Minister has been given the portfolios other than Defence. 

We will examine the constitutional provisions in this respect especially after the introduction of the nineteenth amendment to the constitution.

The President cannot hold any ministerial portfolio since the previous article 44(2), where the President could keep any number of portfolios with him, was repealed by the Nineteenth   amendment to the constitution.

There are two transitional provisions consequent to the 19th Amendment to the Constitution. First one was that the incumbent President until the General Election 2015 may with the concurrence of the Prime Minister, assign to himself any subject or function and may, with like concurrence, determine the Ministries to be in his charge.

Second one was that the incumbent President 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 and accordingly, any reference in any written law to the Minister to whom such subject or function is assigned, shall be read and construed as a reference to the President.

These transitional provisions are for the former President and the present President cannot hold any Portfolio including Defence. If anyone argues that the President can hold the Defence Portfolio since he is the Commander in Chief of the armed forces and able to declare war and peace, it is not correct since the 19th Amendment intentionally barred the President holding any ministerial portfolio.  

Article 4 where the sovereignty of the people was dealt with, specifies as follows in Sub Article 4b: “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.”

Sunday Times reported on Sunday 24 November 2019 that Ali Sabry PC argued that Article 4 was not changed by the nineteenth amendment and hence the President can hold the defence Portfolio. If so it can also be argued based on the same Article that the President can hold all the Portfolios if he wishes since executive power should be exercised by him. Therefore, these are wrong arguments. We have seen the Supreme Court dismissed these types of arguments brought in, in defence of the illegal dismissal of the Prime Minister and illegal dissolution of the Parliament in October 2018.

At the swearing in ceremony the President declared as follows as required by the fourth schedule of the Constitution: “I Gotabaya Rajapaksa do solemnly declare and affirm  that I will faithfully perform the duties  and discharge the functions of the office of the President in accordance with the Constitution of the Democratic Socialist Republic of Sri Lanka and the law, and that I will be faithful to the Republic of Sri Lanka and that I will to the best of my ability uphold and defend the Constitution of the Democratic Socialist Republic of Sri Lanka.”

In his address to the nation immediately after that, he said the following: “Today I am meeting you as the executive President, Commander in Chief and the Minister of Defence, who is responsible of the defence of you and your children, of beloved motherland of all of us.”

Therefore, his intention was to keep the Ministry of Defence with him. This intention was against the provisions of the Constitution. Soon after solemnly declaring that he would faithfully perform the duties and discharge the functions of the office of the President in accordance with the Constitution, in his address to the nation he declared his intention to violate the Constitution. 

It is advisable to adhere to the Constitution rather than bringing flimsy arguments to defend possible violations of the same. The President’s intention is to create a disciplined nation. Adhering to the Constitution should be the basis of any discipline. 

Therefore, it is the foremost duty of the advisors of the President such as Ali Sabry not to mislead him. All of them have mislead Maithripala Sirisena and Mahinda Rajapaksa in October 2018, bringing discredit to both. It is the duty of all of us to adhere to the Constitution rather than trying to violate it.