021-SLLR-SLLR-1993-2-PREMACHANDA-AND-DODANGODA-v.-JAYAWICKREMA-AND-BAKEER-AND-OTHERS.pdf
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PREMACHANDRA AND DODANGODA
v.JAYAWICKREMA AND BAKEER MARKAR AND OTHERS
COURT OF APPEALK. PALAKIDNAR J, (P/CA).
S. N. SILVA J. &
D. P. S. GUNASEKERA J,.
C.A. 376/93.
C.A. 377/93.
16, 17 AND 29 SEPTEMBER 1993.
Writs of Quo Warranto, Certiorari and Mandamus – Provincial Council Elections- Governor's power – Appointment to office of Chief Minister of a ProvincialCouncil – Article 154 F (4) of the Constitution – Area of review – Reasonableexercise of discretion – Reasonableness – Wednesbury Rules – Wednesbury'sunreasonableness – Confidential inquiries – Provincial Council Election ActNo. 2 Of 1988 section 60.
The People Alliance (PA) a recognised political party and DUNF had 27 electedmembers (18 being PA members and 9 being DUNF) in the Provincial Councilof the North Western Province whilst the UNP had 25 members including twobonus seats. The PA and DUNF had 28 elected members (the PA having 24members and DUNF four members) while the UNP had 27 elected membersincluding the two bonus seats in the Provincial Council of the Southern Province.
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Held :
The appointment of a Chief Minister for a Provincial Council is provided for inArticle 154 F(4) of the Thirteenth Amendment to the Constitution which readsthus.
" The Governor shall appoint as Chief Minister, the member of the ProvincialCouncil constituted for that Province, who, in his opinion, is best able to commandthe support of a majority of the members of that Council.
Provided that where more than one-half of the members elected to a ProvincialCouncil are members of one political party, the Governor shall appoint the leaderof that political party in the Council as Chief Minister.*
This Sub-Article casts a specific duty on the Governor to appoint a Chief Ministerfor the Province. The proviso and the main Sub-Article regulate two distinctsituation viz:
The proviso regulates a situation where a single party has more than one-half of the members of the Council. Here, it is mandatory on the Governor toappoint the leader of such party as Chief Minister.
The main Sub-Article regulates a situation where a single party does not havemore than one-half of the members of the Council. Here the Governor is requiredto appoint the member who ' in his opinion is best able to command the supportof that Council °.
In situation (i) it is conceded that the Governor has no discretion.
The purpose for .which this power is vested in the Governor is firmly rooted inthe basic mandate of Democracy that the People's will shall prevail. Viewed inthis light there is no distinction in substance in the criteria for appointment inrelation to the two situations stated above.
The process of ascertaining the member who is best able to command the majorityin the Council, is that by which the Governor forms the opinion referred to inthe main Sub-Article (situation ii). It is this process which is subject to judicialreview – that is whether the decision making process was flawed.
The discretion must be exercised reasonably. A person entrusted with a discretionmust so to speak direct himself properly in law. He must call his own attentionto the matters which he is bound to consider. He must exclude from his con-sideration matters which are irrelevant to what he has to consider. If he doesnot obey these rules, he may truly be said, and often is said, to be actingunreasonably. Similarly, there may be something so absurd that no sensibleperson could ever dream that it lay within the powers of the authority. It mightbe so unreasonable that it might almost be described as being done in bad faith.In fact, all these things run into one another. These are the Wednesbury rules.
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When the said Rules are applied in the exercise of the power, in question, bythe Governor, the law to which he should direct himself is the provisions of Article154 F (4) of the Constitution and the matters that he is bound to consider arethe evidence or credible information as to the member who is best able tocommand the support of the majority in the Council. The foremost matter to beconsidered is the support expressed by the respective political parties havingmembers in the Council. The next matter to be considered is the supportexpressed by the individual members who are elected. These matters have tobe considered bearing in mind the objective of the constitutional provision thatthe will of the People should prevail.
The petitioners produced firm evidence in the form of declarations made by thesecretaries of the PA and DUNF. This was followed by solemn declarations inwriting (affidavits) by the individual members who were elected from these parties:Thus the petitioners adduced the best possible evidence of the support of amajority of the members of each Council.
The claim that confidential inquiries were made and assertions that individualmembers had expressed support for the UNP candidate were not verifiable inthe absence of vital information regarding the identity and number of such persons.The bald statements of support cannot stand scrutiny in the light of solemndeclarations made by the members of the two parties who constitute a majoritythat they support the respective petitioners for appointment as Chief Ministers.Any person would be acting grossly unreasonably, if he decided to base hisdecision without taking into consideration the uncontradicted evidence adducedby the petitioners and upon the hearsay and unverifiable claims made by thepersons appointed as Chief Ministers.
It is not the merits of the decision that the Court will review but its reasonableness.In considering reasonableness the Court examines only whether the Governorstook into account the matters that they are bound to consider. The support ofthe respective parties and of the elected members are the foremost matters tobe taken into consideration.
The Governors made no disclosure of the nature of the confidential inquiries theycarried out or their results. As all the members who do not belong to the UNPhave, filed affidavits that no inquiries were made from them. The appointmentmade on the basis of undisclosed confidential inquiries tends to cast the basisof the respective decisions into secrecy. This is repugnent to administrativelaw. Although non-disclosure and confidentiality may be permitted in rare in-stances in the public interest or good government, such a plea cannot hold waterwhere the other side has made full disclosure of firm and verifiable evidenceto the contrary.
The same matter may be viewed from the perspective of the fairness of thedecision making process. Fair procedure by the Governors would have been toconfront the respondents with the material in hand and asked for evidence tothe contrary. Instead the Governors embarked hurriedly on confidential inquiries
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to seek support for the claims of the respondents: This shows a tilt on theirpart in favour of the persons appointed as Chief Ministers. The irresistableinference is that the decision making process is thereby flawed. Hence thedecisions were unreasonable and illegal.
Certiorari and quo warranto can go but mandamus cannot compel the appointmentof any particular person. The appointment of a Chief Minister according to lawhowever can be compelled by mandamus.
Cases referred to:
Adegbenro v. Akintola and another (1963) 3 All ER 544; (1963) AC 614 (P.C.).
Associated Provincial Picture House Ltd. V. Wednesbury Corporation (1948)1 KB 223 (C.A.).
Short v. Poole Corporation (1926) 1 Ch 66.
Applications for writs of quo warranto, certiorari and mandamus.
H. L de Silva, P.C., with ft K. W. Goonasekera, Gomin Dayasiri, NihalJayamanne, Nimai Siripala de Silva, Nigel Hatch, Miss. Nurani Amarasinghe forpetitioners in all cases.
Hon. Tilak Marapana, P.C., A. G. with K.C. Kamalasabayson, D. S. G. for 1strespondent in all cases.
L C. Seneviratne, P.C. with S. C. Cyosette Thambiah, D. H. N. Jayamaha, NaufelRahuman, Daya Palpola, Lakshman Perera and Ronald Perera for 2nd respond-ent in all cases.
Cur. adv. vult.
October 08, 1993.
Order of Court read by Palakidnar, P/CA
The four applications stated above were argued together by agree-ment of learned President's Counsel appearing for the parties, in viewof the similarity of issues that arise for consideration by Court.Applications CA 376/93 and 377/93 relate to the appointment of theChief Minister of the Provincial Council of the North Western Province.The Petitioner in both applications is Mr. G. M. Premachandra amember elected to the North Western Provincial Council from theDemocratic United National Front, (DUNF), a recognised PoliticalParty. In application CA 376/93 the main relief sought is a Writ ofQuo Warranto declaring that the 2nd Respondent being a memberof the United National Party (UNP) elected to the Council is notentitled to be appointed to the office of Chief Minister by the Governor.
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In application CA 377/93 the reliefs sought are a Writ of Certiorariquashing the appointment of the 2nd Respondent as Chief Ministerand for a Writ of Mandamus compelling the Governor to appoint thePetitioner as Chief Minister. Similarly, applications CA 378/93 and CA379/93 relate to the appointment of the Chief Minister of the ProvincialCouncil of the Southern Province. The Petitioner in both applicationsis Mr. Amarasiri Dodangodage elected to the Council from the PeoplesAlliance (P.A.), a recognised Political Party. In application CA 378the main relief sought is a Writ of Quo Warranto declaring that the2nd Respondent, being a member of the U.N.P. elected to the Councilis not entitled to be appointed to the office of Chief Minister by theGovernor. In application CA 379/93 the reliefs sought are a Writ ofCertiorari quashing the appointment of the 2nd Respondent as ChiefMinister and for a Writ of Mandamus compelling the Governor toappoint the Petitioner as Chief Minister.
The facts relevant to each Provincial Council will be statedseparately, followed by a brief statement of submissions of learnedPresident's Counsel, a review of the relevant facts and a considerationof the issues that arise in both sets of applications.
Relevant Facts:
CA 376/93 & CA 377/93
Provincial Council of the North Western Province
The P. A. and the DUNF together have 27 elected members in theCouncil, whilst the U.N.P. has 25 members including the two bonusseats.
After the results were known, the PA and the DUNF and thecandidates thereof who were duly elected to the North WesternProvincial Council decided unanimously to work together to form theProvincial Council administration of the said Province and also decidedto support the Petitioner for appointment as the Chief Minister of theCouncil. The aforesaid decision was communicated to the 1stRespondent, the Governor of the North Western Province, in thefollowing manner.
On 19th May, 1993 Mr. Gamini Dissanayake, Acting Leader ofthe DUNF and Mr. D. M. Jayaratne M.P. and Secretary of the PA
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met the 1st Respondent Governor in Colombo and handed over aletter (P2) dated 19th May, 1993 signed by the Secretaries of thePA and the DUNF, to the effect inter alia that the two parties decidedto form the administration in the North Western Provincial Counciland since the said two parties together had the majority of themembers, requested the Governor to appoint the Petitioner as theChief Minister of the said Council. At the said meeting when the 1stRespondent Governor was apprised of the constitutional provisionspertaining to the appointment of a Chief Minister he assuredMr. Dissanayake and Mr. Jayaratne that he would do the correct thingand act according to law.
On 20th May, 1993 Messrs. Dharmasiri Senanayake, M.P.Secretary of the SLFP, D. M. Jayaratne M.P. and Secretary of thePA, the Petitioner Mr. Premachandra and Anura Fernando memberof the working Committee of the DUNF met the 1st RespondentGovernor around 5.00 p.m. in Colombo. Upon seeing them the 1stRespondent Governor informed them that the Petitioner could not takeoaths as Chief Minister, there being no staff and that they shouldhave obtained an appointment to see him. At this stage it wasexplained to the Governor that they came to hand over documentsand affidavits from the elected members of the PA and the DUNFto the North Western Provincial Council and that all these membershave unanimously decided to support the appointment of the Petitioneras Chief Minister of the said Council. P3, P3a, P4, P4a and theaffidavits P5.1 to P5.26 are copies of the documents handed over.The Governor having noted the contents thereof reassured them thathe would do the correct thing and act according to law. He acknowl-edged the receipt of the said documents by a writing dated 21.5.93marked P6a (vide affidavits of Mr. Dharmasiri Senanayake M.P. and
M. Jayaratne M.P. marked P6.).
The Commissioner of Elections acting in terms of Section 60 ofthe Provincial Council Elections Act No. 2 of 1988 caused the namesof the members elected to each of the Provincial Councils from theAdministrative Districts to be published in the Government GazetteNo. 767/8 of 20th May, 1993. In terms of the said notification theUNP secured the election of 23 members, the PA 18 members andthe DUNF 9 members to the North Western Provincial Council. TheUNP also had two additional bonus members. Thus the PA togetherwith the DUNF have 27 members whereas the UNP has 25 members
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resulting in the PA and DUNF together having a majority of twomembers.
On 21st May, 1993 in view of various pronouncements made byGovernment Ministers that the UNP would form the administrationin the North Western Province, Mrs. Sirimavo Bandaranaike M.P.,Leader of the Opposition made representations to His Excellency thePresident regarding the appointment of Chief Ministers for NorthWestern and Southern Provincial Councils. His Excellency advisedMrs. Bandaranaike to make necessary representations to the Gov-ernors. (Vide affidavit of Mr. D. M. Jayaratne, M.P. Secretary of thePA who was present at the said meeting with His Excellency markedP9.)
Consequent upon the aforesaid meeting with His Excellency, Mrs.Sirimavo Bandaranaike had sent two separate letters on 21.5.93 tothe Governors of the North Western and Southern Provincial Councilsseeking an interview with the Governors to discuss the matter ofselecting a Chief Minister. The letters state that the correct course,according to the Constitution, is to appoint the PA, DUNF nomineeswho command the majority in each Council and to refrain from makingan appointment until the interview is granted. (P9a). A reply wasreceived to this letter on the same day at 11.55 a.m. informing Mrs.Bandaranaike that the 2nd Respondent has already taken oaths asChief Minister and assumed duties (P10).
The 1st Respondent in his affidavit dated 12-6-93 filed in this Courton 11—6—93 admits the receipt of the letters, documents and affidavitsreferred by the Petitioner. He denies being unaware of the relevantconstitutional provisions as alleged and giving any indication to thePetitioner that he may take oaths as Chief Minister. According to theaffidavits of the 1st the 2nd Respondents, they met on 19-5-93 atwhich meeting the 2nd Respondent gave letter 1R1 stating that heis best able to command the support of a majority of the membersof the Provincial Council. The next meeting was on 21-5-93 at whichthe 2nd Respondent gave letter 1R2 which states inter alia, that he0 had discussions including today with certain members of the otherparties elected to the Provincial Council. They are prepared to supportme in the Council “.
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The basis of the decision of the 1st Respondent is given inparagraph 15 (IV) of his affidavit, which reads thus :
" That since the United National Party had the highest numberof seats for a single party in the said Provincial Council and havingregard to the fact that PAP and DUNF together had only two moreelected members than the United National Party and having rmrdeconfidential inquiries in respect of the 2nd Respondent's claim Iwas firmly of the opinion that the 2nd Respondent should beappointed as the Chief Minister."
CA 378/93 & CA 379/93
Provincial Council of the Southern Province
The P.A. and the DUNF have 28 elected members in the Council,whilst the UNP has 27 members including the two bonus seats.
After the results were known, the PA and the DUNF and thecandidates thereof who were duly elected to the Southern ProvincialCouncil decided unanimously to work together to form the ProvincialCouncil administration of the said Province and also decided tosupport the candidature of the Petitioners Mr. Amarasiri Dodangodafor appointment as the Chief Minister of the said Council and as theHead of its administration. The aforesaid decision was communicatedto the 1st Respondent Governor of the Southern Province in thefollowing manner.
On 20th May, 1993 Mr. Palitha Pelpola, a Member of the WorkingCommittee of the DUNF went to the residence of the 1st RespondentGovernor at Beruwala and sought to hand over a letter dated19-5-93 signed by the Secretaries of the PA and the DUNF to theeffect inter alia that the said two parties had decided to form anadministration in the Southern Province since they jointly had amajority of elected members over the UNP in the said Province. Thesaid writing P2 requested the 1st Respondent Governor to appointthe Petitioner as the Chief Minister of the Southern Province.
When the Private Secretary of the 1st Respondent Governor wasmade aware of the contents of the letter P2 the said Secretary hadinformed Mr. Pelpola that the 1st Respondent Governor was indis-posed. The said Secretary had gone inside the residence, came back
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and requested Mr. Pelpola to deliver the said letter P2 at the officeof the 1st Respondent Governor in Galle. Mr. Pelpola thereuponproceeded to Galle and handed over the original of the letter P2 tothe Administrative Officer of the office of the 1st Respondent Governorwho acknowledged receipt thereof. Copy of the acknowledgment ismarked P2a and an affidavit of Mr. Pelpola deposing to what tran-spired on this day is marked P2b.
On 21-5-93 the Petitioner Mr. Dodangoda had gone to the resi-dence of the 1st Respondent Governor at Beruwala at about7.00 a.m. to hand over a set of letters and affidavits from the electedmembers of the PA and the DUNF to the provincial Council of theSouthern Province unanimously signifying their support for thePetitioner's appointment as Chief Minister of the said Council. Uponarrival the Petitioner had been informed that the 1st Respondent waspraying. A shortwhile thereafter the Petitioner met the 1st RespondentGovernor and explained the contents of the documents that werehanded over to him. Some of the documents were read over to the1st Respondent Governor by his Secretary. The Governor hadinformed the Petitioner that he would call upon the 2nd RespondentMr. M. S. Amarasiri who was the leader of the UNP to form theadministration in the Southern Province Provincial Council and thatif he declined to accept the office of Chief Minister then he wouldappoint the Petitioner as Chief Minister. The 1 st Respondent Governorhad acknowledged the receipt of the documents tendered by thePetitioner on a photo copy of one of the documents. Photo copiesof documents signed by the elected members of the PA and theDUNF are marked P.3 and P3a. A copy of a letter signed by thePetitioner and dated 20-5-93 is marked P4 and photo copies of theaffidavits deposed to by the 28 elected members of the PA and theDUNF are marked P5.1 to P5.28.
The Commissioner of Elections acting in terms of section 60 ofthe Provincial Councils Elections Act No. 2 of 1978 caused the namesof the members elected to the Provincial Council of the SouthernProvince along with those who were elected to other ProvincialCouncils to be published in Government Gazette No. 767/8 on20-5-93.The said gazette is marked P1. In terms of the said
notification the UNP had secured the election of 25 members, thePA 24 members and the DUNF 4 members to the Southern ProvinceProvincial Council, in addition the UNP had also secured the nomi-nation of 2 bonus members. The resulting position was that the UNP
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had secured 27 members and the PA together with the DUNF had28 members in the Provincial Council of the Southern Province.
On 21st May, 1993 in view of various pronouncements made byGovernment Ministers that the UNP would form the administation ofthe Southern Province Provincial Council, Mrs. Sirimavo BandaranaikeM.P. and leader of the opposition had made respresentations to HisExcellency the President regarding the appointment of the ChiefMinister of the Southern Province Provincial Council. His Excellencyhad advised Mrs. Bandaranaike to make the necessary representa-tions to the 1st Respondent Governor. An affidavit from Mr. D. M.Jayaratne, the Secretary-of the PA who was present at the saidmeeting is marked P7. Consequent upon the meeting with HisExcellency, the President, Mrs. Sirimavo Bandaranaike, M.P. hadwritten a letter marked P8a dated 21-5-93 to the 1st RespondentGovernor regarding the appointment of the Petitioner Mr. Dodangodaas Chief Minister of the Provincial Council of .the Southern Provinceas he commanded the support of the majority of elected membersof the said Provincial Council.
On 21-5-93 Mr. Anura Abeyratne accompanied by Mr. S. W. L.Bandara, Attorney-at-Law had gone to the office of the 1stRespondent Governor at about 2.30 p.m. to hand over the letter P8a.When the letter was handed over to the 1st Respondent Governorhe had got a member of the staff to read it and thereafter informedMr. Abeyratne that he had already appointed the 2nd RespondentMr. M. S. Amarasiri as Chief Minister and he had been sworn inas such. Affidavit of Mr. S. W. L Bandara, Attorney-at-Law deposingas to what transpired at the said meeting is marked P9.
The 1st Respondent Governor in his undated affidavit (filed inCourt) in paragraph 7 admits that he met the persons and receivedthe documents referred above. In his affidavit he further states that:
that on 21st May, 1993 around 10.00 a.m. the 2nd RespondentMr. Amarasiri met him at his residence at Beruwala and informedhim ;
a) that he has had discussions with some of the members of theProvincial Council who are not members of the UNP and thosemembers had assured the 2nd Respondent that they would supporthim in the Council.
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b) that the aforesaid members together with members of the UNPhad an absolute majority in that Council.
that the 2nd Respondent handed over to him an affidavit insupport of his claim marked 1R1.
The basis of his decision is given in paragraph 14 (iii) of his affidavitwhich reads thus:
“ that since the UNP had the highest number of seats for a singleparty in the said Provincial Council and having regarded to thefact that the PA and DUNF together had only one more electedmember than the UNP and having made confidential inquiriesin respect of the 2nd Respondent's claim I was firmly of the opinionthat the 2nd Respondent should be appointed as the Chief Minister."
Statement of the submissions of learned Counsel:
Learned President's Counsel for the Petitioner submitted that thePetitioners are best able to command the support of the majority ofmembers in each Council on the basis of the declarations of supportand the affidavits submitted to the respective Governors. It wassubmitted that the Governors acted in violation of their constitutionalduty and ultra vires Article 154 F (4) of the Constitution when theypurported to appoint the Chief Ministers. It was strongly submittedthat on the material placed before the Governors, they acted unrea-sonably, without rationality and in violation of the law. Further, thatundue weight has been attached to the fact that the persons appointedas Chief Ministers are from the party having the largest number ofmembers in the Council, whereas the true test is to ascertain whichperson commands the support of the majority of the Council. That,the Governors have not attached due weight to the declarations ofsupport and affidavits submitted whereby a majority of the membersin each Council pledged support to the Petitioners. The Petitionersrest their case primarily, if not solely, on the support of the numericalmajority in each Council. It was submitted that the evidence of thisnumerical majority has not been refuted or contradicted by anyacceptable evidence to the contrary.
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The learned Attorney General who appears for the respectiveGovernors submitted that they acted reasonably and in the properexercise of their discretion. He submitted that since the Governorshave acted within jurisdiction, the area of review by this Court of thematerial on which they acted, is limited. That, the decisions cannotbe described as totally unreasonable so as to be rejected under thewell known " Wednesbury Rules “. He relied heavily on the confidentialinquiries carried out by the Governors (as stated in their affidavits)which yielded support to the claims of the persons appointed thatthey have backing of members outside their party ranks.
Learned President's Counsel for the respective 2nd Respondentssupported the submissions of learned Attorney General with regardto the limited area of review that is possible by this Court in relationto the decisions of the Governors. He relied heavily on the judgmentof the Privy Council in the case of Adegbenro Vs Akintola andAnother (,). It was submitted that the decisions of the Governorscannot be equated to that of public officials who are empowered toact in their discretion. That, the decisions involve a D delicate politicaljudgment" and that there is no legal restriction as to the persons whomay be consulted or the material on which reliance may be placedfor such purpose. It was also submitted that this Court may reviewonly the legality of the decisions and not their merits.
We now pass to a consideration of the specific issues that arisein relation to both sets of applications.
Law applicable to the appointment of a Chief Minister and thecriteria for such appointment
The appointment of a Chief Minister for a Provincial Council isprovided for in Article 154 F (4) of the Thirteenth Amendment to theConstitution, which reads thus :
“ The Governor shall appoint as Chief Minister, the memberof the Provincial Council constituted for that Province, who, in hisopinion, is best able to command the support of a majority of themembers of that Council :
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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 theCouncil as Chief Minister."
This Sub Article casts a specific duty on the Governor to appointa Chief Minister for the Province. The proviso and the main Sub Articleregulate two distinct situations viz :
the proviso regulates a situation where a single party hasmore than one-half of the members of the Council. Here, it ismandatory on the Governor to appoint the leader of such partyas Chief Minister.
the main Sub Article regulates a situation where a singleparty does not have more than one-half of the members of theCouncil. Here, the Governor is required to appoint the memberwho " in his opinion is best able to command the support ofthat Council ".
It is conceded that in situation (i) the Governor has no discretion.But, the argument at the initial hearing was that the appointment insituation (ii) is wholly within the discretion of the Governor and isnot subject to judicial review. This argument has been consideredby Their Lordships of the Supreme Court (in the Order of Court dated16-8-93 made upon a reference by this Court), from the perspectiveof two basic principles of Public Law. They are, firstly, the Rule ofLaw and secondly, the purposes for which statutory power is conferredon public authorities. Upon a consideration of these principles TheirLordships opined that :
"There are no absolute or unfettered discretions in publiclaw : discretions are conferred on public functionaries in trust forthe public, to be used for the public good, and the propriety ofthe exercise of such discretions is to be judged by reference tothe purposes for which they were so entrusted.
We have no doubt whatsoever as to the purpose for whichArticle 154 F (4) gave the Governor a discretion. By the exerciseof the franchise the people of each Province elect their representa-tives, for the purpose of administering their affairs. The Governor
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is given a discretion in order to enable him to select as ChiefMinister the representative best able to command the confidenceof the Council, and thereby to give effect to the wishes of thepeople of the Province. That discretion is not given for any otherpurpose, personal or political."
(page 10 of the Order of Court).
Thus the purpose for which this power is vested in the Governoris firmly rooted in the basic mandate of Democracy that the People'swill shall prevail. Viewed in this light there is no distinction insubstance in the criteria for appointment in relation to the twosituations stated above. In relation to both situations, in substance,the criterior is, who commands the support of the majority of themembers of the Council? In situation (i) covered by the proviso, thecriterior is manifest in the result of the election, itself. The leaderof the political party that has more than one-half of the electedmembers is patently the member best able to command the supportof the majority of the members of the Council. In situation (ii) whereno single party has a majority, the criterior is not manifest or patentas in (i). The role of the Governor is to ascertain the member whosatisfies that criterior bearing in mind the true purpose of the power,that the will of the People should prevail. When that member isascertained, the Governor has no discretion in the matter but toappoint him as Chief Minister. The duty then becomes equallymandatory as-in situation (i). The process of ascertaining the memberwho is best able to command the majority in the Council, is that bywhich the Governor forms the opinion referred in the main Sub Article.It is this process which is subject to judicial review according to thedetermination of the Supreme Court. That is " whether his decisionmaking process was flawed "
(page 13 of the Order of Court).
The specific matters on which review is exercised are stated inthe conclusion of Their Lordships as follows :
" The exercise of the powers vested in the Governor of aProvince under Article 154F (4), excluding the proviso, is not solelya matter for his subjective assessment and judgment; it is subjectto judicial review by the Court of Appeal. In applications for QuoWarranto, Certiorari and Mandamus, the Court of Appeal has
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power to review the appointment, inter alia, for unreasonableness,or if made in bad faith, or in disregard of the relevant evidence,or on irrelevant considerations, or without evidence."
(page 19 of the Order of Court).
Review on reasonableness of the impugned decisions
The standard of reasonableness is stated in the oft quoted dictumof Lord Greene, MR in the case of Associated Provincial PictureHouses Ltd. Vs Wednesbury Corporation <2>. In later cases this dictumis commonly referred to as “ Wednesbury’s unreasonableness “. LordGreene in that case considered the validity of certain conditionsimposed by a local authority for the grant of a licence for cinemato-graph performances on Sundays. It was held that these conditionswere imposed unreasonably. In the course of the judgment he dealtwith the requirement that discretion should be exercised reasonablyin the following way :
" It is true the discretion must be exercised reasonably. Nowwhat does that mean? Lawyers familiar with the phraseologycommonly used in relation to exercise of statutory discretions oftenuse the word 11 unreasonable " in a rather comprehensive sense.It has frequently been used and is frequently used as a generaldescription of the things that must not be done. For instance, aperson entrusted with a discretion must so to speak, direct himselfproperly in law. He must call his own attention to the matters whichhe is bound to consider. He must exclude from his considerationmatters which are irrelevant to what he has to consider. If he doesnot obey those rules, he may truly be said, and often is said,to be acting " unreasonably ". Similarly, there may be somethingso absurd that no sensible person could ever dream that it laywithin the powers of the authority. Warrington L.J. in Short Vs.Poole Corporation (3) gave the example of the red-haired teacher,dismissed because she had red hair. That is unreasonable in onesense. In another sense it is taking into consideration extraneousmatters. It is so unreasonable that it might almost be describedas being done in bad faith ; and, in fact, all these things run intoone another."
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Dealing with the standard of reasonableness Professor H. W. R.Wade has in his book Administrative Law, 1988 (6th Edition) statedthat it is not the standard of “ the man on the Clapham omnibus".It is the standard indicated by a true construction of the Act whichdistinguishes between what the statutory authority may or may notbe authorised to do (at p 407). In a later section he has observed,dealing with the several grounds of unreasonableness, that" the oneprinciple that unites them is that powers must be confined within thetrue scope and policy of the Act."
When the said Rules are applied to the exercise of the power,in question, by the Governor, it is seen that the law to which heshould direct himself will be the provisions of Article 154 F (4) ofthe Constitution and the matters that he is bound to consider willbe the evidence or credible information as to the member who isbest able to command the support of the majority in the Council.The task of ascertaining these matters becomes less complicatedconsidering the system of elections applicable to Provincial Councilsunder Act No. 2 of 1988. All candidates at such elections aremembers of political parties, there being no individual candidatesas such, and votes are cast for the respective parties or groups inthe contest by the electorate. The number of members to be returnedfrom each party or group is determined by such vote. Thus primarilythe support of the individual members is readily ascertainable fromthe support of the parties or groups to which they belong. Therefore,the foremost matter to be considered is the support expressed bythe respective political parties having members in the Council, to theappointment of a particular member as Chief Minister. The next matterto be considered, is the support expressed by the individual memberswho are elected, to the appointment of a particular member as ChiefMinister. These are the matters to be considered by the Governorin exercising the power of appointment of a Chief Minister that isvested in him by Article 154 F (4) of the Constitution. These mattershave to be considered bearing in mind the objective of the consti-tutional provision that the will of the People should prevail in decidingwho should be charged with the administration of the Province. TheirLordships of the Supreme Court have in the opinion dealt with thesematters to be considered by the Governor as follows:
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" It is true that the requisite opinion does not relate to pastfacts, but it is not' pure judgment' for that assessment of supportnecessarily requires a consideration of expressions of support oropposition by Councillors, whether made in the Council or outside."
(page 11 of the Order of Court of the Supreme Court).
We have to now consider whether the matters relating toexpression of support by the elected members have been consideredby the respective Governors in arriving at their decisions. The fore-going statement of the relevant facts shows that the Petitionersproduced firm evidence in the form of declarations made by theSecretaries of the PA and the DUNF that they support the appointmentof the respective Petitioners as Chief Minister. This was followed bysolemn declarations in writing (affidavits) by the individual memberswho were elected from these two parties expressing support for theappointment of the respective Petitioners as Chief Ministers. Thus,the Petitioners adduced the best possible evidence of the supportof a majority of the members in each Council. In fact, in answer toa question posed by Court, Honourable Attorney General concededthat there is no other evidence that the Petitioners could possiblyhave adduced in support of their respective claims. However, it hasto be mentioned that he qualified his answer by stating that theconfidential inquiries carried out by the Governors would prevail overthis and any other evidence. Be that as it may, as far as credible,ascertainable and verifiable evidence is concerned, the Petitionershave adduced the best possible evidence in support of their respectiveclaims that they command the support of the majority of membersin each Council.
On the other hand, what credible information have the personswho were in fact appointed as Chief Ministers (2nd Respondent ineach application) produced in support of their claims of being ableto command the support of the majority? Being members of the UNPand former Chief Ministers it would be reasonable to assume thatthey have the support of the members of the UNP although noevidence was adduced to establish such support before theGovernors. But, that alone is not sufficient since the UNP, by itselfdoes not command a majority in each of the Councils. They shouldadduce evidence or credible information of support from outside theirparty ranks to claim a majority. In this respect it is seen that the
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only evidence or information produced before the Governor in relationto the North Western Provincial Council is the document 1R2 whichis also marked as 2R1. This letter merely states that since the 19thof May the 2nd Respondent " had discussions including today withcertain members of the other parties elected to the Provincial Council.They are prepared to support me in the Council The identity ofthe persons with whom these discussions were had, the parties towhich they belong and the number of such persons are significantmatters that are not mentioned in this letter. It is plain to see thatthis claim is not one that could ever be verified, in the absence ofthe vital information referred above.
Similarly, in the Southern Province Provincial Council the onlymaterial adduced by the 2nd Respondent is the affidavit 1R1 (alsomarked 2R1) dated 21-5-93. This affidavit is by the 2nd Respondenthimself. It states that,
" that after the elections, some of the elected members whoare not members of the UNP group have communicated to metheir desire to support me and my group within the SouthernProvincial Council when there is a necessity. I am personallyknown to these members and I am confident that they will givetheir support at Council meetings in order to gain a majority ata voting "
This statement too is bereft of the vital information referred above,and is one that is not verifiable.
It is thus plain to see that where the petitioners have adducedthe best possible evidence in support of their claims, the personsappointed as Chief Ministers have adduced no credible informationof their claim of support by a majority of the members. The baldstatements of support referred in the documents of the Respondentscannot stand scrutiny in the light of solemn declarations made bythe members of the two parties who constitute a majority that theysupport the respective Petitioners for appointment as Chief Ministers.Any person would be acting grossly unreasonably, if he decided tobase his decision without taking into consideration the uncontradictedevidence adduced by the Petitioners and upon the hearsay andunverifiable claims made by the persons appointed as Chief Ministers.
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On the question of the review of reasonableness the HonourableAttorney General and Mr. Seneviratne, P.C. argued that the extentof review by this Court of the decisions of the Governors is limitedand they further argued that this Court cannot go into the merits ofthe decisions. As noted above, the review is as to reasonablenessand not to the merits of the decision. In considering reasonablenessthe Court examines only whether the Governors took into accountthe matters that they are bound to consider. The support of therespective parties and of the elected members are the foremostmatters to be taken into consideration. The foregoing analysis showsthat the Governors have not considered the best evidence in regardto the matters which they are bound to consider. It also shows thatthe Governors have chosen to act on hearsay claims that areunverifiable.
Mr. Seneviratne, P.C. placed strong reliance on the judgmentof the Privy council in the case of Adegbenro vs Akintola andAnother (1). This case relates to an application for a Writ in respectof an order of the Governor of Western Nigeria removing the PrimeMinister from office. The order of removal was made on the basisof a signed letter given by a majority of the members of the Houseof Assembly. It was contended that the material was not sufficientto support the order of removal and that the Governor could act onlywhere the Prime Minister is defeated on the floor of the House. ThePrivy Council held that the material before the Governor was sufficientto support the decision and that the Governor need not act only upona negative vote on the floor of the House. In this connection, ViscountRadcliffe observed as follows, at p550 ;
" To sum up there are many good arguments to discouragea Governor from exercising his power of removal except onindisputable evidence of actual voting in the House, but it is nonethe less impossible to say that situations cannot arise in whichthese arguments are outweighed by considerations which affordto the Governor the evidence he is to look for, even without thetestimony of recorded votes."
It is thus seen that the Privy Council's decision is based upon thepremise that the Governor may act on evidence other than an actualnegative vote. As noted above, there was firm evidence of a writing
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sent by a majority of the House, on which the Governor acted. Theobservations made by Viscount Radcliffe as to the nature of thedecision and that there is no legal restricion as to the persons whomthe Governor may consult and the material to which he may turnin aid of his decision, have to be taken into consideration in the lightof the particular facts in that case. Certainly, there is no support inthat judgment for a proposition that the Governor could act onunsupported claims that are plainly not verifiable. On the contrarythe Governor was found correct when he acted on the writtenstatement of the majority of the members of the House. In the casesbefore us the respective Governors have without any basis disre-garded not a mere written statement but solemn declarations madeby a majority of the members.
Confidential inquiries by the Governors:
We have to finally consider the position of the respectiveGovernors that they made their decisions on the basis of" confidentialinquiries “. The basis of the respective decisions of the Governorsis set out in almost identical terms, in their affidavits. The relevantparagraphs of their affidavits have been reproduced above. Honour-able Attorney General submitted that the decisions are reasonablesince, they are based upon the confidential inquiries that were carriedout by the respective Governors. The Governors have made nodisclosure, at any stage, of the nature of the inquiries carried outor the results of these inquiries. The statement of facts disclose thatbetween the 19th and the 21st the petitioners submitted to theGovernors the declarations and affidavits in support of their claims.The claims of the respective persons appointed as Chief Ministers,of support from outside their party ranks, were made on the 21st.At the stage these claims were made the Governors had with themthe written declarations of support and affidavits submitted by thePetitioners. Therefore, a question arises as to the nature of theconfidential inquiries that the Governors claim to have carried outwithin the few hours available to them on the 21st itself.
The relevant criteria, as noted above, is the support of the membersof the Council. Therefore one would expect such inquiries, if any,to be carried out from the members who are not of the UNP. Allmembers who do not belong to the UNP have filed affidavits in Court
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that the respective Governors made no inquiries from them. Thesematters have not been refuted or contradicted by the Governors. Inthe result, we are left to speculate as to the persons from whomthe Governors made the confidential inquiries, as claimed. In viewof the specific denial by the respective members of the PA and theDUNF, the only possible inference is that inquiries were made fromother persons. If so the result of such inquiries would be an irrelevantconsideration. It has to be borne in mind that the power of appointinga Chief Minister is vested in the Governor by the Constitution beingthe Supreme Law of the land. The Constitution lays down the criteriaon which such appointment should be made. The discharge of thispower is a matter of grave public concern. It cannot be shroudedin a veil of secrecy. We have to observe that the claim of eachGovernor that he made the appointment, on the basis of undisclosedconfidential inquiries tends to cast the basis of the respectivedecisions into secrecy. Such a process of decision making is repugnentto Administrative Law. The review of decisions made in the exerciseof statutory power, on the basis of reasonableness, taking intoconsideration proper matters, the exclusion of irrelevant matters andacting on evidence, being basic tenets of Administrative Law, wouldbe rendered illusory, if the authority vested with power is permittedto take refuge in confidentiality and secrecy as to the true basis ofhis decision. Although, non-disclosure and confidentiality may bepermitted in rare instances, in the public interest or that of goodgovernment, such a plea cannot hold water, where the other sidehas made full disclosure of firm and verifiable evidence to thecontrary.
The same matter may be viewed from the perspective of thefairness of the decision making process. At the stage the personsappointed as Chief Ministers (2nd Respondent in each case) madeunsupported claims of support outside their party ranks, the Governorswere possessed of declarations and affidavits of all other memberspledging support to the Petitioners. Therefore the fair procedure tobe adopted at that stage by the Governors, consistent with theprinciples of Administrative Law, was to have confronted each of the2nd Respondents with the material in hand and require them toproduce evidence to the contrary, for their claims to be considered.Instead, the Governors claim to have hurriedly embarked onconfidential inquiries to seek support for such claims. This shows atilt on their part in favour of the persons appointed as Chief Ministers.
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The irresistable inference is that the decision making process isthereby flawed.
On the aforesaid review of the relevant facts and the applicablelaw, we hold that the decision of the 1st Respondent in each of theapplications being the Governor of the respective Province to appointthe 2nd Respondent in each application as Chief Minister is unrea-sonable and illegal. We accordingly grant to the Petitioner in CA 376/93 and CA 377/93 Writs of Quo Warranto and Certiorari as prayedfor. We also grant to the Petitioner in CA 378/93 and CA 379/93Writs of Quo Warranto and Certiorari as prayed for.
As for the Writs of Mandamus prayed for in prayer (c) inapplications CA 377/93 and 379/93, learned Preside''.!1'.. Ccut isel forthe Petitioners conceded that the Writ cannot compel the appointmentof any particular person. The matter of appointment is the act of theGovernor, but, to be done according to law. We accordingly issueon the 1st Respondent in each application a Writ of Mandamus toappoint a Chief Minister of the Province according to law.
Applications are allowed subject to the foregoing modification asto the prayer for a Writ Mandamus. We allow to the Petitioner inCA 376/93 and 377/93 one set of costs against the 1st and 2ndRespondents. Similarly we allow the Petitioner in CA 378/93 and379/93 one set of costs against the 1st and 2nd Respondents.
Writs issued