MAITHRIPALA SENANAYAKE ,GOVERNOR OF THE NORTH-CENTRAL PROVICE AND ANOTHER

041-SLLR-SLLR-1998-V-2-MAITHRIPALA-SENANAYAKE-GOVERNOR-OF-THE-NORTH-CENTRAL-PROVICE-AND-ANOTHER-.pdf


SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and' Others333
MAITHRIPALA SENANAYAKE, GOVERNOR OFTHE NORTH-CENTRAL PROVINCE AND ANOTHER
v.GAMAGE DON MAHINDASOMA AND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJ.,
AMERASINGHE, J. ANDRAMANATHAN, J.
S.C. APPEALS NOS. 41 & 42/96SEPTEMBER 23RD AND 24TH, 1996
Certiorari – Interpretation of the Constitution – Powers of the Governor to dissolvea Provincial Council – Pre-conditions for dissolution – Whether discretionary ormandatory – Powers of the President to give directions – Article 4 (b), 154 B,154 C & 154 F of the Constitution.
The Governor, each of the North-Central and Sabaragamuwa Provincial Councils,upon receiving complaints regarding the administration of the Council, wrote tothe Chief Minister of the Provincial Council seeking advice on the dissolution ofthe Provincial Council. The Chief Minister advised against the dissolution. Whenthe Chief Minister so advised, the Board of Ministers in each Council, in the opinionof the Governor, commanded the support of the majority of the Provincial Council.According to the Proclamation that was Gazetted thereafter, on receiving the ChiefMinister's advice each Governor sought the order and direction of the Presidentof the Republic under Article 154 B read with Article 154 F of the Constitution;and acting upon the order and direction of the President under the said Articles,dissolved the Provincial Council. Consequently, the Commissioner of Elections,acting under section 10 of the Provincial Councils Elections Act, No. 2 of 1988gave notice of election to the two Councils and called for nominations on 18.1.96.On applications made by the Chief Minister the Court of Appeal issued Writsof Certiorari quashing the orders of dissolution made by the Governors and thenotifications published by the Commissioner of Elections on the ground that theywere null and void and illegal. The court granted leave to appeal to the SupremeCourt on the following questions:
.Whether Article 154 B (8) (c) contemplates a discretionary power by the
Governor and if so whether such power is required to be exercised onthe direction of the President.
.Whether Article 154 B (8) (d) contemplates the exercise of the Governor's
power solely as a delegate.
.Whether the proviso appearing immediately after Article 154 B (9) applies
to Article 154 B (8) (d).
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(1998) 2 Sri LR.
Held:
In exercising his power to dissolve a Provincial Council under Article 154B (8) (c), the Governor is required by Article 154 B (8) (d) to act inaccordance with the advice of the Chief Minister, so long as the Boardof Ministers commands, in the opinion of the Governor, the support of themajority of the Council. This is a safeguard imposed by Parliament topromote the purpose of the Thirteenth Amendment namely, devolution, forthe benefit of voters and elected representatives at Provincial level. Theproviso to Article 154 B (9) which enables the Governor where he disagreeswith the advice of the Board of Ministers to refer the case to the Presidentfor orders is included to apply to the words Immediately preceding it inArticle 154 B (9) which deals with pardon, respite or remission. It doesnot apply to any other paragraph or sub-paragraph of Article 154 B,including Article 154 B (c) and (d).
Article 154 B (8) confers on the Governor a discretionary power to dissolvea Provincial Council, but that power is coupled with a duty imposed byArticle 154 B (8) (d), to exercise it in accordance with the advice of theChief Minister. That duty is mandatory. Hence, the Governor cannot exercisethe power in his discretion, on the directions of the President. The factthat the Governor believed that he was required to act in his discretiondid not make it so; nor did his decision become final within the meaningof Article 154 F (2).
The power of dissolution of a Provincial Council is conferred by Parliamenton the Governor by Article 154 B (8) (c). Parliament has not given thatpower to the President and made it delegable to the Governor. TheGovernor is required by Article 154 B (8) (d) to act in accordance withthe advice of the Chief Minister. Article 154 B (2) which provides that theGovernor shall be appointed by the President and shall hold office, inaccordance with Article 4 (b), during the pleasure of the President doesnot alter this position since the general provisions of Article 4 (b) wouldnot override the specific provisions of Article 154 B (8) (c). Consequently,Article 154 B (8) (c) does not contemplate the exercise of the Governor'spower solely as a delegate.
Cases referred to:
Raj Karishna Bose v. Binod Kanungo AIR 1954 SC 202.
Piper v. Harvey (1958) 1 QB 439.
• 3. In Re the Thirteenth Amendment to the Constitution and the ProvincialCouncils Bill (1987) 2 Sri LR 312.
Hanlon v. The Law Society (1980) 2 All ER 199,- 221.
Houston v. Bums (1918) AC 337, 348.
SC Mahhripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others335
Jones v. Wrotham Park Settled Estates (1979) 1 All ER 286, 289.
I. R. C. v. Hinchy (1960) AC 748.
I. R. C. v. Ayrshire Employers, Mutual Insurance Association Ltd. (1946)
1 All ER 637.
Bribery Commissioner v. Ranasinghe 66 NLR 66, 73.
Income Tax Special Purpose Commissioner v. Pemsel (1891) AC 531, 549.
Richards v. McBride (1881) 8 QBD 119, 122.
Spillers Ltd. v. Cardiff Assessment Committee (1931) 2 KB 21, 43.
New Plymouth Borough Council v. Tamak Electric Power Board (1933)AC 680, 682.
R. v. Schildkamp (1971) AC 1.
Uttar Pradesh v. Babu Upadhaya AIR 1961 SC 751.
Premachandra v. Jayawickrame and Another (1944) 2 Sri LR 90.
Re Baker (1890) 44 Ch. D. 262, 270.
Council of Civil Service Unions v. Minister for the Civil Service (1985)
AC 374, 410.
Somawathie v. Weerasinghe (1990) 2 Sri LR 121.
Dunn v. The Queen (1896) 1 QB 116.
Hales v. The King (1918) 34 TLR 589.
Denning v. Secretary of State for India (1920) 37 TLR 138.
Whiteman v. Sadler (1910) AC 514, 527.
N. Stafford Steel Co. v. Ward LR 3 Ex. 172, 177.
Felix v. Shiva (1982) 3 All ER 262, 266.
APPEALS from judgments of the Court of Appeal.
£. D. Wickremanayake, with L V. P. Wettasinghe, Jayampathi Wickremaratne,M. A. Q. M. Gazzali, Palitha Matthew, Gaston Jayakody, Amitha Nikapitiya,Malathie Ratnayake, Anandi Cooray, Shamika Seneviratne, U. A. Najeem andPrasanna Obeysekera for appellant in SC Appeal No. 41/96.
D. S. Wijesinghe, PC with L. V. P. Wettasinghe, Jayampathi Wickramaratne,
M. A. Q. M. Gazzali, Palitha Mathew, Gaston Jayakody, Amitha Nikapitiya, MalathieRatnayake, Anandi Cooray, Shamika Seneviratne, U. A. Najeem and PrasannaObeysekera for appellant in SC Appeal No. 42/96.
K. N. Choksy, PC with L. C. Seneviratne, PC, Paul Perera, PC, Daya Pelpola,D. M. M. Jayamaha, Laksman Perera, Ronald Perera, Anil Rajakaruna, S. J.Mohideen, and Nigel Hatch for 1st respondent in SC Appeals Nos. 41 & 42/96and added respondent in SC Appeal 41/96.
S. N. Silva, PC, AG K. C. Kamalasabayson, PC, ASG., S. Gamlath, SSC andU. Egalahewa, SC for 2nd respondent.
Cur. adv. vult.
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(199S) 2 Sri LR.
October 14, 1996.
AMERASINGHE, J.
There are two appeals from the decisions of the Court of Appealdelivered on the 27th of March, 1996. It was agreed by learned counselthat the two appeals be heard and dealt with together, since thematters in issue in both of them were identical.
At the commencement of the hearing, the Attorney-Generalinformed the court that, in view of the fact that the first respondentin Application No. 41/96 was now seriously incapacitated as a resultof a motor car accident, it might be advisable to add the incumbentChief Minister as a party to the proceedings. Learned counsel for thefirst respondent in the two appeals said he had no objections andstated that he would additionally represent the incumbent ChiefMinister, if so instructed.
The material facts are identical in both cases and are not in dispute.Those facts are as follows: The Governor of each of the ProvincialCouncils concerned, upon receiving certain complaints with regard tothe administration of the Council, wrote to the Chief Minister of theProvincial Council seeking advice on the dissolution of the ProvincialCouncil. The Chief Minister advised against dissolution. When theChief Minister advised the Governor, the Board of Ministers, in theopinion of the Governor, commanded the support of the majority ofthe Provincial Council. The subsequent events are set out in theProclamation made by each of the two Governors in GazetteExtrardinary, No. 904/7 of January 03, 1996:
The Governor 'referred the question of [thejdissolution of theProvincial Council … for an order and direction to . . . [thePresident of the Republic] in terms of Article 154 [B] read withArticle 154 [F] of the Constitution'.
The President ‘made order and directed' the Governor in termsof Article 154 [B] and Article 154 [F] of the Constitution to dissolvethe Provincial Council, in question. *
*Acting in terms of the said order and direction' of the President'in terms of Article 154 [B] of the Constitution read with
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 337
Article 154 [F]', the Governor dissolved the Provincial Council witheffect from the date of the proclamation. In the case of the North-Central Provincial Council (SC Appeal No. 41/96), and theSabaragamuwa Provincial Council (SC Appeal No. 42/96), the datewas January 03, 1996.
In Gazette No. 904/13 dated January 04, 1996, the Commissionerof Elections, acting in terms of section 10 of the Provincial CouncilsElections Act, No. 2 of 1988, gave notice of his intention to holdelections to the two Provincial Councils and called for nominationscommencing on January 18, 1996.
On January 08, 1996, the two Chief Ministers filed separate petitionsin the Court of Appeal alleging that, for the reasons stated therein,the dissolution was unlawful and praying for –
an order declaring the purported dissolution to be null and voidand an order in the nature of a Writ of Certiorari quashing theorder of dissolution made by the Governor;
the issue and grant of an Order in the nature of a Writ of Certiorariquashing the notification published by the Commissioner ofElections;
the issue and grant of an Order in the nature of writ of prohibitionagainst the Commissioner of Elections restraining him from takingany steps to hold an election to the Council;
The issue and grant of an interim order restraining theCommissioner of Elections from proceeding to act in terms of hisnotification pending the hearing and final determination of theapplication, and in particular from receiving nominations;
costs and such other and further relief as to the court may seemmeet.
For the reasons set out by their Lordships of the Court of Appealin their judgment delivered on March 27, 1996, the court stated asfollows:
… we are of the view that the Governor when dissolving aProvincial Council, acting under [the] provisions of Article
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(1998) 2 Sri LR.
154 B (8) (c) has no discretion and is bound by the provisions ofArticle 154 B (8) (d), to act on the advice of the Chief Minister providedthe Board of Ministers commands a majority in the Provincial Council.Therefore we hold that the Governors . . . have acted contrary tothe provisions of Article 154 B (8) (dj and (d) of the Constitution, byseeking the advice of the President, in a matter they had no discretion,and dissolving the said Provincial Councils in accordance with thedirections given by the President. Hence the said dissolutions of thesaid Provincial Councils are illegal and should be declared null andvoid.
Accordingly, the Court of Appeal –
declared the orders of dissolution made by the Governors null andvoid and issued and granted orders in the nature of Writs ofCertiorari quashing the orders of dissolution; and further
declared the notification published by the Commissioner ofElections illegal and issued and granted orders in the nature ofWrits of Certiorari quashing the notification.
The Court of Appeal refused to grant the Writs of Prohibition prayedfor against the Commissioner of Elections on the ground that ‘thequestion of holding elections does not arise, as the terms of officeof the said Provincial Councils would be revived by virtue of the orderof the Court holding the dissolution to be null and void and quashingthe dissolution.
Each of the Chief Ministers were allowed costs in a sum ofRs. 35,000 against the respective Governors.
On April 01, 1996, the Court of Appeal granted leave to appealto the Supreme Court on the following questions of law:
Whether Article 154 B (8) (c) contemplates a discretionary powerby the Governor and if so whether such power is required to beexercised on the directions of the President.
Whether Article 154 B (8) (d) contemplates the exercise of theGovernor's power solely as a delegate.
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 339
Whether the proviso appearing immediately after Article 154 B(9) applies to Article 154 B (8) (d).
These questions were proposed by learned counsel for the firstrespondent in CA No 17/96, namely, the Governor of the North CentralProvince, and accepted by learned counsel for the first respondentin CA Application No. 18/96, namely, the Governor of the SabaragamuwaProvince, and by the Deputy Solicitor-General on behalf of the Com-missioner of Elections.
Learned counsel were heard on September 23 and 24, 1996, andthe court took time for consideration.
i shall deal with the third question first (1) because the answersto the other questions depend to some extent on the answer to thethird; and (2) since such an approach minimizes repetition.
DOES THE PROVISO APPEARING IMMEDIATELY AFTERARTICLE 154 B (9) APPLY TO ARTICLE 154 B (8)?
Paragraphs (8) and (9) of Article 154 B provide as follows:
(a) The Governor may, from time to time, summon the ProvincialCouncil to meet at such time and place as he thinks fit, but two monthsshall not intervene between the last sitting in one session and thedate appointed for the first sitting in the next session.
The Governor may, from time to time, prorogue the ProvincialCouncil.
The Governor may dissolve the Provincial Council.
The Governor shall exercise his powers under this paragraph inaccordance with the advice* of the Chief Minister, so long as theBoard of Ministers commands, in the opinion of the Governor,the support of the majority of the Provincial Council.
without prejudice to the powers of the President under Article34 and subject to his directions the Governor of a Province shall havethe power to grant a pardon to every person convicted of an offenceagainst a statute made by the Provincial Council of that Province or
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(1998) 2 Sri LR.
a law made by Parliament on a matter in respect of which theProvincial Council has power to make statutes and to grant a respiteor remission of punishment imposed by court on any such person:
Provided that where the Governor does not agree with the adviceof the Board of Ministers in any case and he considers it necessaryto do so in the public interest, he may refer that case to the Presidentfor orders.
The appellants' submissions
Learned counsel for the appellants submitted in their arguments,responses to the arguments of learned counsel for the respondentsand in their written submissions that the proviso found in paragraph(9) applies to all that is found in Article 154 B before the proviso,and that the Court of Appeal was in error in confining it to paragraph(9). Consequently, when the Governor did not agree with the ChiefMinister on the question of dissolution and he considered it necessaryto do so in the public interest, he had the option, if not also a dutyas a delegate of the President, to refer the case to the Presidentfor orders, and then carry out those orders. In the circumstances, theseeking of advice by the Governors was proper, and the orders ofdissolution were lawful and valid.
Following the principles operating in the UK, the USA and India,the Board of Ministers of a Provincial Council have no say in thematter of pardons for offences. Even under Article 34 of theConstitution of Sri Lanka “the Cabinet of Ministers of the centralgovernment, to take an analogy, does not have a say in the matterof pardons. The procedure for 'acting on advice', was dispensed withby the present Constitution. It is the President alone who decidesquestions relating to the grant of a pardon, respite, or remission exceptthat where an offender shall have been condemned to suffer deathby the sentence of any court, the President is required to cause areport to be made to him by the Judge who tried the case, whichreport the President is required to forward to the Attorney-Generalwith instructions that after the Attorney-General has advised thereon,the report shall be sent together with the Attorney-General's adviceto the Minister in charge of the subject of Justice, who shall forwardthe report with his recommendation to the President. It is the Ministerof Justice who recommends, and not the Cabinet of Ministers, andthe President is not bound by the recommendation.
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 341
Admittedly, the question of 'advice of the Board of Ministers'mentioned in the proviso is not stipulated in paragraph 9, thuseffectively severing any connection between the two'. The proviso inits terms is not applicable to a pardon, which is the exercise of aprerogative power. Moreover 154 B (9) refers to 'the public interest'and not to the interests of justice which is the relevant considerationin matters of pardon. By an 'obvious inadvertence’ the proviso hasbeen placed below Article 154 B (9) 'which has no relevance what-soever' to paragraph 9. 'The aforesaid proviso clearly does not applyto sub-article (9) even though it appears soon' after that sub-article.Although a relative or qualifying phrase is normally taken with theimmediately preceding term or expression, this rule should 'bedisrgarded if it is against common sense and the expression used.(Raj Krishna Bose v. Binod Kanungcf'K In any event, the languagein the proviso to Article 154 B (9) makes, it plain that it was intendedto apply to and/or to have an operation more extensive than that ofthe provision it immediately follows. Therefore it must be given suchwider effect. (Piper v. Harvey®) Bindra, Interpretation of Statutes 7thed. p. 80). Admittedly there is a colon preceding the proviso, but inRaj Krishna Bose (supra) the Supreme Court of India noted thatpunctuation was only a minor element in the construction of a statuteand that very little attention is paid to it in the English courts. Punctuationmay have its uses in some cases, but it cannot be regarded as acontrolling element. Craies on Statute Law goes further and statesthat punctuation is disregarded in the construction of statutes – 6thedition p. 197.
In the circumstances, the court should give the proviso a purposiveinterpretation. The changes brought about by the Thirteenth Amend-ment to the Constitution, which added chapter XVII A to theConstitution creating and making provisions relating to ProvincialCouncils, did not impair the unitary character of the Republic of SriLanka. That was the essence of the decision of the Supreme CourtIn re the Thirteenth Amendment to the Constitution and the ProvincialCouncils BilPK At the core of that decision was the finding that thePresident was supreme. In the Thirteenth Amendment case,Sharvananda, CJ said that 'So long as the President retains the powerto give directions to the Governor regarding the exercise of hisexecutive functions, and the Governor is bound by such directionssuperseding the advice of the Board of Ministers' (emphasis addedby counsel) . . . there can be no gainsaying the fact the President
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remains supreme or sovereign in the executive field and the ProvincialCouncil is only a body subordinate to him.
It is Article 154 B (8) (d) that Sharvananda, CJ had in mind whenHis Lordship adverted to the right of the President to make bindingdirections that superseded “the advice of the Board of Ministers'. Thediscretion of the Governor which is made subject to the directions ofthe President under Article 154 F (1) cannot be restricted to theinsignificant matters referred to in Article 154 (B) (10) (a) or (b) and154 F (4). Article 154 L gives the President the power to take overthe administration of a Provincial Council, but this is limited in timeto one year, and limited to situations when the administration cannotbe carried on in accordance with the Constitution. Consequently, acorrupt administration may nevertheless administer the province if theadministration can be carried on in accordance with the Constitution.Moreover, after one year the Council will have to be handed backto the corrupt Board of Ministers. The supremacy of the Presidentis assured only by recognizing the power of giving directions super-seding the advice of the Board of Ministers as stipulated in the provisoin 154 B (9) which controls 154 (8) (d). So important a matter asthe dissolution of a Provincial Council cannot be allowed to remainin the hands of one man – the Chief Minister.
The respondents' submissions
The Court of Appeal rightly confined the applicability of the provisoto Article 154 B (9). The proviso is not misplaced and meaninglessin the context of the paragraph in which it is found. Earlier, the practicewas for the prerogative of pardon, respite or remission to be exercisedby the Head of State on advice. This followed the conventions in theUK. However, when the present Constitution was enacted, Article 34conferred the power on the President without qualification, except ina case where an offender had been condemned to death. Article 154B (9) deals with the power of Governor to grant a pardon, respiteor remission relating to offences committed against a statute madeby a Provincial Council or a law made by Parliament on a matterin respect of which the Provincial Council has power to make statutes.This power does not limit the power of the President under Article
Moreover, the Governor is subject to the directions of the President,who is the ultimate authority on the matter. The President, except inone type of case, is not obliged to seek any person's advice in
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 343
exercising the powers of pardon, respite or remission. However, theGovernor's powers are not unfettered: Article 154 F (1) provides that"There shall be a Board of Ministers with the Chief Minister at thehead and not more than four other Ministers to aid and advice theGovernor in the exercise of his functions. The Governor shall, in theexercise of his functions, act in accordance with such advice, exceptin so far as he is by or under the Constitution required to exercisehis functions or any of them in his discretion." In a case in whichthe Governor has to consider whether a pardon, respite or remissionshould be granted, he is required by Article 154 F (1) to seek theadvice of the Board of Ministers. In the event of a disagreement withthe Board of Ministers, eg where the Board advises that a certainoffender should be pardoned but the Governor does not wish to pardonthe person, he may, if he considers it necessary to do so in the publicinterest, in terms of the proviso to 154 B (9) refer the case to thePresident for orders, which orders he will be obliged to carry out. Inthe circumstances, the proviso is in its proper place and makes sense.
On the other hand, if, as contended for by the appellants, theproviso applies to all the preceding paragraphs of Article 154 B, itwould make no sense: For instance, it could not have been theintention of Parliament that the proviso should regulate Article 154B (8) (cO, for by that provision the Governor is required to exercisehis power of dissolution with the advice of the Chief Minister. Theconflict enabling the Governor to consult the President under theproviso is concerned with a conflict of opinion with the Board ofMinisters.
Moreover, if the proviso is added to Article 154 B (8) (d), it wouldcreate a contradictory position: whereas under the proviso the Gov-ernor may, and therefore has a discretion to, consult the President,Article 154 B (8) (ctj states that the Governor shall exercise his powersunder that paragraph in accordance with the advice of the ChiefMinister, so long as the Board of Ministers commands, in the opinionof the Governor, the support of the majority of the Provincial Council.
With regard to the question of alleged corruption andmaladministration, there was no admissible evidence in that regard.In any event, these matters are irrelevant because the Constitutiondoes not empower the Governor to dissolve the Provincial Councilon these grounds, either on his own initiative or on the directions of
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anyone else. Provincial Councils were placed on a different footingfrom other local authorities like Municipal Councils, Urban Councilsand Pradeshiya Sabhas, in respect of which express provision is madefor dissolution after inquiry, if the Minister is satisfied that there issufficient proof of incompetence or mismanagement. No similarprovision exists with regard to Provincial Councils and it must be takenthat Parliament made a deliberate departure.
My View on the Question of the Proviso
The proviso is an ancient formula. It enables a general statementto be made as a clear proposition, any necessary qualifications beingkept out of it and relegated to the proviso. This aids understanding."The formula beginning 'Provided that . . .' is placed at the end ofa section or sub-section of an Act, or a paragraph or sub-paragraphof a schedule, and the intention of which is to narrow the effect ofthe preceding words. (Francis Bennion, Statutory Interpretation, 1984,p. 570). The emphasis is mine. N. S. Bindra, Interpretation of Statutes,7th Ed., p. 79, explains that a proviso relates to the subject-matterof the principal clause. He states that: "The proviso cannot possiblydeal with an entirely different topic or subject and it is sub-servientto the main provision." He adds that “it is a cardinal rule of inter-pretation" that a proviso to a particular provision of a statute "onlyembraces the field which is covered by the main provision. It carvesout an exception to the main provision to which it has been enactedas a proviso and to no other." Later, Bindra states that although attimes it is used to introduce independent legislation, “the presumptionis that, in accordance with its primary purpose, it refers only to theprovisions to which it is attached. Ordinarily, a proviso to a sectionis intended to take out a part of the main section for special treatment;it is not expected to enlarge the scope of the main section".
In the matters before us, the proviso under consideration is placedimmediately after the main clause in Article 154 B (9), and in thelight of what a proviso is intended to do, as a matter of first impression,it seems to me that the proviso was intended to apply to the wordsimmediately preceding it in Article 154 B (9).
Learned counsel for the appellants accepted the fact that ordinarilya proviso must be taken to relate to the words immediately precedingit, but they submitted, citing Bindra p. 80 and Piper v. Harvey (supra),
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 345
that exceptionally a proviso may have a wider operation. Piper v.Harvey was a case in which there was a repeal of sections, but itwas held that the proviso remained because it extended beyond therepealed enactment, whereas usually the repeal of a section alsorepeals the proviso. Bindra at p. 79-80 states as follows:
. . .cases have arisen in which the Supreme Court has held thatdespite the fact that a provision is called a proviso, it is really aseparate provision and the so-called proviso has substantially alteredthe main section. For example, relying upon the dictum laid downin Piper v. Harvey that if the language of the proviso makes it plainthat it was intended to have a operation more extensive than thatof the provision which it immediately follows, it must be given suchwider effect. It was held that the clear language of the proviso tosubsection (2) of section 202, Cr. P.C., made it obligatory upon theMagistrate in a case exclusively triable by the Court of Session,to proceed to inquire and at such inquiry call upon the complainantto produce his entire evidence -The emphasis is mine.
There is nothing either in the language of the proviso or in anyother part of Article 154 B suggesting that it was intended to be aseparate provision or that it was intended to have a more extensiveapplication than the usual one of qualifying the words immediatelypreceding the proviso in Article 154 B (9).
On the other hand, as we have seen, Bindra points out that theproviso cannot possibly deal with an entirely different topic or subject.That, he said, was a "cardinal rule of interpretation". Article 154 B(9) deals with pardon, respite and remission. The proviso cannot bemade applicable to the entirely different subject of the dissolution ofa Provincial Council, which is what Article 154. B (8) (c) and (d) dealswith.
Halsbury, vol. 44 paragraph 881 note 3, refers to several decisions,and draws attention to the fact that: “The danger of construing aproviso, which is merely a limitation on the enactment to which it isattached, as if it were a general limitation to other enactments or wereitself a positive enactment has often been pointed out".
The factual circumstances which trigger the operation of a legalprovision is of the utmost importance. The proviso is inappropriatein the context of Article 154 B (d) which provides that the Governor
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shall exercise his powers of dissolution in accordance with the adviceof the Chief Minister, so long as the Board of Ministers commands,in the opinion of the Governor, the support of the majority of theProvincial Council. The proviso deals with an entirely different factualsituation, namely where the Governor does not agree with the adviceof the Board of Ministers and he considers it necessary to do so inthe public interest and refers the matter to the President for orders.This is not without significance in deciding whether the proviso isapplicable to Article 154 B (8) (d). In the UK, the power of advisingthe dissolution of Parliament within the five-year period prescribed theParliament Act of 1911, is by convention vested in the Prime Minister,rather than in the Cabinet of Ministers. O. Hood Phillips and PaulJackson, Constitutional and Administrative Law, 7th ed., at p. 150,observe that: "This power of timing is a weapon of great politicalimportance in the hand of the government, and especially of the PrimeMinister". The matter is further, explained by Wade and Phillips,Constitutional and Administrative Law, 9th ed., at p. 163 in thefollowing terms:
It is today not necessary that the Cabinet should have decidedin favour of dissolution, although the Prime Minister may havediscussed the desirability of a dissolution with the Cabinet or withselected colleagues. The opportunity of choosing the timing of aGeneral Election is an important political power at the disposal ofthe Prime Minister; thus he may choose a time when there is arevival in the economy or when opinion polls and by-elections resultsindicate that the Government's popularity is rising. It is sometimessaid that the right to request a dissolution is a powerful weapon .in the hands of a Prime Minister to compel recalcitrant supportersin the Commons to conform.
The proviso makes good sense where it is located, but it wouldnot do so if it is made applicable to Article 154 B (8) (d). Instead,it would interfere with a power the Chief Minister alone was obviouslymeant to have. Moreover, a reading of the proviso into Article 154B (8) would create ambiguities where none exist.
With regard to the submission of learned counsel for the appellanton the colon immediately preceding the proviso, I agree that althoughpunctuation forms part of an enactment and is an unamendabledescriptive component of such enactment. Yet, in general, punctuation
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 347
is of little weight, since the sense of a provision should be the samewith or without its punctuation. Punctuation is a device not for makingmeaning, but for making meaning plain. Where mistakes in punctuationoccur, we should have little hesitation in altering them. However inHanlon v. The Law Society*' Lord Lowry said:
I consider that not to take account of punctuation disregards thereality that literate people, such as Parliamentary draftsmen, punc-tuate what they write, if not identically, at least in accordance withgrammatical principles. Why should not other literate people, suchas Judges, look at the punctuation in order to interpret the meaningof the legislation as accepted by Parliament?
Lord Shaw of Dunfermline in Houston v. Bums!5) observed that:
Punctuation is a rational part of English composition and is quitesignificantly employed.
In the matters before me, the sense of Article 154 B (9) remainsthe same with or without the colon. What the colon does in thatprovision is to divide the provision into two parts, carving out fromthe main clause, which in general terms sets out the power of theGovernor to grant a pardon, respite or remission which, in terms ofArticle 154 F (1), he must exercise in accordance with the adviceof the Board of Ministers. The procedure he should adopt, should hedisagree with the advice of the Board of Ministers on the exerciseof his power of pardon, follows the colon. The colon preceding theproviso in Article 154 B (9) is a circumstance of importance in thatit helps to make clear the meaning of 154 B (9). Ignoring it doesnot make the proviso applicable to Article 154 B (8) (c) and (d).
Learned counsel for the appellants urged us to adopt a 'purposiveapproach'. Bennion (op. cit.) points out at page 657 that:
A purposive construction of an enactment is one which give effectto the legislative purpose by –
(a) following the literal meaning of the enactment where thatmeaning is in accordance with the legislative purpose (inthis code called a purposive-and-literal construction), or
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(b) applying a strained meaning where the literal meaning is notin accordance with the legislative purpose (in the Code calleda purposive-and-strained construction).
What this court is invited to do is to adopt a 'purposive' and strainedconstruction.
Lord Diplock in Jones v. Wrotham Park Settled Estates*61, statedas follows with regard to purposive-and-strained constructions:
… I am not reluctant to adopt a purposive construction whereto apply the literal meaning of the legislative language used wouldlead to results which would clearly defeat the purposes of the Act.But in doing so the task on which a court of justice is engagedremains one of construction, even where this involves reading intothe Act words which are not expressly included in it. Kamins BallroomsCo., Ltd. v. Zenith Investments (Torquay) Ltd. (1971) AC 850 providesan instance of this; but in that case the three conditions that mustbe fulfilled in order to jusfy this course were satisfied. First, it waspossible to determine from a consideration of the provisions of theAct read as a whole precisely what the mischief was that it wasthe purpose of the Act to remedy; secondly, it was apparent thatthe draftsman and Parliament had by inadvertence overlooked, andso omitted to deal with, an eventuality that required to be dealt withif the purpose of the Act was to be achieved; and thirdly, it waspossible to state with certainty what were the additional words thatwould have been inserted by the draftsman and approved byParliament had their attention been drawn to the omission beforethe Bill passed into law. Unless this third condition is fulfilled anyattempt by a court of justice to repair the omission in the Act cannotbe justified as an exercise of its jurisdiction to. determine what isthe meaning of a written law which Parliament has passed.
Have the conditions calling for a purposive-and-strained construc-tion been satisfied?
Although purposive construction is an almost invariable require-ment, a non-purposive construction may be unavoidable when thereis insufficient indication of what the legislative purpose is or just howit is to be carried out: I.R.C. v. Hinchy™, I.R.C. v. Ayrshire EmployersMutual Insurance Association Ltd.m. Judges rarely attempt elaborateand comprehensive statements of purpose. We usually say what
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Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 349
seems to us enough to deal with the point at issue. However,Sharvananda, CJ, whose judgment in Re the Thirteenth Amendmentto the Constitution, {supra), was heavily relied upon by the appellantsin their several submissions, at pp. 326-327, stated as follows:
. . . The Bill does not in any way affect the sovereignty of thepeople. Instead of the legislative and executive power of the peoplebeing concentrated in the hands of Parliament and President it issought to be diversified in terms of the Directive Principles of StatePolicies found in Article 27 (4) of the Constitution. This Articleprovides that:
The State shall strengthen and broaden the democratic structureof government and the democratic rights of the People bydecentralising the administration and by affording all possibleopportunities to the people to participate at every level in nationallife and government.
Article 27 (1) states that –
the Directive Principles of State Policies contained herein, shallguide Parliament, the President and the Cabinet of Ministers in theenactment of laws and the governance of Sri Lanka for the estab-lishment of a just and free society.
True the Principles of State Policy are not enforceable in a courtof law but that shortcoming does not detract from their value asprojecting the aims and aspirations of a democratic government. TheDirective Principles require to be implemented by legislation. In ourview, the two Bills [the Bill for introducing the Thirteenth Amendmentand the Provincial Councils Bill] represent steps in the direction ofimplementing the programme envisaged by the Constitution-makersto build a social and democratic society.
Healthy democracy must develop and adapt itself to changingcircumstances. The activities of central government now includesubstantial powers and functions that should be exercised at a levelcloser to the people. Article 27 (4) has in mind the aspirations ofthe local people. Article 27 (4) has in mind the aspiration of thelocal people to participate in the governance of their regions. TheBills envisage a handing over of responsibility for the domestic affairsof each province, within the framework of a united Sri Lanka. They
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give new scope for meeting the particular needs and desires of thepeople for each province. Decentralization is a useful means ofensuring that administration in the provinces is founded on anunderstanding of the needs and wishes of the respective provinces.The creation of elected and administrative institutions with respectto each province – that is what devolution means – gives shape tothe devolutionary principle.
The concept of devolution is used to mean the delegation ofcentral government powers without the relinquishment of supremacy
Professor Cass R. Sunstein, in a paper entitled Federalism in SouthAfrica? Notes from the American Experience. The American UniversityJournal of International Law and Policy, vol. 8 Nos. 2 & 3, Winter/Spring 1992/1993, 413 at p. 437, states as follows:
. . . Citizen participation in public affairs is highly unlikely at thenational level. Because people perceive the national government atthe lower and smaller levels, a constitutional system can increaseparticipation and responsiveness, and also cultivate citizenship. Thisis an important democratic advantage insofar as a prime goal ofdemocracy is to ensure that government is responsive to the people'sdesires and aspirations.
Article 154 B (9) gives the Governor of a Province the power ofgranting a pardon, respite or remission to a person convicted in respectof an offence against a statute made by the Provincial Council orby Parliament in respect of which the Provincial Council has powerto make statutes. In terms of Article 154 F (1), that function is ordinarilyexercised by the Governor on the advice of the Ministers of theProvincial Council. Where the Governor does not agree with the adviceof the Ministers in any case, and he considers it necessary to doso in the public interest, he may refer the case to the President fororders. So, the powers of pardon, respite and remission which werereposed solely in the President by Article 34 of the Constitution weredevolved on the Governor in respect of certain specified matters ofan essentially Provincial character. However, the supremacy of thePresident in that regard was in no way impaired, for (1) Article 1546 (9) expressly states that that provision is 'without prejudice to thepowers of the President' under Article 34, so that the President may,
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Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 351
regardless of the views of the Governor or the Ministers grant apardon, respite or remission in any case; and (2) the Governor'spowers are stated in Article 154 B (9) to be 'subject to [the President's]directions'.
In order to achieve its object of ensuring a more democraticconstitutional regime, Parliament created Provincial Councils byenacting the Thirteenth Amendment. After considering the proposedprovisions of the Thirteenth Amendment Bill and the Provincial CouncilsBill, the Court held in Re the Thirteenth Amendment (supra) that theproposed structure of Government did not violate Article 2 of theConstitution which provides that the Republic of Sri Lanka is a UnitaryState. The court found that, although certain functions were to beexercised by the Provincial Councils, yet in all spheres of activity, -legislative, executive and judicial – the government of Sri Lanka wassupreme. On the other hand, if one were to read the proviso in Article154 B (9) into Article 154 B (8) (d), it might by a side wind negatethe purpose of the Thirteenth Amendment. Bindra, op. cit., at page80 puts the matter succinctly: "unless the words are clear, the Courtsshould not so construe the proviso as to attribute to the Legislatureto give with one hand and take away with another". Sharvananda,CJ was not troubled by the form of Article 154 B (8) and did notsay that the powers of the President were retained by importing theproviso from Article 154 B (9) in construing Article 154 (8) or thatit was necessary to do so. What his Lordship did point out, citingBribery Commissioner v. Ranasinghef®, was that the imposition ofprocedural restraints does not erode the powers of an organ ofgovernment. So long as the Board of Ministers commands, in theopinion of the Governor, the support of the majority of the ProvincialCouncil, the Governor shall exercise his powers of dissolution inaccordance with the advice of the Chief Minister. The HonourableAttorney-General submitted that an exercise of the powers of disso-lution even when the Chief Minister commands the support of themajority of members of the council would not hamper the democraticprocess, for another election would be held and perhaps the samepolitical party with an enhanced majority may be returned. Electionsare of vital importance. So is stability. Professor Herman Schwartz,in his paper, Economic and Social Rights, The American UniversityJournal of International Law and Policy, volume B, Nos. 2 & 3, Winter/Spring 1992/1993, points out that governmental structures "mustobviously be relatively stable so that the country can function, andso that people can know and rely upon the rules of the game".
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If corruption and maladministration were meant to trigger Article154 B (8) (c) and (d) as an important safeguard of executivesupremacy, what is the explanation for the failure to specifically referto them? Parliament may have had no intention of elevating ProvincialCouncils to the level of co-ordinate bodies, but, it certainly seems tohave had no intention of dealing with them as if they were bodieslike Municipal Councils, (cf. section 277 Municipal Councils Ordinance,(cap. 252)), Urban Councils (cf. section 184 Urban Councils Ordinance,(cap. 255),) or Pradeshiya Sabhas (cf. section 185 Pradeshiya SabhasAct No. 15 of 1987) with regard to the matter of dissolution. Different‘rules of the game', to use Herman Schwartz's phrase, were prescribedfor Provincial Councils.
In India, the Constitution provides in Article 175 as follows withregard to the State legislatures:
(2) The Governor may from time to time –
prorogue the House or either House;
dissolve the Legislative Assembly.
Learned counsel for the respondents submitted that, although certainprovisions of the Indian Constitution were closely followed in enactingour own Constitution, deliberate departures were made in other in-stances, one of them being the procedure for the dissolution ofProvincial Councils. This would appear to be so.
Article 154 B (8) (c) and (d), it seems to me, was designed topromote the purpose of devolution. When that Article was enacted,Parliament had before it Article 70 of the Constitution which providesthat “The President may, from time to time, by Proclamation summon,prorogue and dissolve Parliament''. It is not without significance thatin enacting the Thirteenth Amendment, a similar power was notconferred on the Governor. Instead, in Article 154 B (8) (c) and (d)Parliament underscored the purpose of the Thirteenth Amendment byenacting that the Governor shall exercise his powers of dissolution“in accordance with the advice of the Chief Minister, so long as theBoard of Ministers commands, in the opinion of the Governor, thesupport of the majority of the Provincial Council". There is nosuggestion that the President has greater powers in dissolving
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Parliament than in dissolving Provincial Councils. The powers of thePresident are not in issue in this case. The power of dissolving aProvincial Council is vested by Parliament in the Governor, and notin the President: and in the exercise of that power, the Governor issubject to certain procedural safeguards which have been imposedby Parliament, having regard to the purpose of the Thirteenth Amend-ment, for the benefit of the voters and their elected representativesat a Provincial level, who might be affected by the exercise of theGovernor's power of dissolution.
In the circumstances, I should give what Bennion (op. cit., p. 657)called a "purposive-and-literal" construction to Article 154 B (8) (c)and (a), that is, one which follows the literal meaning of the enactmentbecause that meaning is in accordance with the legislative purpose.The construction suggested by the appellants would be inimical tothe legislative purpose.
Halsbury, (op. cit., paragraphs 856 and 857) states as follows:
The object of all interpretation of a written instrument is todiscover the intention of the author as expressed in the instrument.The dominant purpose in construing a statute is to ascertain theintention of the legislature as expressed in the statute, consideringit as a whole and in its context. This intention, and therefore themeaning of the statute, is primarily to be sought in the words usedin the statute itself, which must, if they are plain and unambiguous,be applied as they stand, however strongly it may be suspectedthat the result does not represent the real intention of Parliament.
If the words of a statute are clear and unambiguous, theythemselves indicate what must be taken to have been the intentionof Parliament, and there is no need to look elsewhere to discoverthe intention or their meaning.
Halsbury, (op. cit., paragraph 858) points out that it is only wherea statute is ambiguous that 'the intention of Parliament' must be soughtby reference to such matters as what was the law before the lawin question, the mischief or defect for which the law did not provide,the remedy Parliament resolved and appointed to 'cure the disease'and the true reason of the remedy'.
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Learned counsel for the appellants contended that a constructionthat a Governor must act on the advice of the Chief Minister wouldplace the power of dissolution in the hands of one man – the ChiefMinister. That submission overlooks the fact that the Chief Minister'sadvice is of value because of his representative character in ademocratic institution. His power base lies in the majority in theCouncil. The Chief Minister's advice on the question of dissolution mustbe followed "so long as the Board of Ministers commands, in theopinion of the Governor, the support of the majority of the ProvincialCouncil11. (Article 154 B (8) (d)). Article 154 F provides as follows:
The Governor shall appoint as Chief Minister, the member ofthe Provincial Council constituted for that Province who, in hisopinion, is best able to command the support of a majority ofthe members' of that Council:
Provided that where more than one-half of the members electedto a Provincial Council are members of one political party, theGovernor shall appoint the leader of that political party in the Councilas Chief Minister.
The Governor shall, on the advice of the Chief Minister, appointfrom among the members of the Provincial Council constitutedfor that Province, the other Ministers.
A Provincial Council is constituted "upon the election of mem-bers of such Council in accordance with the law relating to Pro-vincial Councils elections." (Article 154 A (2)).
The second condition for the adoption of a “purposive-and-strained"construction set out by Lord Diplock in Jones v. Wrotham Park SettledEstates, (supra), was that it must be ’apparent that the draftsman andParliament had by inadvertence overlooked, and so omitted to dealwith, an eventuality that required to be dealt with if the purpose ofthe Act was to be achieved1.
The Constitution and Acts of Parliament are produced by 'precisiondrafting' (as distinguished from 'disorganized composition'), where(although there are occasional lapses and errors) the draftsman aimsto use language accurately and consistently. There is nothing tosuggest that the Thirteenth Amendment or any of its provisions was
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sloppily drafted, so that the text is confused, contradictory or incompletein expression. We must presume that the drafting was competent. Thisis an aspect of the maxim omnia praesumuntur rite et solemniter esseacta – all things are presumed to be correctly and solemnly done.Cf. Bennion, op. cit., at 177-180. Accordingly, I should prefer to followa construction which flows from a reading based on correct and exactdrafting rather than one based on error. Halsbury, (op. cit., paragraph862), states that "There is a strong presumption that Parliament doesnot make mistakes. If blunders are found in legislation, they must becorrected by the legislature, and it is not the function of the courtto repair them. . ." Eventually, the Thirteenth Amendment must beseen as an Act of Parliament and in the circumstances it is usualfor a court to proceed on the assumption that 'the legislature is anideal person that does not make mistakes'. See per Lord Halsburyin Income Tax Special Purposes Commissioner v. Pemsel(,0); Richardsv. McBridei"). I am unable to accept the submission fo learned counselfor the appellants that the proviso was placed in Article 154 B (9)as a result of 'obvious inadvertence'. The burden of establishing sucha submission lies heavily upon those who assert it. Cf. the observationsof Lord Hewart, CJ in Spillers Ltd. v. Cardiff Assessment Committed'2»approved by Lord Macmillan in New Plymouth Borough Council v.Taranak Electric Power Board'3). In my view, the appellants have failedto discharge that burden. Indeed everything points in the oppositedirection. The words as they are can be given a sensible meaning;indeed, what we are invited to do will have the effect of causingambiguity; there is no need to supply omitted words or to transpose,interpolate or otherwise alter words to avoid manifest absurdity orinjustice. I must give the words in Article 154 B (8) (c) and (d) itsordinary and primary meaning. As Halsbury, (op. cit., paragraph 864)observes:
If the result of the interpretation of a statute according to itsprimary meaning is not what the legislature intended, it is for thelegislature to amend the statute construed rather than for the courtsto attempt the necessary amendment by investing plain languagewith some other than its natural meaning to produce a result whichit is thought the legislature must have intended.
The third condition for adopting a “purposive-and-strained" inter-pretation was said by Lord Diplock in Jones v. Wrotham Park SettledEstates, (supra), to be the possibility of stating 'with certainty what
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were the additional words that would have been inserted by thedraftsman and approved by Parliament'. Arguably, Lord Diplock's thirdpoint was overstated. (See R v. SchildkamptU)). The suggestion oflearned counsel for the appellants was that the additional words tobe placed in Article 154 B (8) (d) are the words in the proviso toArticle 154 B (9). As I have pointed out, this is not feasible becauseit would introduce ambiguity and uncertainty into Article 154 B (8) (d).It would also undermine the purpose of the Thirteenth Amendmentby conferring a discretion on the Governor even where the advicetendered is that of a Chief Minister of a Council with a Board ofMinisters which commands the support of the majority of the Council.
I am therefore unable to hold that the words of the proviso in Article154 B (9) were intended by Parliament to be inserted into Article 154B (8) (d).
I am of the view that the proviso appearing immediately after Article154 B (9) does not apply to any other paragraph or sub paragraphof Article 154 B, including Article 154 B (8) (c) and (d).
DOES ARTICLE 154 B (8) (C) CONTEMPLATE A DISCRETION-ARY POWER BY THE GOVERNOR AND IF SO IS SUCH POWERREQUIRED TO BE EXERCISED ON THE DIRECTIONS OF THEPRESIDENT.
This ground of appeal raises two questions: (1) whether Article 154B (8) (c) confers a discretionary power on the Governor; and if so(2) whether such power has to be exercised on directions given bythe President.
The submissions of the appellants on the question whetherArticle154 B (8) (c) contemplates a discretionary power.
Article 154 B (8) (c) of the Constitution which provides that: "TheGovernor may dissolve the Provincial Council" stands by itself andis not in any way qualified. If, on the other hand, Article 154 B (8)
is to be interpreted as qualifying all the provisions in paragraph
; this would make paragraph (8) (a) meaningless, for how can theGovernor in terms of (a) act as he "thinks fit" and at the same timebe bound by the advice of the Chief Minister? Moreover, such aninterpretation could lead to conflict where the Governor and ChiefMinister would both have power to summon the Provincial Council.
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 357
Article 154 B (8) (d) states that the Governor "shall exercise hispowers … in accordance with the advice of the Chief Minister.Although "shall" in its ordinary signification is mandatory, yet, havingregard, inter alia, to the nature and design of the statute, the con-sequences which would flow, and the impact of other provisions, thereal intention of Parliament might be that the provision was directory.(Bindra, op. cit., page 1113); Uttar Pradesh v. Babu Upadhaysf,S).
Article 154 F (2) provides that if any question arises whether anymatter is or is not a matter as respects which the Governor is byor under the Constitution required to act in his discretion, the decisionof the Governor in his discretion shall be final, and the validity ofanything done by the Governor shall not be called in question in anycourt on the ground that he ought or ought not to have acted in hisdiscretion. If, therefore, the Governor in his discretion decided thatArticle 154 B (8) (c) gave him a discretion to dissolve the ProvincialCouncil despite the provisions of Article (154 B (8) (d), such a decisionis final and cannot be challenged. The decision whether Article 154B (8) (c) gives the Governor a discretion is also a matter to beexercised according to the Governor's discretion. The question of lawwhether Article 154 B (8) (c) contemplates a discretionary power bythe Governor has already been answered by the very act of theGovernor in deciding in his discretion that the dissolution of theCouncil is a matter as respects which he can act in his discretion.
It is only by 'reading a discretion into Article 154 B (8) (c) thatdirections by the President regarding dissolution can be given. Fulleffect must be given to Article 4 (b). It is the existence of a discretionin regard to the dissolution of the Council enabling directions fromthe President that ensures that the executive supremacy of the Presi-dent is effectively achieved. This is essential for the preservation ofthe unitary character of the Republic: Be the Thirteenth Amendment,(supra).
The submissions of the respondents on the question whetherArticle 154 B (8) (c) contemplates a discretionary power.
Article 154 E provides that a Provincial Council shall, unless soonerdissolved, continue for a period of five years from the date appointedfor its first meeting and the expiration of the said period of five yearsshall operate as a dissolution of the Council. "The Provincial Councils
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(Amendment) Act No. 27 of 1990 provides that where more than one-half of the total membership of a Council repudiates allegiance tothe Constitution, the Governor is required to communicate such factto the President. Upon such communication being made, the Councilstands ipso facto dissolved. The dissolution takes place by operationof law and not by direction of the President. The only other provisionthat provides for a dissolution of a Council before five years is tobe found in Article 154 B (8). The power of dissolution set out inArticle 154 B (8) (c) must be exercised in accordance with the adviceof the Chief Minister, so long as the Board of Ministers commandsin the opinion of the Governor the support of the majority of theProvincial Council, for Article 154 B (8) (d) states that the Governor"shall" do so. The power of dissolution given by Article 154B (8) (c) is not discretionary.
The Governor's functions under the Constitution fall into threecategories: (a) those exercised by him on the advice of the Boardof Ministers; (d) those exercised by him on the advice of the ChiefMinister: and (c) those exercised .by him in his discretion. ChapterXVII A of the Constitution does not catalogue the matters that arewithin the discretion of the Governor. Article 154 F (1) provides thatthe Governor shall act in accordance with the advice of the Boardof Ministers, except insofar as he is required by the Constitution toact in his discretion. In the matter of dissolution, the Governor isrequired by Article 154 B (8) (d) to act on the advice of the ChiefMinister. Since it is not a matter in which he has a discretion, Article154 F (2), which states that the exercise of the Governor's discretionshall be on the President's direction, has no applicability. Where aConstitutional duty is expressly cast on the Governor, he has nodiscretion and must carry out his legal duty in accordance with therelevant provision: Premachandra v. Jayawickrame and another.
Article 4 (6) has no application here. Article 4 (b) designates oridentifies the Constitutional organs in which are deposited the threeaspects of sovereignty referred to in Article 3. It confers on each organ,ie Parliament, the President and the Courts, their respective powersin general terms. In the case of the executive power of the people,it is provided that it shall be exercised by the President. But it doesnot, and cannot, follow in law or in common reason that Article 4(b) dominates the entire spectrum of executive action and overridesall other provisions of the Constitution applicable to the exercise of
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executive power, including Articles of the Constitution which makespecific or express provision for the exercise of a particular executivepower in a particular manner, eg Articles 43 (3), 70 (1) (a), 70 (1)proviso (b) and (c), 154 F (4), 154 F (4) proviso and 154 F (5) showthat Article 4 (b) does not give the President the degree of executivepower claimed. If the President has the powers claimed by reasonof the provisions of Article 4 (b), the greater part of the Constitutionwill be rendered nugatory and the President will be in a position tooverride the Constitution at will. Such an interpretation, elevating Article4 (b) to such a supra-level, is wholly unacceptable.
In Re The Thirteenth Amendment, (supra), the court was principallyconcerned with the question whether the proposed amendmentdetracted from Article 2 which declares that the Republic of Sri Lankais a unitary state. The dicta at pages 318-327 and 357-359 showthat the court regarded the President's right to give directions to theGovernor in the exercise of the Governor's discretionary powers wasan adequate retention of power in the centre to prevent ProvincialCouncils being regarded in constitutional law as co-ordinate bodies.The court did not rule that the President retained overriding executivepowers under Article 4 (b) which supersede the express provisionsrelating to Provincial Councils contained in the Constitution.
My view on the question whether Article 154 B (8) (c) con-templates a discretionary power.
S. A. de Smith, Lord Woolf and Jeffrey Jowell in Judicial Reviewof Administrative Action, 1995, 5th ed. 295, observe as follows:
An administrative decision is flawed if it is illegal. A decision isillegal if-
it contravenes or exceeds the terms of the power whichauthorises the making of the decision;
if it pursues an objective other than that for which the powerto make the decision was conferred.
The task for the courts in evaluating whether a decision is illegalis essentially one of construing the content and scope of the in-strument conferring the power in order to determine whether the
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decision falls within its four comers'. In so doing the courts of lawenforce the rule of law, requiring administrative bodies to act withinthe bounds of the powers they have been given. They also act asguardian of Parliament's will-seeking to ensure that the exercise ofpower is what Parliament intended.
O.Hood Phillips and Paul Jackson, Constitutional and Adminis-trative Law, 7th ed., at p. 662, observe as follows:
A Minister, a local authority and any public body may only validlyexercise powers within the limits conferred on them by the commonlaw or statute. A decision may fall outside those powers and sobe ultra vires because the body concerned has attempted to dealwith a matter outside the range of the power conferred on it -substantive ultra vires — or because it has failed, in reaching itsdecision, to follow a prescribed procedure — procedural ultra vires.
After discussing the question of judicial review of prerogative powers,Phillips and Jackson, {ibid), state as follows:
As regards the innumerable statutory powers, the question is oneof the interpretation of the statute concerned. The acts of a com-petent authority must fall within the four corners of the powers givenby the legislature. The court must examine the nature, objects andscheme of the legislation, and in the light of that examination mustconsider what is the exact area over which powers are given bythe section under which the competent authority purports to act.
Sir William Wade and Christopher Forsyth, Administrative Law,1994, 7th ed., p. 245, states as follows:
When the question arises whether a public authority is actingunlawfully, the nature and extent of the power or duty has to befound in most cases by seeking the intention of Parliament asexpressed or implied in the relevant Act. The principles of administra-tive law are generalized rules of statutory interpretation.
The matter in issue is whether the dissolution of the ProvincialCouncil by the Governor was legal or illegal. Did the act of dissolutionfall within the four corners of Article 145 B (8)? Did the Governorcontravene or exceed the terms of Article 154 B (8) which authorises
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him to dissolve a Provincial Council? Did he follow the procedure fordissolution prescribed by that Article, or did he follow some otherprocedure? The Governor maintains that he acted in his discretionin terms of the power conferred on him by Article 154 B (8) (c) ofthe Constitution, and he, therefore, consulted the President, and actedon the orders of the President as he was obliged to do. The ChiefMinister maintains that, since the Governor had disregarded his advicein dissolving the Provincial Council when, in the opinion of the Governor,the Board of Ministers commanded the support of the majority of theProvincial Council, the Governor had acted illegally, and therefore thedissolution of the Council is void.
The answer to the matter in issue depends on what the relevantprovision of the Constitution states and means. The relevant provisionis Article 154 B (8) of the Constitution. Taken in isolation, Article 154B (8) (c) would seem to confer a discretionary power, for the provisionstates that 'The Governor may dissolve the Provincial Council'. However,Article 154 B (8) (d) prescribes the manner in which the power ofdissolution may be exercised, if it needs to be exercised at all: "TheGovernor shall exercise his powers under this paragraph in accordancewith the advice of the Chief Minister, so long as the Board of Ministerscommands, in the opinion of the Governor, the support of the majorityof the Provincial Council. "It was not in dispute that the relevantprovision of law applicable to the question of dissolution was Article154 B (8), nor was there any dispute that the factual circumstancesthat were required to trigger the application of that provision existed:the Board of Ministers, in the opinion of the Governor, did commandthe support of the majority of the Provincial Council.
It was contended that the qualification of the exercise of discre-tionary power set out in Article 154 B (8) (d) could not have beenintended to apply to the preceding provisions of the paragraph becauseto do so would cause ambiguity. Perhaps, as suggested by learnedcounsel for the appellants, there may be some ambiguity when Article154 B (8) (fl) is read with Article 154 B (8) (a). There may be not.It is a matter that will need consideration when a question with regardto the Governor’s powers to summon the Provincial Council to meetrequires consideration. I am concerned with the question of dissolution,and in that regard, it is my view that Article 154 B (8) (c) is subjectto Article 154 B (8) (a), for it is clearly stated in Article 154 B (8)(d) that the Governor shall exercise his powers "under this paragraph"
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in the manner prescribed therein. This paragraph” obviously refersto paragraph (8) of Article 154 B. Article 154 B (8) (c) confers a powerexpressed in permissive language because the word used is "may”.See per Cotton, LJ in Re Baker*7*. However, when a power is givento a person by the word 'may', but it is coupled with a duty to refrainfrom exercising it in certain prescribed circumstances, it becomes hisduty not to exercise it in those circumstances. (Cf. Wade and Forsyth,.Administrative Law, 7th ed. at 265 where the converse case is dealtwith). A Governor may dissolve a Provincial Council in terms of Article154 B (c) but he must do so in accordance with the duty prescribedby Article 154 B (8) (d). Article 154 B (8) (c) read with Article 154B (8) (d) presents no ambiguity either in respect of the verbal formulathat constitutes the relevant law nor in its application to the facts ofthe instant cases. There is no doubt as to the legal meaning andthe legislative intention conveyed by Article 154 B (8) (c) and (d) andit is both unnecessary and improper in the circumstances to attemptto give it some other meaning by calling in aid other provisions ofthe Constitution.
It is of importance to decide whether a statutory duty is mandatory- words such as 'absolute1, 'obligatory', ‘imperative1 and 'strict1 maybe used instead – or whether it is directory. ('Permissive' is sometimesused, but the use of the term 'directory' in the sense of permissivehas been criticised by Craies, Statute Law, 7th ed. 1971 p. 61 n. 74.)Ordinarily, where the relevant statutory duty is mandatory, failure tocomply with it invalidates the thing done. Where it is merely directorythe thing done will be unaffected, though there may be some sanctionfor disobedience imposed on the person bound. If the Governor's dutyto act on the advice of the Chief Minister was mandatory and notdirectory, then failure to comply with his duty invalidated the dissolution.Article 154 B (8) (dj uses the word "shall" in describing the mannerin which the Governor should exercise his power of dissolution. I amin agreement with the view that although the word "shall" ordinarilyimposes a mandatory duty, there may be cases in which it has thesame meaning as 'may'. However, I find no reason adduced in thematters before us to give Article 154 B (8) (c) read with Article 154(8) (ct) any meaning other than that the Governor will have to or must,if the Board of Ministers commands, in the opinion of the Governor,the support of the majority of the Provincial Council, exercise hispowers of dissolution in accordance with the advice of the ChiefMinister. Wade and Forsyth, op. cit., p. 245 observe that: "Powers
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 363
confer duties whether to act or not to act, and also in many cases,what action to take, whereas duties are obligatory and allow no option.De Smith, Woolf and Jowell, op. cit., p. 296, observe that: "if onlyone course can lawfully be adopted, the decision taken is not theexercise of a discretion but the performance of a duty". Since theBoard of Ministers in the opinion of the Governor commanded thesupport of the majority of the Provincial Council, there was only one,uniquely right course of action prescribed – to follow the advice ofthe Chief Minister in deciding whether to exercise his power ofdissolution. There was no discretion/By his failure to act in accordancewith the duty imposed on him by law, the Governor acted illegally.
I am unable to accept the suggestion that if a Governor supposesor believes something to be in his discretion, it becomes finally andconclusively a discretionary matter on which he should consult thePresident, and therefore if he consults the President, then, he isobliged to follow the directions of the President. Article 154 F (2) statesas follows:
If any question arises whether any matter is or is not a matteras respects which the Governor is or by or under this Constitutionrequired to act in his discretion, the decision of the Governor shallbe final, and the validity of anything done by the Governor shallnot be called in question in any court on the ground that he oughtor ought not to have acted in his discretion. The exercise of theGovernor's discretion shall be on the President's directions.
With regard to the dissolution of the Provincial Council, there wasnothing forming, or capable of forming, the basis of a problem, norany difficulty or doubt or uncertainty as far as the Constitutionalprovisions of Article 154 B (8) (c) and (d) were concerned. There wasno "question" whether the Governor was required to act in hisdiscretion. The fact that he honestly believed there was one, did notmake it so. Perhaps, the Governor misunderstood the law? It is theduty of the decision-maker to understand correctly the law thatregulates his decision-making power and give effect to it: Council ofCivil Service Unions v. Minister for the Civil Service.
It was not said by Sharvananda, CJ in Re the Thirteenth Amend-ment, (supra), that the Amendment was not violative of Article 2 (whichstates that Sri Lanka is a Unitary State), because the President had
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unlimited executive powers. What he did say in relation to executivepowers was that there was a sufficient retention of powers by thePresident in relation to discretionary powers so as to ensure theposition that Sri Lanka remained an unitary state. There was nosuggestion that the President had to have powers additional to thoseconferred by the Thirteenth Amendment, eg in the matter of disso-lution, in order to maintain the status of Sri Lanka as a unitary state,nor was there any suggestion that, because Parliament had imposedprocedural restraints on the manner in which executive power maybe exercised, the President's position, as the person exercising theexecutive power of the People, was undermined. On the other hand,it was acknowledged that procedural restraints on the exercise ofpower did not limit supremacy in the relevant sphere of activity: SeeRe Thirteenth Amendment, {supra), at pp. 320-321.
If, as I have said, Article 154 B (8) (d) introduced proceduralsafeguards on the exercise of the Governor's power of dissolution forthe benefit of the voters and their elected representatives who mightbe affected by the exercise of the power, – what other reason couldthere have been?-, then we have another reason for concluding thatthe Governor's power was not discretionary. Wade and Forsyth,op. cit., p. 255, observe:
Procedural safeguards which are so often imposed for the benefitof persons affected by the exercise of administrative powers arenormally regarded as mandatory so that it is fatal to disregard them.
I am of the view that Article 154 B (8) (c) does not contemplatea discretionary power by the Governor.
In view of that conclusion, the further question in ground (a) forappeal, namely, “if so whether such power is required to be exercisedon the directions of the President" does not arise.
DOES ARTICLE 154 B (8) (C) CONTEMPLATE THE EXERCISEOF THE GOVERNOR'S POWER SOLELY AS A DELEGATE?
The Submissions of the Appellants
If Article 154 B (8) (c) is subject to Article 154 B (8) (d), thenthe Governor must exercise his powers as a delegate, for the Governor's
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 365
role is that of a delegate. See the judgment of Sharvananda, CJ inRe the Thirteenth Amendment, at pages 322-323. Article 154 B (2)provides that: "The Governor shall be appointed by the President bywarrant under his hand, and shall hold office, in accordance with Article4 (b), during the pleasure of the President". The Governor's positionis unlike that of the Auditor-General, the Commissioner of Electionsor Judges of the Superior Courts who, although appointed by thePresident, cannot be removed from office at will. The subjection ofArticle 154 B (2) to Article 4 (b) makes the Governor an agent andrepresentative of the President in the Provincial area. The Governorderives his authority from the President and exercises executive powervested in him as a delegate. The dissolution of the Council is anexecutive act. In Re the Thirteenth Amendment, (supra), the courtemphasized that, so long as the President retains the power to givedirections to the Governor regarding the exercise of his executivefunctions and the Governor is bound by such directions, supersedingthe advice of the Board of Ministers: and the President can take overthe functions and powers of the Provincial Council by virtue of Articles154 K and 154 L, there can be no gainsaying the fact that the Presidentremains supreme or sovereign in the executive field and the ProvincialCouncil is only a body subordinate to him. The notion that the ChiefMinister should prevail over the Governor who is acting as a delegateand/or on the directions of the President as regards the dissolutionof a Council, is contrary to the decision in Re the Thirteenth Amend-ment, (supra), on the question of the exercise of executive sovereignty.It is the discretionary power to dissolve a Council that ensures executivesupremacy. The temporary take over of the Council for a year underArticle 154 K in no way achieves this supremacy.
In the performance of his functions, the Governor is required toact in his discretion (the test of which is the Governor's conceptionof the discretion), the Governor is obliged to seek the President'sdirections. The resulting action then arises from the President's fiat,the Governor being a mere instrumentality. No doubt the Governorhas a part to play, namely, to decide that there exists a discretionarymatter, and to seek the President's directions before the Governorexercises his discretion. It is only in situations of discretion arisingfrom powers conferred on the Governor by the Thirteenth Amendmentthat the Governor acts as a delegate of the President. Article 154B (8) (c) contemplates a discretionary power. Consequently in exer-cising this power in terms of Article 154 (8) (d), the Governor is acting
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solely as a delegate of the President. So much so that for this purpose,the word "shall” occurring in the said Article need not be construedas “may”, since the President can give directions superseding theadvice of the Board of Ministers. To the extent that the ensuing actionhas the President's approval (through his directions), the Governoris giving effect to the President's fiat and so acting as a delegate.
The Submissions of the Respondents
The fact that a person is appointed by the President, eg the Auditor-General, the Commissioner of Elections or Judges of the SuperiorCourts, does not carry with it the corollary that he becomes the agentor delegate of the President and must therefore carry out his ordersand directions. The executive power of the President in regard toProvincial Councils can be exercised only in two situations: (i) whereexpress provision is contained (eg Articles 154 K and 154 L); (ii) wherethe Governor is exercising a discretionary power, in which case hecan seek the advice and directions of the President in terms of Article154 F (2). Otherwise the Governor is obliged to carry out his functionsas laid down in the various Articles of the Constitution. In Premachandrav. Jayawickrame and another, (supra), the Supreme Court held thatthe Governor was not exercising a discretionary power and that,therefore, Article 154 F (2) did not apply. The present case is thesame. It is only in instances where the Governor is acting in pursuanceof a discretionary power that he can seek the President's advice underArticle 154 F (2), and not otherwise.
A Provincial Council, like Parliament, is an elected body. Accord-ingly, Article 154 (8) (c) and (d) makes specific provision for themanner of dissolution. This provision alone must apply to dissolution.Neither the President, nor the Governor claiming to act through thePresident, can ignore this Article and take refuge under Article 4 (b).Even if the Governor is a "delegate" of the President as claimed (whichis not conceded), neither the President nor the Governor were entitledto act in the manner complained against. The only relevant Articleis Article 154 B (8) (c) and (d). All that is required is that it shouldbe applied to determine whether or not the Governor has actedconstitutionally in dissolving the Provincial Council. If the words of astatute are clear and unambiguous, they themselves indicate whatmust be taken to have been the intention of Parliament, and thereis no need to look elsewhere to discover their intention or theirmeaning. (Halsbury, 4th ed. vol. 44 paragraph 857); see also
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 367
Somawathie v. Weera$ingheP9) Halsbury, op. cit., paragraph 857;Basu, page 33; Bindra, op. cit., page 941.
Article 154 B (2) does not have any application in the present case.This Article relates only to the appointment of a Governor. Thereference in it to Article 4 (b) is only for the purpose of showing thathis appointment is in pursuance of the President's executive powers.The reference to Article 4 (b) does not mean that all the duties andfunctions of a Governor referred to in Article 154 B are madediscretionary, or that the Governor must act in accordance with thePresident's directions, notwithstanding express provision to thecontrary governing the exercise of a particular duty or function in Article154 B itself.
In any event, the maxims generalia specialibus non derogant, andexpressio unius est exclusio alterius apply and effect must be givento the specific provision contained in Article 154 B (8) (c) and (d):Halsbury, op. cit., paragraph 875.
My View on the Question
It has been observed that an element which is essential to thelawful exercise of power is that it should be exercised by the authorityupon whom it is conferred, and by no one else. (See Wade andForsyth, op. cit., at 347), and that there is no general principle thatadministrative functions are delegable; and that the principle is ratherthat, where any decision has to be made, it must be made by theauthority designated by Parliament and by no one else: (Wade andForsyth, op. cit., at 353). The power of dissolution of a ProvincialCouncil is conferred by Parliament on the Governor by Article 154B (8) (c). Parliament has not given that power to the President andmade it delegable to the Governor. When a decision has to be madeon the question of dissolution, the decision must be that of theGovernor, whatever other descriptive labels may or may not be at-tached to him, and regardless of the course of action that may beopen to him to follow or may be obliged to follow in respect of othermatters. Where the Chief Minister advised the Governor againstdissolution, the Governor had no option in the matter: He was requiredby Article 154 B (8) (d) to act in accordance with the advice of theChief Minister, for the Governor was of the opinion that the Boardof Ministers commanded the support of the Provincial Council. As I
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have pointed out earlier, he had a legal duty in the circumstancesto act on the advice of the Chief Minister.
Nowhere in the Constitution is the Governor described as a'delegate', nor are the duties and functions of the Governor or howthey should be exercised, defined or described in terms of his beinga 'delegate'. The description of the Governor as a 'delegate' occursin the following observations of Sharvananda, CJ in Re the ThirteenthAmendment, (supra), at op. 322-323:
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 154 B (2)). The Governorderives his authority from the President and exercises the executivepower vested in him as a delegate of the President. It is open tothe President therefore by virtue of Article 4 (b) of the Constitutionto give directions and monitor the Governor's exercise of this ex-ecutive power vested in him. Although he is required by Article 154F (1) to exercise his functions in accordance with the advice of theBoard of Ministers, this is subject to the qualification 'except insofaras he is by or under the Constitution required to exercise his functionsor any of them in his discretion'. Under the Constitution the Governoras a representative of the President is required to act in his discretionin accordance with the instructions and directions of the President.Article 154 F (2) mandates that the Governor's discretion shall beon the President's directions and that the decision of the Governoras to what is in his discretion shall be final and not be called inquestion in any court on the ground that he ought or ought not tohave acted in his discretion. So long as the President retains thepower to give directions to the Governor regarding the exercise ofhis executive functions; and the Governor is bound by such directionssuperseding the advice of the Board of Ministers and where thefailure of the Governor or Provincial Council to comply with or giveeffect to any directions given to the Governor or such Council bythe President under Chapter XVII of the Constitution will entitle thePresident to hold that a situation has arisen in which the admin-istration of the Province cannot be carried on in accordance withthe provisions of the Constitution and take over the functions andpowers of the Provincial Council (Article 154 K and 154 L), therecan be no gainsaying the fact that the President remains supremeor sovereign in the executive field and the Provincial Council is onlya body subordinate to him.
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 369
Article 55 (1) of the Constitution provides that the appointment,transfer, dismissal and disciplinary control of public officers is vestedin the Cabinet of Ministers, and that all public officers shall hold officeat pleasure. (The emphasis is mine.) In the UK, public servants holdoffice during the pleasure of the Crown. (Cf. Dunn v. The Queer!20'1:Hales v. The King12'1: Denning v. Secretary of State for lndisf22 unlessotherwise provided. The rule, even in England, is not based onconnection with the royal prerogative, except, perhaps in a loosesense, but rather on the ground that 'the government should be ableto disembarrass itself of any employee at any moment': Wade andForsyth, op. cit., at pp. 70-71. Paradoxically, both in the UK and inSri Lanka, there are legal restrictions on the exercise of the 'pleasure*principle. It seems to me that when Article 154 B (2) provided thatthe Governor shall be appointed by the President, and that theGovernor shall hold office, in accordance with Article 4 (b), duringthe pleasure of the President, an exception was created toArticle 55: what was sought to be done was to enable the President,instead of the Cabinet of Ministers, to appoint and remove a Governor.
It does not mean that because the Governor holds office during thepleasure of the President, he is obliged to comply with the directionsof the President, disobeying the provisions of the Constitution, whichin its Preamble is stated to be the Supreme Law, and which theGovernor has, in terms of Article 154 B (6) solemnly undertaken touphold.
Article 154 B (2) provides that the Governor shall be appointedby the President "and shall hold office, in accordance with Article 4(b), during the pleasure of the President". His tenure of office istherefore less secure than that of certain others who are also ap-pointed by the President. The fact that his employment is precariousbecause he holds office during the pleasure of the President may,as a matter of self-interest, make it desirable for him consult thePresident in matters of importance. There is no disagreement that,although generally the Governor must act on the advice of the Boardof Ministers, he is not required to do so where he is by or underthe Constitution required to exercise his functions or any of them inhis discretion. Where he so acts in the exercise of his discretion, heis subject to the directions and orders of the President. (Article 154F (1) and (2)). It is not only prudent but also a constitutional require-ment prescribed by Article 154 F (2) that he shall exercise hisdiscretion on the President's directions. It may be appropriate inmatters where the Governor is required by the Constitution to act inhis discretion to describe him as a 'delegate' because he is required
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to exercise his discretion on the President's directions and might betaken to have been deputed to act for the President.
For the reasons I have already given, the Governor had no dis-cretion in the circumstances of the case in the matter of the dissolutionof the Provincial Council. Article 154 F (2) which requires the exerciseof the Governor's discretionary powers on the directions of the Presi-dent has no applicability in this matter. Parliament in its wisdom inArticle 154 B (8) expressly conferred the power of dissolution on theGovernor, and not on the President, and specifically and unambigu-ously in apt words provided the manner and circumstances in whichthe Governor should exercise his power of dissolution. The powercannot be exercised by implication having regard to Article 4 (£>) readwith Article 154 B (2) and Article 154 F. Admittedly, the general wordsin Article 4 (b) are wide enough to cover the case of the dissolutionof a Provincial Council; however, it does not do so because specificprovision is made in that regard by Article 154 B (8). Bennion, op.cit., p. 378 explains the matter in the following words:
Generalibus specialia derogant. Where the literal meaning of ageneral enactment covers a situation for which specific provision ismade by some other enactment within the Act or instrument, it ispresumed that the situation was intended to be dealt with by thespecific provision.
Conversely, general words are taken not to be intended to disturbexpress stipulations – clausula generalis non referta ad expressa; andgeneral provisions do not override special ones – generalia specialibusnon derogant.
Halsbury, (op. cit., paragraph 875), states as follows:
Whenever there is a general enactment in a statute which, iftaken in its most comprehensive sense, would override a particularenactment in the same statute, the particular enactment must beoperative, and the general enactment must be taken to affect onlythe other parts of the statute to which it may apply. This is merelyone application of the maxim that general things do not derogatefrom special things.
Therefore, in my view, since Article 4 (b), taken in its mostcomprehensive sense, would not override Article 154 B (8), I holdthat Article 154 B (8) must be operative on the question of the powerof the Governor to dissolve a Provincial Council.
SC Maithripala Senanayake, Governor of the North-Central Province and
Another v. Gamage Don Mahindasoma and Others (Amerasinghe, J.) 371
No inference is proper if it goes against the express words Parliamenthas used. Expressum facit cessare taciturn. As Lord Dunedin observedin Whiteman v. Sadler<23), “Express enactment shuts the door to furtherimplication". The chief application of the principle expressum facitcessare taciturn lies in the so-called expressio unius principle. Article4 does state that the executive power of the people shall be exercisedby the President. However, Article 154 B (8) creates an expressexception to that provision, and the principle expressio unius estexclusio alterius must apply. It is an ordinary rule that: "if authorityis given expressly, though by affirmative words, upon a defined condition,the expression of that condition excludes the doing of the act au-thorised under other circumstances than those so defined: expressiounius est exclusio alterius. (Per Willes, J in N. Stafford Steel Co. v.Ward24>. In Felix v. ShivaPS), Everleigh, LJ said: “If a. power is givenby statute, and the statute lays down the way in which the poweris to be brought into existence, it must be brought into existence bythat method and none other".
A Governor is bound to act in accordance with the express pro-visions in Article 154 B (8). He cannot rely on the fact that theexecutive power of the people is ordinarily exercised by the President.If the Governor is advised against dissolution by a Chief Minister, solong as the Board of Ministers commands, in the opinion of theGovernor, the support of the majority of the Provincial Council, theGovernor must act on the advice of the Chief Minister. He is neitherrequired by the Constitution, nor is he permitted, in those circum-stances, to act in his discretion or on the orders and directions ofthe President. Where Parliament has prescribed the manner in whicha power may be exercised, no one has any discretion to ignore thosedirections. Unless he complies with the directions, he acts illegally.The rule of law requires the Governor to justify his action as authorisedby law. (See de Smith, Woolf and Jowell, op. cit., p. 295 quotedabove). This he has failed to do.
It was suggested by the appellants that, since the Governor wasa delegate, his action in dissolving the Provincial Council could notbe questioned because of the immunity from suit conferred on thePresident by Article 35 of the Constitution. The matters before thecourt do not concern the President's acts or omissions. The respond-ents challenge the exercise of the powers of the Governor, not asa delegate, but as a person directly conferred by Parliament with the
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power of dissolution. The Governor has no immunity from suit. Heis not beyond the reach of the law, and it is not appropriate to inventnew official immunities.
A. V. Dicey, Introduction to the Study of the Law of the Constitution,10th ed., 1965, p. 193, observed as follows:
Every man whatever his rank or condition is subject to theordinary law of the realm and amenable to the jurisdiction of ordinarytribunals . . . with every official from Prime Minister down to aconstable or a collector of taxes is under the same responsibilityfor every act done without legal justification as any other citizen.
My answer to the question whether Article 154 B (8) (c) contem-plates the exercise of the Governor’s power solely as a delegate isthat it does not. The power of dissolution is one that is expresslyconferred on the Governor by Article 154 B (8) of the Constitution.It is not a power of the President exercised by the President by meansof the Governor. In the matter of dissolution, the Governor deriveshis authority from a specific provision of the Constitution that confersthat power on him and on no other person. His power does not cometo him vicariously by reason of his position as a person substitutedfor the President. The power has been conferred on the Governorby Parliament and it is his duty to exercise that power exactly in themanner prescribed by Parliament.
ORDER
For the reasons set out in my judgment, I affirm the decisions ofthe Court of Appeal in respect of SC Appeal No. 41/96 and SC AppealNo. 42/96 and dismiss the appeals in both cases.
The first appellant in each of the appeals shall pay Rs. 7,500 ascosts.
G. P, S. DE SILVA, CJ. – I agree.
RAMANATHAN, J. – I agree.
Appeals dismissed.