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Despite Nineteenth Constitutional Amendment Provisions President Gotabaya Rajapaksa Becomes Defence Minister;Legal Opinion Divided Whether Such Action Violates the Constitution

The Sri Lankan President Gotabaya Rajapaksa on Wednesday swore-in a 64 member Council of Ministers including 25 of cabinet rank and took the portfolio of Defense himself. The Swearing-in was held at the Magul Maduwa or Audience Hall of the Temple of the Tooth here.

President Gotabaya’s taking up a cabinet post has become a contentious issue with opposition lawyers arguing that the 19 th.Amendment of 2015 precludes him from taking up any cabinet portfolio.

But there are other legal experts who say that the relevant constitutional provision has to be read with Art 4 (b) which says that the directly elected President exercises the sovereign power of the people through the Executive and therefore he can take up any cabinet post including defense.

Senior Supreme Court lawyer and MP from the Tamil National Alliance (TNA), M.A.Sumanthiran, said that the President has violated the constitution which says that the Cabinet of Ministers shall be Members of Parliament and the President is not a member of parliament. He is directly elected by the people, but he is not a member of parliament. He is the Head of the Cabinet, appoints its members and presides over it, but he himself is not an MP and therefore cannot take up a cabinet or any ministerial portfolio.

Art 43 (2) of the constitution says: 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.

Asked to explain how former President Maithripala Sirisena held the Defense portfolio besides two other portfolios between 2015 and 2014 even after the 19th. Amendment was passed, Sumanthiran said that he was holding these posts under a “transitional provision” applicable only to his Presidency and only during the tenure of that particular parliament. It could not apply to the subsequent President or subsequent parliament.

Sumanthiran added that anybody can challenge President Gotabaya’s step in the Supreme Court.

But another legal expert and the current Law Minister, Ali Sabry, said that Art 4 (b) of the previous 1978 constitution which was not repealed would allow the President to take up any portfolio including Defense. Legal expert Neville Ladduwahetti concurs with Sabry, citing Art 4 (9b) of the constitution.

Art 4 (b) says: “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 defense 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 the courts.

Thus, the directly elected President Gotabaya Rajapaksa has the right to exercise the executive power of the people, including the defense of the country. It is well within his rights to take up the defense portfolio.

Another lawyer and the current Cabinet Minister of Energy, Udaya Gammanpila, said that while he believes that the President can take up any portfolio, there are others who think otherwise. “We will go for the 20th.amendment of the constitution to clear the doubt,” Gammanpila said.

That the constitution will be amended quickly has been told to the media by top-ranking leaders of the ruling Sri Lanka Podujana Peramuna (SLPP). The SLPP, with its allies, has more than 150 MPs which is two-thirds of the 225-member parliament. Therefore the required majority to amend the constitution is there.

The amendment will cover a wide area, including the definition of the powers of the President and the Prime Minister and changes in the powers and functions of the Independent Commissions which determine recruitment, promotion, transfer and dismissal of officials of the various branches of government.