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by Indeewara Thilakarathne

The opinion of the Supreme Court on the question of law relating to exercise of executive powers of defence will be a non-binding opinion stated Attorney General K.C. Kamalasabeyson PC in his submission before the specially constituted five member bench.

He was making his submission on the determination sought by the President Chandrika Bandaranaike Kumaratunga over her executive powers relating to defence of Sri Lanka.

The bench comprised Chief Justice Sarath N. de Silva PC, Justices Shirani Bandaranayke, Hector S. Yapa, Asoka de Silva and Nihal Jayasinghe.

He further submitted that in terms of Section 44 (1),(2) of the constitution the President shall in consultation with the Prime Minister appoint ministers and shall retain the portfolios that have not been assigned and remain in charge of those subjects. He said that the President shall activate his/her executive power through the constitutional mechanism and that is through the Cabinet of Ministers headed by the Prime Minister.

The Attorney General stated that the President has invoked the consultative jurisdiction of the Supreme Court under Article 129 (1) of the Constitution on a matter of law relating to her executive power of defence of Sri Lanka and that the Courts' opinion will not be a binding one.

Making a lengthy submission, counsel for the President H.L. De Silva PC stated that the present constitution is a prototype of a presidential constitution and for the first time in history of constitutional development, after the General Election of December 2001, majority of the Government were drawn from a coalition of political parties of which the Executive President is not a member.

Tracing back to the geneses of the constitutional evolution of the country, the Counsel submitted that the 1978 Constitution was a watershed in our constitutional evolution where the Parliament deligeted its executive powers to a Executive President. He further submitted that in terms of the Section 5 of the 1972 constitution, the National State Assembly shall exercise the executive power of defence of Sri Lanka through the President and the cabinet of Ministers.

According to the Section 46 - sub-section 4 of the 1972 Constitution the subject of defence of Sri Lanka was vested in the Prime Minister and that the executive power was continued to be with the Majesty and Prime Minister was in charge of the executive power of defence.

He further submitted that there has been a continuous constitutional tradition where the President held the portforlio of defence and that that executive power is inalianable and should be exercised by the President and that it was the essence of the Presidential system. He submitted that President shall deligate that executive power relating to defence of Sri Lanka to a minister in terms of the Section 158 of the Constitution and that President may revoke that deligation at any time.

The Silva said that according to the Article 33 (p), the President shall have the power to declare either war or peace and that that is a power not even exercised by the President of the USA where that power is vested with Congress.

By the 17th amendment to the 1978 constitution, Section 61 was introduced and according to which the President shall be vested with the power of appointing head of the Army, Navy and Air Force and that shall not be concurrent to the Constitutional Assembly.

In terms of the Army, Navy and Air Force Act the President shall extend the service of a Major General on completion of stipulated period of three years in the rank, on the rcommendation of the Commander of the Army and that the recommendation shall be endorsed by the Minister of Defence.

And according to the 1972 Constitution the said function was performed by the Governer General on the advice of the Prime Minister he stated.

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