Constitutional responsibility for the defence of Sri Lanka

By Neville Ladduwahetty-December 5, 2019, 7:14 pm

The 19th Amendment has been a topic of much debate and comment since the day it became a part of Sri Lanka’s Constitution. In view of such controversies it is not a matter of surprise for President Gotabaya Rajapaksa to have stated that it should be repealed and for the UNP to have stated that they are prepared to consider Amendments. In this regard a matter of particular and immediate concern is whether the President of Sri Lanka under the 19th Amendment could in addition to being the "Head of the State, Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces" as per Article 30 (1), also could function as the Minister of Defence. In this regard, some content that despite being a Member of the Cabinet of Ministers and its Head as per Article 42(3) that he cannot hold any Ministry. Others contend that he should be entitled to hold at least the Ministry of Defence.

Those who hold the view that the President is constitutionally barred from being the Minister of Defence rely on the Article 43(2), which states that ONLY Members of Parliament are entitled to be Ministers in charge of Ministries. On the other hand, those who hold the view that the President is entitled to at least be the Minister of Defence do so because of provisions in Article 4(b) that states very specifically that the President is expected to exercise "the executive powers of the People, including the defence of Sri Lanka …."

MEANING of "DEFENCE of SRI LANKA"

The Gazette Extraordinary of the Democratic Socialist Republic of Sri Lanka of 28.12 2018 outlines information relating to the Ministry of Defence. This information is given in three Columns. The first relates to "DUTIES & FUNCTIONS". The second relates to "DEPARTMENTS, INSTITUTIONS & PUBLIC CORPORATIONS. The Column relates to "LAWS and ORDINANCES to be IMPLEMENTED".

What is presented below (with added emphasis) are seven out of a total of twenty-three items from Column I relating to Duties and Functions in order to demonstrate what the Ministry of Defence is responsible for in regard to the "DEFENCE of SRI LANKA".

1. Formulation of policies, programmes and projects, implementation, monitoring and evaluation in relation to the SUBJECT of DEFENCE, and those subjects that come under the purview of Departments, Statutory Institutions and Public Corporations listed in Column II.

2. ENSURING DEFENCE of the COUNTRY by the facilitation of functions of the defence services.

3. Maintenance of INTERNAL SECURITY.

4. Maintenance of DEFENCE and INTERNAL SECURITY related intelligence services.

5. Maintenance of relations with visiting Armed Forces.

6. Extension of corporation to international humanitarian operations

7. Matters relating to veteran and disabled soldiers.

It is therefore crystal clear that DEFENCE of SRI LANKA means at a minimum the partial list of DUTIES and FUNCTIONS cited above. That being the case, the Constitution requires the President to exercise the duties and functions relating to DEFENCE directly as called for in Article 4(b).

DEFENCE in PARLIAMENTARY

v. PRESIDENTIAL SYSYEMS

The 1972 Constitution of Sri Lanka was based on the Parliamentary System. Article 5 of the 1972 Constitution states: "The National State Assembly is the supreme instrument of State power of the Republic. The National State Assembly exercises "the executive power of the People, including the defence of Sri Lanka, through the President and the Cabinet of Ministers" (Article 5(b) and as the Head of the Executive (Article 20) the President shall appoint "from among Members of the National State Assembly Ministers to be in charge of Ministries" (Article 94(2).

In sharp contrast, the 1978 Constitution and the 19th Amendment are based on a Presidential System of Government. The Presidential System is founded on the principle of the Separation of Power. Accordingly, the Legislature and the Executive are elected separately by the People. In keeping with the principle of Separation of Power "the executive power of the People, including defence of Sri Lanka shall be exercised by the President…" (Article 4(b). Therefore, the President is exclusively empowered by the Constitution to exercise the People’s Executive Power including the DEFENCE of SRI LANKA, and since on one else is granted executive power under the Constitution, the entire Cabinet of Ministers exercise their executive functions on the DELEGATED AUTHORITY OF THE PRESIDENT; a fact confirmed by the Supreme Court of Sri Lanka in their determination on the 19th Amendment (S.D. No. 04/2015).

The President under the 1972 Constitution functioned under a Parliamentary System and as such was nominated by the Prime Minister. On the other hand, the President under the 19th Amendment is elected directly by the People under a system of government where the powers of Parliament are separate from that of the Cabinet of Ministers, whose Head is the President. Therefore, the perception that the authority of the President under 19A is similar to that of a President under the 1972 Constitution is seriously flawed.

In view of the 1978 Constitutional provisions the President has every right to exercise executive authority including Defence of Sri Lanka directly. However, due to a drafting blunder of colossal proportions, a provision (Article 43(2), appropriate for a Parliamentary System that requires Ministers to be "from among Members of Parliament", has been repeated in the 19th Amendment that is based on a Presidential System. This blunder is the constitutional constraint that is cited as the reason to deny the President from exercising the powers vested in the Ministry of Defence. Article 43(2) is a total misfit in a Constitution that is founded on the Separation of Power and is evident from the practices adopted by countries whose Constitutions are based on this principle - the Separation of Power.

In recognition of the principle of Separation of Power both the U. S. and France do not have Members of their Legislature/Parliament in their Executive Branch as Ministers. When they do so they have to cease to be Members of the Legislature thus ensuring that Legislative and Executive functions are exercised by separate organs of Government. Conflicts of interest are thus avoided as well as explained below.

In keeping with the principle of Separation of Power and the practices adopted by other countries, the Ministers of the Cabinet should not be from among Members of Parliament. The fact that Sri Lanka has opted to ignore the need to keep the two organs separate with deliberate intent or not, has compromised the principle of Separation of Power. Consequently, Ministers in the Cabinet responsible for executive action are also in Parliament performing legislative functions. This practice cannot be changed because it is unlikely that Members of Parliament would vote to give up an opportunity to be a Minister.

Thus, in the particular context of Sri Lanka since Article 4(b) where executive power of the People including specifically the Defence of Sri Lanka is to be exercised by the President, the decision as to whether he/she exercises it directly or delegates this authority to a civilian Member of Parliament should be his/her prerogative and not a Constitutional imperative.

CONCLUSION

The uncertainty that currently exists as to whether the President of Sri Lanka is Constitutionally empowered to exercise authority relating to duties and functions of the Ministry of Defence is because Article 43(2) of the 19th Amendment states that Ministers should be from among Members of Parliament. This provision is a carryover from Article 94(2) of the 1972 Constitution which was drafted to suit a Parliamentary System wherein the National State Assembly was the Supreme Instrument of State power. Under that set up, Ministers were necessarily from Parliament. Notwithstanding its inappropriateness, this provision has been incorrectly repeated in Article 44(1)(b) in the 1978 Constitution and Article 43(2) in the 19th Amendment, both of which are based a Presidential System, the foundation of which is Separation of Power between the Legislature, the Executive and the Judiciary. This means that a Member of Parliament CANNOT concurrently be a Cabinet Minister.

The Constitutional imperative that the Ministers should be from among Members of Parliament means they have one leg in the Legislature and another in the Executive. This provision not only violates the core principle of Separation of Power but also is an inducement for Members of Parliament to bargain to become Ministers at great cost to political stability not to mention the corruption that goes with it. In fact, in countries such as the U.S. that function on Separation of Power, the Executive is not drawn from Congress while in France a Member of the National Assembly can be a Cabinet Minister ONLY on condition that he leaves the Assembly, thus endorsing the principle of Separation of Power.

However, since Sri Lanka has adopted a unique hybrid system where Members of Parliament also function as Members of the Cabinet, the President should have at least the prerogative to exercise executive authority over the Ministry of Defence directly since the Duties and Functions of the Ministry of Defence cited above cover the full scope of "defence of Sri Lanka" stated in Article 4(b).

It is extremely ironic that the only reason that the President finds himself in a "straitjacket" as stated by The Island editorial of December 4, 2019, from being the Minister of Defence, is because of a misplaced constitutional provision included by unthinking drafters of the Constitution, and for others to cite it as a valid argument not realizing its irrelevance in the context of parameters of a Presidential System. It is only a principled interpretation which recognizes the incongruity involved that can unravel this conundrum.