Gajalakshmi Paramasivam

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.]

The issue was discussed at citizens level and was published – which Mr Rajapaksa would have accessed if he had been really seeking. May be he was and hence the delay. On 14 November 2019 – I wrote and published as follows under the heading ‘EXECUTIVE PRESIDENCY AND DUAL CITIZENSHIP’ :

Article 4 of the Sri Lankan constitution states as follows:

[4. The Sovereignty of the People shall be exercised and enjoyed in the following manner :–

(a) the legislative power of the People shall be exercised by Parliament, consisting of elected representatives of the People and by the People at a Referendum ;

(b) 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 ;

(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to the privileges, immunities and powers of Parliament and of its Members, wherein the judicial power of the People may be exercised directly by Parliament according to law ;]

The People means – one undivided whole. As per the above – a lower reading may lead to the thinking that the Parliament and its Members could interfere with the Judiciary – as per (c ) above.

[On 14 November 2018 - Dr Palitha Kohona – a dual citizen - stated as follows at a press conference organized by Eliya Organisation in the aftermath of the Constitutional crisis:

[Finally for those who lament the disruption of the democratic processes and institutions, given the lack of consensus and the impasse the country had reached, the best option was to go to the people and let the people decide. Many would argue that this was the cleanest option under the Constitution. That is the essence of democracy. If the elected representatives, and many in Parliament are appointed not elected, had reached an impasse and the actions of the President were being questioned, the ideal solution would be to go back to the people and let them decide. That is what is being done. A similar situation arose in Australia in 1975. The Prime Minister was sacked by the Governor General. The replacement PM recommended dissolution of Parliament and went on to win the election that followed.]

Given that Dr Kohona was posted to the Australian Permanent Mission in UN Geneva – one would expect Dr Kohona to have some understanding of the above mentioned crisis and how the Constitution of Australia was structured in this regard. Section 61 of the Australian Constitution states as follows:

[Executive power

                   The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.]

The Sri Lankan parallel of the Queen is the President. ]

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 19^th 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.