Sunday Times 2
Can any person other than the President hold defence portfolio? SC says ‘No’
It has been forcefully argued by some jurists that consequent to the 19th Amendment, the President cannot hold any ministerial portfolio including defence. For the reasons stated in this article, however, this view is untenable, more so in view of the Supreme Court determination in Tilak Marapana’s ill-fated Army officers Retirement Regulations Gazetted on December 2, 2002. In that case, upon a reference made by then President Chandrika Kumaratunga, a Fuller Bench of the Supreme Court headed by Sarath N. Silva C.J, struck down an Army Regulation made by the (purported) Defence Minister Thilak Marapana in terms of Section 155 of the Army Act. This case will be fully examined later.
In this context, there are two moot questions here. Firstly, can the President hold any portfolio under the 19th Amendment? Secondly, can any person other than the President hold the portfolio of defence, despite the 19th Amendment? In this article, these two questions will be examined.
The President as a minister: What the 1978 Constitution says
According to Chapter xiii titled “The Executive”, as it stood in the original form in the 1978 Constitution, the President was the sole authority with regard to the appointment, allocation of subjects and dismissal of Cabinet of Ministers. The President was not required to consult the Prime Minister. In terms of Article 44(2), the president could assign to himself any subjects and should remain in charge of subjects that were not assigned to any minister, a residuary provision. Thus the existence of the Cabinet was at the will and pleasure of the President.
The President as a minister vis-à-vis the 19th Amendment
The 19th Amendment repealed Chapter viii titled ‘The Executive” and substituted thereof a wholly new chapter. Thus 19A repealed Article 44 to a greater extent. In terms of 19A Article 43(1), the President shall, in consultation with the Prime Minister, where he considers such consultation is necessary, determine the number of ministers and assignment of subjects to such ministers. Thus ex-facie, Article 43(1) gives a discretion to the President with regard to the consultation with the Prime Minister. Put it in a negative way, if the President thinks that consultation with the Prime Minister is not necessary, the President can proceed to appoint ministers and assign functions to them on his own.
As per Article 43(2), 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. Thus as per Article 43(2), once the number of ministries and their functions have been determined by the President, even without consulting the Prime Minister under Article 43(1), still, when appointing persons to be in charge of such ministries, the President must consult the PM and the Ministers must be drawn from Parliament. This is solely to shut down non-MPs being appointed as ministers.
As per Article 43(3), the President may at any time change the assignment of subjects and the composition of the Cabinet. In Article 43(3), there is no reference to the Prime Minister. Hence Article 43 starts with giving a discretion to the Prime Minister; Article 43(1) and ends without any reference to the Prime Minister; Article 43(3).
Therefore it is only for the formation of a very 1st Cabinet after a General Election that Article 43(2) comes into play by which the President shall act on the advice of the PM when appointing MPs as Ministers.
For the 2nd and subsequent Cabinets after a General Election, the question of PM’s advice or consulting the PM does not arise and the President has the full freedom to hire and fire Ministers at will. This is the only sensible interpretation in view of Article 4(b) which is directly linked to Article 3. It must be stated that 19A is wholly unconstitutional as it was not passed by a Referendum. In anyway, when interpreting 19A, with regard to the Presidential power, one must focus on Article 4(b) read with Article 3 and should give an interpretation in harmony with the integrity of Presidential powers.
President holding portfolios after 19A
In terms of Article 44(2) of the 1978 Constitution (original form), the President could assign himself any subject and should remain in charge of all subjects that are not assigned to any minister. In 19A, there is no similar or residuary provision. Does it mean that the President cannot assign himself any portfolio and worst, if by design or accident, if some subject has not been assigned to a minister, that subject is no minister’s subject. For instance, if the subject of Buddha Sasana is not assigned to any minister, does it mean despite Article 9, there will be no minister for Buddha Sasana? Such a situation will be a comedy. Secondly it will be a tragedy. But such position is untenable in view of various other Articles.
As per Article 43(3), the President shall be a member of the Cabinet and shall be the Head of the Cabinet of Ministers. As per Article 42(1), there shall be a Cabinet of Ministers charged with the direction and control of the Government. As per Article 30(1), the President shall be the Head of the State, the Head of the Government and the Commander-in-Chief of Armed Forces. Thus of the President is a member of the Cabinet which is styled as the Cabinet of Ministers. Hence axiomatically it follows that the President can hold any ministerial portfolio.
The argument that despite 19A, the President can hold any ministerial portfolio is well supported by the 1972 Constitution. In Article 94 of the 1972 Constitution (Ministers and their subjects and functions), there was no provision identical to Article 44(2) of the 1978 Constitution i.e. 1972 Constitution was silent as to the PM holding ministerial functions and there was no provision as to any leftover (residuary) subject being assigned to the PM. Yet Sirimavo Bandaranayake was the Minister of Defence and External Affairs and she was also the Minister of Employment and Plans Implementation during 1970-1977. Therefore, it is submitted that despite 19A, the President may assign to himself any ministerial portfolio.
Under 1978 Constitution, can any person other than the President hold the defence portfolio?
A similar question was answered in the negative by the Supreme Court in the Army Officers Retirement Regulations Case (2003). Facts of this case are briefly as follows. Consequent to the General Elections in December 2001, the UNP formed a government whilst Chandrika Kumaratunga was the President. In the Cabinet so formed, for the 1st time in history, Tilak Marapana was appointed as the Minister of Defence. Austin Fernando was appointed as the Secretary Defence and along with retired General Dennis Perera, who had no battle experience, the trio formed a “Defence Review Committee” whose decisions were not seen to be in the interest of the armed forces. For instance, even they attempted to change the nomenclature of the Commander of the Army by down grading it as “Chief of Army Staff (COAS), a position of a mere staff officer. The Army Act was to be amended by curtailing Army Commander’s powers, Commanding Officers powers etc. One year later on December 2, 2002, Defence Minister Marapana promulgated the “Army Officers Retirement (Amendment) Regulations” purportedly under Section 155 of the Army Act which empowers the Defence Minister to promulgate Regulations to give effect to certain specified matters in the Army Act. President Kumarathunga promptly referred the Army Officers Retirement (Amendment) Regulations (2002) to the Supreme Court for a determination.
The matter came up before a Fuller Bench headed by Sarath N Silva CJ. In a well-reasoned determination, the CJ traced the constitutional history of the Defence portfolio from the time of the Soulbery Constitution, in which the Executive power was nominally vested with the Governor-General; Section 45. Nevertheless, the Governor-General was always, with the exception of few matters, required to act on the advice of the Prime-Minister. Furthermore, constitutionally, the Prime-Minister was the Minister of Defence and External Affairs; Section 46(4). The Governor-General was required to exercise his powers and functions in a manner similar to that of the monarch of the UK; Section 4(1). Therefore in practice, the real Executive power was vested with the Prime Minister and the Cabinet.
Thus from 1948 to 1972, the Prime Minister was always the Minister of Defence; from D.S. Senanayake (1948) to Sirimavo Bandaranaike (1972). In the 1972 Constitution, the dual repositories of the Executive power that existed under the Soulbury Constitution was formerly recognised and as per Article 5(b) of the 1972 Constitution, the Executive power of the people, including the Defence of Sri Lanka, was vested with the president and the Cabinet of Ministers.
In terms of Article 27(1), the President was always required to act on the advice of the Prime Minister except on few specified matters. Thus under the 1972 Constitution, too, there were two repositories of Executive power. From May 22, 1972 to July 23, 1977, Sirimavo Bandaranaike was the Minister of Defence and from July 23 to February 3, 1978, Prime Minister J.R. Jayewardene was the Minister of Defence. On February 4, 1978, by an amendment made to the 1972 Constitution, Mr. Jayewardene became the Executive President and the Defence Minister and on August 31, 1978, the new (1978) Constitution became operative.
In the 1978 Constitution, in terms of Article 4(b), the Executive power of the people, including defence, was vested with the President. Thus in a radical departure from the Soulbury Constitution and the 1972 Constitution, now there is only one repository of the Executive power of the people i.e. the President of the Republic. It has been held by the Supreme Court time and again that Article 4 is linked to Article 3 and hence Article 4, too, is an entrenched provision which requires a Referendum to be amended. In the final analysis Sarath N Silva CJ concluded that therefore, there cannot be a separate Minister of Defence under the 1978 Constitution and the President of the Republic (and he alone) has to be the minister of defence, in view of Article 4(b), read with Articles 30(1) and 33(2)(g).
In the circumstances, the Supreme Court struck down the Army Regulations made by the purported Defence Minister Marapana as ultra-vires the Constitution and therefore null and void. Soon, thereafter, an attempt was made by the UNP Government to impeach Sarath N Silva CJ. It heavily back fired on the Government which was eventually defeated at the 2004 General Election.
A constitutional article v. Another constitutional article
The situation as we have faced at present, where one Article of the Constitution is seemingly in conflict with another Article in the Constitution, has been resolved by the Indian Supreme Court as follows;
Chief Justice of Andra Pradesh v Dixitulu et al AIR 1979 SC 193- Per Sarkaria J at para 66
“Where two alternative constructions are possible, the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working and eschew the other which leads to absurdity, confusion of friction, contradiction and conflict between its various provisions and undermines or tends to defeat or destroy the basic scheme and purpose of the enactment. These cannons of construction apply to the interpretation of the Constitution with greater force because the Constitution is a living, integrated organism having a social and concisouneous of its own. When interpreting words on a solemn document like the Constitution, one must look at them not on school-masterly fashion.”
State of Punjab v. Ajaib Singh et al 1953 AIR 10 – Per Das J at p. 264
“If, however, two constructions are possible then the court must not adopt that which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory.”
Thus where a provision in the Constitution (19th Amendment) is in conflict with an entrenched provision like Article 4(b), Article 4(b) remains supreme.
Conclusion
For the foregoing analysis, it is submitted that (1) despite the 19th Amendment, the President remains supreme and he can assign any portfolio to himself without the concurrence of the Prime Minister; (2) In any event, it is mandatory that the President shall hold the portfolio of Minister of Defence and no other individual is competent to hold that appointment; (3) All subjects that are not assigned to any Minister shall be under the President.
(The writer holds an LLB degree from the Open University, LLM degree from the Kotelawala Defence University. He is also an Attorney-at-Law of the Supreme Court and former Judge Advocate General – Army)