Legal Services and Laws of Sri Lanka


SLR-1996 Vol.1-P180

SLR - 1996 Vol.1, Page No - 180

MAHINDASOMA

v.

MAITHRIPALA SENANAYAKE AND ANOTHER

COURT OF APPEAL.

DR. GUNAWARDENA, J. AND

J. A. N. DE SILVA, J.

C. A. APPLICATIONS NOS. 17/96 AND 18/96

29 FEBRUARY , 1,5,6,7,11 and 12 March, 1996.

Provincial Councils - Dissolution - Writs of Certiorari and Prohibition -Whether theGovernorhasadiscretion,whenhe
exercises the power of dissolution of a Provincial Council, vested in him under Article 154 B (8) (c) of the Constitutionor
whether he is bound by the advice of the Chief Minister in terms of Article 154B(8) (d).

The two Provincial Councils of North Central Province (N.C.P.)andSabaragamuwaProvince(S.P.)weredissolvedbythe
respective Governors of the saidProvincesbyOrderspublishedintheGazettedated3.1.1996.Inconsequence,the
Commissioner of Elections published Notices dated 4.1.1996 indicating his intention to hold elections to the saidProvincial
Councils, and called for nominations. On representations made by the general publicandoninformationgatheredbythem
about the alleged mal-administration of the said Councils, the said Governors have soughttheadviceoftheirrespective
Chief Ministers whether the said Councils should be dissolved. The said ChiefMinisterswhocommandthesupportofthe
majority of members of the said Provincial Councils, advised the said Governorsagainstdissolution.Thereafterthesaid
Governors sought the advice of Her Excellency the President, in the alleged exercise of their discretion. Her Excellencythe
President by her direction dated 2.1.1996, directed the said Governors to dissolve the said Provincial Councils..

Held :
(1) It is a cardinal principle of Constitutional construction that intention of theframersoftheConstitutionmustbe
given effect to .. The only provision in the Constitution which enables the Governor todissolveaProvincialCouncilis
Article 154 B (8) (c). The provisions in sub-paragraph (d) which immediately follow, are unambiguously applicable to allthe
powers exercisable by the Governor under paragraph (8)ofArticle154B.Thiswouldmeanthat,whentheGovernoris
exercising the power of dissolution vested in him under sub-paragraph (c), he is requiredtoactinaccordancewiththe
advice of the Chief Minister, so long as the Board of Ministers commands a majority in the Provincial Council.
(2) The said sub-paragraph (d) is a constitutional provision in itself, which lays down the procedure to be followedbythe
Governor when exercising his power of dissolution under sub paragraph (c). As the Governor is bound to uphold theprovisions
of the Constitution, he is required to follow the procedure laid down in said sub-paragraph (d), whenexercisingthepower
vested in him under sub-paragraph (c). Thus it cannot be said that it is, "a matter as respects which the Governor isbyor
under this Constitution required to act in his discretion", as stated in Article 154F (2).
(3) There is no provision in the Constitution, which empowers the President to dissolve a Provincial Council.
(4) The word "shall" in sub-paragraph (d) of Article 154B(8) cannot be read as meaning "may", as it will give thediscretion
to the Governor to dissolve a Provincial Council at his will.
Per Gunawardana, J.:
"This certainly does not seem to be the situation, the Constitution envisages".
(5) According to Article 4(b) the executive power of the people is vested in the President. But what is meant by"executive
power" is not defined in the Constitution. The said term "executive power" is used in a general sense. Thewellknownrule
of construction Generalis Specialibus Non Derogant would apply, in this instance. Hence, the provision, will takeprecedence
over the general provision in Article 4(b) of the Constitution.
(6) In the judgment of the Thirteenth Amendment case (1987)2SLR322,theprovisionsoftheConstitutionhavebeen
considered, with a view of ascertaining whether the provisions of chapter XVIIA (The Thirteenth Amendment) wereinconsistent
with the provisions of Article 2 and 3 of the Constitution, and not with a view of examiningwhatlegaleffectshouldbe
given to the provision of Article 4(b), in relation to the other provisions of the Constitution. TheprovisionsofArticle
154B(8) (c) and (d) have not been considered in relation to Article 4(b).
(7) The proviso to sub-paragraph (9) in Article 154B is not intended to apply to the provisions of Article 154B(8) (d).
(8) The Governor when dissolving a Provincial Council, acting under the provisions of Article 154B(8) (c) hasnodiscretion
and is bound by the provisions of Article 154B(8) (d), to act on the advice of the ChiefMinister,providedtheBoardof
Ministers commands a majority in the Provincial Council.
(9) The Governors have acted contrary to the provisions of Article 154B(8) (c) and (d) of the Constitution,byseekingthe
advice of the President, in a matter they had no discretion and dissolved the ProvincialCouncilsinaccordancewiththe
directions given by the President. Hence the said dissolution of the Provincial Councils are illegal andaredeclarednull
and void.
Cases referred to:
1.
Sussex Peerage Case (Bindra: Interpretation of Statutes 7 Ed. page 940.)
2. Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu (Bindra : Interpretationof Statutes 7 Ed. page 940)
3. Thirteenth Amendment Case - [1987], 2 Sri L.R. p. 312.
APPLICATIONS for Writs of Certiorari to quash respectively the orders of dissolution of the Provincial Council oftheNorth
Central Province issued by the Governor of the North Central Province and oftheProvincialCounciloftheSabaragamuwa
Province issued by the Governor of the Sabaragamuwa Province.

K. N. Choksy P.C. with L.C. Seneviratne, P.C., E.P Paul Perera PC, Daya Pelpola, S. J. Mohideen,HenryJayamaha,Lakshman,
Perera Ronald Perera, Nigel Hatch and Anil Rajakaruna for Petitioners in both applications. E.
D. Wickramanayake with Dr. Jayampathy Wickramaratne, M. A. Q. M. Gazzali, P. Mathew, Amitha Nikapitiya, Gaston Jayakody,
Malathie Ratnayake, Anandi Cooray, Shanika Seneviratne, U.A. Najeem and Prasanna Obeysekera for the 1st Respondent in
Application No. 17/96.
Sarath N. Silva A.G. with K.C. Kamalasabayson DSG, Parakrama Karunaratne SSC, Kamal Arulanathan SSC for the 2nd Respondent.
D.S.
Wijesinghe PC. with Dr. Jayampathy Wickremaratne, M. A. O. M. Gazzali, P. Mathew, Gaston Jayakody, U.A. Welimuna, Amitha
Nikapitiya, Malathie Ratnayake, Shanika Seneviratne and Prasanna Obeysekera for the 1st Respondent in C.A. Application No.
18/96.

27 February, 1996.
DR. A. DE Z. GUNAWARDANA, J.
The two applications were argued together, as agreed by the learned Counsel appearing for the parties, in viewofthefact
that same issues arise for consideration of the Court, in both Applications. The Application C.A. No. 17/96relatestothe
dissolution of the Provincial Council of North Central Province (hereinafter referred to as N.C.P) The Governor of theN.C.P
the respondent, by order dated 3.1.1996 (marked P4) published in Gazette Extraordinary No. 904/7 purportedtodissolvethe
said Provincial Council of N.C.
P with effect from 3.1.1996. The Application No. 18/96 relates to the dissolution of the Provincial CouncilofSabaragamuwa
Province (hereinafter referred to as S.P). The Governor of S.P the first Respondent, byhisorderdated3.1.1996(marked
P7), published in Gazette Extraordinary No. 904/7, purported to dissolve the said Provincial Council of S.P with effectfrom
3.1.1996. In consequence of the said purported dissolution of the Provincial Council of N.C.P the Commissioner ofElections,
the second Respondent, published a notice (marked P5) in GazetteExtraordinaryNo.904/13dated4.1.96,indicatinghis
intention to hold an election to the said Provincial Council and calledfornominationscommencingJanuary18,1996.A
similar notice (marked P8) was published by the second Respondent in respect of the Provincial Council ofS.Pinthesame
Gazette Extraordinary calling for nominations of the same date. The main reliefs claimed in thesaidApplicationsarefor
grant of Writs of Certiorari quashing the said Orders of dissolution by the said Governors and thesaidNoticesissuedby
the Commissioner of Elections. A Writ of Prohibition is alsosoughtagainsttheCommissionerofElections,thesecond
Respondent, restraining him from taking any steps to hold elections to the said Provincial Councils.

The 33 members of the Provincial Council of N.C.P were elected by an election held on May 17, 1993. At the saidelection18
members were elected from the United National Party, 11 members from the Peoples Alliance.3membersfromtheDemocratic
United National Front and 1 member from Sri Lanka Muslim Congress.Subsequenttothesaidelection,thethenGovernor
appointed the Petitioner in Application C.A. No. 17/96 as the Chief Minister and a Board of Ministers.Thesaidpetitioner
has averred that he commands the support of the majority of the said Council andhasproducedmarkedP1(a)toP1(s)
affidavits of the members of the said Council who support him. A Resolution passed by the said Council on December 21,1995,
opposing the dissolution of the said Council is produced marked P1 (t). By letter dated December 15, 1995,(markedP2)the
Governor, the first Respondent, sought the observations of the said Petitioner regarding the contents of themattersstated
therein and also the Petitioner's advice as to whether the said Provincial Council should be dissolved undertheprovisions
of Article 154B (8) of the Constitution. The first Respondent, sought the said Petitioner's reply to the said letter,within
seven days. The Petitioner replied the said letter (marked P2) by his letter dated December20,1995(markedP3)stating
inter alia,

(i) that sufficient particulars had not been given to enable the Petitioner to reply tothesaidletter(markedP2)and
requested for more particulars in respect of the matters set out therein, as also more time as the period of sevendayswas
insufficient.
(ii) that Petitioner and the Board of Ministers continue to command the support of the majority of the membersofthesaid
Council.
(iii) that a Provincial Council can be dissolved only on the advice of the Chief Minister in terms of Article 154B (8) (c)&
(d) of the Constitution and the petitioner found no reason to advice a dissolution of the said Council, and was notadvising
a dissolution.
The Petitioner received no reply to the said letter (marked P3). ThefirstRespondent,theGovernordissolvedthesaid
Council by the said Order dated 3.1.1996. (marked P4).
On May 17, 1993 elections were held for the purpose of electing members to the Provincial CouncilofSabaragamuwa.The44
members who were elected at the said election, consisted of 24 members of theUnitedNationalParty,14membersofthe
Peoples' Alliance, 5 members of the Democratic United National Front and 1 member of the Nava Sama Samaja Paksaya.Thethen
Governor appointed the Petitioner in Application C.A. No. 18/96 the Chief Minister andtheBoardofMinisters.Thesaid
Petitioner has averred that he continues to command the support of the majority of the said Council and hasproducedmarked
P1 (a) to P1 (z), the affidavits of the members who support the said Petitioner. By letter dated December14,1995(marked
P2) the first Respondent, the Governor, sought the observations of the said Petitioner as tothecontentsofthematters
stated therein, and also sought the Petitioner's advice as to whether the said Provincial Council should bedissolvedunder
the provisions of Article 154B (8) of the Constitution. The said Petitioner replied to the said letter(markedP2)byhis
letter dated December 19, 1995 (marked P3). The contents of the said reply (marked P3) are similar to letter (markedP3)in
Application C.A. No . 17/96, referred to earlier. As the said Petitioner did not receive a reply from thefirstRespondent,
the Petitioner had sent a further letter to the first Respondent dated 2/1/96 (marked P4). The said petitioner had alsosent
a letter dated December 14, 1995 (marked P5) to the first Respondent requesting the first Respondent, the Governor to makea
change in the Board of Ministers. The first Respondent has by his letter dated December 18, 1995 (markedP6)inquiredfrom
the said Petitioner as to the reason for the said request. The first Respondent, the Governor dissolved the saidCouncilby
the said Order dated 3.1.1996 (marked P7).
The first Respondents to the said Applications, who are the Governors of the respective provinces, have intheirobjections
stated inter alia,

(i) that they sought the advice of the Petitioners on the question of dissolution of the saidProvincialCouncils.Itis
further stated that letter marked P2 was addressed to the Petitioner on the basis of the representationsmadetothesaid
Respondents by the general public of the respective provinces and on credible information received and facts gathered bythe
said Respondents upon investigation into said representations.

(ii) that it was considered necessary by the said Respondents both in the exercise of theirdiscretionandinthepublic
interest, to refer the matter to Her Excellency the President. The said Respondentsfurtherstatethat,inviewofthe
provisions of the Constitution particularly Article 154B (2) they thought it necessary to bring the factsandcircumstances
relating the state of affairs of the said Councils, togetherwithdocumentsmarkedP2andP3,tothenoticeofHer
Excellency the President and sought her directions in respect of the exercise of their discretion.

(iv) that the said Provincial Councils were dissolved by the said Respondents acting underArticle154Band154Fofthe
Constitution upon the direction of Her Excellency the President.
The learned Counsel for the Petitioners submitted that, the only provision in the Constitution which enables the Governorto
dissolve a Provincial Council, before the expiry of the term of 5 years is under Article 154B (8) (c). He added thathowever
when the Governor is acting under the provision of Article 154B (8) (c) itismandatoryintermsoftheprovisionsof
Article 154 (8) (d), that the Governor must act in accordance with the advice of the Chief Minister, so long as the Boardof
Ministers commands the support of the majority of the Provincial Council. The Governor has no discretion in thematter.The
said Article enjoins him to act on the advice of the Chief Minister.
The learned Counsel for the Petitioners pointed out that in both Applications under consideration, there is nodisputethat
the said Petitioners had at all times the support of the majority of the Council. He referredtothefactthatthesaid
Governor had sought the advice of said Petitioners by letter marked P2, with express reference to Article 154B(8)(d).He
submitted that the dissolution of the said Provincial Councils was contrary to the advice of the said Petitioners andwasa
clear violation of the Constitutional provisions.

The learned Counsel for the second Respondent, who made the submissions first, with the permission of Court, stated thatthe
dissolution of the Provincial Council is a matter within the discretion of the Governor. HereferredtoArticle154B(c)
which states that, "The Governor may dissolve the Provincial Council". He argued that the said provision givesadiscretion
to the Governor to dissolve the Provincial Council and therefore when exercising the said discretion, the Governorisbound
by the directions of the President in terms of Article 154F (2). He added that the decision of the Governortoactinhis
discretion cannot be questioned in any Court.
The learned Counsel for the first Respondent in Application C.A. No. 17/96 associated himself with the saidsubmissionmade
by the learned Counsel for the second Respondent and added that the Governor being appointed by the President,actingunder
the provisions of Article 4 (b) of the Constitution, the Governor is bound by the directions given by the President.

The learned Counsel for the first Respondent in Application C.A. No. 18/96 associated himself with thesaidsubmissionsof
the learned Counsel for the second Respondent and stated that the word "shall" occurringinArticle154(8)(d)isnot
mandatory, but only an enabling provision, empowering the Chief Minister to tender advice to the Governor with regard tothe
summoning, proroguing and dissolving of a Provincial Council.
He cited Bindra-Interpretation of Statutes, 7th Edition page 1113, which states as follows :-
"Shall -The word "shall" in its ordinary signification is mandatory though there may be considerationswhichinfluencethe
Court in holding that the intention of the Legislature was to give a discretion. But this word is not necessarilymandatory,
nor always mandatory. Whether the matter is mandatory or directory only depends upon the real intentionoftheLegislature
which is ascertained by carefully attending to the whole scope of the Statute to be construed".
The central issue that arises for consideration from the above submissions is whether the Governor has a discretion, whenhe
exercises the power of dissolution of a Provincial Council, vested in him under Article 154B (8) (c) or whether heisbound
by the advice of the Chief Minister, so long as the Board of Ministers commands a majority in the Council.Toarriveata
satisfactory conclusion we have to consider this issue from different perspectives.

It is a cardinal principle of constitutional construction that the intention of theframersoftheConstitutionmustbe
given effect to. In this regard it is appropriate to refer to the rule, stated by Lord Chief JusticeTyndalintheSussex
Peerage case.(1) as quoted in Bindra -Interpretation of Statutes (7th Edition - 1987) page 941, which states as follows :-
"My Lords, the only rule for the construction of Acts of Parliament is, that they should be construed according tothe
intent of the Parliament which passed the Act. If the words of the Statute are in themselves preciseandunambiguous,
then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do,
in such cases, but declare the intention of the law giver."
As referred to earlier the only provision in the Constitution which enables the Governor to dissolve a Provincial Councilis
Article 154B (8) (c), which states that the Governor may dissolve a Provincial Council. However,itisimportanttonote
that the sub-paragraph (d), which immediately follows states that,
"(d) The Governor shall exercise his power under this paragraph (my emphasis) in accordance withtheadviceoftheChief
Minister so long as the Board of Ministers commands in the opinion of the Governor,thesupportofthemajorityofthe
Provincial Council."

On a plain reading of the above quoted sub-paragraph (d) it appears that its provisions are unambiguously, applicable toall
the powers exercisable by the Governor under paragraph 8 of Article154B.Thiswouldmeanthat,whentheGovernoris
exercising the power of dissolution vested in him under sub- paragraph (c), he is required toactinaccordancewiththe
advice of the Chief Minister, so long as the Board of Ministers commands a majority in the Provincial Council.
It is significant to note that, it is a constitutional provision itself, viz. the saidsub-paragraph(d),whichhaslaid
down the procedure to be followed by the Governor, when exercising his power of dissolution, under sub-paragraph (c).

As the Governor is bound to uphold the provisions of the Constitution, he is required to follow the procedurelaiddownin
said sub-paragraph (d) when exercising the power vested in him under subparagraph (c). Thus it cannot be said that itis"a
matter as respects which the Governor is by or under the Constitution required toactinhisdiscretion."asstatedin
Article 154F (2). Since the procedure has been laid downbytheConstitutionitself,itisnotamatterwithinthe
discretion of the Governor. Therefore the Governor cannot act on the directions of thePresidentunderArticle154F(2).
Further, it is to be observed that, it isabhorrenttocommonprinciplesofconstructiontodisregardtheimmediate
provision in sub-paragraph (d) in the said Article 154B (8) and go on to apply the provisions ofArticle154F(2)tothe
provisions of Article 154B (8) (c). In the circumstancestheprovisionsofArticle154F(2)wouldnotapplytothe
provisions of Article 154B (8) (c).
It appears from the scheme of the Constitution, that the Governor's powers relating to summoning, proroguinganddissolving
of the Provincial Council are dealt with in Article 154B (8). Therefore the actions of the Governorrelatingtosummoning,
proroguing and dissolving a Provincial Council must be ascertained according to the said provisions. InthecaseofChief
Justice of Andhra Pradesh v. L.V.A. Dixitulu, (2) cited in Bindra - Interpretation of Statutes (7th Edition-1987)atpage
940, it is stated that,
Where two alternative constructions are possible, the Court must choose the one which will be in accord with theother
parts of the statute and ensure its smooth, harmoniousworking,andeschewtheotherwhichleadstoabsurdity,
confusion or friction, contradiction and conflict between its various provisions or undermines or tendstodefeator
destroy the basic scheme (my emphasis) and purpose oftheenactment.Thesecanonsofconstructionapplytoour
Constitution with greater force............
It is to be observed that the whole of the provisions of Chapter XVIIA were brought in by theThirteenthAmendmenttothe
Constitution. It was submitted by the learned Counsel for the Petitioners that, the said Amendment wasanexerciseinthe
devolution of power under the aegis of Article 27 (4) of the Constitution. This Article requires the State,tobroadenthe
democratic structure of government and democratic rights of the people, by decentralizing the administration,andaffording
all possible opportunities to the people to participate at every level in national life and ingovernment.Itisinthat
background thattheprovisionhadbeenmaderequiringtheGovernor,toconsulttheChiefMinister,theelected
representative of the people, who commands a majority of the elected members.
It is pertinent to note here that, the learned Counsel for the Respondents, conceded that there is noexpressprovisionin
the Constitution, which empowers the President, to dissolve a Provincial Council.

In this context, if the interpretation sought to be given by the learned Counsel for thefirstRespondent,inApplication
C.A. No. 18/96, that the word "shall" in the said sub-paragraph (d) of Article 154B (8)shouldbereadasdiscretionary,
becomes untenable. If the word "shall" is read as meaning "may", the whole of the provision in sub-paragraph (d)ofArticle
154 (b) (8) becomes meaningless and superfluous. It will give the discretion totheGovernortodissolvetheProvincial
Council, at his will, whether or not the Chief Minister commands the support of the majority of the Council.Thiscertainly
does not seem to be the situation, the Constitution envisages.
The learned Counsel for the second Respondent submitted that executive power of thepeopleincludingthedefenceofSri
Lanka is exercised by the President. He argued, that therefore the Governor who is appointed by the President, exercisesthe
executive power on behalf of the President in view of Article 4 (b) read with Article 154BoftheConstitution.Headded
that the provisions of Article 154B (8) (d) would only apply to the exercise of Governor's powers solely as a delegate.
The learned Counsel for the first Respondent in Application C.A. No. 17/96, associatedhimselfwiththesaidsubmissions
made by the learned Counsel for the second Respondent, and addedthatinviewoftheprovisionsoftheConstitution,
particularly Article 154B (2), (the provision which enables the President to appoint a Governor) thesaidfirstRespondent
brought the facts and circumstances relating to the state of affairs of the Council tothenoticeofthePresident,and
sought her directions in regard to the exercise of his discretion. The President directed the firstRespondenttodissolve
the said Council. He submitted that the first Respondent being a delegate of the President, is bound bythesaiddirection
and acted accordingly.
The learned Counsel for the Petitioners pointed out that, ours is a written Constitution, and when express provision ismade
for a particular situation, such provision must prevail over the general provision. He submitted thatprovisioninArticle
154B (8) (d) is a special provision, and that Article 4(b) of the Constitution dealt generally with theexecutivepowerof
the President. Therefore the said special provision must prevail over the said general provision.

The Article 4 of the Constitution dealing with the Sovereignty of the people, in sub-paragraph (b) states as follows :-
"(b) the executive power of the people, including the defence of Sri Lanka, shallbeexercisedbythePresidentofthe
Republic elected by the people :-
What is meant by "executive power" is not defined in the Constitution. It was submitted by the learned Counsel for the
second
Respondent that executive power, "connotes the residue of governmental functions that remain after the legislative and
judicial functions are taken away". Thus it appears that the said term executive power is used in a general sense.

The learned Counsel for the Petitioners submitted that, the said "executive power" referredtoinArticle4(b)isnot
unlimited power. He referred to several provisions in the Constitutionitself,whichhesubmittedexpresslylimitsthe
exercise of such "executive power". He cited the following provisions of the Constitution.:
(i) Article 34 (1) Proviso.
(ii) Article 70 (1) Proviso (a).
(iii)
Article 70 (1) Proviso (b).
(iv) Article 70 (1) Proviso (c).
(v)Article 154B (8) (d).
(vi) Article 154 F (4).
(vii) Article 154 F (4) Proviso.
(viii) Article 154 F (5).
The learned Counsel for the second Respondent submitted that, in the context of theThirteenthAmendment,onecannot
read a limitation into the powers of the President, which the President derives under Article 4(b).Thevariousprovisions
referred to by the learned Counsel, for the Petitioners are inbuilt provisions,whichsetoutthemannerinwhichthe
various powers therein are to be exercised. For instance, Article 34 proviso cannot beregardedasarestrictiononthe
power of the President. It sets out the manner in which that power is to be exercised in the situationreferredtointhe
proviso. Similarly, Article 70 is a self contained provision which provides for the procedure and powers in
respect of the matters set out therein. These also contain inbuilt provisions which cannot be regarded as a limitation on
the powers of the President.

It is to be observed that under the proviso to Article 34, the President is required to call for a report from the Judgewho
heard the case, and follow a certain procedure before a pardon is granted. Under Article 70 (1)althoughthePresidentis
given the power to summon, prorogue and dissolve Parliament, the President cannot dissolve Parliament beforetheexpiration
of one year from the date of General Elections (Proviso (a) or ontherejectionoftheStatementofGovernmentPolicy
(Proviso (b) ) or after the Speaker has entertained a resolution under Article 38 (2)oftheConstitution(Proviso(c)).
Althoughtheyareinbuiltprovisionsrelatingtothepowerofdissolution,theyareneverthelessConstitutional
restrictions, to the exercise of the power of dissolution. Under Article 154 (8) (d) the Governor is required to actonthe
advice of the Chief Minister when exercising any of the powers under paragraph (8) of Article 154B, so long as theBoardof
Ministers commands the support of the majority in the Provincial Council. Article 154F (4) of the Constitution providesthat
the Governor shall appoint as Chief Minister, the member of the Provincial Council,whoinhisopinioncancommandthe
support of the majority of the members of the Provincial Council. The Proviso to Article 154F (4)statesthat,wheremore
than one-half of the members elected to a Provincial Council are members of one political party, the Governorshallappoint
the leader of the political party, as the Chief Minister. Article 154F (5) requires that the Governor shall,ontheadvice
of the Chief Minister appoint among the members of the Provincial Council, the other Ministers. Theseareallpowersthat
fall within the aforesaid definition of "the residueofgovernmentalfunctionsthatremainafterthelegislativeand
judicial functions are taken away" and are therefore executive powers.
In this context it is appropriate to refer to para. 875 of Halsbury (4thEdition, vol. 44) where it is stated as follows :-
"875. General and Particular enactments.
Whenever there is a general enactment in a Statute which, iftakeninitsmostcomprehensivesense,wouldoverridea
particular enactment in the same Statute, the particular enactment must be operative,andthegeneralenactmentmustbe
taken to affect only the other parts of the Statute to which it may properly apply. This is merelyoneapplicationofthe
measure that general things do not derogate from special things."
In the aforesaid provisions, the Constitution itself has sought to deal with those executive powersspecifically.Therefore
those special provisions being Constitutional provisions in themselves, must be given effect to. Hence thewellknownrule
of construction Generalia Specialibus Non Derogant would apply. Thus the special provision in Article 154B (8) (d) willtake
precedence over the general provision in Article 4 (b) of the Constitution.

The learned Counsel for the second Respondent has in his written submissions stated that, the main question to be decidedis
whether Article 154B (8) (c) contemplates a discretionary power by the Governor, and if so whether such power is requiredto
be exercised on the directions of the President. He has raised a further issue whether Article 154B (8) (d) contemplatesthe
exercise of the Governor's powers solely as a delegate only. He has gone ontostatethat,thebroaderquestiontobe
decided is whether, in matters of this nature the said provisions in the Constitution have to be interpreted,inthelight
of the majority judgment in the 13th Amendment Case. He has gone on to point out that, themostimportantfeatureofthe
said judgment is that the Republic of Sri Lanka is a Unitary State and does not have federal characters. Hehasaddedthat
emphasis was placed on the fact that the Provincial Council was a subordinate body and laiddownthebasisonwhichthe
three functions including the executive functions are to be exercised. He has also cited the following passage from thesaid
judgment. The said passage appears at pages 322-323, in (1987) 2 S. L. R. (3) and states as follows :-

The Governor is appointed by the President and holds office inaccordancewithArticle4(b)whichprovidesthatthe
executive power of the People shall be exercised by the President of the Republic,duringthepleasureofthePresident
(Article 154B (2)). The Governor derived his authority from the President and exercises the executive power vested in himas
a delegate of the President. It is open to the President therefore by virtue of Article 4 (b) oftheConstitutiontogive
directions and monitor the Governor's exercise of this executive power vested in him. AlthoughheisrequiredbyArticle
154F (1) to exercise his functions in accordance with theadviceoftheBoardofMinisters,thisissubjecttothe
qualification "except in so far as he is by or under the Constitution required to exercise his functions or anyofthemin
his discretion." Under the Constitution the Governor as arepresentativeofthePresidentisrequiredtoactinhis
discretion in accordance with the instructionsanddirectionsofthePresident.Article154F(2)mandatesthatthe
Governor's discretion shall be on the President's directions and that the decision of the Governorastowhatisinhis
discretion shall be final and not be called in question in any Court on the ground that he ought or ought not tohaveacted
on his discretion. So long as the President retains the power to give directions to the Governor regardingtheexerciseof
his executive functions, and the Governor is bound by such directions superseding the advice of the BoardofMinistersand
where the failure of the Governor of Provincial Council to comply withorgiveeffecttoanydirectionsgiventothe
Governor or such Council by the President under Chapter XVII of the Constitution will entitle the President toholdthata
situation has arisen in which the administration of the Province cannot be carried on in accordance withtheprovisionsof
the Constitution and take over the functions and powers of the Provincial Council (Article 154K and 154L). Therecanbeno
gainsaying the fact that the President remains supreme or sovereign in the executive fieldandtheProvincialCouncilis
only a body subordinate to him.
The learned Counsel for the first respondent in Application No. C.A. 17/96 in his written submissions referredtothesaid
judgment and has stated that the Court emphasised that so long as the President retains the power to give directionstothe
Governor regarding the exercise of his executive functions the Governor is bound by such directionssupersedingtheadvice
of the Board of Ministers. He has added that, the President can take over the functions and powers of the ProvincialCouncil
by virtue of Article 154K and 154L. He goes on to quote the last sentence of the above cited passage, of the said judgment.
The Counsel for the Petitioner, in his written submissions has stated that, the said judgment is not directed to themeaning
of Article 154B. It was concerned with the question of whether or not the 13th Amendment alteredtheunitarycharacterof
the Constitution enshrined in Article 2 and 76, and therefore required approval at a referendum. It was only in thiscontext
that Article 4 (b) was referred to and considered. The passages of the judgment whichrefertoArticle4(b)makethis
clear.
It has been pointed out in the said judgment, at page 318, that,
"The main contentions of the PetitionerswerethatthenewchapterXVIIAconsistsofseveralprovisionswhichare
inconsistent with the provisions of entrenched Article 2 and 3 of the Constitution and therefore that Chaptercannotbecome
law unless the number of votes cast in favour thereof amounts to not less than 2/3 of the whole number of members(including
those not present) and is approved by the People at a Referendum as mandated by Article 83 of the Constitution."
The said Article 2 refers to the unitary status of Sri Lanka and Article 3 relates to the Sovereignty of the People.
Thus the provisions of the Constitution were considered in thesaidjudgmentwithaviewofascertainingwhetherthe
provisions of Chapter XVIIA (The Thirteenth Amendment) were inconsistent with the provisionsofArticle2and3ofthe
Constitution and not with a view of examining what legal effect should be giventotheprovisioninArticle4(b),in
relation to the other provisions of the Constitution. More specifically, the provisions of Article 154B (8) (c) and (d)have
not been considered in relation to the provision in Article 4 (b).
It is important to note that in the above cited passage of the said judgment, it is stated that,
"it is open to the President therefore by virtue of Article 4 (b) of the Constitution togivedirectionsandmonitorthe
Governor's exercise of this executive power vested in him. Although he is requiredbyArticle154F(1)toexercisehis
functions in accordance with the advice of the Board of Ministers, this is subject to the qualification, "exceptinsofar
as he is by or under the Constitution required to exercise his functions or any of them in his discretion." (my emphasis)
Thus it is seen that the said judgment recognisesthefactthattheGovernorisrequiredtoexercisehisexecutive
functions, discretionary or otherwise, in accordance with the provisions of the Constitution.

It is pertinent to note that the said judgment has taken into consideration the fact that not only executive powerbutalso
legislative power is vested with the President and the Parliament, in holding that the unitary status of the Country wasnot
affected by the provisions of the Thirteenth Amendment. The said judgment at page 320 states,
"The question that arises is whether the 13th Amendment Bill under consideration createsinstitutionsofgovernmentwhich
are supreme, independent and not subordinate within their defined spheres. Application of this testdemonstratesthatboth
in respect of the exercise of its legislative powers and in respect of the exerciseofexecutivepowersnoexclusiveor
independent power is vested in the Provincial Council. The Parliament and the President have ultimate control overthemand
remain supreme."
All the learned Counsel appearing for the Respondents submitted that, the proviso to Article 154B sub-paragraph(9)isnot
applicable to the said sub-paragraph (9). It was submitted that, the said sub-paragraph (9) deals with granting ofapardon
by the Governor in the exercise of a prerogative power and therefore the question of "Advice of the Board of Ministers"does
not arise. Therefore they argued that the reference in the said proviso is to the advice of the Chief Minister stipulatedin
Article 154B (8) (d), which is given on behalf of the Board of Ministers.Itwasfurtherpointedoutthatpardonsare
granted in the interest of justice and not in the "public interest".

The Counsel for the petitioners submitted that, upon a proper construction, thesaidProvisoshouldapplyonlytosaid
subparagraph (9). If It was intended to apply to the entirety of Article 154B it would have been placed attheendofthe
said Article. The Court cannot lightly impute a mistake to the Legislature. He cited Halsbury(4thEdition)Vol.44,para.
862. In any event, the Proviso only refers to "advice of the Board of Ministers". It does not refer tothe"Adviceofthe
Chief Minister". It cannot, therefore apply to Article 154B (8) (d), which speaks of "the advice of the Chief Minister".The
Court cannot add words into the Proviso and thereby extend its operation to include the advice of the Chief Minister.
On a consideration of the above submissions it is clear that Proviso to sub-paragraph (9) in Article 154B is not intendedto
apply to the provisions of the Article 154B (8) (d).
The learned Counsel for the first Respondent in ApplicationC.A.No.18/96has,forthefirsttime,inhiswritten
submissions, which were filed after the conclusion of oral hearingofthiscase,hastakenupthepositionthattwo
questions should be referred to the Supreme Court for determination under Article 125 of the Constitution. The twoquestions
are,
(1) whether under Article 154B (8) (d) the Governor has a discretion in the exercise of the powers conferred on him by
Article 154B (8) (c) to act contrary to the advice of a Chief Minister, who in the opinion oftheGovernor,commands
the support of the majority of the Provincial Council
(2) whether the Proviso appearing immediately after sub-Article (9) of Article 154B applies to Article 154B (8) (c).
It must be pointed out at the outset that, the learned Counsel for the first Respondent in Application C.A.No.18/96didnot
raise the matter at the argument stage, nor was any submission made that these are fit questionstobedeterminedbythe
Supreme Court under Article 125. In fact none of the learned Counsel appearing for the PetitionersorfortheRespondents
made any suggestion to refer any question to the Supreme Courtfordetermination.Inanyevent,itisseenfromthe
reasoning given above, that the aforesaid questions canbedecidedbyapplicationoftherelevantprovisionsofthe
Constitution and the interpretation of the Constitution does not arise.

In view of the reasons stated above we are of the view that the Governor when dissolving a Provincial Council,actingunder
the provisions of Article 154B (8) (c) has no discretion and is bound by the provisions of Article 154B (8) (d),toacton
the advice of the Chief Minister provided the Board of Ministers commands a majority in the Provincial Council. Thereforewe
hold that the Governors, who are the first Respondents in each of the Applications C.A.No.17/96andC.A.No.18/96,have
acted contrary to the provisions of Article 154B (8) (c) and(d),oftheConstitution,byseekingtheadviceofthe
President, in a matter they had no discretion, and dissolving the said Provincial Councils in accordance with thedirections
given by the President. Hence the said dissolutions of the said Provincial Councils are illegal and should bedeclarednull
and void.
Accordingly, this Court hereby declare that, the said dissolution of the Provincial Council ofNorthCentralProvince,by
the said Order, marked P4, made by the first Respondent, is null and void. Therefore this Court herebyissueandgrantto
the petitioner in Application C.A. No. 17/96, an Order in the nature ofWritofCertiorariquashingthesaidOrderof
dissolution, marked P4.

Since the said Order of dissolution, marked P4, is illegal,theconsequentialNoticemarkedP5,issuedbythesecond
Respondent to the Application C.A.No.17/96, is also illegal. Therefore this Court hereby issue and granttothePetitioner
in Application C.A.No.17/96 an Order in the nature of Writ of Certiorari quashing the said Notice, marked P5.
This Court also hereby declare that the said dissolution of the Provincial CouncilofSabaragamuwaProvincebythesaid
Order, marked P7 made by the first Respondent, is null andvoid.ThereforethisCourtherebyissueandgranttothe
Petitioner in Application C.A. No. 18/96, an Order inthenatureofWritofCertiorari,quashingthesaidOrderof
dissolution, marked P7.
Since the said Order of dissolution marked P7, isillegal,theconsequentialNoticemarkedP8,issuedbythesecond
Respondent to the Application C.A.No.18/96, is also illegal. Therefore this Court hereby issue and granttothePetitioner
in Application C.A.No.18/96, an Order in the nature of Writ of Certiorari, quashing the said notice marked P8.
Although the Petitioners in both the said Applications have prayed for Writs of Prohibition, against thesecondRespondent,
restraining him from taking steps to hold elections to the said Provincial Councils, the question of holdingelectionsdoes
not arise, as the terms of office of the said Provincial Councils would be revived, by virtue of this Order.Thereforethis
Court hereby refuse the said Applications for the issue of Writs of Prohibition against the second Respondent.
The Petitioner in Application C.A.No.17/96 is allowed costs in a sum of Rs. 5000/- against the first Respondent.Wedonot
award costs against the second Respondent, as he had only taken a consequential step, in his official capacity.
The Petitioner in Application C.A.No.18/96 is allowed costs in a sum of Rs. 5000/-, against the first Respondentwedonot
award costs against the second Respondent, as he had only taken a consequential step, in his official capacity.
J. A. N. DE SILVA, J. - I agree.
Certiorari granted quashing order of dissolution of Provincial Councils and notices declared illegal.


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