Legal Services and Laws of Sri Lanka


SLR-1996 Vol.1-P408

SLR - 1996 Vol.1, Page No - 408

MIGULTENNE

v.

THE ATTORNEY-GENERAL
SUPREME COURT.

FERNANDO, J.

DHEERARATNE, J. AND

PERERA, J.

S.C. REFERENCE NO.3/94.

C.A. NO. 246/86 (F).

D.C. COLOMBO N0.3346/Z.

JUNE 21, 1995.

Constitutional Law-Interpretation of sections 106 and 107 ofthe1972Constitution-Rule4(12)oftheCourtofAppeal
(Appellate Procedure) Rules 1990 - Holding office at the pleasure of the executive-Ouster of jurisdiction of Court.

"Pleasure" implies discretion, and the question is whether sections 106 and 107wereintendedtogivetheExecutivean
unfettered discretion unrestrained by judicial review.
Rules made under section 106(3) are subordinate legislation, and cannot be regarded aslegislationwithinthemeaningof
section 107(1).Subordinate legislation, even where authorised by the Constitution, cannot prevail over(andtherebyamend)
the Constitution, unless the Constitution clearly authorises such a result. The authority to make rulesissubjecttothe
"pleasure principle".

Section 107(1) provides for only two restraints on the "pleasure principle"- the pleasure principle will not apply wherethe
Constitution itself expressly provides otherwise, and where the legislaturebylawprovidesotherwise.Itfollowsthat
exceptions to the "pleasure principle" cannotbecreatedbyImplicationfromconstitutionalprovisions(suchasthe
fundamental rights) or by subordinate legislation (such as rules made under section 106(3) whicharenot"legislative"in
character) and so cannot be treated as being "laws" within the meaning of section 107(1).
Section 107(1) makes the "pleasure principle" applicable to "state officers" appointed by the Cabinet (undersection107(1)
as well as Presidential appointees (under section 108).
Section 107(1) provides that office is held at the pleasure of the President.

The President has no independent discretion, as he must act on advice (section 27)and if he has no realdiscretion,there
can be no criteria by reference to which his exercise of discretion can be reviewed. There appearstobesomeanomalyin
office being held at the pleasure of the President, although appointment and dismissal arebytheCabinet,butthefact
remains that there are no criteria by which the exercise of discretion may be reviewedeven compliance with thefundamental
rights is not required. This is suggestive of an unfettered discretion, not subject to review. Underthe1972Constitution
"state officers" held office at pleasurethere was no exception (save as otherwise expressly providedbytheConstitution
or by statute law). The plaintiff held office at pleasure.
(2) The ouster clause in the 1972 Constitution is consistent with a general intention to exclude judicial review. Theouster
clause in section 106(3) was a bar to the plaintiff's action for a declaration.

Per Fernando, J.
"Judgments of this Court show that, for that mischief (unrestricted pleasure principle) the fundamentalrightsjurisdiction
(under the 1978 Constitution) is an antidote of growing efficacy though not a preventive."
Cases referred to:
1. Abeywickrema v. Pathirana [1986] 1 Sri L.R. 120, 182.
2. Chandrasiri v. A. G.[1989]1 Sri L.R. 115.
3. Vallipuram v. Postmaster-General (1948) 50 N.L.R. 214.
4. Santiapillai v. A. G. (1953) 55 N. L. R. 83.
5. De Silva Wijesundera v. P. S. C. (1953) 55 N.L.R.94.
6. Silva v. A.G. (1958) 60 N.L.R. 145.
7. De Zoysa v. P. S. C. (1960) 62 N. L. R. 492 (S. C.).
8. De Zoysa v. P. S. C. (1963) 64 N. L. R. 505 (P. C.).
9. Herat v. Nugawela (1968) 70 N.L.R. 529.
10. A. G. v. Kodeswaran (1967) 70 N. L. R. 121.
11. Pillai v. Fonseka (1968) 71 N.L.R. 202.
12. De Alwis v. De Silva (1967) 71 N.L.R. 108.
13. Bandara v. Premachandra S.C. 213/93 S.C. Minutes of 16.8.93.
14. P. S. U. N. U. v. Jayewickrema [1988] 1 Sri L.R. 229, 235-6.
15. Ramupillai v. Perera [1991] 1 Sri L.R. 11.
16. Wickremabandu v. Herath [1990] 2 Sri L.R. 348.
17. Wickremaratne v. Gunawardena S.C. 5/95 S.C. Minutes of 29.5.95.
18. Ridge v. Baldwin (1964) AC 40,66.

APPEAL from judgment of the Court of Appeal.
R. K. W. Goonesekera for Plaintiff -Appellant - Appellant.
Mohan Peiris, S.S.C. for the Defendant - Respondent - Respondent.
July 7, 1995.
FERNANDO, J.
This appeal involves the interpretation of sections 106 and 107 of the 1972 Constitution.
The facts are not in dispute. The Plaintiff-Appellant-Appellant ("the Plaintiff") was a "state officer"withinthemeaning
of the 1972 Constitution, whose services were terminated on 30.6.78. He instituted action in the District CourtofColombo,
averring that he was not holding office at pleasure, and that the termination wasarbitraryandwithoutlawfulcauseor
reason, and sought a declaration that he continued to be a public servant. Itwasnotcontendedatanystagethatthe
termination was a nullity, because it was ultra vires ormalafide.In1986,preliminaryissuesofjurisdictionwere
answered against the Plaintiff on the basis of section 106(5) of the 1972 Constitution.
On appeal both Counsel submitted that important questions of law, relevant to thepublicservice,arose,andthatthese
would ultimately have to be decided by this Court. Accordingly, on 4.7.94, acting under and in terms ofRule4(12)ofthe
Court of Appeal (Appellate Procedure) Rules, 1990, the Court of AppealupheldthedecisionoftheDistrictCourtthat
section 106(5) was a complete bar to the Plaintiff's action, dismissed the Plaintiff'sappeal,andgrantedhimleaveto
appeal to this Court upon the following question:

"Whether the services of a public officer whose tenure is governed by the 1972or1978Constitutionscouldbesummarily
terminated on the basis that he holds office at the pleasure of the Executive."
Although reference has been made to the 1978 Constitution as well, the matter really involves the interpretation of onlythe
1972 Constitution , because it was while that Constitution was in force that the Plaintiff was dismissed. Therefore, evenif
it is correct that under the 1978 Constitution a public officer does not hold office at pleasure (namely, attheunfettered
or absolute discretion) of the Executive, and hence cannot be summarily dismissedyet itdoesnotfollowthatthesame
position prevailed under the 1972 Constitution - because there are differences intherelevantprovisions.However,some
consideration of the corresponding provisions of the 1978 Constitution is useful in order to determine the truemeaningand
effect of the 1972 provisions.
Both Counsel dealt with the question under two heads:
1) Does the "pleasure principle " in section 107(1) confer an unfettered discretion on the Executive?
2) Does section 106(5) completely oust the jurisdiction of the Courts in respect of orders and decisions oftheCabinetof
Ministers, Ministers, etcregarding appointments, transfers and dismissals of "state officers"?
It was assumed, for the purpose of this appeal, that the ouster clause did not extend to an order or a decisionwhichisa
nullity because it was ultra vires or mala fide. That, however, was not the basis on which the Plaintiff contendedthatthe
District Court had jurisdiction.
Sections 106 to 108 of the 1972 Constitution and Articles 54 and 55 of the 1978 Constitution provide as follows:
106. (1) The Cabinet of Ministers shall be responsible for the appointment, transfer, dismissal and disciplinarycontrolof
state officers and shall be answerable therefor to the National State Assembly.
106. (2) Subject to the provisions of the Constitution, the CabinetofMinistersshallhavethepowerofappointment,
transfer, dismissal and disciplinary control of all state officers.
106. (3) Subject to the provisions of the Constitution, the Cabinet of Ministers shall provide for and determine allmatters
relating to state officers including the constitution of state services, the formulation of schemes of recruitment andcodes
of conduct for state officers, the procedure for the exercise and the delegation ofthepowersofappointment,transfer,
dismissal and disciplinary control of state officers.
106. (5) No institution administering justice shall have the power of jurisdiction to inquire into, pronounce upon or inany
manner call in question any recommendation, order or decision of the Cabinet of Ministers, aMinister,theStateServices
Advisory Board, the State Services Disciplinary Board, or a state officer,regardinganymatterconcerningappointments,
transfers, dismissals or disciplinary matters of state officers.
107. (1) Save as otherwise expressly provided by the Constitution, every state officer shall hold office during thepleasure
of the President. The National State Assembly may however in respect of a state officer holding officeduringthepleasure
of the President provide otherwise by a law passed by a majority of those present and voting.
108. The following state officers shall be appointed by the President:-
(a) state officers required by the Constitution or by or under the authority of a written law to beappointedbythe
President
(b) the Attorney-Generaland
(c) heads of the Army, Navy and Air Force and of the Police Force.
54. The President shall appoint all public officers required by the Constitution or other written law to be appointed bythe
President, as well as the Attorney-General and the Heads of the Army, the Navy, the Air Force and the Police Force.
55. (1) Subject to the provisions of the Constitution, the appointment,transfer,dismissalanddisciplinarycontrolof
public officers is hereby vested in the Cabinet of Ministers, and all public officers shall hold office at pleasure.
55. (4) Subject to the provisions of the Constitution, the Cabinet of Ministers shall provide for and determineallmatters
relating to public officers, including the formulation of schemes of recruitment and codes of conductforpublicofficers,
the principles to be followed in making promotions and transfers, and the procedure for the exercise andthedelegationof
the powers ofappointment, transfer, dismissal and disciplinary control of public officers.
55. (5) Subject to the jurisdiction conferred on the Supreme Court under paragraph (1) of Article 126 nocourtortribunal
shall have power or jurisdiction to inquire into, pronounce upon or in any manner call in question, any order or decisionof
the Cabinet of Ministers, a Minister, the Public Service Commission, a Committee of the Public ServiceCommissionorofa
public officer, in regard to any matter concerning the appointment, transfer, dismissal or disciplinary control ofapublic
officer.

Mr. Goonesekera's contentions can be summed up as follows. Immediately prior to 1972,the"pleasureprinciple"-whether
recognized constitutionally or otherwise - did not give absolute and unfettered discretion to the Executive overaperiod
of time, the degree of discretion implicit in that principle had been gradually restrictedordilutedbysubstantiveand
procedural safeguards contained in administrative rules and regulations governing the termsandconditionsofserviceof
public officers. The 1972 Constitution neither reversed nor halted that process of dilution of the "pleasure principle",but
continued it. Sections 106 and 107 have to be "harmoniously interpreted", with due concernforcivilliberties,withthe
result that the "pleasure principle" in section 107(1) was subject to safeguards contained in the rules made bytheCabinet
under section 106(3)and so a "state officer" was not liable tosummaryterminationifthoseruleshadmadecontrary
provision (e. g. as to cause for, or notice of, termination). To reinforce this submission, Mr. Goonesekera referredtothe
1978 provisionshe claimed that the "pleasure principle" and the administrative rules made by the Cabinetweresimilarin
status and effect, under both Constitutionsand the rules diluted the "pleasure principle". In thatsetting,althoughthe
ouster clause in Article 55(5) appeared to be narrower in scope - becauseitexpresslypreservedthefundamentalrights
jurisdiction of this Court - nevertheless, both section 106(5) and Article
55(5) must be liberally construed to permit judicial review by way of declaration in the District Court, evenincasesnot
involving ultra vires or mala fide orders. These submissions required us toreconsiderthedecisionsinAbeywickremav.
Pathirana,(1) and Chandrasiri v. A. G., (2)

1. THE POSITION BEFORE 1972
Mr. Goonesekera referred to a series of decisions prior to1972:Vallipuramv.Postmaster-General,(3)SantiaPillaiv.
A.G.,(4) de Silva Wijesundera v. P. S. C.,(5) Silva v. A.G.,(6) de Zoysa v. P. S. C.,(7)(8) Heratv.Nugawela,(9)A.G.v.
Kodeswaran,(10) Pillai v. Fonseka,(11) and de Alwis v. de Silva, (12) None of these decisionssupporthiscontentionthat
the safeguards provided in administrative regulations governing the public servicediddisplaceordilutethe"pleasure
principle". It seems to me that Gratiaen, J. stated the position, with clarity and precision, inVallipuramv.Postmaster-
General,(3) that the Royal Instructions regulating the procedure for dismissal, were only directions for the guidance ofthe
Governor, and did not constitute a contract between the Crown and itsservants that,althoughintendedtoassurethat
tenure of office, though at pleasure, will not be subject to capricious or arbitrary action, yet theydidnotgiverights
enforceable by action, so that anofficercouldbedismissednotwithstandingthefailuretoobservetheprescribed
proceduresand that public servants held office during the pleasure of theCrown,subjecttoanyspecificlawtothe
contrary. Gratiaen, J. further observed that the "pleasure principle" previously laid downintheRoyalInstructionswas
thereafter expressly laid down in section 57 of the Soulbury Constitution. Silva v. A.G. ,(6) dealt with rights flowingfrom
a Constitutional provision (namely, section 61 of the Soulbury Constitution), which derogated from section 57thisisno
authority for the proposition that rights conferred by administrative rules could likewise derogate from section 57.

2. THE "PLEASURE PRINCIPLE" UNDER THE 1972 CONSTITUTION
But even if I were to assume that Mr. Goonesekera was right in contending that administrative rules could derogatefromthe
"pleasure principle" under the Soulbury Constitution, I cannot accept hisfurtherassumptionthatthe1972Constitution
intended to maintain that position. There is no doubt whatever that the 1972 Constitution did intend to make drasticchanges
in respect of vital features of the Soulbury Constitution - suchasanindependentPublicServiceCommission,judicial
review of executive action, judicial review of legislation, the constitutional entrenchment oftheSupremeCourt,andan
independent Judicial Service Commission.TheseparationofpowerswhichwasperceivedtoexistundertheSoulbury
Constitution was replaced by a very different concept, of the Legislature being the supreme instrument ofstatepower.The
public service was brought under the direct control of the political Executiveand an ouster clauseintroduced.Itisin
that context that the "pleasure principle" and the ouster clause have to be considered.
In Abeywickrema v. Pathirana,(1) Wanasundera, J. lucidly explained what was intended:
"Every person acquainted with the post-independence period of our history,especiallytheconstitutionalandlegal
issues that cropped up during the period, would knowhowtheactionsoftheGovernmentandthePublicService
Commission dealing with practically every aspect of their control over public officers were challenged and taken to the
courts. A stage came when the Government found itself practically hamstrung by injunctions andcourtordersandnot
given a free hand to run the public service and thereby the administration as efficiently as it wouldwish.The1972
reforms came undoubtedly as a reaction to this. The thinking behind the framers of the Constitution was that the public
service must be made the exclusive domain of the Executive without interference from the courts."
I therefore propose to examine the relevant provisions free of the pressures of anypre-conceivednotion,eitherway.
"Pleasure" implies discretion, and the question is whether sections 106 and 107wereintendedtogivetheExecutivean
unfettered discretion unrestrained by judicial review.
(a) Constitutional restraints on the "pleasure principle". Section 107(1) provides for only two restraints-the"pleasure
principle" will not apply where the Constitution itself expressly providesotherwise,andwheretheLegislaturebylaw
provides otherwise. Itfollowsthatexceptionstothe"pleasureprinciple"cannotbecreatedbyimplicationfrom
Constitutional provisions (such as the fundamental rights) or by subordinate legislation (such as rulesmadeundersection
106(3), which are not "legislative" in character, for the reasons I have explained below, and so cannot be treatedasbeing
"laws" within the meaning of section 107(1)).
However, the "pleasure principle" in Article 55(1) is "subject to the provisionsoftheConstitution",andnotonlyto
express contrary provisions accordingly,itmaybedilutedbyimplicationsarisingfromotherprovisionsofthe
Constitution such as Chapter III (and possibly evenArticle55(4)).Thusthe"pleasureprinciple"wouldnotsanction
dismissal contrary to the fundamental rights,andmayalsobesubjecttootherlimitationsfoundelsewhereinthe
Constitution: Bandara v. Premachandra. (13)
Further section 107(1) makes the "pleasure principle" applicable to "state officers" appointed by the Cabinet (undersection
107(1)) as well as Presidential appointees (under section 108). It is arguable, however, that under the 1978provisionsthe
"pleasure principle" contained in Article55(1)appliesonlytoofficersappointedunderthatArticle,andnotto
Presidential appointees under Article 54.
(b) The nature of the discretion. Section 107(1) provides thatofficeisheldatthepleasureofthePresident.The
President has no independent discretion, as he must act on advice (section 27)and if he has no real discretion,therecan
be no criteria by reference to which his exercise of discretion can be reviewed. There appears to be some anomalyinoffice
being held at the pleasure of the President, although appointment and dismissal is by the Cabinet, but the fact remainsthat
there are no criteria by which the exercize of discretion may be reviewedeven compliance withthefundamentalrightsis
not required. That is suggestive of an unfettered discretion, not subject to review.
On the other hand, as already observed, Article 55(1) provides criteria for review, and this points to a limited discretion.
(c) The rules made by the Cabinet. Mr. Goonesekera is right in contending that therulesmadeundersection106(3)have
statutory force, to the sameextentasthosemadeunderArticle55(4).However,thisrule-makingpowerisnota
"legislative" power, as stated by Sharvananda, C.J. in Abeywickrema v. Pathirana, (13) cited withapprovalbyWanasundera,
J. in P. S. U. N. U. v. Jayawickrema.(14) but "executiveoradministrative"(asheldbyabenchofsevenJudgesin
Ramupillai v. Perera,(15)), and isthereforesubjecttothefundamentalrightsjurisdiction,likeothersubordinate
legislation (such asEmergencyRegulations:Wickramabanduv.Herath,(16)).TherecentdecisioninWickremaratnev.
Gunawardena,(17) that the making of a regulation by the Minister is per se the exercise oflegislativepowerdelegatedto
him by Parliament, and therefore not subject to the fundamental rights jurisdiction,isinconsistentwithRamupillaiand
Wickramabandu, which do not appear to have been cited.
I am therefore of the view that rules made under section 106(3) aresubordinatelegislation,andcannotberegardedas
legislation within the meaning of section 107(1). Subordinate legislation, even where authorised by the Constitution,cannot
prevail over (and thereby amend) the Constitution, unless the Constitution clearly authorises such a result.

Mr. Goonesekera's contention was that the rules made under section 106(3) prevail over the "pleasure principle" containedin
section 107(1). He urged that the two provisions should be harmoniouslyconstrued,soastogiveeffecttoboth,and
submitted that justice and fairplay for the public service was paramount consideration. Upon such an approach, hesaid,the
Court must conclude that the "pleasure principle" was diluted by the rules.
This contention can only succeed if we ignore the plain and unambiguous language of the Constitution. The power conferredby
section 106(3) is expressly stated to be "subject to the provisions of the Constitution" - and therefore subordinatetothe
"pleasure principle" in section 107(1). Additionally, section 107(1) is not subject to any qualification, whichinanyway
suggests that it is subject to section 106. That section is, as I have already observed, subjectonlytoexpresscontrary
(Constitutional or legislative) provision. Accordingly, the authority to make rules is subject to the "pleasure principle".
The 1978 position is quite different. The "pleasure principle" in Article 55(1) is not unqualified: Article 55(1) issubject
to the provisions of the Constitution, and therefore to the fundamental rights Chapter.IfrulesaremadeunderArticle
55(4) in order to give effect to the fundamental rights, that is authorised by Article 55(1), and not repugnanttoit and
such rules willprevailoverthe"pleasureprinciple".Article55(4)isalso"subjecttotheprovisionsofthe
Constitution", and hence there may well be restrictions as to theextenttowhichrulesmadeunderArticle55(4)can
override Article 55(1). The question of harmonious construction of those two provisions of theConstitution,maycertainly
arise, although it does not have to be decided in this case. (It may be noted in passing, thatithasbeenobservedthat
rules made under Article 55(4) must not be inconsistent with the" pleasure principle": per Sharvananda, C.J. inAbeywickrema
v. Pathirana,(1) cited with approval by Wanasundera, J. in P. S. U.N.U.v.Jayewickrema.(14)Whatisimportant,and
sufficient, for present purposes, is that Article 55(4) is not wholly subordinate to Article55(1),unlikesection106(3)
vis-a-vis section 107(1).

Learned Senior State Counsel submitted that the unrestricted "pleasure principle" in the 1972 Constitutionwasintendedto
give the Executive full discretion to replace an unsatisfactory officer with one who was efficientand even a goodofficer,
with one who was better (citing Ridge v. Baldwin.(18)) Whatever the intention, the effect ofthewordsusedwasalsoto
permit- without risk of judicial review - the substitution of an officer who was less efficient, subservient, or corrupt,in
place of one who was not. Judgments of this Court show that, for that mischief, the fundamentalrightsjurisdictionisan
antidote of growing efficacy, though not a preventive.
To sum up the position, then, although the rules made by the Cabinet are comparable in status underthetwoConstitutions,
section 106 (3) does not authorise the making of rules which would in anywayoverridesection107(1) however,Article
55(4) authorises rules which would dilute the "pleasure principle" in Article 55(1), at leasttotheextentnecessaryto
give effect to fundamental rights and other Constitutional provisions to which Article 55(1) may be subject. Underthe1972
Constitution, "state officers" held office at pleasurethere was no exception (save as otherwise expressly providedbythe
Constitution OR BY statute law)and therestrictionsonthe"pleasureprinciple"inthe1978Constitutionarenot
applicable to the 1972 Constitution. The Plaintiff therefore held office at pleasure.

3. THE OUSTER CLAUSE
Mr. Goonesekera's contention on this aspect must fail for several reasons. The comparison with Article 55 (5) isnotvalid,
because that Article expressly preserves a significant area of judicial review, through the fundamental rightsjurisdiction.
From the fact that Article 55(5) permits review, in the exercise of that jurisdiction bythehighestCourt,itdoesnot
follow that section 106(5) permits review by way of declaration in the District Court. Secondly, theousterclauseinthe
1972 Constitution is consistent with a general intention to exclude judicial review, whereas the 1978 Constitutiondoesnot
manifest a general intention of that kind. It must be borne in mind that the Interpretation (Amendment) Act, No 18of1972,
was enacted just eleven days before the 1972 Constitution was adopted. Finally, the contention thatousterclausesinthe
Constitution should be strictly interpreted, restricting the ambit of the ouster, can be far more readily accepted wherethe
Constitution itself contains other indications of an intention to permit review: such as the entrenchment of thefundamental
rights and other jurisdictions of this Court, and the writ jurisdiction of the Court of Appeal. It is difficult, however,to
read an implied exception into an ouster clause in the Constitution by referencetogeneralprovisionsinordinarylaws
governing the jurisdictions of the courtsthe maxim, generalia specialibus nonderogant,wouldapplywithmuchgreater
force when the special provisions are found in the Constitution itself.
I therefore hold that the ouster clause in section 106(3) was a bar to the Plaintiff's action for a declaration.
The Plaintiff's appeal is dismissed, but-as his termination isupheldotherwisethanonthegroundoffault,andas
important questions of law were involved - without costs.

DHEERARATNE, J. - I agree.

PEREIRA, J. - I agree.

Appeal dismissed.


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