MAHINDASOMA V. MAITHRIPALA SENANAYAKE AND ANOTHER

008-SLLR-SLLR-1996-1-MAHINDASOMA-V.-MAITHRIPALA-SENANAYAKE-AND-ANOTHER.pdf


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MAHINDASOMA
V.
MAITHRIPALA SENANAYAKE AND ANOTHER
COURT OF APPEAL
DR. GUNAWARDENA, J. AND
J.A.N. DE SILVA, J.
C.A. APPLICATIONS NOS. 17/96 AND 18/9629 FEBRUARY , 1,5,6,7,11 and 12 March, 1996.
Provincial Councils – Dissolution – Writs of Certiorari and Prohibition -Whether the Governor has a discretion, when he exercises the power ofdissolution of a Provincial Council, vested in him under Article 154 B (8) (c)of the Constitution or whether he is bound by the advice of the Chief Minis-ter in terms of Article 154B(8) (d).
The two Provincial Councils of North Central Province (N.C.P.) andSabaragamuwa Province (S.P.) were dissolved by the respective Gover-nors of the said Provinces by Orders published in the Gazette dated3.1.1996. In consequence, the Commissioner of Elections published No-tices dated 4.1.1996 indicating his intention to hold elections to the saidProvincial Councils, and called for nominations. On representations madeby the general public and on information gathered by them about the al-leged maladministration of the said Councils, the said Governors have
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sought the advice of their respective Chief Ministers whether the said Coun-cils should be dissolved. The said Chief Ministers who command thesupport of the majority of members of the said Provincial Councils, ad-vised the said Governors against dissolution. Thereafter the said Gover-nors sought the advice of Her Excellency the President, in the allegedexercise of their discretion. Her Excellency the President by her directiondated 2.1.1996, directed the said Governors to dissolve the said ProvincialCouncils.
Held:
It is a cardinal principle of Constitutional construction that intention ofthe framers of the Constitution must be given effect to .. The only provisionin the Constitution which enables the Governor to dissolve a ProvincialCouncil is Article 154 B (8) (c). The provisions in sub-paragraph (d) whichimmediately follow, are unambiguously applicable to all the powers exer-cisable by the Governor under paragraph (8) of Article 154B. This wouldmean that, when the Governor is exercising the power of dissolution vestedin him under sub-paragraph (c), he is required to act in accordance withthe advice of the Chief Minister, so long as the Board of Ministers com-mands a majority in the Provincial Council.
The said sub-paragraph (d) is a constitutional provision in itself, whichlays down the procedure to be followed by the Governor when exercisinghis power of dissolution under sub paragraph (c). As the Governor isbound to uphold the provisions of the Constitution, he is required to followthe procedure laid down in said sub-paragraph (d), when exercising thepower vested in him under sub-paragraph (c). Thus it cannot be said thatit is, "a matter as respects which the Governor is by or under this Constitu-tion required to act in his discretion", as stated in Article 154F (2).
There is no provision in the Constitution, which empowers the Presi-dent to dissolve a Provincial Council.
The word "shall" in sub-paragraph (d) of Article 154B(8) cannot be readas meaning "may", as it will give the discretion to the Governor to dissolvea Provincial Council at his will.
PerGunawardana, J.:
"This certainly does not seem to be the situation, the Constitution envis-ages".
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According to Article 4(b) the executive power of the people is vested inthe President. But what is meant by “executive power" is not defined in theConstitution. The said term “executive power" is used in a general sense.The well known rule of construction Generalis Specialibus Non Derogantwould apply, in this instance. Hence, the provision, will take precedenceover the general provision in Article 4(b) of the Constitution.
In the judgment of the Thirteenth Amendment case (1987) 2 SLR 322,the provisions of the Constitution have been considered, with a view ofascertaining whether the provisions of chapter XVIIA (The Thirteenth Amend-ment) were inconsistent with the provisions of Article 2 and 3 of the Consti-tution, and not with a view of examining what legal effect should be given tothe provision of Article 4(b), in relation to the other provisions of the Consti-tution. The provisions of Article 154B(8) (c) and (d) have not been consid-ered in relation to Article 4(b).
The proviso to sub-paragraph (9) in Article 154B is not intended toapply to the provisions of Article 154B(8) (d).
The Governor when dissolving a Provincial Council, acting under theprovisions of Article 154B(8) (c) has no discretion and is bound by theprovisions of Article 154B(8) (d), to act on the advice of the Chief Minister,provided the Board of Ministers commands a majority in the ProvincialCouncil.
The Governors have acted contrary to the provisions of Article 154B(8)(c) and (d) of the Constitution, by seeking the advice of the President, in amatter they had no discretion and dissolved the Provincial Councils inaccordance with the directions given by the President. Hence the saiddissolution of the Provincial Councils are illegal and are declared null andvoid.
Cases referred to:
Sussex Peerage Case (Bindra: Interpretation of Statutes 7 Ed. page940.)
Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu (Bindra : Interpreta-tion of Statutes 7 Ed. page 940)
Thirteenth Amendment Case – [1987],2 Sri L.R. p. 312.
APPLICATIONS for Writs of Certiorari to quash respectively the orders ofdissolution of the Provincial Council of the North Central Province issuedby the Governor of the North Central Province and of the Provincial Councilof the Sabaragamuwa Province issued by the Governor of theSabaragamuwa Province.
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K.N.Choksy P.C. with L.C. Seneviratne, P.C., E.P. Paul Perera PC, DayaPelpola, S.J. Mohideen, Henry Jayamaha, Lakshman Perera, RonaldPerera, Nigel Hatch and Anil Rajakaruna for Petitioners in both applica-tions. E.D. Wickramanayake with Dr. Jayampathy Wickramaratne, M.A.Q.M.Gazzali, P. Mathew, Amitha Nikapitiya, Gaston Jayakody, MalathieRatnayake, Anandi Cooray, Shanika Seneviratne, U.A. Najeem andPrasanna Obeysekera for the 1st Respondent in Application No. 17/96.
Sarath N. Silva A.G. with K.C. Kamalasabayson DSG, ParakramaKarunaratne SSC, Kamal Arulanathan SSC for the 2nd Respondent.
D.S.Wijesinghe P.C. with Dr. Jayampathy Wickremaratne, M.A.O.M. Gazzali,P. Mathew, Gaston Jayakody, U.A. Welimuna, Amitha Nikapitiya, MalathieRatnayake, Shanika Seneviratne and Prasanna Obeysekera for the 1stRespondent in C.A. Application No. 18/96.
Cur. adv. vult.
27 February, 1996.
DR. A. DE Z. GUNAWARDANA, J.
The two applications were argued together, as agreed by the learnedCounsel appearing for the parties, in view of the fact that same issuesarise for consideration of the Court, in both Applications.The Applica-tion C.A. No. 17/96 relates to the dissolution of the Provincial Councilof North Central Province (hereinafter referred to as N.C.P.)The Gov-ernor of the N.C.P. the respondent, by order dated 3.1.1996 (markedP4) published in Gazette Extraordinary No. 904/7 purported to dis-solve the said Provincial Council of N.C.P. with effect from 3.1.1996.The Application No. 18/96 relates to the dissolution of the ProvincialCouncil of Sabaragamuwa Province (hereinafter referred to as S.P.).The Governor of S.P. the first Respondent, by his order dated 3.1.1996(marked P7), published in Gazette Extraordinary No. 904/7, purportedto dissolve the said Provincial Council of S.P. with effect from 3.1.1996.In consequence of the said purported dissolution of the Provincial Coun-cil of N.C.P. the Commissioner of Elections, the second Respondent,published a notice (marked P5) in Gazette Extraordinary No. 904/13dated 4.1.96, indicating his intention to hold an election to the saidProvincial Council and called for nominations commencing January18,1996. A similar notice (marked P8) was published by the secondRespondent in respect of the Provincial Council of S.P. in the same
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Gazette Extraordinary calling for nominations of the same date. Themain reliefs claimed in the said Applications are for grant of Writs ofCertiorari quashing the said Orders of dissolution by the said Gover-nors and the said Notices issued by the Commissioner of Elections. AWrit of Prohibition is also sought against the Commissioner of Elec-tions, the second Respondent, restraining him from taking any stepsto hold elections to the said Provincial Councils.
The 33 members of the Provincial Council of N.C.P. were electedby an election held on May 17,1993. At the said election 18 memberswere elected from the United National Party, 11 members from thePeoples Alliance. 3 members from the Democratic United National Frontand 1 member from Sri Lanka Muslim Congress. Subsequent to thesaid election, the then Governor appointed the Petitioner in ApplicationC.A. No. 17/96 as the Chief Minister and a Board of Ministers. Thesaid petitioner has averred that he commands the support of the ma-jority of the said Council and has produced marked P1 (a) to P1 (s)affidavits of the members of the said Council who support him. A Reso-lution passed by the said Council on December 21,1995, opposing thedissolution of the said Council is produced marked P1 (t). By letterdated December 15, 1995, (marked P2) the Governor, the first Re-spondent, sought the observations of the said Petitioner regarding thecontents of the matters stated therein and also the Petitioner’s adviceas to whether the said Provincial Council should be dissolved underthe provisions of Article 154B (8) of the Constitution. The first Re-spondent, sought the said Petitioner's reply to the said letter, withinseven days. The Petitioner replied the said letter (marked P2) by hisletter dated December 20,1995 (marked P3) stating inter alia,
that sufficient particulars had not been given to enable thePetitioner to reply to the said letter (marked P2) and requestedfor more particulars in respect of the matters set out therein, asalso more time as the period of seven days was insufficient.
that Petitioner and the Board of Ministers continue to com-mand the support of the majority of the members of the saidCouncil.
that a Provincial Council can be dissolved only on the adviceof the Chief Minister in terms of Article 154B (8) (c) & (d) of the
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Constitution and the petitioner found no reason to advice a disso-lution of the said Council, and was not advising a dissolution.
The Petitioner received no reply to the said letter (marked P3).Thefirst Respondent, the Governor dissolved the said Council by the saidOrder dated 3.1.1996. (marked P4).
On May 17, 1993 elections were held for the purpose of electingmembers to the Provincial Council of Sabaragamuwa.The 44 mem-bers who were elected at the said election, consisted of 24 membersof the United National Party, 14 members of the Peoples' Alliance, 5members of the-Democratic United National Front and 1 member of theNava Sama Samaja Paksaya.The then Governor appointed the Peti-tioner in Application C.A. No. 18/96 the Chief Minister and the Board ofMinisters. The said Petitioner has averred that he continues to com-mand the support of the majority of the said Council and has producedmarked P1 (a) to P1 (z), the affidavits of the members who support thesaid Petitioner. By letter dated December 14, 1995 (marked P2) thefirst Respondent, the Governor, sought the observations of the saidPetitioner as to the contents of the matters stated therein, and alsosought the Petitioner's advice as to whether the said Provincial Coun-cil should be dissolved under the provisions of Article 154B (8) of theConstitution. The said Petitioner replied to the said letter (marked P2)by his letter dated December 19,1995 (marked P3).The contents ofthe said reply (marked P3) are similar to letter (marked P3) in Applica-tion C.A.No. 17/96, referred to earlier. As the said Petitioner did notreceive a reply from the first Respondent, the Petitioner had sent afurther letter to the first Respondent dated 2/1/96 (marked P4).Thesaid petitioner had also sent a letter dated December 14,1995 (markedP5) to the first Respondent requesting the first Respondent, the Gov-ernor to make a change in the Board of Ministers. The first Respond-ent has by his letter dated December 18,1995 (marked P6) inquiredfrom the said Petitioner as to the reason for the said request.The firstRespondent, the Governor dissolved the said Council by the said Or-der dated 3.1.1996 (marked P7).
The first Respondents to the said Applications, who are the Gover-nors of the respective provinces, have in their objections stated interalia,
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that they sought the advice of the Petitioners on the questionof dissolution of the said Provincial Councils. It is further statedthat letter marked P2 was addressed to the Petitioner on the ba-sis of the representations made to the said Respondents by thegeneral public of the respective provinces and on credible infor-mation received and facts gathered by the said Respondents uponinvestigation into said representations.
that it was considered necessary by the said Respondentsboth in the exercise of their discretion and in the public interest,to refer the matter to Her Excellency the President. The saidRespondents further state that, in view of the provisions of theConstitution particularly Article 154B (2) they thought it neces-sary to bring the facts and circumstances relating the state ofaffairs of the said Councils, together with documents marked P2and P3, to the notice of Her Excellency the President and soughther directions in respect of the exercise of their discretion.
that Her Excellency the President by her direction dated2.1.1996 (marked X) directed the said Respondents to dissolvethe said Provincial Councils.
that the said Provincial Councils were dissolved by the saidRespondents acting under Article 154B and 154F of the Consti-tution upon the direction of Her Excellency the President.
The learned Counsel for the Petitioners submitted that, the onlyprovision in the Constitution which enables the Governor to dissolve aProvincial Council, before the expiry of the term of 5 years is underArticle 154B (8) (c). He added that however when the Governor is act-ing under the provision of Article 154B (8) (c) it is mandatory in termsof the provisions of Article 154 (8) (d), that the Governor must act inaccordance with the advice of the Chief Minister, so long as the Boardof Ministers commands the support of the majority of the ProvincialCouncil. The Governor has no discretion in the matter. The said Articleenjoins him to act on the advice of the Chief Minister.
The learned Counsel for the Petitioners pointed out that in bothApplications under consideration, there is no dispute that the said Pe-
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titioners had at all times the support of the majority of the Council. Hereferred to the fact that the said Governor had sought the advice ofsaid Petitioners by letter marked P2, with express reference to Article154B (8) (d). He submitted that the dissolution of the said ProvincialCouncils was contrary to the advice of the said Petitioners and was aclear violation of the Constitutional provisions.
The learned Counsel for the second Respondent, who made thesubmissions first, with the permission of Court, stated that the disso-lution of the Provincial Council is a matter within the discretion of theGovernor. He referred to Article 154B (c) which states that, "The Gov-ernor may dissolve the Provincial Council'1. He argued that the saidprovision gives a discretion to the Governor to dissolve the ProvincialCouncil and therefore when exercising the said discretion, the Gover-nor is bound by the directions of the President in terms of Article 154F
. He added that the decision of the Governor to act in his discretioncannot be questioned in any Court.
The learned Counsel for the first Respondent in Application C.A.No.17/96 associated himself with the said submission made by the learnedCounsel for the second Respondent and added that the Governor be-ing appointed by the President, acting under the provisions of Article 4(b) of the Constitution, the Governor is bound by the directions givenby the President.
The learned Counsel for the first Respondent in Application C.A.No. 18/96 associated himself with the said submissions of the learnedCounsel for the second Respondent and stated that the word "shall"occurring in Article 154 (8) (d) is not mandatory, but only an enablingprovision, empowering the Chief Minister to tender advice to the Gov-ernor with regard to the summoning, proroguing and dissolving of aProvincial Council.
He cited Bindra- Interpretation of Statutes, 7th Edition page 1113,which states as follows :-
"Shall – The word "shall" in its ordinary signification is mandatorythough there may be considerations which influence the Court inholding that the intention of the Legislature was to give a discre-
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tion. But this word is not necessarily mandatory, nor always man-datory. Whether the matter is mandatory or directory only dependsupon the real intention of the Legislature which is ascertained bycarefully attending to the whole scope of the Statute to be con-strued".
The central issue that arises for consideration from the above sub-missions is whether the Governor has a discretion, when he exercisesthe power of dissolution of a Provincial Council, vested in him underArticle 154B (8) (c) or whether he is bound by the advice of the ChiefMinister, so long as the Board of Ministers commands a majority in theCouncil. To arrive at a satisfactory conclusion we have to consider thisissue from different perspectives.
It is a cardinal principle of constitutional construction that the in-tention of the framers of the Constitution must be given effect to. Inthis regard it is appropriate to refer to the rule, stated by Lord ChiefJustice Tyndal in the Sussex Peerage case.(1) as quoted in Bindra -Interpretation of Statutes (7th Edition -1987) page 941, which statesas follows :-
“My Lords, the only rule for the construction of Acts of Parlia-ment is, that they should be construed according to the intent ofthe Parliament which passed the Act. If the words of the Statuteare in themselves precise and unambiguous, then no more canbe necessary than to expound those words in their natural andordinary sense. The words themselves do, in such cases, butdeclare the intention of the law giver."
As referred to earlier the only provision in the Constitution whichenables the Governor to dissolve a Provincial Council is Article 154B(8) (c), which states that the Governor may dissolve a Provincial Council.However, it is important to note that the sub-paragraph (d), which im-mediately follows states that,
"(d) The Governor shall exercise his power under this paragraph(my emphasis) in accordance with the advice of the Chief Minister solong as the Board of Ministers commands in the opinion of the Gover-nor, the support of the majority of the Provincial Council."
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On a plain reading of the above quoted sub-paragraph (d) it ap-pears that its provisions are unambiguously, applicable to all the pow-ers exercisable by the Governor under paragraph 8 of Article 154B.This would mean that, when the Governor is exercising the power ofdissolution vested in him under sub- paragraph (c), he is required toact in accordance with the advice of the Chief Minister, so long as theBoard of Ministers commands a majority in the Provincial Council.
It is significant to note that, it is a constitutional provision itself,viz. the said sub-paragraph (d), which has laid down the procedure tobe followed by the Governor, when exercising his power of dissolution,under sub-paragraph (c)..
As the Governor is bound to uphold the provisions of the Constitu-tion, he is required to follow the procedure laid down in said sub-para-graph (d) when exercising the power vested in him under sub-para-graph (c).Thus it cannot be said that it is "a matter as respects whichthe Governor is by or under the Constitution required to act in his dis-cretion." as stated in Article 154F (2). Since the procedure has beenlaid down by the Constitution itself, it is not a matter within the discre-tion of the Governor. Therefore the Governor cannot act on the direc-tions of the President under Article 154F (2). Further, it is to be ob-served that, it is abhorrent to common principles of construction todisregard the immediate provision in sub-paragraph (d) in the said Ar-ticle 154B (8) and go on to apply the provisions of Article 154F (2) tothe provisions of Article 1548 (8) (c). In the circumstances the provi-sions of Article 154F (2) would not apply to the provisions of Article154B (8) (c).
It appears from the scheme of the Constitution, that the Gover-nor's powers relating to summoning, proroguing and dissolving of theProvincial Council are dealt with in Article 154B (8).Therefore the ac-tions of the Governor relating to summoning, proroguing and dissolv-ing a Provincial Council must be ascertained according to the saidprovisions. In the case of Chief Justice of Andhra Pradesh v. L.V.A.Dixitulu, (2) cited in Bindra – Interpretation of Statutes (7th Edition -1987) at page 940, it is stated that,
"Where two alternative constructions are possible, the Court mustchoose the one which will be in accord with the other parts of the
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statute and ensure its smooth, harmonious working, and eschewthe other which leads to absurdity, confusion or friction, contra-diction and conflict between its various provisions or underminesor tends to defeat or destroy the basic scheme (my emphasis)and purpose of the enactment. These canons of construction applyto our Constitution with greater force
It is to be observed that the whole of the provisions of ChapterXVIIA were brought in by the Thirteenth Amendment to the Constitu-tion. It was submitted by the learned Counsel for the Petitioners that,the said Amendment was an exercise in the devolution of power underthe aegis of Article 27 (4) of the Constitution. This Article requires theState, to broaden the democratic structure of government and demo-cratic rights of the people, by decentralizing the administration, andaffording all possible opportunities to the people to participate at everylevel in national life and in government. It is in that background thatthe provision had been made requiring the Governor, to consult theChief Minister, the elected representative of the people, who commandsa majority of the elected members.
It is pertinent to note here that, the learned Counsel for the Re-spondents, conceded that there is no express provision in the Consti-tution, which empowers the President, to dissolve a Provincial Coun-cil.
In this context, if the interpretation sought to be given by the learnedCounsel for the first Respondent, in Application C.A.No. 18/96, thatthe word "shall" in the said sub-paragraph (d) of Article 154B (8) shouldbe read as discretionary, becomes untenable. If the word "shall" isread as meaning "may", the whole of the provision in sub-paragraph
of Article 154 (b) (8) becomes meaningless and superfluous. It willgive the discretion to the Governor to dissolve the Provincial Council,at his will, whether or not the Chief Minister commands the support ofthe majority of the Council. This certainly does not seem to be thesituation, the Constitution envisages.
The learned Counsel for the second Respondent submitted thatexecutive power of the people including the defence of Sri Lanka isexercised by the President. He argued, that therefore the Governor
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who is appointed by the President, exercises the executive power onbehalf of the President in view of Article 4 (b) read with Article 154B ofthe Constitution. He added that the provisions of Article 154B (8) (d)would only apply to the exercise of Governor's powers solely as adelegate.
The learned Counsel for the first Respondent in Application C.A.No.17/96, associated himself with the said submissions made by thelearned Counsel for the second Respondent, and added that in view ofthe provisions of the Constitution, particularly Article 154B (2), (theprovision which enables the President to appoint a Governor) the saidfirst Respondent brought the facts and circumstances relating to thestate of affairs of the Council to the notice of the President, and soughther directions in regard to the exercise of his discretion.The Presidentdirected the first Respondent to dissolve the said Council. He submit-ted that the first Respondent being a delegate of the President, isbound by the said direction and acted accordingly.
The learned Counsel for the Petitioners pointed out that, ours is awritten Constitution, and when express provision is made for a particu-lar situation, such provision must prevail over the general provision.He submitted that provision in Article 154B (8) (d) is a special provi-sion, and that Article 4(b) of the Constitution dealt generally with theexecutive power of the President. Therefore the said special provisionmust prevail over the said general provision.
The Article 4 of the Constitution dealing with the Sovereignty ofthe people, in sub-paragraph (b) states as follows :-
"(b) the executive power of the people, including the defence of SriLanka, shall be exercised by the President of the Republic elected bythe people :-
What is meant by "executive power" is not defined in the Constitu-tion. It was submitted by the learned Counsel for the second Respond-ent that executive power, “connotes the residue of governmental func-tions that remain after the legislative and judicial functions are takenaway".Thus it appears that the said term executive power is used in ageneral sense.
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The learned Counsel for the Petitioners submitted that, the said"executive power" referred to in Article 4 (b) is not unlimited power. Hereferred to several provisions in the Constitution itself, which he sub-mitted expressly limits the exercise of such "executive power". Hecited the following provisions of the Constitution.:
Article 34 (1) Proviso.
Article 70 (1) Proviso (a).
Article 70 (1) Proviso (b).
Article 70 (1) Proviso (c).
Article 154B (8) (d).
Article 154 F (4).
Article 154 F (4) Proviso.
Article 154 F (5).
The learned Counsel for the second Respondent submitted that, inthe context of theThirteenth Amendment, one cannot read a limitationinto the powers of the President, which the President derives underArticle 4(b). The various provisions referred to by the learned Counselfor the Petitioners are inbuilt provisions, which set out the manner inwhich the various powers therein are to be exercised. For instance,Article 34 proviso cannot be regarded as a restriction on the power ofthe President. It sets out the manner in which that power is to beexercised in the situation referred to in the proviso. Similarly, Article70 is a self contained provision which provides for the procedure andpowers in^respect of the matters set out therein. These also containinbuilt provisions which cannot be regarded as a limitation on the pow-ers of the President.
It is to be observed that under the proviso to Article 34, the Presi-dent is required to call for a report from the Judge who heard the case,and follow a certain procedure before a pardon is granted. Under Arti-cle 70 (1) although the President is given the power to summon, pro-rogue and dissolve Parliament, the President cannot dissolve Parlia-ment before the expiration of one year from the date of General Elec-tions (Proviso (a) or on the rejection of the Statement of GovernmentPolicy (Proviso (b)) or after the Speaker has entertained a resolutionunder Article 38 (2) of the Constitution (Proviso (c)). Although theyare inbuilt provisions relating to the power of dissolution, they are nev-
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ertheless Constitutional restrictions, to the exercise of the power ofdissolution. Under Article 154 (8) (d) the Governor is required to act onthe advice of the Chief Minister when exercising any of the powersunder paragraph (8) of Article 154B, so long as the Board of Ministerscommands the support of the majority in the Provincial Council. Arti-cle 154F (4) of the Constitution provides that the Governor shall ap-point as Chief Minister, the member of the Provincial Council, who inhis opinion can command ihe support of the majority of the membersof the Provincial Council. The Proviso to Article 154F (A,) states that,where more than one-half of the members elected to a Provincial Councilare members of one political party, the Governor shall appoint the leaderof the political party, as the Chief Minister. Article 154F (5) requiresthat the Governor shall, on the advice of the Chief Minister appointamong the members of the Provincial Council, the other Ministers.These are all powers that fall within the aforesaid definition of "theresidue of governmental functions that remain after the legislative andjudicial functions are taken away" and are therefore executive powers.
In this context it is appropriate to refer to para. 875 of Halsbury(4th Edition, vol. 44) where it is stated as follows
"875. General and Particular enactments.
Whenever there is a general enactment in a Statute which, if takenin its most comprehensive sense, would override a particular enact-ment in the same Statute, the particular enactment must be operative,and the general enactment must be taken to affect only the other partsof the Statute to which it may properly apply. This is merely one appli-cation of the measure that general things do not derogate from specialthings."
In the aforesaid provisions, the Constitution itself has sought todeal with those executive powers specifically. Therefore those specialprovisions being Constitutional provisions in themselves, must be giveneffect to. Hence the well known rule of construction GeneraliaSpecialibus Non Derogant would apply. Thus the special provision inArticle 154B (8) (d) will take precedence over the general provision inArticle 4 (b) of the Constitution.
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The learned Counsel for the second Respondent has in his writtensubmissions stated that, the main question to be decided is whetherArticle 154B (8) (c) contemplates a discretionary power by the Gover-nor, and if so whether such power is required to be exercised on thedirections of the President. He has raised a further issue whether Arti-cle 154B (8) (d) contemplates the exercise of the Governor's powerssolely as a delegate only. He has gone on to state that, the broaderquestion to be decided is whether, in matters of this nature the saidprovisions in the Constitution have to be interpreted, in the light of themajority judgment in the 13th Amendment Case. He has gone on topoint out that, the most important feature of the said judgment is thatthe Republic of Sri Lanka is a Unitary State and does not have federalcharacters. He has added that emphasis was placed on the fact thatthe Provincial Council was a subordinate body and laid down the basison which the three functions including the executive functions are tobe exercised. He has also cited the following passage from the saidjudgment. The said passage appears at pages 322-323, in (1987) 2
S.L. R. (3) and states as follows
The Governor is appointed by the President and holds office inaccordance with Article 4 (b) which provides that the executive powerof the People shall be exercised by the President of the Republic,during the pleasure of the President (Article 154B (2) ).The Governorderived his authority from the President and exercises the executivepower vested in him as a delegate of the President. It is open to thePresident therefore by virtue of Article 4 (b) of the Constitution to givedirections and monitor the Governor's exercise of this executive powervested in him. Although he is required by Article 154F (1) to exercisehis functions in accordance with the advice of the Board of Ministers,this is subject to the qualification "except in so far as he is by or underthe Constitution required to exercise his functions or any of them inhis discretion.” Under the Constitution the Governor as a representa-tive of the President is required to act in his discretion in accordancewith the instructions and directions of the President. Article 154F (2)mandates that the Governor's discretion shall be on the President'sdirections and that the decision of the Governor as to what is in hisdiscretion shall be final and not be called in question in any Court onthe ground that he ought or ought not to have acted on his discretion.So long as the President retains the power to give directions to the
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Governor regarding the exercise of his executive functions, and theGovernor is bound by such directions superseding the advice of theBoard of Ministers and where the failure of the Governor of ProvincialCouncil to comply with or give effect to any directions given to theGovernor or such Council by the President under Chapter XVII of theConstitution will entitle the President to hold that a situation has arisenin which the administration of the Province cannot be carried on inaccordance with the provisions of the Constitution and take over thefunctions and powers of the Provincial Council (Article 154K and 154L).There can be no gainsaying the fact that the President remains su-preme or sovereign in the executive field and the Provincial Council isonly a body subordinate to him.
The learned Counsel for the first respondent in Application No.
A. 17/96 in his written submissions referred to the said judgmentand has stated that the Court emphasised that so long as the Presi-dent retains the power to give directions to the Governor regarding theexercise of his executive functions the Governor is bound by suchdirections superseding the advice of the Board of Ministers. He hasadded that, the President can take over the functions and powers ofthe Provincial Council by virtue of Article 154K and 154L. He goes onto quote the last sentence of the above cited passage, of the saidjudgment.
The Counsel for the Petitioner, in his written submissions has statedthat, the said judgment is not directed to the meaning of Article 154B.It was concerned with the question of whether or not the 13th Amend-ment altered the unitary character of the Constitution enshrined in Ar-ticle 2 and 76, and therefore required approval at a referendum. It wasonly in this context that Article 4 (b) was referred to and considered.The passages of the judgment which refer to Article 4 (b) make thisclear.
It has been pointed out in the said judgment, at page 318, that,
"The main contentions of the Petitioners were that the new chapterXVIIA consists of several provisions which are inconsistent with theprovisions of entrenched Article 2 and 3 of the Constitution and there-fore that Chapter cannot become law unless the number of votes cast
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in favour thereof amounts to not less than 2/3 of the whole number ofmembers (including those not present) and is approved by the Peopleat a Referendum as mandated by Article 83 of the Constitution."
The said Article 2 refers to the unitary status of Sri Lanka andArticle 3 relates to the Sovereignty of the People.
Thus the provisions of the Constitution were considered in the saidjudgment with a view of ascertaining whether the provisions of Chap-ter XVIIA (The Thirteenth Amendment) were inconsistent with the pro-visions of Article 2 and 3 of the Constitution and not with a view ofexamining what legal effect should be given to the provision in Article4 (b), in relation to the other provisions of the Constitution. More spe-cifically, the provisions of Article 154B (8) (c) and (d) have not beenconsidered in relation to the provision in Article 4 (b).
It is important to note that in the above cited passage of the saidjudgment, it is stated that,
"It is open to the President therefore by virtue of Article 4 (b) ofthe Constitution to give directions and monitor the Governor's exerciseof this executive power vested in him. Although he is required byArticle 154F (1) to exercise his functions in accordance with the ad-vice of the Board of Ministers, this is subject to the qualification, "ex-cept in so far as he is by or under the Constitution required to exercisehis functions or any of them in his discretion." (my emphasis)
Thus it is seen that the said judgment recognises the fact that theGovernor is required to exercise his executive functions, discretionaryor otherwise, in accordance with the provisions of the Constitution.
It is pertinent to note that the said judgment has taken into consid-eration the fact that not only executive power but also legislative poweris vested with the President and the Parliament, in holding that theunitary status of the Country was not affected by the provisions of theThirteenth Amendment. The said judgment at page 320 states,
“The question that arises is whether the 13th Amendment Bill un-der consideration creates institutions of government which are supreme,
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independent and not subordinate within their defined spheres. Applica-tion of this test demonstrates that both in respect of the exercise of itslegislative powers and in respect of the exercise of executive powersno exclusive or independent power is vested in the Provincial Council.The Parliament and the President have ultimate control over them andremain supreme.''
All the learned Counsel appearing for the Respondents submittedthat, the proviso to Article 154B sub-paragraph (9) is not applicable tothe said sub-paragraph (9). It was submitted that, the said sub-para-graph (9) deals with granting of a pardon by the Governor in the exer-cise of a prerogative power and therefore the question of ‘Advice ofthe Board of Ministers” does not arise.Therefore they argued that thereference in the said proviso is to the advice of the Chief Ministerstipulated in Article 154B (8) (d), which is given on behalf of the Boardof Ministers. It was further pointed out that pardons are granted in theinterest of justice and not in the ‘public interest'.
The Counsel for the petitioners submitted that, upon a proper con-struction, the said Proviso should apply only to said sub-paragraph(9). If It was intended to apply to the entirety of Article 154B it wouldhave been placed at the end of the said Article. The Court cannotlightly impute a mistake to the Legislature. He cited Halsbury (4thEdition) Vol.44, para. 862. In any event, the Proviso only refers to'advice of the Board of Ministers'. It does not refer to the 'Advice ofthe Chief Minister'. It cannot, therefore apply to Article 154B (8) (d),which speaks of 'the advice of the Chief Minister'. The Court cannotadd words into the Proviso and thereby extend its operation to includethe advice of the Chief Minister.
On a consideration of the above submissions it is clear that Pro-viso to sub-paragraph (9) in Article 154B is not intended to apply to theprovisions of the Article 154B (8) (d).
The learned Counsel for the first Respondent in Application C.A.No. 18/96 has, for the first time, in his written submissions, whichwere filed after the conclusion of oral hearing of this case, has takenup the position that two questions should be referred to the SupremeCourt for determination under Article 125 of the Constitution.The twoquestions are,
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whether under Article 154B (8) (d) the Governor has a discre-tion in the exercise of the powers conferred on him by Article154B (8) (c) to act contrary to the advice of a Chief Minister, whoin the opinion of the Governor, commands the support of the ma-jority of the Provincial Council;
whether the Proviso appearing immediately after sub-Article(9) of Article 154B applies to Article 154B (8) (c).
It must be pointed out at the outset that, the learned Counsel forthe first Respondent in Application C.A.No.18/96 did not raise the mat-ter at the argument stage, nor was any submission made that theseare fit questions to be determined by the Supreme Court under Article125. In fact none of the learned Counsel appearing for the Petitionersor for the Respondents made any suggestion to refer any question tothe Supreme Court for determination. In any event, it is seen from thereasoning given above, that the aforesaid questions can be decided byapplication of the relevant provisions of the Constitution and the inter-pretation of the Constitution does not arise.
In view of the reasons stated above we are of the view that theGovernor when dissolving a Provincial Council, acting under the provi-sions of Article 154B (8) (c) has no discretion and is bound by theprovisions of Article 154B (8) (d), to act on the advice of the ChiefMinister provided the Board of Ministers commands a majority in theProvincial Council. Therefore we hold that the Governors, who are thefirst Respondents in each of the Applications C.A.No. 17/96 and C.A.No.18/96, have acted contrary to the provisions of Article 154B (8) (c) and(d), of the Constitution, by seeking the advice of the President, in amatter they had no discretion, and dissolving the said Provincial Coun-cils in accordance with the directions given by the President. Hencethe said dissolutions of the said Provincial Councils are illegal andshould be declared null and void.
Accordingly, this Court hereby declare that, the said dissolutionof the Provincial Council of North Central Province, by the said Order,marked P4, made by the first Respondent, is null and void.Thereforethis Court hereby issue and grant to the petitioner in Application C.A.No.*17/96, an Order in the nature of Writ of Certiorari quashing the saidOrder of dissolution, marked P4.
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Since the said Order of dissolution, marked P4, is illegal, the con-sequential Notice marked P5, issued by the second Respondent to theApplication C.A.No.17/96, is also illegal. Therefore this Court herebyissue and grant to the Petitioner in Application C. A.No. 17/96 an Orderin the nature of Writ of Certiorari quashing the said Notice, marked P5.
This Court also hereby declare that the said dissolution of theProvincial Council of Sabaragamuwa Province by the said Order, markedP7 made by the first Respondent, is null and void.Therefore this Courthereby issue and grant to the Petitioner in Application C.A.No. 18/96,an Order in the nature ofWrit of Certiorari, quashing the said Order ofdissolution, marked P7.
Since the said Order of dissolution marked P7, is illegal, the con-sequential Notice marked P8, issued by the second Respondent to theApplication C.A.No.18/96, is also illegal. Therefore this Court herebyissue and grant to the Petitioner in Application C.A.No. 18/96, an Orderin the nature ofWrit of Certiorari, quashing the said notice marked P8.
Although the Petitioners in both the said Applications have prayedfor Writs of Prohibition, against the second Respondent, restraininghim from taking steps to hold elections to the said Provincial Councils,the question of holding elections does not arise, as the terms of officeof the said Provincial Councils would be revived, by virtue of this Or-der. Therefore this Court hereby refuse the said Applications for theissue of Writs of Prohibition against the second Respondent.
The Petitioner in Application C.A.No.17/96 is allowed costs in asum of Rs. 5000/- against the first Respondent. We do not award costsagainst the second Respondent, as he had only taken a consequentialstep, in his official capacity.
The Petitioner in Application C.A.No.18/96 is allowed costs in asum of Rs. 5000/-, against the first Respondent; we do not award costsagainst the second Respondent, as he had only taken a consequentialstep, in his official capacity.
J.A.N. DE SILVA, J. -1 agree.
Certiorari granted quashing order of dissolution of Provincial Councilsand notices declared illegal.