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rules Sri Lanka's defence reposes in President The President had invoked the consultative jurisdiction in terms of Article 129 (1) of the Constitution by referring the following questions for an opinion to be expressed by the highest Court in the country. The following
are extracts of the unanimous determination of the five-Bench Court
headed by Chief Justice Sarath N Silva and included Justices Shirani
A. Bandaranayaka, Hector S. Yapa, J.A.N de Silva and Nihal Jayasinghe The second
question was whether all or any of the said amendments Y1, Y2 AND
Y3 named by the Minister of Defence infringes upon and/or encroaches
upon the powers relating to defence vested in the Executive President
of the Republic of Sri Lanka under the Constitution and/or under
law and are ultra vires the Constitution. The second is a more specific question as to the validity of certain regulations made by the Minister. The regulations called in the question have been made by the incumbent Minister of Defence amending the Army, Air Force and Navy pensions and Gratuities Codes of 1981 contained in Regulations made under the respective Acts by J.R. Jayewardena, the then President and later amended by President Premadasa. The Pensions and Gratuities Code in respect of each Force lays down inter alia, the maximum period an officer could serve in a particular rank. The resulting position is that after the expiration of the specific period, if the officer is not promoted to the higher rank, he retires and granted a pension. Initially the periods were fixed by president Jayewardena in the Regulations of 1989 (XI) in relation to the Army; the Regulations of 1991 (X2) in relation to the Air Force, and in the Regulations of 1991 (X3) in relation to the Navy. President Premadasa amended these Regulations in 1992 by including an additional rank of officer in relation to the Army, Air Force and navy. They are the officers in the rank of Major General in the Army; the rank of Air Vice Marshal in the Air Force and the rank of Rear Admiral in the Navy. The maximum period of service was specified as being 3 years in relation to each such rank of officer. The amendments YI, Y2 and Y3 drawn in issue in this reference relate to the rank of officers covered by the Regulations made by President Premadasa, mentioned above. The Amendment to the Army Pensions and Gratuities Code made by the incumbent Minister (YI) reads as follows: " Provided however, that a Major General, may continue in service beyond the period stipulated in respect of such rank, until he reaches the age of fifty five years, unless he is required to retire at the end of the period stipulated for such rank by the President on the recommendation is endorsed by the Minister". The Amendment (Y2) is similar in relation to the Air Vice Marshal in the Air Force and the amendment (Y3) is also similar in content in relation to the Rear Admiral in the Navy. The effect of the amendments, Y1, Y2 and Y3, mentioned in the reference is that the Major General in the Army, the Air Vice Marshal in the Air Force and the Read Admiral in the Navy, will not be subject to the 3 year limit imposed by the Regulation made by President Premadasa, but continues in service until he reaches the age of 55 unless he is required to retire at the end of the stipulated period of three years by the President. The President could so act only on a recommendation made by the Commander of the respective Force which recommendation has to be endorsed by the Minister. The twin issues that arise in relation to the second question are firstly, the validity of the amendments made by the incumbent Minister of Defence to Regulations that have been made by former Presidents Jayewardena and Premadasa. It is manifest that all Regulations under the three Acts relating to the Army, Navy and Air Force, after the promulgation of the present Constitution on 7.9.1978, have been made by those holding the office of President. The Regulations bear the endorsements of the respective Presidents without reference to their portfolio of Minister of Defence. The issue is whether a Regulation made by a President could be amended by the Minister acting on his own. More specifically, on the content of the Regulation, the second issue is whether the authority of the President can be sub-ordinated to that of the Minister in the manner appearing in the Regulations Y1, Y2 and Y3. The first question, as noted above, is more general in nature and relates to the control and authority of the President in relation to the Defence of Sri Lanka vis-à-vis that of the Minister to whom the subject of Defence is assigned in terms of Article 45 (1) of the Constitution. We have to express our opinion in accordance of the constitutional determination made by a Bench of seven Judges of this Court that executive power being a component of the sovereignty of the People, including the defence of Sri Lanka, is reposed in an exercise by the president and any transfer, relinquishment or removal of such power from the President would be an alienation of sovereignty, which is inconsistent with Article 3 read together with Article 4 being entrenched provisions of the Constitution. We have to now consider the role of the Cabinet of Ministers and of an individual Minister in relation to the exercise of executive power and the defence of Sri Lanka. In the preceding account as to the constitutional history of this country it is revealed that under the 1946 and 1972 Constitutions the executive power including the defence of Sri Lanka was exercised by the Cabinet of Ministers headed by the Prime Minister. By the second Amendment to the 1972 Constitution the reference to the Cabinet of Ministers in section 5, which dealt with the exercise of executive power and the defence of Sri Lanka was removed. That removal of the Cabinet of Ministers as a repository of executive power including the defence of Sri Lanka was further entrenched by Article 4 (b) of the present Constitution, which links the exercise of such power to the mandate received by the President from the People who are sovereign. On the other hand the role of the Cabinet of Ministers is functional in nature in relation to the subjects coming within the Government of the Republic. These functions are attended to by the respective Ministers within the purview of the executive power including defence of Sri Lanka which is solely vested in the President elected by the People. The pervasive control of the President in relation to the exercise of such governmental functions by the Ministers is exemplified by the following provisions of the Constitutions: 1) Article 30 (1) which provides that the President is the Head of the State, the Head of the Executive and of the Government and the Commander-in-Chief of the Armed Forces. 2) Article 43 (2) which provides that the president shall be the Head of the Cabinet of Ministers. 3) Article 43 (3), 44 (1), 33 (3), 45 and 46 which empowers the President to appoint the Prime Minister and Ministers, assign subjects and functions to such Ministers, change them from time to time, appoint Ministers not being members of the Cabinet and to appoint Deputy Ministers. 4) Article 47 which empowers the President to remove the Prime Minister, any Minister or Deputy Minister. The removal of the requirement as contained in the 1946 and 1972 Constitutions for the Head of State to act on the advice of the Cabinet of Ministers or of any Minister consolidates this power in the hands of the President as the sole repository of the executive power and the defence of Sri Lanka. A balance is struck in relation to the extensive power thus vested in the President by Article 42 which provides as follows: " The
President shall be responsible to Parliament for the due exercise,
performance and discharge of his powers, duties and functions under
the Constitution and any written law, including the law for the
time being relating to public security". The Parliament exercise control in relation to the President by the exercise of legislative power (Article 75) power in relation to finance (Article 148) and of impeachment (Article 32 (2) ). In the determination as to the Nineteenth Amendment this Court laid down the requirement which emerges from the provisions of the Constitution, to maintain the fine balance of power that has been struck in relation to each organ of government and the effectiveness of checks and balances that have been put in place. Those powers including the check and balances have to be exercised by the respective organs of government in trust for the People for the good governance of Sri Lanka and the establishment of a just and free society as laid in the Directive Principles of State Policy contained in Article 27 (1) of the Constitution. It is in this background that we state the opinion of this Court in terms of Article 129 (a) of the Constitution in respect of the first question in the reference. That, in terms of the several Articles of the Constitution analysed in this opinion and upon interpreting its content in the context of the Constitution taken as a whole, the plenary executive power including the defence of Sri Lanka is vested and reposed in the President of the Republic of Sri Lanka. The Minister appointed in respect of the subject of Defence within the purview of the plenary power thus vested and reposed in the President. In the answer to the second question must necessarily follow the tenor of the opinion stated above in relation to the first question. The plenary executive power and the defence of Sri Lanka vested and reposed in the President includes the control of the Forces, Army, the Navy and Air Force, of which the President, is the Commander-in-Chief as provided in Article 30 (1) of the Constitution. The effective control of the forces by the president is carried through an exemplified in Article 61E of the Seventeenth Amendment to the Constitution, which specifically provides that "Heads of the Army, Navy and Air Force shall be appointed by the President". The recommendation for the approval of the Constitutional Council is not interposed in relation to such appointments as in the case of certain other appointments. In terms of Article 61F of the Seventeenth Amendment to the Constitution the members of the Army, Navy and Air Force are not public officers. All officers of the Army, Navy and Air Force are appointed by Commissions issued under the hand of the President (vide: section 9 ( 1) of the Army Act: Section 9 (1) of the Navy Act, Section 9 (1) of the Air Force Act). Similarly, the enlistment of soldiers, seamen and airmen, in terms of these respective Acts are referable to the authority of the President. The Parliament determines the strength of each force as stated in Section 2 (1) of the respective Acts. This demonstrates the control exercised by the Parliament, through the power relating to public finance and the laws themselves which provide for the establishment of the forces are enactments of Parliament subjective to the legislative power that maybe exercised by Parliament in terms of the Constitution. Subject to those controls, the particular enactments vest an extensive power in relation to the forces in the President. In the background stated above we have to now consider the validity of legislation, Y1, Y2 and Y3 referred to in the second question the Attorney General who agreed with the submissions of Mr. H L de Silva and R K W Goonesekera with regard to the contents of the different Constitutions and the transformation to a Presidential system of government under the Second Amendment to 1972 Constitution and the present Constitution, contended that on the assignment of the function of Defence and upon the appointment as Minister by the President, the regulations in question have been validly made by the incumbent Minister. He also contended that the previous regulation had been made by Presidents, Jayewardena, Premadasa and Wijetunga in their respective capacities as Minister and not as President although the regulation bears the endorsement as President. Finally he submitted that the reference to the Minister in the respective enactment giving the power to make regulations, should be read and construed as a reference to the Minister to whom the subject is assigned by the President. On the other hand Mr. de Silva and Mr. Goonasekera submitted that the respective Acts have been passed under the 1946 Constitution and the reference to the Minister in the respective Acts is defined to mean the "Minister of Defence and External Affairs". In terms of Section 46 (4) of the 1946 Constitution it is required that the Prime Minister shall be in charge of the Ministry of Defence and External Affairs. The Prime Minister was in effect the Head of Government under that Constitution and advised the Governor General in whom the other powers in relation to the Forces were formally reposed. Therefore it was contended that in terms of the 1946 Constitution the control of the forces and the regulation making power was reposed in the Prime Minister who was the effective Head of Government. The submission in our view is unassailable and in accord with the reasoning contained in this opinion. The Army, Navy
and Air Force Acts passed under the 1946 Constitution continue in
force in terms of Section 12 (1) of the 1972 Constitution and Article
168 (1) of the present Constitution as existing now. Article 168
(1) reads as follows: The 'mutatis mutandis' clause providing for continuation in force as a convenient method adopted by the draftsmen to ensure that the words and phrases in the existing legislation would be correctly interpreted with the due alteration where necessary the currently applicable legal context. Mr. Goonesekera submitted that when independence was granted the Constitution Order in Council did not resort to the convenient 'mutatis mutandis' clause, but contained Section 88 (1) which empowered the Governor to publish an Order stating the modifications, additions, and adaptations, that are necessary in respect of any Colonial Ordinance that will continue in force after the Ceylon Independence Order in Council in 1947 became effective. He in fact produced the Ceylon Government Gazette Extra - ordinary No; 9773 of 24.09.1947 which contains the modifications, additions and adaptations that are necessary in relation to each Ordinance. A perusal of the contents of that Proclamation which refers specifically to each Ordinance, demonstrates the degree of care and consideration which should be taken in applying existing law the newly emerged legal regime. Our last official revision of enactment was done in 1956. The 1980 'revised edition' is unofficial as clearly stated in the cover of each volume. The editor has resorted to a simplistic approach in applying the 'mutatis mutandis' clause and in the Acts relating to the Army Navy and Air Force, he substituted the word 'President' whenever the phrase 'Governor General' appears and kept the reference to the 'Minister' as it is, implying that there are two repositories of power. Worst still, in the interpretation the section where the term 'Minister' means 'the Minister of Defence and External Affairs' he substituted, it with the phrase ' Minister of Defence'. With due respect to the editor, he did not have authority to do that. He failed to note that in terms of Section 46 (4) of 1946 Constitution the Prime Minister was necessarily the Minister of Defence and External Affairs. Therefore the regulation making power was reposed in the Prime Minister who was then the Head of Government. He advised the Governor-General in relation to the exercise of the power reposed in the latter. Hence there was in effect only one repository of power in relation to the Defence of the country, namely, the Prime Minister who was the Head of Government and not two repositories of power as appearing in the 'unofficial revision'. As repeatedly noted above the power reposed in the 1946 and 1972 Constitutions (prior to the second Amendment) in the Prime Minister as Head of Government has been reposed by the present Constitution in the President, generally referred to in view of this characteristic as the Executive President. It is our opinion based upon the preceding analysis, that the plenary power, relating to the defence of Sri Lanka including the power to make regulations under the Army, Navy and Air Force Act is reposed in the President. It is for this reason that President, J.R. Jayawardena who understood the Constitution well, made the regulations referred to above as President. On the basis of the foregoing reasoning we have to express our opinion in respect of the second question by stating that the amendments to the regulations made by President Jayawardena and President Premadasa by the incumbent Minister, purporting to amend the respective Pensions and Gratuities Codes, marked Y1, Y2 and Y3 and annexed to the reference, are Ultra vires, invalid and of no force or avail in law. We wish to place on record our appreciation of the submissions made by the Attorney General, Mr. H.L. de silva, P.C. and Mr. R.K.W. Goonesekera. |
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