Legal Services and Laws of Sri Lanka
SLR - 1994 Vol.2, Page No - 90
MAJOR MONTAGUE JAYAWICKREMA AND ANOTHER
(PROVINCIAL GOVERNORS' CASE)
G. P. S. DE SILVA, C.J.,
S.C. REFERENCE NOS. 2/93 & 3/93.
C.A. APPLICATION NOS. 376/93 & 377/93.
S.C. REFERENCE NOS. 4/93 & 5/93.
C.A. APPLICATION NOS. 378/93 & 379/93.
JULY 07, 08 AND 09, 1993.
Provincial Councils - Governors' duty to appoint the Chief Ministers-ConstitutionArticle154F-AppointmentofUNP
contenders as Chief Ministers - Quo Warranto, Certiorari and Mandamus - Article 154F (4) of theConstitutionexcludingthe
proviso - Article 154F (2) and (6) of the Constitution - Reference under Article 125 of the Constitution - Governor'spowers
- Justiciability of the exercise of the Governor's power anddiscretion-Judicialreview-Infringementoffundamental
rights - Constitution, Article 12(1) and (2) - Reference under Article 126(3) to Supreme Courtofonlythe"question"of
infringement of a fundamental right - Validity of such reference.
Three recognised political parties - the United National Party (UNP), the Democratic United NationalFront(DUNF)andthe
Podujana Eksath Peramuna (PEP) - contested the North-Western and Southern Provincial Council Elections heldon17.5.93.No
party gained an absolute majority. In the North-Western Province Elections the UNP won 25 seats, the PEPwon18seatsand
the DUNF won 9 seats. In the Southern Province the UNP won 27 seats, the PEP won 22 seats and the DUNF won 6 seats.
The Governors of the two Provinces (Major Montague Jayawickrema, Governor of the North-WesternProvinceandM.A.Bakeer
Markar, Governor of the Southern Province) were required to appoint Chief Ministers under Article 154F oftheConstitution.
The Governors of the two Provinces were facedwithrivalclaimsforappointmentasChiefMinister-betweenG.M.
Premachandra of the DUNF, Petitioner and Gamini Jayawickrema Perera oftheUNP(2ndrespondent)intheNorth-Western
Province Provincial Council (S.C. Reference 2/93 & 3/93) and between AmarasiriGardiyageHewawasamDodangodaofthePEP
(Petitioner) and M. S. Amarasiri of the UNP (2ndrespondent) in the Southern Province ProvincialCouncil.(S.C.Reference
4/93 & 5/93). On 21.5.93 the Governor of the North-Western Province (Major Montague Jayawickrema) andtheGovernorofthe
Southern Province (M. A. Bakeer Markar) appointed the UNP contenders as Chief Ministers of the two Provinces.
Each Petitioner thereupon filed two applicationsintheCourtofAppeal:oneforQuoWarrantoquestioningthe2nd
respondent's legal right to hold office as Chief Minister and the other for Certiorari to quash the appointment of theChief
Minister and Mandamus to compel the Governor to appoint the Petitioner as Chief Minister. The fourapplicationsweretaken
up for hearing together in the Court of Appeal.
As questions of constitutional interpretation arose, the following questions for reference under Article 125 totheSupreme
Court were agreed on:
"1.Whether the exercise of the power vested in the Governor of a Provincial Council (sic) under Article154F(4) of
the Constitution (excluding the proviso) is solely a matter for his subjective assessment andjudgmentandtherefore
not subject to review by Court?
2. Whether the power exercised by such Governor under Article 154F (4) of the Constitution(excludingtheproviso)
and any act done in consequence thereof is not justiciable, and is essentially a matter political in nature?
3. Whether a decision made by such Governor under Article 154F (4) of the Constitution (excluding the proviso) asto
the appointment of a Chief Minister of a Provincial Council could be called in question or set aside byanyCourtby
reason of the provisions of Article 154F (2) of the Constitution?
4. Whether the decision of the Governor under Article 154F (4) of the Constitution (excludingtheproviso)isnot
subject to judicial review on the basis that such decision does not deny or infringe any legal right of thepetitioner
in each case?
5. Whether the Court should not exercise such review on the basis that there is analternativeremedyprovidedby
the Constitution whereby the Governor's decision can be tested in the Council?
1. There was no proper reference of the matter under Article 126(3) as it was not of the entire"matter"andonlythe
reference under Article 125 required consideration by the Supreme Court. On the objection taken in the Court ofAppealthat
Court should at least have inquired whether the Chief Ministers wished to furnish additional affidavits, and beinganinter
partes proceeding, the Court should not have reached a finding that there was prima facie evidence of aninfringementofa
fundamental right without hearing submission on behalf of the Chief Minister.
2. It is a cardinal maxim that every power has legal limits, however wide the language of theempoweringAct.If
the Court finds that the power has been exercised oppressively orunreasonably, oriftherehasbeensomeprocedural
failing, Such as not allowing a person affected to put forward his case, the act may be condemned as unlawful.
3. There are no absolute or unfettered discretions in public lawdiscretions are conferredonpublic functionaries
in trust for the public, to be used for the public good, and the propriety of the exerciseofsuchdiscretionsistobe
judged by reference to the purposes for which they were so entrusted.
4. The Governor is given a discretion in order to enable him to selectasChiefMinistertherepresentative best
able to command the confidence of the Council, and thereby to give effect to the wishes of the people of theProvince.That
discretion is not given for any other purpose personal or political.
5. Answers to reference under Article 125:
(i) The exercise of the powers vested in the Governor of aProvinceunderArticle154F(4),excluding the
proviso, is not solely a matter for his subjective assessment and judgment: it is subject to judicialreviewby
the Court of Appeal. In applications for Quo Warranto, Certiorari and Mandamus, the Court of Appeal has powerto
review the appointment, inter afia, for unreasonableness, or if made in bad faith, in disregard oftherelevant
evidence, or on irrelevant considerations or without evidence.
(ii)The Governor's selection of a person for appointment as Chief Minister, under Article 154F(4),excluding
the proviso, may require the consideration of political factors, nevertheless it is not an actwhichispurely
political in nature, it involves the determinationoflegalrights,flowingfromconstitutionalprovisions
concerning the allocation and exercise of powers (relating to the administration of the affairs of theProvince)
by the elected representatives of the people of the Province. The appointment of a Chief Minister is justiciable,
and there is no selfimposed rule or judicial restraint which inhibits judicial review.
(iii) Where a question arises as to whether the Governor must act on advice, or in his discretion,Article154F
(2) requires him to decide that questionArticle 154F(2)makeshisdecisiononthatquestionfinaland
precludes anything thereafter done by the Governor being called in question in any Court onthelimitedground
"that he ought or ought not to have acted in his discretion"that provision does not apply to the appointment of
a Chief Minister under Article 154F (4).
(iv) The Governor's decision involves a constitutionalpowerand thedutyoftheGovernor,and a
constitutional right of the Petitioners (in common with the other Councillors) to the proper exercise of such power and
dutyjudicial review is not excluded.
(v)This does not raise any question relating to the interpretationof theConstitution.
Cases referred to:
1. Chandrasekeram v. A.G. - SC References 1-3/92, SC Minutes of 29.6.92.
2. Baker v. Carr (1962) 369 US 186.
3. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 K. B. 223
4. Bhut Nath v. State of West Bengal AIR 1974 SC 806, 811.
5. Rooke's Case (1598) 5 Co. Rep. 99 b.
6. Roberts v. Hopwood  AC 578, 613.
7. United States v. Wunderlich  342 US 98, 101.
8. Hirdaramani v. Ratnavale  75 NLR 67, 82.
9. Liversidge v. Anderson (1942) A. C. 206.
10. R. v. LR.C. ex. p. Rossminister Ltd. [ 1980] A.C. 952.
11. Secretary of State for Education v. Tameside  A.C. 1014, 1047.
12. Adegbenro v. Akintola  3 All E.R. 544, 551.
13. Dinesh Chandra v. Charan Singh AIR 1980 Delhi 114, 117.
14. Madan Murari v. Charan Singh AIR 1980 Calcutta 95.
15. Dissanayake v. Kaleel SC (Special) Nos. 4-11/91 S.C. Minutes of 3.12.91.
16. State of Rajasthan v. Union of India AIR 1977 SC 1361, 1412 - 13.
17. Nixon v. Harndon (1926) 273 US 536.
18. Brown v. Board of Education (1953) 347 US 483.
19. Council of Civil Service Unions v. Minister for Services  1 AC 374, 418.
20. U.N.R. Rao v. Smt. Indira Gandhi 1971 (Supp. S.C.R. 46)
21. R. v. Governor of Wormwood Scrubbs Prison  2 K. B. 305.
22. The King v. Halliday [ 1917] A.C. 160, 170.
23. Jogendra Nath v. State ofAssam AIR 1982 Gauhati 25, 34.
Reference under Article 125 and 126(3) of the Constitution (see Judgment of Court of Appeal reported in2SriL.R.
H. L. de Silva, P.C. with R. K. W Goonesekera, Gomin Dayasiri, Nihal Jayamanne, PC., Nimal Siripala deSilva,NigelHatch,
Elmo Perera, N. M. Musafer and M. N.
Amerasinghe for the Petitioners.
Tilak Marapana, P.C., Attorney-General, with K. C. Kamalasabayson, D.S.G., Kumar Paul S. C., W. D. D. de Alwis S. C. forthe
L. C. Seneviratne, P.C. with S. C. Crosette-Thambiah, D. H. N. Jayamaha,DayaPelpola,NaufelAbdulRahuman,Lakshman
Perera, Ronald Perera and A. BritoMuthunayagam for the 2nd Respondent.
August 16, 1993.
G. P S. DE SILVA, C.J. READ THE FOLLOWING ORDER OF THE COURT:
ORDER OF THE COURT
Three recognised political parties - United National Party ("UNP"), the Democratic United NationalFront("DUNF")andthe
Podujana Eksath Peramuna ("PEP") - contested the North-Western and Southern Provincial Council Elections held on 17.5.93.No
party gained an absolute majority. The official results announced on 19.5.93 were:
North -Western ProvinceSouthern Province
The Governors of the two Provinces were required to appoint Chief Ministers, under Article 154F oftheConstitution,which
"(1) There shall be a Board of Ministers with the Chief Minister attheheadandnotmorethanfourother
Ministers to aid and advise the Governor of a Province in the exercise of his functions. The Governorshall,in
the exercise of his functions, act, in accordance with such advice, except in so far as he isbyorunderthe
Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under
this Constitution required to act in his discretion, the decision of the Governorinhisdiscretionshallbe
final, and the validity of anything done by the Governor shall not be called in questioninanyCourtonthe
ground that he ought or ought not have acted in his discretion. The exercise of the Governor'sdiscretionshall
be on the President's directions.
(3). The question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be
inquired into in any Court.
(4) The Governor shall appoint as Chief Minister, the member oftheProvincialCouncilconstitutedforthat
Province who, in his opinion, is best able to command the support of a majority of the members of that Council
Provided that where more then one-half of the memberselectedtoaProvincialCouncilaremembersofone
political party, the Governor shall appoint the leader of that political party in the Council as Chief Minister.
(5) The Governor shall, on the advice of the Chief Minister, appoint from among themembersoftheProvincial
Council constituted for that Province, the other Ministers.
(6) The Board of Ministers shall be collectively responsible and answerable to the Provincial Council."
The proviso to Article 154F (4) did not apply as the UNP did not have more than one half of the total numberofCouncillors
in both Provinces. The Governors of the two Provinces were faced with rival claims for appointment as Chief Ministerinthe
North-Western Province, between the Petitioner in CA Application Nos. 376/93 and 377/93,aDUNFCouncillor,andthe2nd
Respondent, a UNP Councillorin the Southern Province, between the Petitioner in CA Application Nos. 378/93and379/93,a
PEP Councillor, and the 2nd Respondent, a UNP Councillor.
Between 19.05.93 and 21.05.93, the Petitioners repeatedly asserted, both orally and in writing to therespectiveGovernors,
that they were able to command the confidence of the respective Councilseach submitted documentary evidenceconsistingof
a letter dated 19.05.93 signed by the Secretaries of the two parties that their Councillors had decided to worktogetherto
form the Provincial Council administration, as well aswrittendeclarationsandaffidavitsfromallthoseCouncillors
manifesting their support for the Petitioners.
The 2nd Respondent, in each case, submitted a letter dated 19.05.93 to the Governor, in which he claimed that he was ableto
command the support of a majority of the members of the Council,butdidnotexplainhowheexpectedtoobtainthis
majorityhowever, he orally informed the Governor that he had discussions with (unidentified)Councillorsfromtheother
parties and that he was confident of obtaining additional support from a few Councillors onthemorningof21.05.93he
again met the Governor, and asserted that he was certain of obtaining the necessary additional support, assomeCouncillors
(again unidentified) had assured him of their support that same morninghe gave the Governor aletterreferringtothese
matters, and requested that he be appointed Chief Minister and given the opportunitytoprove,intheCouncil,thathe
commanded the support of the majority of the Council. On the same day, both Governors appointed the UNP contendersasChief
Ministers of the two Provinces.
Each Petitioner thereupon filed two applicationsintheCourtofAppeal oneforQuoWarrantoquestioningthe2nd
Respondent's legal right to hold office as Chief Minister, and the other for Certioraritoquashtheappointmentofthe
Chief Minister, and Mandamus to compel the Governor to appoint the Petitioner as Chief Minister.
The four applications were taken up for hearing together in the Court of Appealon21.06.93.Onthenextday,in
response to an inquiry from the Court, Mr. L. C. Seneviratne, P.C., appearing for the Chief Ministers, madehissubmissions
in regard to certain preliminary objections of law. The CourtandallCounselagreedthatquestionsofconstitutional
interpretation arose, and Counsel were invited to assist Court by framing those questions. At this stage, for the firsttime
and without prior notice to the Respondents, Mr. H. L. de Silva, P.C., appearingforthePetitioners,submittedthathe
desired to make an application for a reference under Article 126 (3) as well. After a short adjournment,thequestionsfor
reference under Article 125, as agreed to by all Counsel, were read out in open court, and then finalised as follows:
"(1)Whether the exercise of the power vested in the Governor of a Provincial Council [sic] under Article 154F (4)
of the Constitution (excluding the proviso) is solely a matter for his subjective assessment and judgment and therefore
not subject to review by Court ?
(2)Whether the power exercised by such Governor under Article 154F(4)oftheConstitution(excluding the
proviso) and any act done in consequence thereof is not justiciable, and is essentially a matter political in nature?
(3)Whether a decision made by such Governor under Article 154F (4) of the Constitution (excludingthe proviso)
as to the appointment of a Chief Minister of a Provincial Council could be called in question or set aside by any Court
by reason of the provisions of Article 154F (2) of the Constitution?
(4)Whether the decision of the Governor under Article 154F (4) of the Constitution (excludingtheproviso) is
not subject to judicial review on the basis that such decision does notdenyorinfringeanylegalrightofthe
petitioner in each case?
(5)Whether the Court should not exercise such review on the basis that there is an alternativeremedy provided
by the Constitution whereby the Governor's decision can be tested in the Council?
Thereupon, Mr. de Silva made a formal application for a reference under Article 126(3) stating thattheevidencedisclosed
that the Governors' acts involved an infringement of Article 12 (1) and (2). Mr. Seneviratne pointed out thatanallegation
of the infringement of a fundamental right under Article 12 had neither been pleaded,norevenreferredtointheoral
submissions made on 21.06.93he further submitted that the Court of Appeal shouldhearallpartiesbeforecomingtoa
finding (for the purpose of making a reference under Article 126(3)), that there was prima facie evidence of aninfringement
or imminent infringement of a fundamental right.
Without any such hearing, the Court of Appeal recorded the submissions made onbehalfofthePetitioners,andmadethe
"Having considered the submission of Counsel, we are of the view that there is prime facie evidence of aninfringement
of the fundamental rights of the Petitioners as submitted bylearnedPresident'sCounselforthepetitioners.We
accordingly refer the infringement for determination by their Lordships of the Supreme Court, in terms ofArticle126
(3) of the Constitution."
It is manifest that the Court of Appeal did not referthefourpendingapplicationsintheirentirety,butonlythe
"question" of the infringement of a fundamental right.
1. VALIDITY OF THE REFERENCE UNDER ARTICLE 126(3)
A reference can be made under Article 125 only of a"question"ofconstitutionalinterpretation theCourtmakingthe
reference retains jurisdiction in respect of the case, and would ultimately decidethecase,applyingtheinterpretation
given by this Court. However, a reference under Article 126 (3) is not of "question", but of the"matter"initsentirety
(see Chandrasekeram v. A.G., (1)). The Court of Appeal did not refer the four pending applications, or"matters",intheir
entirety. The jurisdiction of this Court is defined by the Constitution. This Court has no original jurisdictionoverthese
four pending writ applications, and could acquire such jurisdiction only if those "matters" wereproperlyreferredbythe
Court of Appeal.
It was suggested that this was only a technical irregularity, and that this Court should proceed as if theCourtofAppeal
had intended to refer the entire matter. It is clear from the proceedings of 21.06.93 and 22.06.93 that the CourtofAppeal
was troubled by the preliminary objections, particularly the preclusive clause. It was a referenceunderArticle125that
the Court was primarily concerned about - and that is consistent with an intention to retain itsjurisdictiontohearand
determine the four applications. When the question of the infringement of a fundamental right was suddenly raised, theCourt
seems to have desired the advantage of having that question too finally determined by this Courtbutthereisnothingto
suggest that the Court of Appeal even at that stage wished to divest itself, totally, of its jurisdictionoverthepending
applications. Such an intention to divest itself of jurisdiction cannot lightly be attributed to the Court of Appeal. Weare
faced with two inconsistent references. Upon the reference under Article 125, the Court of Appealretainedjurisdictionin
respect of the "matter", which this Court could not determineupon a proper reference under Article126(3)the"matter"
would have come for determination to this Court, which would not have had to advise the Court of Appealuponthequestions
which troubled them. We have therefore to act on one or the other. We hold, that there was no proper reference of thematter
under Article 126 (3), and that only the reference under Article 125 requires our consideration.
Even if this Court did have some discretion to treat the reference under Article 126 (3) as beingoftheentire"matter",
there are good reasons why that discretion should not be exercised. Thewritjurisdictionistraditionallyavailableto
review the decision-making process, and not the correctness of the decision itself - except, toalimitedextent,onthe
ground of unreasonableness. It may well be, as Article 126 (3) suggests, that today the writ jurisdiction underArticle140
of the Constitution has expanded to permit adirectchallengetothemeritofadecision,evenonthefacts,for
infringement of fundamental rightsif so, an allegation that the Governors hadexercisedtheirdiscretionunderArticle
154F (4) in a manner violative of Article 12 could properly have been included in the applications forCertiorari.Butthe
Petitioners did not plead this at the outset, nor did they seek to amend their pleadings, and thus theissuesoffactand
law arising for determination were not made clearnor were the Respondents given the opportunity of answering thatspecific
charge. It is true, as submitted on behalf of the Petitioners, that it was the Governors acts thatwerebeingimpugnedas
violative of fundamental rightsand that the learned Attorney-General, on their behalf, did notcomplainofanylackof
opportunity to tender additional evidentiary material, and invited this Court to determine the whole matter. But itwasnot
the Governors alone who had an interest in defending their acts, for theChiefMinisters(beingpartiesclaimingrights
flowing from such acts), were also entitled to be afforded a proper opportunity of justifyingthoseacts.Mr.Seneviratne
objected to the reference both in the Court of Appeal and in this Court. We are of the viewthatwhenthatobjectionwas
taken in the Court of Appeal, that Court should at leasthaveinquiredwhethertheChiefMinisterswishedtofurnish
additional affidavitsand being an inter partes proceeding, the Court should not havereachedafindingthattherewas
prima facie evidence of an infringement of a fundamental right without hearing submissions on behalf of the Chief Ministers.
2. REFERENCE UNDER ARTICLE 125
The questions referred to this Court primarily involve two basic issues. Is the exercise of the power vested in theGovernor
of a Province (and not of the Provincial Council as stated in the reference) under Article 154F(4),excludingtheproviso,
immune from judicial review, either because it is a purely subjective discretion, or because it is intrinsicallyofsucha
(political) nature that it is not fit for judicial review ? In any event,hasjudicialreviewbeenexcludedbyArticle
154F(2) or Article 154F(6)?
It is unfortunate that these questions have not been framed with greater precision, toenablethisCourttoexpressits
opinions on the real matters which arise in the case. As framed, the answer "No" to questions (1) and (2) will beoflittle
assistance to the Court of Appeal in determining the grounds on which judicial review is permissible. Thefunctionofthis
Court under Article 125 is not to attempt to provide comprehensive answers (to abstract or academicquestions)settingout
all the available grounds of judicial review, but rather to provide answers for the questions whichactuallyaroseinthe
course of the proceedings in the Court of Appeal. It would have been far more satisfactory if,afterhearingparties,the
questions had been framed with specific reference to the grounds of challenge relevant to, and arisingfromthefactsof,
the pending applications. However, the learned Attorney-General and Mr. de Silva urged thatthisCourtshouldproceedto
elaborate a negative answer by indicating, although not exhaustively, at least some of the relevantgroundsofreview.To
avoid further delay, in a matter of undoubted urgency and public importance to two Provinces, wewillendeavourtoanswer
the questions with some degree of elaboration.
3. GOVERNOR'S DISCRETION UNDER ARTICLE 154F(4)
The Petitioners' first contention was that the exercise of the Governor's discretion was subject to review accordingtothe
same norms, principles and tests applicable in public law to other discretionsthus, itwasreviewable,interalia,for
unreasonableness, or if made in bad faith, or in disregard of the relevant evidence,oronirrelevantconsiderations,or
without evidence. Secondly, the fact that the exercise of that discretion involves political considerations does not makeit
a "political question", of the kind which in U.S. Constitutional law (cf. Baker v. Carr (2)), is sometimesregardedasnot
justiciablein any event, that doctrine was evolved inthecontextofthestrictseparationofpowersintheU.S.
Constitution, as a means of ensuring that each organ of government accords a measure of deference tothedecisionsofthe
others, within their legitimate spheres of competence. Our Constitution does not embodyaseparationofpowers judicial
power is vested in Parliament, and exercised through the Judiciarythus there are some matters whereinthejudicialpower
is exercisable directly or exclusively by Parliament. Finally,theConstitutionexpresslyprovidesforcertainmatters
wherein the Judiciary is required to consider matters with a political flavour (e.g. Articles 38(2)(d),99(13)(a)),thereby
indicating that our law does not recognise any such exclusion or restriction.
On behalf of the Chief Ministers it was submitted that the phrase "inhisopinion"conferredontheGovernorapurely
subjective discretionwhom to appoint as Chief Minister was a matter solely and exclusively fortheGovernor'ssubjective
assessment and judgment. In any event, the decision was essentially political in nature, and for that reason,too,wasnot
reviewableit could be tested only by means of a vote in the Provincial Counciland, by virtue of Article 154F(6) thatwas
the only remedy.
The learned Attorney-General submitted that while therewasarightofreviewonthegroundofwantorexcessof
jurisdiction (including error of law), there was only a very limited rightofreviewonothergrounds.Article154F(4)
conferred on the Governor a purelysubjectivediscretion,whichcouldbechallengedonthegroundofWednesbury(3)
unreasonableness (in a broad sense, including "no evidence", and violationoffundamentalrights).Further,thiswasa
political question beyond review (of Bhut Nath v. State of WestBengal(4))notbecauseofaconstitutionaltaboo,but
because of the inadequacy of the Court to decide itit was a discretion inherently unsuitable for judicial reviewit wasa
restraint not imposed by law, but judicially self-imposed because the judicial process is not equippedtodealwithsuch
issues (Clive Lewis, Judicial Remedies in Public Law, p. 123).
When considering whether the exercise of a statutory power or discretion, especially one conferred byourConstitution,is
subject to review by the judiciary,certainfundamentalprinciplescanneverbeoverlooked.Thefirstisthatour
Constitution and system of government are founded on the Rule of Lawand to prevent the erosion of thatfoundationisthe
primary function of an independent Judiciary .
". . . The rule of law has a number of different meanings and corollaries. Its primary meaning is that everything
must be done according to law. Applied to the powers of government, this requires that every government authority
which does some act which would otherwise be a wrong (such as taking a man's land), or whichinfringesaman's
liberty (as by refusing him planning permission), must be able to justify its action as authorised by law . . .
That is the principle of legality. But the rule of law demandssomethingmore,sinceotherwiseitwouldbe
satisfied by giving the government unrestricted discretionary powers, so that everything that they did was within
the law . . . The secondary meaning of the rule of law, therefore, is that government should be conductedwithin
a framework of recognised rules and principles which restrict discretionary power . .."(Wade,Administrative
Law, 5th ed., p. 22).
". . . If merely because an Act says that a minister may 'make such order as he thinks fit', or may dosomething
'if he is satisfied' as to some fact, the court were to allow him to act as he liked, a wide door would be opened
to abuse of power and the rule of law would cease to operate.
It is cardinal axiom, accordingly, that every power has legal limits, however wide the language of the empowering
Act. If the court finds that the power has been exercised oppressively or unreasonably, or if there has been some
procedural failing, such as not allowing a person affected to put forward his case, the act may becondemnedas
unlawful. Although lawyers appearing for government departments often arguethatsomeActconfersunfettered
discretion, they are guilty of constitutional blasphemy. Unfettered discretion, cannot exist wheretheruleof
law reigns. The notion of unlimited power can have no place in the system. The same truthcanbeexpressedby
saying that all power is capable of abuse, and that the power to prevent abuse istheacidtestifeffective
judicial control . . ." (Wade, 5th ed., p. 37).
The second principle seems to flow from the first. As Wade observes:
. . . Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely-thatisto
say, it can validly be used only in the right and proper way which Parliament when conferring it ispresumedtohave
intended. Although the Crown's lawyers have argued in numerous casesthatunrestrictedpermissivelanguageconfers
unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a
contradiction in terms. The real question is whether the discretion is wide or narrow, and where the legal lineisto
be drawn. For this purpose everything depends upon the true intent and meaning of the empowering Act.
The powers of public authorities are therefore essentially different from those of private persons. Amanmakinghis
will may subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice
or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has
an absolute power to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is
unfettered discretion. But a public authority may do neither unless it acts reasonably and in good faith anduponthe
lawful and relevant grounds of public interest. Unfettered discretion is wholly inappropriate toapublicauthority,
which possesses powers solely in order that it may use them for the public good.
. . . It is only where powers are given for the personal benefitofthepersonempoweredthatthediscretionis
absolute. Plainly this can have no application in public law." (pp. 353-354).
But Rooke's case(5), suggests that, independently of the Rule of Law, discretions are also limited by the "rule of reason":
". . . and notwithstanding the words of the commission give authority to the commissioners todoaccordingtotheir
discretions, yet their proceedings ought to be limited and bound with the rule of reason and law. For discretionisa
science or understanding to discern between falsity and truth, between wrong and right, between shadows andsubstance,
between equity and colourable glosses and pretences, and not to do according to their wills and private affections ..
In Roberts v. Hopwood(6),Lord Wrenbury said:
"A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. Adiscretiondoesnot
empower a man to do what he likes merely because he is minded to do so - he must in the excercise of his discretiondo
not what he likes but what he ought. In other words, he must, by the use of his reason, ascertain and follow the course
which reason directs. He must act reasonably."
Justice Douglas of the United States Supreme Court observed, dissenting, in United States v. Wunderlich,(7)
"Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler,somecivilor
military official, some bureaucrat. Where discretion is absolute, man has always suffered. At timesithasbeenhis
property that has been invadedat times, his privacyat times, his liberty of movement attimes,hisfreedomof
thoughtat times, his life. Absolute discretion is a ruthless master. It is more destructive of freedomthananyof
man's other inventions."
There are no absolute or unfettered discretions in public lawdiscretions are conferred onpublicfunctionariesintrust
for the public, to be used for the public good, and the propriety of the exercise of such discretionsistobejudgedby
reference to the purposes for which they were so entrusted.
We have no doubt whatsoever as to the purpose for which Article 154F(4) gave the Governor a discretion. Bytheexerciseof
the franchise the people of each Province elect their representatives, for the purpose of administeringtheiraffairs.The
Governor is given a discretion in order to enable him to select as Chief Minister the representativebestabletocommand
the confidence of the Council, and thereby to give effect to the wishes of the people of theProvince.Thatdiscretionis
not given for any other purpose, personal or political. On behalf of the Chief Ministers Mr. Seneviratne contendedthatthe
phrase "In his opinion" made the Governor's discretion completely subjective and immune from review.Hewasaskedwhether
the Governor's decision could be questioned if - motivatedbybribery,nepotism,orotherimproperconsiderations,or
influenced by a foreign power - the Governor appointed as Chief Minister a person whom he did notinfactconsidertobe
best able to command the confidence of the Council. His reply was that such an appointment would be noappointmentatall,
similar to an appointment procured by duress, and could be declared void. But it is a court which mustdecidesuchissues,
and it is because judicial review is available that a court can so decide.Further,Mr.Seneviratne'sreplydemonstrates
that the exercise of the Governor's discretion is subject to Judicial review on the ground that he did not in factentertain
the requisite opinion. This has long been recognised, even in relation to a power which can be exercisedmerelybecauseof
the opinion that it is necessary to exercise itthus in Hirdaramani v. Ratnavale(8) it was held that such adecisioncould
be challenged by showing that the stated opinionwasincorrect,untrueormanifestlyabsurdorperverse(p.79)or
"unreasonable or irrational" (p. 82). And that was before the authority of Liversidge v.Anderson(9),wasfinallyswept
away by R. v. I.R.C., ex P. Rossminister Ltd.(10), precluding undue judicial deference to subjective executive opinion. Iam
also in agreement with Mr. H. L. de Silva, P.C., that in this case we arenotcalledupontoconsideranintrinsically
subjective opinion - such as "the member who, in his opinion, is best suited to be Chief Minister" or"bestabletoserve
the Province"that might have approached the realm of "pure judgment" (Secretary of State for Educationv.Tameside.(11)).
It is true that the requisite opinion does not relate to past facts, and calls for "judgment", i.e. an assessmentoffuture
supportbut it is not "pure judgment", for that assessment of support cannot be made in total disregard ofexistingfacts.
It necessarily requires a consideration of expressions of support or opposition by Councillors, whether made intheCouncil
or outside (cf. Adegbenro v. Akintola.(12)).That opinion thus involves an objective element, and is more readilysubjectto
judicial review than "opinion" of the kind considered in Hirdaramani v. Ratnavale (8).
Mr. Seneviratne cited several Indian cases in support of his contention that the Governor's decision waspurelysubjective.
However, there are three significant differences between the Indian and Sri Lankan provisions. Article 154F(4) lays downthe
criterion which must guide the Governor's decision - the ability to command the supportofamajority-buttheIndian
Article 163 does not specify any guidelinefurther, under the latter provision"Ministersshallholdofficeduringthe
pleasure of the Governor"and Article 361(1) precludes judicial review of the Governor's acts. In any event, noneofthose
cases support the proposition contended for. They dealt with situations in which the Governor actedinhisdiscretion it
was contended that he should have acted on advice (of a Chief Minister who had lost the confidence oftheStateAssembly)
applying Article 163(2) - which corresponds to our Article 154F(2) - it washeldthattheGovernor'sactcouldnotbe
questioned on that ground that he should have acted on advice, because Article 163(2) entrusted that decision to him alone.
Mr. Seneviratne also cited Dinesh Chandra v. Charan Singh (13), and Madan Mural v. Charan Singh(14), which dealtwiththe
exercise of the President's powers, under Articles 74 and 75 of the Indian Constitution, in respectoftheappointmentof
the Prime Minister. These are of very little assistance for several reasons. The relationshipbetweenPresidentandPrime
Minister, is not necessarily the same as that between Governor andChiefMinister,especiallyinanon-federalsystem.
Further, in those cases there is not even an obiter dicta that the Presidents' act was outside reviewon thecontrary,the
propriety of the President's act was examined by reference to conventions and precedents, and upheld. Inthatrespect,the
Privy Council decision in Adegbenro v. Akintola (12), is similar. Although the Governor wasinvestedwithresponsibilities
that require of him "delicate political judgment", the Privy Council did not,forthatoranyotherreason,holdthat
judicial review was excluded.
(b). "POLITICAL QUESTIONS"
We have next to consider the submission that the appointment of a Chief Minister was a "political question" and thatArticle
154F(6) provided the appropriate remedy to test a Governor's decision as to the person best able tocommandtheconfidence
of a Provincial Council.
We are unable to accept the Petitioners submission that the exclusion of "political questions" from judicialreviewinthe
U.S. being a consequence of the separation of powers, there is no similarexclusionunderourlawbecausethereisno
separation of powers under our Constitution. Although Article 4(c) vestsjudicialpowerinParliament,yetthereisa
functional separation of powers inasmuch as judicial power can only be exercised bycourtsandotherjudicialtribunals,
subject only to one exception in regard to Parliamentary privilege. And even inthatfield,whenParliamentactsasan
institution directly exercising judicial power, there is noexpressexclusionorexemptionfromjudicialreviewunder
Article 140 (cf. Dissanayake v. Kaleel(15)). The Superior Courts are thus functionally a separate andco-ordinateorganof
governmentits power of judicial review cannot be less than that of a body to Parliamentit is illogicaltocontendthat
"political questions" are excluded from review by the Judiciary if it is an organ of government co-ordinatewiththeother
organs of government, but are reviewable by the Judicary if it is a subordinate organ.
Mr. Seneviratne relied on Baker v. Carr (2), where the U.S. Supreme Courtlaiddowncertainguidelinesforindentifying
"political questions" excluded from judicial review:
"Prominent on the surface of any case held to involve a political questionisfoundatextuallydemonstrable
constitutional commitment of the issue to a coordinate political departmentor a lack of judicially discoverable
and manageable standardsforresolvingit ortheimpossibilityofdecidingwithoutaninitialpolicy
determination of a kind clearly for non-judicial discretion ortheimpossibilityofacourt'sundertaking
independent resolution without expressing lack of the respectduecoordinatebranchesofgovernment oran
unusual need forunquestioningadherencetoapoliticaldecisionalreadymade orthepotentialityof
embarrassment from multifarious pronouncements by various departments on one question."
With regard to the first and the fourth of these guidelines, we must unhesitatingly reject any suggestion thataProvincial
Governor may be regarded as a branch of government "co-ordinate" to either of theSuperiorCourts,althoughtheposition
would be different in the case of the President and Parliament. No policy decision of thekindcontemplatedbythethird
guidelines arises here: the Governor is to be guided not by any considerations of policy, butsolelybyanassessmentof
support in the Council. Certainly there is no "politicaldecisionalreadymade"towhich"unquestioningadherence"is
needed"multifarious pronouncements" on this matter and consequent embarrassment are not possiblethus the fifth andsixth
guidelines are inapplicable. In regard to the second guideline, standards for determiningpoliticalsupportarecertainly
elusive, but that matter for judicial decision here is not whether the Governor's assessment was correct,butonlywhether
his decision-making process was flawed, and there is no "lackofjudiciallydiscoverableandmanageablestandards"for
resolving that question. Not only does Baker v. Carr not support the contentionthattheGovernor'sdecisionwaspurely
political, but the majority in that case held to bejusticiableaquestionrelatingtothedelimitationofelectoral
districts, although that was a matter having a long (U.S.) history of political involvement.
All statutory powers have legal limits"the real question is whether the discretion is wide or narrow, and wherethelegal
line is to be drawn"and it is the Judiciary which is entrusted with theresponsibilityofdeterminingthosequestions.
When it comes to powers and discretions conferred by the Constitution, it is the special responsibility of theJudiciaryto
uphold the constitution by preventing excess or abuse by the Legislature or the Executive. Any exception to theseprinciples
must be clearly and expressly stated. We are in respectful agreement with the observations of Bhagwati, J., ashethenwas
in State of Rajasthan v. Union of India (16), in regard to judicialreviewof"politicalquestions"inthecontextof
constitutional powers and duties:
". . . it is true that if a question brought before the Courtispurelyapoliticalquestionnotinvolving
determination of any legal or constitutional right or obligation, the Court would notentertainit,sincethe
Court is concerned only with adjudication of legal rights and liabilities. But merely because aquestionhasa
political complexion, that by itself is no ground why the Court should shrink from performing its duty underthe
Constitution if it raises an issue of constitutional determination. Every constitutionalquestionconcernsthe
allocation and exercise of governmental power and no constitutional question can, therefore, fail to be political
. . . It was pointed out by Mr. Justice Brennan in the Opinion of the Court delivered by him in Baker v. Carr (2)
an epoch making decision in American Constitutional history, that the mere fact that the suit seeks protection of
a political right does not mean that it presents a political question. This was put inmoreemphatictermsin
Nixon v. Harndon (17), by saying that such an objection 'is little more than a play upon words . . . Evenbefore
Baker v. Carr, courts in the United States weredealingwithahostofquestions'political'inordinary
comprehension. Even the desegregation decision of the Supreme Court in Brown v. Board of Education(18),hada
clearly political complexion . . . The Supreme Court in Baker v. Carr held that it was within thecompetenceof
the Federal Courts to entertain an action challenging a statute apportioning legislative districts as contrary to
the equal protection clause. This case clearly decided a controversy which was politicalincharacter,namely,
apportioning of legislative districts, so because a constitutional question of violation of the equalprotection
clause was directly involved and that question was plainly and indubitably within the jurisdiction of theCourt
to decide. It will, therefore, be seen that merely because a question has a political colour,theCourtcannot
fold its hands in despair and declare 'Judicial hands off'. So long as a questionariseswhetheranauthority
under the Constitution has acted within the limits of its powers or exceeded it, it can certainly bedecidedby
the Court. Indeed it would be its constitutional obligation to do so . . . No one however highlyplacedandno
authority howsoever lofty can claim that it shall be the solejudgeoftheextentofitspowerunderthe
Constitution, or whether its action is within the confines of such power laiddownbytheConstitution.This
Court is the ultimate interpreter of the Constitution andtothisCourtisassignedthedelicatetaskof
determining whether it is limited, and if so, whatareitslimitsandwhetheranyactionofthatbranch
transgresses such limits. It isforthisCourttoupholdtheconstitutionalvaluesandtoenforcethe
constitutional limitations. That is the essence of the rule of law . . ."
However, there are matters which undoubtedly do not involve legal or constitutional rights, powers and duties, and whichmay
therefore be regarded as purely "political". Mr. Seneviratne referred to Council of CivilServiceUnionsv.Ministerfor
"Prerogative powers such as those relating to the making of treaties, the defence of the realm,theprerogative
of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well asothers
are not, I think, susceptible to judicial review because their nature and subject-matter are such asnottobe
amenable to the judicial process."
As observed in that case, the controlling factor is not the source of the power but its subject-matter. The fact that inthe
U.K. the appointment of ministers by the Queen, in the exercise of the prerogative, is beyond review doesnotconcludethe
question under our law: as indeed it did not under the laws of Nigeria and India. In Adegbenro v.Akintole(2),thePrivy
Council did not regard the subject-
matter of the removal of a Prime Minister by the Governor as beyond review, and scrutinized the propriety of thatremoval.
In India, too, the Courts have not declined to review the appointment of the Prime Minister by the President onthisground
- Dinesh Chandra v. Charan Singh (13).
"Our Supreme Court has, however, had to decide seemingly political questions since the Constitution or astatute
had to be interpreted to answer them, ordinarily a duty which courts will not shun. We are not,therefore,able
to decline jurisdiction to consider the questions raised in the present writ petition ...
In U.N.R. Rao v. Smt. Indira Gandhi (20), the construction of Article 75(3) came up directlyforconsideration.
The Supreme Court did not indicate any difficulties in its way of regarding the case as justiciable by the court,
but straightaway went to decide the issues ..."
In the absence of a written Constitution, defining the jurisdictions and powers of the several organsofgovernment,there
may well be reasons why the acts of the Sovereign, particularly in relation towhatishistoricallythe"HighCourtof
Parliament", cannot be questioned in the Sovereign's own Courts. In Sri Lanka, however,itistheConstitutionwhichis
supreme, and a violation of the Constitution is prima facie a matter to be remedied by the Judiciary.Further,nojudicial
deference or self-restraint is owed to subordinate executive or legislative bodies, such as the Governor andtheProvincial
Council. The appointment of a Chief Minister by a ProvincialGovernorisnotapurelypoliticalmatterexcludedfrom
judicial review by the Court of Appeal. We are not called upon to express any opinion as to the extent to which the Courtof
Appeal may take these political factors into consideration under and in terms of the law and procedure relating toitswrit
jurisdiction) in deciding whether or not to exercise its discretion to grant and issue,accordingtolaw,ordersinthe
nature of writs of Quo Warranto, Certiorari, and Mandamus.
Bhut Nath's case (4) cited by the learnedAttorney-General,dealtwithaquestionofnationalsecurity,namely,the
proclamation of emergency:
"...It was argued that there was no real emergency and yet the Proclamation remained unretracted withconsequentialperil
to fundamental rights. In our view, this is a political, not justiciable issue and the appeal should be to the polls andnot
to the courts. The traditional view, sanctified largely by some American decisions, thatpoliticalquestionsfalloutside
the area of judicial review, is not a constitutional taboo but a pragmatic response ofthecourttotherealityofits
inadequacy to decide such issues and to the scheme of the Constitution which has assigned to eachbranchofgovernmentin
the larger sense a certain jurisdiction. Of course, when a problem - which isessentiallyandbasicallyconstitutional-
although dressed up as a political question, is appropriately raised before court, it is within the power ofthejudgesto
adjudicate. The rule is one of self-restraint and of subject-matter, practicalsenseandrespectforotherbranchesof
government like the legislature and the Executive. Even so, we see no force in the plea. True,anemergencyputsabroad
blanket blindfolding of the seven liberties of Article 19 and its baseless prolongation maydevaluedemocracy.Thatisa
political matter de hors our ken, for the validity of the proclamation turns on the subjective satisfaction of thePresident
that a grave emergency, of the kind mentioned in Part XVIII, or its imminent danger exists. In R.v.GovernorofWormwood
Scrubbs Prison (21), the Earl of Reading observed, on a similar contention:
... even if it is material to consider whether the military emergency has come to an end, itisnotamatterwhichthis
court can considerwhether the emergency continues to exist or not is for the executive alone to determine ...
The argument of abuse of power was urged in England but repelled. In The King v. Halliday (22), Lord Dunedin, met it thus:
'That is true. But the fault, if fault there be, lies in the fact that the British Constitutionhasentrustedtothetwo
Houses of Parliament, subject to the assent of the King, an absolute power untrammelled by any writteninstrumentobedience
to which may be compelled by some judicial body. The danger of abuse is theoretically presentpractically, as thingsexist
it is in my opinion absent ...'. And Lord Wright in (1942) A. C. 206 added effect to the point in these words:
The safeguard of British liberty is in the good sense of the people andinthesystemorrepresentativeand
responsible government which has evolved. If extraordinary powers are here given,theyaregivenbecausethe
emergency is extraordinary and are limited to the period of the emergency.'
Of course, the British have no written constitution, but the argument remains."
The appointment of a Chief Minister does not involve matters comparable toconsiderationsofnationalsecurity further,
neither the executive nor the legislature have "an absolute power untrammelled by any written instrument obediencetowhich
may be compelled by some judicial body"and we are not dealing with theactsoftheheadoftheexecutive,butonly
concerned with a subordinate executive body.
(c) EXCLUSION OF JUDICIAL REVIEW BY ARTICLE 154E (6)
It was submitted on behalf of the Chief Ministers that the Constitution provided an appropriatealternativeremedybecause
Article 154F (6) made the Board of Ministers collectively responsible and answerable to the Provincial Council ifaChief
Minister was not able to command the support of a majority in the Council, that would be revealed by a vote intheCouncil
a Chief Minister who lacked the confidence of the Council would have no option but to resignif hedidnot,theGovernor
had the power to remove him (this power ofremovalbeingimpliedfromthepowerofappointment) whilethiswasa
discretionary power, it should be presumed that the Governor would act properlyand if the Governor did not,thePresident
could dismiss the Governor. In answer to the Petitioners submission that the Governor might refrain from removing adefeated
Chief Minister, Mr. Seneviratne, submitted that since theGovernorcouldnotcarryouthisdutiesinregardtothe
administration of the affairs of the Province, with a Chief Minister who had lost the confidence oftheCouncil,hewould
have no option but to appoint as Chief Minister the Councillor who enjoyed the support of the majority. It waspointedout
on behalf of the Petitioners that the Governor mightdissolvetheCouncilinstead.IaminclinedtoagreewithMr.
Seneviratne that we should not assume that the Governor would not act properly. However,thequestioniswhetherArticle
154F(6) assures the Petitioners of an alternative remedy which is effective and expeditiousthe procedure of a voteinthe
Council is not such a remedy. Firstly, there is no certainty that eveniftheCouncilimmediatelyexpressesalackof
confidence in the Chief Minister, the Petitioner wouldbeappointedtosucceedhim litigationmaybecomenecessary.
Secondly, a more fundamental difficulty is that a vote in the Council is a means of ascertaining whether theChiefMinister
has the support of the Council, i.e. whether the Governor's decision was right on the merits.Suchavotedoesnoteven
attempt in any way to determine the propriety of the Governor'sdecision-makingprocess,whichiswhatthePetitioners
sought to review in the pending applications.
4. EXCLUSION OF JUDICIAL REVIEW BY ARTICLE 154E (2)
Mr. de Silva and the learned Attorney-General submitted that Article 154E (2) does not apply to the appointmentofaChief
Minister by the Governor, but Mr. Seneviratne contended that it precluded judicial review of any exerciseofdiscretionby
In order to determine whether Article 154F (2) excludes from judicial review the exercise of the Governor's discretionunder
Article 154F (4), it is necessary to consider Article 154F in its entirety, and in thecontextofChapterXVIIA.Article
154F (1) expressly lays down a general rule that the Governor must actinaccordancewiththeadviceoftheBoardof
Ministersbut provides that he must act in his discretion where he is required to do so by or under the Constitution. Itis
not inconceivable that a genuine doubt or difficulty may arise, in regard to aparticularfunction,whethertheGovernor
must act on advice, or in his discretion.Normallyanysuchquestionofinterpretationwouldhavetobejudicially
determined. Article 154F (2) is found immediately after Article 154F (1)was it intended to exclude judicial review onlyin
that situation? Or was it intended to deal with every exercise of discretion by the Governor ? The phrase"ifanyquestion
arises whether ... the Governor is by orunder this Constitution required to act in his discretion" clearly indicatesthat
Article 154F (2) applies only to the Governor's decision as to whetherheshouldactonadviceorinhisdiscretion.
Judicial interpretation is excluded, and instead the Governor is empowered to decide that matter in his discretionandthat
decision is made final. Where the Governor having decided such a question (e.g. that it isonewherehemayactinhis
discretion) thereafter proceeds to the next step, and exercises his power, by taking some decision or doing someact,there
arises the possibility that such (subsequent) decision or act may be challenged (e.g. onthegroundthatheshouldhave
acted on advice). Article 154F (2) precludes such a challenge because "the validity of anything done bytheGovernorshall
not be called in question in any Court on the ground that he ought or ought not have acted inhisdiscretion" plainlyit
does not preclude a challenge on any other ground. In Jogendra Nath v. State of Assam (23), citedbyMr.Seneviratne,the
corresponding Indian Article 163 (2) was interpreted to make the Governor "the sole and final Judge whether anyfunctionis
to be exercised in his discretion or on the advice of the Council of Ministers". Eveniftherehadbeensomeambiguity,
being a preclusive clause it must be given a narrower rather than a wider interpretation.
Chapter XVIIA applies to all Provincial Councilsit would therefore be undesirable that in respect of the same functionthe
Governor of one Province should take the view that he is required to act on advice, while another Governordecidesthathe
must act in his discretion. In the absence of judicial determinations, since one Governor would not be bound by thedecision
of another, there would be no way of ensuring uniformity. Consistency is achieved by the provision in Article 154F(2)that
"the exercise of the Governor's discretion shall be on the President's directions". Takeninisolation,thismaysuggest
that the Governor's discretion must always be exercised on the President'sdirections takeninthecontextofChapter
XVIIA, however, this provision is restrictedtotheexerciseoftheGovernor'sdiscretionindecidingthequestion
specifically referred to in the opening clause of Article 154F (2).
We therefore answer the questions referred to this Court as follows:
1. The exercise of the powers vested in the Governor of a Province under Article 154F (4), excluding the proviso,is
not solely a matter for his subjective assessment and judgmentit is subject to judicial review by the Court ofAppeal.In
applications for Quo Warranto, Certiorari and Mandamus, the Court of Appeal has power to review the appointment, interalia,
for unreasonableness, or if made in bad faith, or in disregard of the relevant evidence, or on irrelevant considerations,or
2. The Governor's selection of a person for appointment as ChiefMinister,underArticle154F(4),excludingthe
proviso, may require the consideration of political factorsnevertheless it is not anactwhichispurelypoliticalin
natureit involves the determination of legal rights, flowing from constitutional provisions, concerning the allocationand
exercise of powers (relating to the administration of the affairs of the Province) bytheelectedrepresentativesofthe
people of the Province. The appointment of a Chief Minister is justiciable, and there is noself-imposedruleofjudicial
restraint which inhibits judicial review.
3. Where a question arises as to whether the Governor must act on advice, or inhisdiscretion,Article154F(2)
requires him to decide that questionArticle 154F (2) makes his decision on thatquestionfinal,andprecludesanything
thereafter done by the Governor being called in question in any Court on the limited ground "that he ought oroughtnotto
have acted in his discretion"that provision does not apply to the appointment of a Chief Minister under Article 154F(4).
4. The Governor's decision involves a constitutional power and duty of the Governor, and aconstitutionalrightof
the Petitioner's (in common with the other Councillors) to the proper exercise of such power andduty judicialreviewis
5. This does not raise any question relating to the interpretation of the Constitution.
Case sent back to the Court of Appeal with determination of the Supreme Court.