COLOMBO: Sri Lankan President Gotabaya Rajapaksa, who swore-in a 65 member Council of Ministers including 26 of cabinet rank, on Wednesday, also kicked off a constitutional controversy which might be taken to the Supreme Court for a ruling or get solved by a quick Constitutional amendment.

President Gotabaya took the Defense portfolio which the Head of State and Government had always taken since independence, but which was barred in 2015 by the 19 th Amendment.

19A says that members of the Council of Ministers or the cabinet, will have to be chosen from among Members of Parliament (MPs). The President is not an MP. He is directly elected by the people. He is the Head of the Cabinet, presides over its meetings and appoints, transfers or sacks ministers, even if the Prime Minister disagrees. But still he is barred from taking a portfolio because he is not an MP.

Senior Supreme Court lawyer and MP from the Tamil National Alliance (TNA), M.A.Sumanthiran, said that the President has violated the Constitution. Sumanthiran pointed out that 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.

However, 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.

But other legal experts like the current Law Minister, Ali Sabry, Manihara de Silva and Neville Ladduwahetti said that Art 4 (b) which was not repealed as part of the 19A allows the President to take up any portfolio, including Defense.

This is what 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. Which means that he can take up any portfolio including defense portfolio.

“Article 4B is very powerful and over-rides other clauses,” asserted Ladduwahetti. “When the President is the Head of the Government and the cabinet and exercises all powers related to the latter, it is ridiculous to say that he cannot take a cabinet portfolio, especially Defense,” added Manohara de Silva.

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 including the Attorney General, who think otherwise. “We will go for the 20th.amendment of the constitution to clear the doubt,” Gammanpila said.

The Daily Mirror reported on Thursday, that government plans to amend the 19A suitably and that the draft will be ready in a fortnight. Parliament is to meet on August 20 and this issue will be raised first.

However, the amendment, whenever presented ,will be passed as the Sri Lanka Podujana Peramuna (SLPP) government of President Gotabaya and Prime Minister Mahinda Rajapaksa had secured the required two-thirds majority (150 out of 225) in the parliamentary elections held on August 5. It is expected to get one or more to its side shortly.

The 20A will cover a wide area, including an unambiguous 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. “It will be a mix of the 18 th., and the 19 th., amendments,” the Daily Mirror said.

While the 18A of 2010 gave all powers to the Executive President and the Prime Minister (through the Parliamentary Council) and did away the Independent Commissions, the 19A restored the Independent Commissions, abolished the Parliamentary Council and reduced the powers of the Executive President. The proposed 20 th., Amendment will cut the wings of the Independent Commissions, increase the powers of the President and the parliament represented by the Prime Minister.

Since 2001 when they were set up the 17 th., Amendment, the Independent Commissions have been a hindrance to the Executive as all appointments, transfers and dismissals below the Ministerial Secretaries’ level have to be sanctioned by them. And the Commissions were composed of unelected persons and therefore considered undemocratic.

Another interesting feature of the new setup is that it has the largest number of members of the Rajapaksa clan todate. Gotabaya Rajapaksa is President, his elder brother Mahinda Rajapaksa is Prime Minister, the oldest brotHer Chamal Rajapasksa is Cabinet Minister Irrigation and State Minister of Home and Internal Security, Mahinda Rajapaksa’ son, Namal Rajapaksa, is Cabinet Minister of Sports and Shasheendra Rajapaksa, son of Chamal Rajapaksa, is State Minister of Paddy, Serials and High Tech Agriculture.

An innovative feature in Wednesday’s exercise was the appointment of chairpersons of the 23 District Coordination Committees (DCCs) from among ruling party MPs. This way, the President and Prime Minister have satisfied some MPs who could not be accommodated as Cabinet or State ministers.

In contrast to the past characterized by jumbo cabinets and many State and Deputy Ministers, Sri Lanka now has a small 26 member cabinet. The State Ministers are 39 in number. There are no Deputy Ministers. Perhaps the chairpersonships of the DCCs are meant to satisfy the ambitions of some MPs who might have appointed as Deputy Ministers.

Unlike the past where distribution of departments overlapped or incoherently distributed, this time, President Gotabaya has rationalized the allocations and announced the bunching of departments ahead of the distribution of portfolios on Thursday.

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P.K.BALACHANDRAN