033-SLLR-SLLR-1996-1-MIGULTENNE-V.-THE-ATTORNEY-GENERAL.pdf
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MIGULTENNE
V.
THE ATTORNEY-GENERAL
SUPREME COURT.
FERNANDO, J.
DHEERARATNE, J. ANDPERERA, J.
S.C. REFERENCE NO.3/94.
A. NO. 246/86 (F).
C. COLOMBO N0.3346/Z.
JUNE 21, 1995.
Constitutional Law – Interpretation of sections 106 and 107 of the 1972Constitution – Rule 4(12) of the Court of Appeal (Appellate Procedure) Rules1990 • Holding office at the pleasure of the executive – Ouster of jurisdictionof Court.
"Pleasure" implies discretion, and the question is whether sections 106 and107 were intended to give the Executive an unfettered discretion unre-strained by judicial review.
Rules made under section 106(3) are subordinate legislation, and cannotbe regarded as legislation within the meaning of section 107(1). Subordinatelegislation, even where authorised by the Constitution, cannot prevail over(and thereby amend) the Constitution, unless the Constitution clearly author-ises such a result. The authority to make rules is subject to the "pleasureprinciple".
Section 107(1) provides for only two restraints on the “pleasure principle" -the pleasure principle will not apply where the Constitution itself expresslyprovides otherwise, and where the legislature by law provides otherwise. Itfollows that exceptions to the "pleasure principle" cannot be created byImplication from constitutional provisions (such as the fundamental rights)or by subordinate legislation (such as rules made under section 106(3)which are not "legislative" in character) and so cannot be treated as being"laws" within the meaning of section 107(1).
Section 107(1) makes the "pleasure principle" applicable to "state officers"appointed by the Cabinet (under section 107(1) as well as Presidentialappointees (under section 108).
Section 107(1) provides that office is held at the pleasure of the President.
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The President has no independent discretion, as he must act on advice(section 27); and if he has no real discretion, there can be no criteria byreference to which his exercise of discretion can be reviewed. There appearsto be some anomaly in office being held at the pleasure of the President,although appointment and dismissal are by the Cabinet, but the fact remainsthat there are no criteria by which the exercise of discretion may be reviewed;even compliance with the fundamental rights is not required. This issuggestive of an unfettered discretion, not subject to review. Under the 1972Constitution "state officers" held office at pleasure; there was no exception(save as otherwise expressly provided by the Constitution or by statute law).The plaintiff held office at pleasure.
(2) The ouster clause in the 1972 Constitution is consistent with a generalintention to exclude judicial review. The ouster clause in section 106(3) wasa bar to the plaintiff's action for a declaration.
Per Fernando,J.
"Judgments of this Court show that, for that mischief (unrestricted pleasureprinciple) the fundamental rights jurisdiction (under the 1978 Constitution)is an antidote of growing efficacy though not a preventive."
Cases referred to;
Abeywickrema v. Pathirana [1986)1 Sri L.R. 120, 182.
Chandrasiri v. AG.[1989)1 Sri L.R. 115.
Vallipuram v. Postmaster-General (1948) 50 N.L.R. 214.
Santiapillai v. A.G. (1953) 55 N.L.R. 83.
De Silva Wijesundera v. P.S.C. (1953) 55 N.L.R.94.
Silva v. A.G. (1958) 60 N.L.R. 145.
De Zoysa v. P.S.C. (1960) 62 N.L.R. 492 (S.C.).
De Zoysa v. P.S.C. (1963) 64 N.L.R. 505 (P.C.).
Herat v. Nugawela (1968) 70 N.L.R. 529.
AG. v. Kodeswaran (1967) 70 N.L.R. 121.
Pillai v. Fonseka (1968) 71 N.L.R. 202.
De Alwis v. De Silva (1967) 71 N.L.R. 108.
Bandara v. Premachandra S.C. 213/93 S.C. Minutes of 16.8.93.
P.S.U.N.U. v. Jayewickrema [1988] 1 Sri L.R. 229, 235-6.
Ramupillai v. Perera [1991] 1 Sri L.R. 11.
Wickremabandu v. Herath [1990] 2 Sri L.R. 348.
Wickremaratne v. Gunawardena S.C. 5/95 S.C. Minutes of 29.5.95.
Ridge v. Baldwin (1964) AC 40,66.
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APPEAL from judgment of the Court of Appeal.
R.K.W. Goonesekera for Plaintiff -Appellant • Appellant.
Mohan Peiris, S.S.C. for the Defendant • Respondent • Respondent.
Cur.adv.vult.
July 7, 1995.
FERNANDO, J.
This appeal involves the interpretation of sections 106 and 107 ofthe 1972 Constitution.
The facts are not in dispute. The Plaintiff-Appellant-Appellant ("thePlaintiff") was a "state officer" within the meaning of the 1972 Consti-tution, whose services were terminated on 30.6.78. He instituted ac-tion in the District Court of Colombo, averring that he was not holdingoffice at pleasure, and that the termination was arbitrary and withoutlawful cause or reason, and sought a declaration that he continued tobe a public servant. It was not contended at any stage that the termi-nation was a nullity, because t was ultra vires or mala fide. In 1986,preliminary issues of jurisdiction were answered against the Plaintiffon the basis of section 106(5) of the 1972 Constitution.
On appeal both Counsel submitted that important questions of law,relevant to the public service, arose, and that these would ultimatelyhave to be decided by this Court. Accordingly, on 4.7.94, acting underand in terms of Rule 4(12) of the Court of Appeal (Appellate Proce-dure) Rules, 1990, the Court of Appeal upheld the decision of theDistrict Court that section 106(5) was a complete bar to the Plaintiff'saction, dismissed the Plaintiff's appeal, and granted him leave to ap-peal to this Court upon the following question:
"Whether the services of a public officer whose tenure is governedbythe 1972 or 1978 Constitutions could be summarily terminatedon the basis that he holds office at the pleasure of theExecutive."
Although reference has been made to the 1978 Constitution as
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well, the matter really involves the interpretation of only the 1972 Con-stitution, because it was while that Constitution was in force that thePlaintiff was dismissed. Therefore, even if it is correct that under the1978 Constitution a public officer does not hold office at pleasure(namely, at the unfettered or absolute discretion) of the Executive,and hence cannot be summarily dismissed, yet it does not follow thatthe same position prevailed under the 1972 Constitution – becausethere are differences in the relevant provisions. However, some con-sideration of the corresponding provisions of the 1978 Constitution isuseful in order to determine the true meaning and effect of the 1972provisions.
Both Counsel dealt with the question under two heads:
Does the "pleasure principle" in section 107(1) confer an unfet-tered discretion on the Executive?
Does section 106(5) completely oust the jurisdiction of the Courtsin respect of orders and decisions of the Cabinet of Ministers, Minis-ters, etc; regarding appointments, transfers and dismissals of "stateofficers"?
It was assumed, for the purpose of this appeal, that the ousterclause did not extend to an order or a decision which is a nullity be-cause it was ultra vires or mala fide. That, however, was not the basison which the Plaintiff contended that the District Court had jurisdic-tion.
Sections 106 to 108 of the 1972 Constitution and Articles 54 and55 of the 1978 Constitution provide as follows:
(1) The Cabinet of Ministers shall be responsible for theappointment, transfer, dismissal and disciplinary control of state offic-ers and shall be answerable therefor to the National State Assembly.
106. (2) Subject to the provisions of the Constitution, the Cabinet ofMinisters shall have the power of appointment, transfer, dismissal anddisciplinary control of all state officers.
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106. (3) Subject to the provisions of the Constitution, the Cabinet ofMinisters shall provide for and determine all matters relating to stateofficers including the constitution of state services, the formulation ofschemes of recruitment and codes of conduct for state officers, theprecedure forthe exercise and the delegation of the powers of appoint-ment, transfer, dismissal and disciplinary control of state officers.
(5) No institution administering justice shall have the power ofjurisdiction to inquire into, pronounce upon or in any manner call inquestion any recommendation, order or decision of the Cabinet ofMinisters, a Minister, the State Services Advisory Board, the StateServices Disciplinary Board, or a state officer, regarding any matterconcerning appointments, transfers, dismissals or disciplinary mattersof state officers.
(1) Save as otherwise expressly provided by the Constitution,_every state officer shall hold office during the pleasure of the President.The National State Assembly may however in respect of a state officerholding office during the pleasure of the President provide otherwise bya law passed by a majority of those present and voting.
The following state officers shall be appointed by the President:-
state officers required by the Constitution or by or under theauthority of a written law to be appointed by the President;
the Attorney-General; and
heads of the Army, Navy and Air Force and of the Police Force.
The President shall appoint all public officers required by theConstitution or other written law to be appointed by the President, aswell as the Attorney-General and the Heads of the Army, the Navy,the Air Force and the Police Force.
(1) Subject to the provisions of the Constitution, the appoint-ment, transfer, dismissal and disciplinary control of public officers ishereby vested in the Cabinet of Ministers, and all public officers shallhold office at pleasure.
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(4) Subject to the provisions of the Constitution, the Cabinetof Ministers shall provide for and determine all matters relating to pub-lic officers, including the formulation of schemes of recruitment andcodes of conduct for public officers, the. principles to be followed inmaking promotions and transfers, and the procedure for the exerciseand the delegation of the powers of appointment, transfer, dismissaland disciplinary control of public officers.
(5) Subject to the jurisdiction conferred on the Supreme Courtunder paragraph (1) of Article 126 no court or tribunal shall have poweror jurisdiction to inquire into, pronounce upon or in any manner call inquestion, any order or decision of the Cabinet of Ministers, a Minister,the Public Service Commission, a Committee of the Public ServiceCommission or of a public officer, in regard to any matter concerningthe appointment, transfer, dismissal or disciplinary control oil a publicofficer.
Mr.Goonesekera's contentions can be summed up as follows. Im-mediately prior to 1972, the "pleasure principle" – whether recognizedconstitutionally or otherwise – did not give absolute and unfettereddiscretion to the Executive; over a period of time,the degree of discre-tion implicit in that principle had been gradually restricted or diluted bysubstantive and procedural safeguards contained in administrative rulesand regulations governing the terms and conditions of service of publicofficers. The 1972 Constitution neither reversed nor halted that proc-ess of dilution of the "pleasure principle", but continued it. Sections106 and 107 have to be "harmoniously interpreted", with due concernfor civil liberties, with the result that the "pleasure principle" in sec-tion 107(1) was subject to safeguards contained in the rules made bythe Cabinet under section 106(3); and so a "state officer" was not li-able to summary termination if those rules had made contrary provi-sion (e.g.as to cause for,or notice of, termination). To reinforce thissubmission, Mr.Goonesekera referred to the 1978 provisions; heclaimed that the "pleasure principle" and the administrative rules madeby the Cabinet were similar in status and effect, under both Constitu-tions; and the rules diluted the "pleasure principle". In that setting,although the ouster clause in Article 55(5) appeared to be narrower inscope – because it expressly preserved the fundamental rights juris-diction of this Court – nevertheless, both section 106(5) and Article
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55(5) must be liberally construed to permit judicial review by way ofdeclaration in the District Court, even in cases not involving ultravires or mala fide orders. These submissions required us to recon-sider the decisions in Abeywickrema v Pathirana,(1) and Chandrasiri vA.G.v
THE POSITION BEFORE 1972
Mr.Goonesekera referred to a series of decisions prior to 4972:Vallipuram v. Postmaster-General,131 Santia Pillai v A.G.,W de SilvaWijesundera v RS.C.,(5) Silva v AG./6' de Zoysa v. P.S.C.ym Heratv. Nugawela,(9) A.G. v Kodeswaran,^ Pillai v. Fonseka,iU) and deAlwisv. de S/7va,(12) None of these decisions support his contention that thesafeguards provided in administrative regulations governing the publicservice did displace or dilute the "pleasure principle". It seems to methat Gratiaen, J. stated the position, with clarity and precision, inVallipuram v Postmaster-General,(3) that the Royal Instructions regu-lating the procedure for dismissal, were only directions for the guid-ance of the Governor, and did not constitute a contract between theCrown and its servants; that, although intended to assure that tenureof office, though at pleasure, will not be subject to capricious or arbi-trary action, yet they did not give rights enforceable by action, so thatan officer could be dismissed notwithstanding the failure to observethe prescribed procedures; and that public servants held office duringthe pleasure of the Crown, subject to any specific law to the contrary.Gratiaen, J. further observed that the "pleasure principle" previouslylaid down in the Royal Instructions was thereafter expressly laid downin section 57 of the Soulbury Constitution. Silva v A.G. ,(6) dealt withrights flowing from a Constitutional provision (namely, section 61 ofthe Soulbury Constitution), which derogated from section 57; this isno authority for the proposition that rights conferred by administrativerules could likewise derogate from section 57.
THE “PLEASURE PRINCIPLE" UNDER THE 1972 CONSTITUTION
But even if I were to assume that Mr.Goonesekera was right incontending that administrative rules could derogate from the "pleasureprinciple" under the Soulbury Constitution, I cannot accept his furtherassumption that the 1972 Constitution intended to maintain that posi-
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tion. There is no doubt whatever that the 1972 Constitution did intendto make drastic changes in respect of vital features of the SoulburyConstitution – such as an independent Public Service Commission,judicial review of executive action, judicial review of legislation, theconstitutional entrenchment of the Supreme Court, and an independ-ent Judicial Service Commission.The separation of powers which wasperceived to exist under the Soulbury Constitution was replaced by avery different concept, of the Legislature being the supreme instru-ment otetate power. The public service was brought under the directcontrol of the political Executive; and an ouster clause introduced. Itis in that context that the "pleasure principle" and the ouster clausehave to be considered.
In Abeywickrema vPathirana,m Wanasundera, J. lucidly explainedwhat was intended:
"Every person acquainted with the post-independence period ofour history, especially the constitutional and legal issues thatcropped up during the period, would know how the actions of theGovernment and the Public Service Commission dealing withpractically every aspect of their control over public officers werechallenged and taken to the courts. A stage came when theGovernmentfound itself practically hamstrung by injunctions andcourt orders and not given a free hand to run the public service andthereby the administration as efficiently as it would wish. The1972 reforms came undoubtedly as a reaction to this. The thinkingbehind the framers of the Constitution was that the public servicemust be made the exclusive domain of the Executive withoutinterference from the courts."
I therefore propose to examine the relevant provisions free of thepressures of any pre – conceived notion, either way. "Pleasure" im-plies discretion, and the question is whether sections 106 and 107were intended to give the Executive an unfettered discretion unrestrainedby judicial review.
(a) Constitutional restraints on the "pleasure principle". Sec-tion 107(1) provides for only two restraints – the "pleasure principle"will not apply where the Constitution itself expressly provides other-
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wise, and where the Legislature by law provides otherwise. It followsthat exceptions to the "pleasure principle" cannot be created by impli-cation from Constitutional provisions (such as the fundamental rights)or by subordinate legislation (such as rules made under section 106(3),which are not "legislative" in character, for the reasons I have explainedbelow, and so cannot be treated as being "laws" within the meaning ofsection 107(1)).
However, the "pleasure principle" in Article 55(1) is "subject to theprovisions of the Constitution", and not only to express contrary provi-sions; accordingly, it may be diluted by implications arising fromother provisions of the Constitution such as Chapter III (and possiblyeven Article 55(4)). Thus the “pleasure principle" would not sanctiondismissal contrary to the fundamental rights, and may also be subjectto other limitations found elsewhere in the Constitution: Bandara vPremachandraS'3)
Further section 107(1) makes the "pleasure principle" applicableto "state officers" appointed by the Cabinet (under section 107(1)) aswell as Presidential appointees (under section 108). It is arguable,however, that under the 1978 provisions the "pleasure principle" con-tained in Article 55(1) applies only to officers appointed under thatArticle, and not to Presidential appointees under Article 54.
(b) The nature of the discretion. Section 107(1) provides thatoffice is held at the pleasure of the President. The President has noindependent discretion, as he must act on advice (section 27); and ifhe has no real discretion, there can be no criteria by reference towhich his exercise of discretion can be reviewed. There appears to besome anomaly in office being held at the pleasure of the President,although appointment and dismissal is by the Cabinet, but the factremains that there are no criteria by which the exercize of discretionmay be reviewed; even compliance with the fundamental rights is notrequired.That is suggestive of an unfettered discretion, not subject toreview.
On the other hand, as already observed, Article 55(1) providescriteria for review, and this points to a limited discretion.
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(c) The rules made by the Cabinet. Mr.Goonesekera is right incontending that the rules made under section 106(3) have statutoryforce, to the same extent as those made under Article 55(4). However,this rule-making power is not a "legislative* power, as stated bySharvananda, C.J. in Abeywickrema v Pathirana™ cited with approvalby Wanasundera, J. in P.S.U.N.U. v JayawickremaSu) but “executiveor administrative" (as held by a bench of seven Judges in Ramupillai vPerera,(,5>), and is therefore subject to the fundamental rights jurisdic-tion, like other subordinate legislation (such as Emergency Regula-tions: Wickramabandu v.Herath,{16>). The recent decision inWickremaratne v Gunawardena,(17) that the making of a regulation bythe Minister is per se the exercise of legislative power delegated tohim by Parliament, and therefore not subject to the fundamental rightsjurisdiction, is inconsistent with Ramupillai andWickramabandu, whichdo not appear to have been cited.
I am therefore of the view that rules made under section 106(3)are subordinate legislation, and cannot be regarded as legislation withinthe meaning of section 107(1). Subordinate legislation, even whereauthorised by the Constitution, cannot prevail over (and therebyamend) the Constitution, unless the Constitution clearly authorisessuch a result.
Mr.Goonesekera's contention was that the rules made under sec-tion 106(3) prevail over the "pleasure principle* contained in section107(1). He urged that the two provisions should be harmoniously con-strued, so as to give effect to both, and submitted that justice andfairplay for the public service was paramount consideration. Upon suchan approach, he said, the Court must conclude that the "pleasureprinciple" was diluted by the rules.
This contention can only succeed if we ignore the plain and unam-biguous language of the Constitution. The power conferred by section106(3) is expressly stated to be "subject to the provisions of the Con-stitution" • and therefore subordinate to the "pleasure principle" insection 107(1). Additionally, section 107(1) is not subject to any quali-fication, which in any way suggests that it is subject to section 106.That section is, as I have already observed, subject only to express
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contrary (Constitutional or legislative) provision. Accordingly, the au-thority to make rules is subject to the "pleasure principle".
The 1978 position is quite different. The "pleasure principle" inArticle 55(1) is not unqualified: Article 55(1) is subject to the provi-sions of the Constitution, and therefore to the fundamental rights Chap-ter. If rules are made under Article 55(4) in order to give effect to thefundamental rights, that is authorised by Article 55(1), and not repug-nant to it; and such rules will prevail over the "pleasure principle".Article 55(4) is also "subject to the provisions of the Constitution", andhence there may well be restrictions as to the extent to which rulesmade under Article 55(4) can override Article 55(1). The question ofharmonious construction of those two provisions of the Constitution,may certainly arise, although it does not have to be decided in thiscase. (It may be noted in passing, that it has been observed thatrules made under Article 55(4) must not be inconsistent withthe"pleasure principle": per Sharvananda, C.J. in Abeywickrema vPathirana,(1) cited with approval by Wanasundera, J. in P.S.U.N.U. vJayewickrema.iu) What is important, and sufficient, for present pur-poses, is that Article 55(4) is not wholly subordinate to Article 55(1),unlike section 106(3) vis-a-vis section 107(1).
Learned Senior State Counsel submitted that the unrestricted"pleasure principle" in the 1972 Constitution was intended to give theExecutive full discretion to replace an unsatisfactory officer with onewho was efficient; and even a good officer, with one who was better(citing Ridge v Baldwin.(18)) Whatever the intention, the effect of thewords used was also to permit- without risk of judicial review – thesubstitution of an officer who was less efficient, subservient, or cor-rupt, in place of one who was not. Judgments of this Court show that,for that mischief, the fundamental rights jurisdiction is an antidote ofgrowing efficacy, though not a preventive.
To sum up the position, then, although the rules made by the Cabi-net are comparable in status under the two Constitutions, section 106
does not authorise the making of rules which would in any wayoverride section 107(1); however, Article 55(4) authorises rules whichwould dilute the "pleasure principle" in Article 55(1), at least to the
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extent necessary to give effect to fundamental rights and other Con-stitutional provisions to which Article 55(1) may be subject. Underthe 1972 Constitution, "state officers" held office at pleasure; therewas no exception (save as otherwise expressly provided by the Con-stitution OR BY statute law); and the restrictions on the "pleasure prin-ciple" in the 1978 Constitution are not applicable to the 1972 Constitu-tion. The Plaintiff therefore held office at pleasure.
3. THEJDUSTER CLAUSE
Mr.Goonesekera's contention on this aspect must fail for severalreasons.The comparison with Article 55 (5) is not valid, because thatArticle expressly preserves a significant area of judicial review, throughthe fundamental rights jurisdiction. From the fact that Article 55(5)permits review, in the exercise of that jurisdiction by the highest Court,it does not follow that section 106(5) permits review by way of decla-ration in the District Court. Secondly, the ouster clause in the 1972Constitution is consistent with a general intention to exclude judicialreview,* whereas the 1978 Constitution does not manifest a generalintention of that kind. It must be borne in mind that the Interpretation(Amendment) Act, No 18 of 1972, was enacted just eleven days be-fore the 1972 Constitution was adopted. Finally, the contention thatouster clauses in the Constitution should be strictly interpreted, re-stricting the ambit of the ouster, can be far more readily acceptedwhere the Constitution itself contains other indications of an intentionto permit review: such as the entrenchment of the fundamental rightsand other jurisdictions of this Court, and the writ jurisdiction of theCourt of Appeal. It is difficult, however, to read an implied exceptioninto an ouster clause in the Constitution by reference to generalprovisions in ordinary laws governing the jurisdictions of the courts;the maxim, generalia specialibus non derogant, would apply with muchgreater force when the special provisions are found in the Constitutionitself.
I therefore hold that the ouster clause in section 106(3) was a barto the Plaintiff's action for a declaration.
The Plaintiff's appeal is dismissed, but-as his termination is up-
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held otherwise than on the ground of fault, and as important questionsof law were involved – without costsnuasiions
DHEERARATNE, J. -1 agree.PERERA, J. -1 agree.
Appeal dismissed.