24 November 2019
THE FIRST TEST-INTERPRETING THE CONSTITUTION
The Sunday Times article headed ‘No Defence Minister still; new President faces constitutional conundrum’ caught my attention today. It was about whether the New President could hold the position of Minister of Defence – which was held by the immediate past President who was more a transitional President. The conflict is highlighted as follows:
[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-in-chief 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.]
As per today’s Sunday Times article :
[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.]
Article 4 (b) is about Executive Power of the whole of Sri Lanka. Ministerial powers are on behalf of the Government only.
The article confirms that one of the architects of the 19th Amendment has confirmed my interpretation:
[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.]
Mine was a lay person’s interpretation in the consciousness that we were moving away from Executive Presidency and as per my Australian interpretation. Dr Jayamapathy Wickramaratne has confirmed it in legal language.
The position of the new President brings to mind the saying - ‘Man proposes and god disposes’.
This is only the beginning.