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Gotabaya has “moral and legal right” to hold Defence portfolio – GL

ECONOMYNEXT- Minister of Education Prof G.L. Peiris says President Gotabaya Rajapaksa has a moral and legal right to hold the Defence Minister portfolio as the defence of the country is a part of the necessity and content of executive power.

“The current Defence Minister is President Rajapaksa, we argue that according to section 3 and 4 of the constitution that portfolio should be held by him,” he said.

Addressing reporters yesterday, Peiris said that a government is formed to ensure the security of the country and thereby to protect the lives of the people.

“The chief of the government executive branch is the President, it is clear in these sections of the constitution that the security of the country is an included part of the executive power and it mainly rests in the hands of the President,” he said.

But he added because of the 19A, the president could not be the Defence Minister and that the President of the country was asked to perform the supreme duty of ensuring the security of the country with his hands tied.

However, Opposition MP Field Marshal Sarath Fonseka said in Parliament on Friday that the country is currently running without a Defence Minister as the President cannot hold any ministerial portfolio according to 19A.

The confusion over the Defence portfolio first emerged at the swearing-in of the caretaker Cabinet of Ministers back in November last year after President Gotabaya Rajapaksa won the presidential election.

The final announcement of the Cabinet released by the President Media Division (PMD) did not include that portfolio under the PM or any other Minister except Chamal Rajapaksa was appointed State Minister of Defence.

The topic of the Defence portfolio surfaced earlier this month when the new cabinet was sworn in after the victory of the governing party at the General Elections.

At the ceremony, it was verbally announced that President Rajapaksa would keep the Defence portfolio to himself.

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However, in a written document announcing the list of Ministers, there was no mention of the President retaining the Defence file.

In a previous interview academic, Gehan Gunatilleke told EconomyNext said that according to the constitutional framework set out by the 19A precludes the president from assigning any subject or function to himself.

He said that it is not possible for the current president to assign to himself any subject or function or claim to have any residual powers under the constitution.

He said there are four time periods to look to such as pre and post 19th amendment in order to understand the framework.

Explaining the Period 1, Pre-19 amendment the president could assign any subject/function to him/herself and Any subject/function not assigned to any other cabinet minister will be retained by the president (‘residual power’) according to article 44(2) of the pre-19A constitution.

And he said the Period 2, Post-19A and prior to General Election of 2015 the former president (which was Maithripala Sirisena) could assign to himself any subject/function. But the above residual power was specifically removed, this was according to the revised article 42, 43 and 44 in the post-19A constitution and section 50 of the 19A Act.

Looking into the Third Period which is after the General Election of 2015, President Sirisena could hold subjects/functions of defence, Mahaweli and environment as long as he held the office of president but he could not constitutionally hold any other portfolios, this was according to the section 51 of the 19A Act

Finally considering the fourth Period which is after the 2019 Presidential Election any new president cannot assign to himself any subjects/functions and he will not have residual power but will remain the head of Cabinet.

However, Gunatilleke said that the president may have powers that are specifically vested in him by statute. For example, the Public Security Ordinance continues to vest in the president certain powers relevant to public security, including the power to call out the armed forces to exercise police powers. (Colombo/Aug25/2020)

 

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