Legal Services and Laws of Sri Lanka
SLR - 1998 Vol.2, Page No - 333
MAITHRIPALA SENANAYAKE, GOVERNOR OF
THE NORTH-CENTRAL PROVINCE AND ANOTHER
GAMAGE DON MAHINDASOMA AND OTHERS
G. P. S. DE SILVA, CJ.,
AMERASINGHE, J. AND
S.C. APPEALS NOS. 41 & 42/96
SEPTEMBER 23RD AND 24TH, 1996
Certiorari - Interpretation of the Constitution - Powers of the Governor to dissolve a ProvincialCouncil-Pre-conditions
for. dissolution - Whether discretionary or mandatory - Powers of the President to give directions - Article 4(b),154B,
154 C & 154 .F of the Constitution.
The Governoreach of the North-Central andSabaragamuwaProvincialCouncils,uponreceivingcomplaintsregardingthe
administration of the Council, wrote to the Chief Minister of the Provincial Council seeking adviceonthedissolutionof
the Provincial Council. The Chief Minister advised against the dissolution. When the Chief Minister so advised, the Boardof
Ministers in each Council, in the opinion of the Governor, commanded the support of the majority of theProvincialCouncil.
According to the Proclamation that was Gazetted thereafter, on receiving the Chief Minister'sadviceeachGovernorsought
the order and direction of the President of the Republic under Article 154 B read with Article 154FoftheConstitution
and acting upon the order and direction ofthePresidentunderthesaidArticles,dissolvedtheProvincialCouncil.
Consequently, the Commissioner of Elections, acting under section 10 of the Provincial Councils Elections Act, No. 2 of1988
gave notice of election to the two Councils and called fornominationson18.1.96.OnapplicationsmadebytheChief
Minister the Court of Appeal issued Writs of Certiorari quashing the orders of dissolution madebytheGovernorsandthe
notifications published by the Commissioner of Elections on the ground that they were null and void andillegal.Thecourt
granted leave to appeal to the Supreme Court on the following questions:
(a). Whether Article 154 B (8) (c) contemplates a discretionary power by theGovernorandifsowhethersuchpoweris
required to be exercised on the direction of the President.
(b). Whether Article 154 B (8) (d) contemplates the exercise of the Governor's power solely as a delegate.
(c). Whether the proviso appearing immediately after Article 154 B (9) applies to Article 154 B (8) (d).
1. In exercising his power to dissolve a Provincial Council under Article 154 B (8) (c), the Governor is required byArticle
154 B (8) (d) to act in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, inthe
opinion of the Governor, the support of the majority of the Council. This is a safeguard imposedbyParliamenttopromote
the purpose of the Thirteenth Amendment namely, devolution,forthebenefitofvotersandelectedrepresentativesat
Provincial level. The proviso to Article 154 B (9)_ which enables the Governor where he disagreeswiththeadviceofthe
Board of Ministers to refer the case to the President for orders is included to apply to the words immediatelyprecedingit
in Article 154 B (9) which deals with pardon, respite or remission. Itdoesnotapplytoanyotherparagraphorsub-
paragraph of Article 154 B, including Article 154 B (c) and (d).
2. Article 154 B (8) confers on the Governor a discretionary power to dissolveaProvincialCouncil,butthatpoweris
coupled with a duty imposed by Article 154 B (8) (d), to exercise it in accordance with the adviceoftheChiefMinister.
That duty is mandatory. Hence, the Governor cannot exercise the power in his discretion, on the directions of thePresident.
The fact that the Governor believed that he was required to act in his discretion did not make it sonordidhisdecision
become final within the meaning of Article 154 F (2).
3. The power of dissolution of a Provincial Council is conferred by Parliament on the Governor byArticle154B(8)(c).
Parliament has not given that power to the President and made it delegable to theGovernor.TheGovernorisrequiredby
Article 154 B (8) (d) to act in accordance with the advice of the Chief Minister. Article 154 B (2) which providesthatthe
Governor shall be appointed by the President and shall hold office, in accordance with Article 4 (b), during the pleasureof
the President does not alter this position since the general provisions of Article 4 (b)wouldnotoverridethespecific
provisions of Article 154 B (8) (c). Consequently, Article 154 B (8) (c) does not contemplate the exercise of theGovernor's
power solely as a delegate.
Cases referred to:
1. Rai Karishna Bose v. Binod Kanungo AIR 1954 SC 202.
2. Piper v. Harvey (1958) 1 QB 439.
3. In Re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill (1987) 2 Sri LR 312.
4. Hanlon v. The Law Society (1980) 2 All ER 199, 221.
5. Houston v. Bums (1918) AC 337, 348.
6. Jones v. Wrotham Park Settled Estates (1979) 1 All ER 286, 289.
7. l. R. C. v. Hinchy (1960) AC 748.
8. l. R. C. v. Ayrshire Employers, Mutual Insurance Association Ltd. (1946) 1 All ER 637.
9. Bribery Commissioner v. Ranasinghe 66 NLR 66, 73.
10. Income Tax Special Purpose Commissioner v. Pemsel (1891) AC 531, 549.
11. Richards v. McBride (1881) 8 QBD 119, 122.
12. Spillers Ltd. v. Cardiff Assessment Committee (1931) 2 KB 21, 43.
13. New Piymouth Borough Council v. Tamak Electric Power Board (1933) AC 680, 682.
14. R. v. Schildkamp (1971) AC 1.
15. Uttar Pradesh v. Babu Upadhaya AIR 1961 SC 751.
16. Premachandra v. Jayawickrame and Another (1944) 2 Sri LR 90.
17. Re Baker (1890) 44 Ch. D. 262, 270.
18. Council of Civil Service Unions v. Minister for the Civil Service (1985) AC 374, 410.
19. Somawathie v. Weerasinghe (1990) 2 Sri LR 121.
20. Dunn v. The Queen (1896) 1 QB 116.
21. Hales v. The King (1918) 34 TLR 589.
22. Denning v. Secretary of State for India (1920) 37 TLR 138.
23. Whiteman v. Sadler (1910) AC 514, 527.
24. N. Stafford Steel Co. v. Ward LR 3 Ex. 172, 177.
25. Felix v. Shiva (1982) 3 All ER 262, 266.
APPEALS from judgments of the Court of Appeal.
E. D. Wickremanayake, with L V. P. Wettasinghe, Jayampathi Wickremaratne, M.A.Q.M.Gazzali,PalithaMatthew,Gaston
Jayakody, Amitha Nikapitiya, Malathie RatnayakeAnandi Cooray, Shamika Seneviratne, U. A Najeem and Prasanna Obeysekerafor
appellant in SC Appeal No. 41/96.
D. S. Wijesinghe, PC with L. V. P. Wettasinghe, Jayampathi Wickramaratne,
M. A. Q.M. Gazzali, Palitha Mathew, Gaston Jayakody, Amitha Nikapitiya, Malathie
Ratnayake, Anandi Cooray, Shamika Seneviratne, U. A. Najeem and Prasanna
Obeysekera for appellant in SC Appeal No. 42/96.
K. N. Choksy, PC with L. C. Seneviratne, PC, Paul Perera, PC, Daya Pelpola,
D. M. M. Jayamaha, Laksman Perera, Ronald Perera, Anil Rajakaruna, S. J. Mohideen, and Nigel Hatch for 1st respondentinSC
Appeals Nos. 41 & 42/96 and added respondent in SC Appeal 41/96.
S. N. Silva, PC, AG K. C. Kamalasabayson, PC, ASG., S. Gamlath, SSC and
U. Egalahewa, SC for 2nd respondent.
October .14, 1996.
There are two appeals from the decisions of the Court of Appeal delivered on the 27thofMarch,1996.Itwasagreedby
learned counsel that the two appeals be heard and dealt with together, since the mattersinissueinbothofthemwere
At the commencement of the hearing, the Attorney-General informed the courtthat,inviewofthefactthatthefirst
respondent in Application No. 41/96 was now seriously incapacitated as aresultofamotorcaraccident,itmightbe
advisable to add the incumbent Chief Minister as a party to the proceedings. Learned counsel for the first respondent inthe
two appeals said he had no objections and stated that he would additionally represent the incumbentChiefMinister,ifso
The material facts are identical in both cases and are not in dispute. Those facts are as follows: The Governorofeachof
the Provincial Councils concerned, upon receiving certain complaints with regard to the administration of the Council,wrote
to the Chief Minister of the Provincial Council seeking advice on thedissolutionoftheProvincialCouncil.TheChief
Minister advised against dissolution. When the Chief Minister advised the Governor, the Board of Ministers,intheopinion
of the Governor, commanded the support of the majority of the Provincial Council. The subsequent events are setoutinthe
Proclamation made by each of the two Governors in Gazette Extraordinary, No. 904/7 of January 03, 1996:
* The Governor 'referred the question of [the] dissolution of the Provincial Council . . . for an order and direction to ..
. [the President of the Republic] in terms of Article 154 [B] read with Article 154 [F] of the Constitution'.
* The President 'made order and directed' the Governor in terms of Article 154 [B] and Article 154 [F]oftheConstitution
to dissolve the Provincial Council, in question.
* Acting in terms of the said order and direction' of the President 'in terms of Article 154 [B]oftheConstitutionread
with Article 154 [F]', the Governor dissolved the Provincial Council with effect from the date of theproclamation.Inthe
case of the North Central Provincial Council (SC Appeal No. 41/96), and the Sabaragamuwa Provincial Council(SCAppealNo.
42/96), the date was January 03, 1996.
In Gazette No. 904/13 dated January 04, 1996, the Commissioner of Elections, acting in terms of section 10 of theProvincial
Councils Elections Act, No. 2 of 1988, gave notice of his intention to hold elections tothetwoProvincialCouncilsand
called for nominations commencing on January 18, 1996.
On January 08, 1996, the two Chief Ministers filed separate petitions in the Court of Appeal alleging that, forthereasons
stated therein, the dissolution was unlawful and praying for -
(a) an order declaring the purported dissolution to be null and void and an order in thenatureofaWritofCertiorari
quashing the order of dissolution made by the Governor
(b) the issue and grant of an Order in the nature of aWritofCertiorariquashingthenotificationpublishedbythe
Commissioner of Elections
(c) the issue and grant of an Order in the nature of writ of prohibition against the CommissionerofElectionsrestraining
him from taking any steps to hold an election to the Council
(d) The issue and grant of an interim order restraining the Commissioner of Elections from proceeding to act in terms ofhis
notification pending the hearing and final determination of the application, and in particular from receiving nominations
(e) costs and such other and further relief as to the court may seem meet.
For the reasons set out by their Lordships of the Court of Appeal in their judgment delivered on March 27,1996,thecourt
stated as follows:
. . . we are of the view that the Governor when dissolving a Provincial Council, acting under[the]provisionsofArticle
154 B (8) (c) has no discretion and is bound by the provisions of Article 154 B (8) (d), to act on the adviceoftheChief
Minister provided the Board of Ministers commands a majority in the Provincial Council. Therefore we hold that theGovernors
. . . have acted contrary to the provisions of Article 154 B (8) (c) and (d) of the Constitution, by seekingtheadviceof
the President, in a matter they had no discretion, and dissolvingthesaidProvincialCouncilsinaccordancewiththe
directions given by the President. Hence the said dissolutions of the said Provincial Councilsareillegalandshouldbe
declared null and void.
Accordingly, the Court of Appeal -
* declared the orders of dissolution made by the Governors null and void and issued andgrantedordersinthenatureof
Writs of Certiorari quashing the orders of dissolutionand further
* declared the notification published by the Commissioner of Elections illegal and issued and granted ordersinthenature
of Writs of Certiorari quashing the notification.
The Court of Appeal refused to grant the Writs of Prohibition prayed for against the Commissioner of Elections on theground
that the question of holding elections does not arise, as the terms of officeofthesaidProvincialCouncilswouldbe
revived by virtue of the order of the Court holding the dissolution to be null and void and quashing the dissolution.
Each of the Chief Ministers were allowed costs in a sum of Rs. 35,000 against the respective Governors.
On April 01, 1996, the Court of Appeal granted leave to appeal to the Supreme Court on the following questions of law:
(a) Whether Article 154 B (8) (c) contemplates a discretionary power bytheGovernorandifsowhethersuchpoweris
required to be exercised on the directions of the President.
(b) Whether Article 154 B (8) (d) contemplates the exercise of the , Governor's power solely as a delegate.
(c) Whether the proviso appearing immediately after Article 154 B (9) applies to Article 154 B (8)
(d). These questions were proposed by learned counsel for the first respondent in CA No 17/96, namely, theGovernorofthe
North Central Province, and accepted by learned counsel for the first respondent in CA ApplicationNo.18/96,namely,the
Governor of the Sabaragamuwa Province, and by the Deputy Solicitor-General on behalf of the Commissioner of Elections.
Learned counsel were heard on September 23 and 24, 1996, and the court took time for consideration.
I shall deal with the third question first (1) because the answers to the otherquestionsdependtosomeextentonthe
answer to the thirdand (2) since such an approach minimizes repetition.
DOES THE PROVISO APPEARING IMMEDIATELY AFTER ARTICLE 154 B (9) APPLY TO ARTICLE 154 B (8)?
Paragraphs (8) and (9) of Article 154 B provide as follows:
(8) (a) The Governor may, from time to time, summon the Provincial Council to meet at such time and place as hethinksfit,
but two months shall not intervene between the last sitting in one session and the date appointed for thefirstsittingin
the next session.
(b) The Governor may, from time to time, prorogue the Provincial Council.
(c) The Governor may dissolve the Provincial Council.
(d) The Governor shall exercise his powers under this paragraph in accordance with the advice of the Chief Minister, solong
as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council.
(9) without prejudice to the powers of the President under Article 34 andsubjecttohisdirectionstheGovernorofa
Province shall have the power to grant a pardon to every person convicted ofanoffenceagainstastatutemadebythe
Provincial Council of that Province or a law made by Parliament on a matter in respect of which theProvincialCouncilhas
power to make statutes and to grant a respite or remission of punishment imposed by court on any such person:
Provided that where the Governor does not agree with the advice of the Board of Ministers in any case and he considers it
necessary to do so in the public interest, he may refer that case to the President for orders.
The appellants' submissions
Learned counsel for the appellants submitted in their arguments, responses totheargumentsoflearnedcounselforthe
respondents and in their written submissions that the proviso found in paragraph (9) applies to all that is found inArticle
154 B before the proviso, and that the Court of Appeal was in error in confining it to paragraph (9). Consequently, whenthe
Governor did not agree with the Chief Minister on the question of dissolution and he considered it necessary to do so inthe
public interest, he had the option, if not also a duty as a delegate of the President, to refer thecasetothePresident
for orders, and then carry out those orders. In the circumstances, the seeking of advice by theGovernorswasproper,and
the orders of dissolution were lawful and valid.
Following the principles operating in the UK, the USA and India, the Board of Ministers of a Provincial Council havenosay
in the matter of pardons for offences. Even under Article 34 of the Constitution of Sri Lanka 'the CabinetofMinistersof
the central government, to take an analogy, does not have a say in the matterofpardons.Theprocedurefor'actingon
advice', was dispensed with by the present Constitution. It is the President alone whodecidesquestionsrelatingtothe
grant of a pardon, respite, or remission except that where an offender shall have beencondemnedtosufferdeathbythe
sentence. of any court, the President is required to cause a report to be made to him by the Judge who tried the case,which
report the President is required to forward to the Attorney-General with instructions thataftertheAttorney-Generalhas
advised thereon, the report shall be sent together with the Attorney-General's advicetotheMinisterinchargeofthe
subject of Justice, who shall forward the report with his recommendation to the President. It is the Minister of Justicewho
recommends, and not the Cabinet of Ministers, and the President, is not bound by the recommendation.
Admittedly, the question of 'advice of the Board of Ministers' mentioned in the proviso is notstipulatedinparagraph9,
'thus effectively severing any connection between the two. The proviso in its terms is not applicable to a pardon,whichis
the exercise of a prerogative power. Moreover 154 B (9) refers to 'the public interest' and not to the interestsofjustice
which is the relevant consideration in matters of pardon. By an 'obvious inadvertence' theprovisohasbeenplacedbelow
Article 154 B (9) 'which has no relevance whatsoever' to paragraph 9. 'The aforesaid proviso clearly does not applytosub-
article (9) even though it appears soon after that sub-article. Although a relative or qualifying phraseisnormallytaken
with the immediately preceding term or expression, this rule should 'be disregarded if it is againstcommonsenseandthe
expression used. (Raj Krishna Bose v. Binod Kanungo(1). In any event, 'the language in theprovisotoArticle154B(9)
makes it plain that it was intended to apply to and/or to have an operation, more extensive than thatoftheprovisionit
immediately follows. Therefore it must be given such wider effect. (Piper v. Harvey) Bindra, Interpretation ofStatutes7th
ed. p. 80). Admittedly there is a colon preceding the proviso, but in Raj Krishna Bose (supra) theSupremeCourtofIndia
noted that punctuation was only a minor element in the construction of a statute and that very little attentionispaidto
it in the English courts. Punctuation may have its uses in some cases, but it cannot be regarded asacontrollingelement.
Craies on Statute Law goes further and states that punctuation is disregarded in the construction of statutes -6thedition
In the circumstances, the court should give the provisoapurposiveinterpretation.Thechangesbroughtaboutbythe
Thirteenth Amendment to the Constitution, which added chapter XVII A totheConstitutioncreatingandmakingprovisions
relating to Provincial Councils, did not impair the unitary character of the Republic of Sri Lanka. That was theessenceof
the decision of the Supreme Court In re the Thirteenth Amendment to the Constitution and the Provincial Councils Bill(3).At
the core of that decision was the finding that the President was supreme. In the Thirteenth Amendment case,Sharvananda,CJ
said that 'So long as the President retains the power to give directions totheGovernorregardingtheexerciseofhis
executive functions, and the Governor is bound bysuchdirectionssupersedingtheadviceoftheBoardofMinisters'
(emphasis added by counsel) . . . there can be no gainsaying the fact the President
remains supreme or sovereign in the executive field and the Provincial Council is only a body subordinate to him.
It is Article 154 B (8) (d) that Sharvananda, CJ had in mind when His Lordship adverted to therightofthePresidentto
make binding directions that superseded 'the advice of the Board of Ministers'. The discretion of the Governor which ismade
subject to the directions of the President under Article 154F(1)cannotberestrictedtotheinsignificantmatters
referred to in Article 154 (B) (10) (a) or (b) and 154 F (4). Article 154 L gives the President the power totakeoverthe
administration of a Provincial Council, but this is limited intimetooneyear,andlimitedtosituationswhenthe
administration cannot be carried oninaccordancewiththeConstitution.Consequently,acorruptadministrationmay
nevertheless administer the province if the administration can be carried on in accordance with theConstitution.Moreover,
after one year the Council will have to be handed back to the corrupt Board of Ministers. The supremacy of thePresidentis
assured only by recognizing the power of giving directions superseding the advice of the Board of Ministers as stipulatedin
the proviso in 154 B (9) which controls 154 (8) (d). So important a matter as the dissolution of a Provincial Councilcannot
be allowed to remain in the hands of one man - the Chief Minister.
The respondents' submissions
The Court of Appeal rightly confined the applicability of the proviso to Article 154 B (9). The proviso is not misplacedand
meaningless in the context of the paragraph in which it is found. Earlier, the practice was for theprerogativeofpardon,
respite or remission to be exercised by the Head of State on advice. This followed the conventions in the UK.However,when
the present Constitution was enacted, Article 34 conferred the power on the Presidentwithoutqualification,exceptina
case where an offender had been condemned to death. Article 154 B (9) deals with the power of Governortograntapardon,
respite or remission relating to offences committed against a statutemadebyaProvincialCounciloralawmadeby
Parliament on a matter in respect of which the Provincial Council has power to make statutes. This power does notlimitthe
power of the President under Article 34. Moreover, the Governor is subject to the directions of thePresident,whoisthe
ultimate authority on the matter. The President, except in one type of case, is not obliged to seek anyperson'sadvicein
exercising the powers of pardon, respite or remission. However, the Governor's powers are not unfettered: Article 154F(1)
provides that There shall be a Board of Ministers with the Chief Minister at the head and not more than four otherMinisters
to aid and advice the Governor in the exercise of his functions. The Governor shall, in the exercise ofhisfunctions,act
in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functionsor
any of them in his discretion. In a case in which the Governor has to consider whether a pardon, respite or remissionshould
be granted, he is required by Article 154.F (1) to seek the advice of the Board of Ministers. In the event of adisagreement
with the Board of Ministers, eg where the Board advises that a certain offender should be pardoned but the Governor doesnot
wish to pardon the person, he may, if he considers it necessary to do so in the public interest, in terms of theprovisoto
154 B (9) refer the case to the President for orders, which orders he will be obliged to carryout.Inthecircumstances,
the proviso is in its proper place and makes sense.
On the other hand, if, as contended for by the appellants, the proviso applies to all theprecedingparagraphsofArticle
154 B, it would make no sense: For instance, it could not have been the intentionofParliamentthattheprovisoshould
regulate Article 154 B (8) (d), for by that provision the Governor is required to exercise his power of dissolution withthe
advice of the Chief Minister. The conflict enabling the Governor to consult the Presidentundertheprovisoisconcerned
with a conflict of opinion with the Board of Ministers.
Moreover, if the proviso is added to Article 154 B (8) (d), it would createacontradictoryposition:whereasunderthe
proviso the Governor may, and therefore has a discretion to, consult the President, Article 154 B (8)(d)statesthatthe
Governor shall exercise his powers under that paragraph in accordance with the advice of the Chief Minister, so longasthe
Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council.
With regard to the question of alleged corruption and maladministration, there was no admissible evidence in that regard.In
any event, these matters are irrelevant because the Constitution does not empower the GovernortodissolvetheProvincial
Council on these grounds, either on his own initiative or on the directions of anyone else. Provincial Councilswereplaced
on a different footing from other local authorities likeMunicipalCouncils,UrbanCouncilsandPradeshiyaSabhas,in
respect of which express provision is made for dissolution afterinquiry,iftheMinisterissatisfiedthatthereis
sufficient proof of incompetence or mismanagement. No similar provision exists with regardtoProvincialCouncilsandit
must be taken that Parliament made a deliberate departure.
My View on the Question of the Proviso
The proviso is an ancient formula. It enables ageneralstatementtobemadeasaclearproposition,anynecessary
qualifications being kept out of it and relegated to the proviso. This aids understanding. Theformulabeginning'Provided
that . . .' is placed at the end of a section or sub-section of an Act, or a paragraph or sub-paragraph ofaschedule and
the intention of which is to narrow the effect of the preceding words. (Francis Bennion, Statutory Interpretation,1984,p.
570). The emphasis is mine. N. S. Bindra, Interpretation of Statutes, 7th Ed., p. 79, explains that a proviso relates tothe
subject-matter of the principal clause. He states that: The proviso cannot possibly deal with an entirely different topicor
subject and it is sub-servant to the main provision. He adds that it is a cardinal rule of interpretation that aprovisoto
a particular provision of a statute 'only embraces the field which is coveredbythemainprovision.Itcarvesoutan
exception to the main provision to which it has been enacted as aprovisoandtonoother.Later,Bindrastatesthat
although at times it is used to introduce independent legislation, the presumption is that, in accordancewithitsprimary
purpose, it refers only to the provisions to which it is attached. Ordinarily, a proviso to a sectionisintendedtotake
out a part of the main section for special treatmentit is not expected to enlarge the scope of the main section.
In the matters before us, the proviso under consideration is placed immediately after the main clause in Article 154B(9),
and in the light of what a proviso is intended to do, as a matter of first impression, it seems to me thattheprovisowas
intended to apply to the words immediately preceding it in Article 154 B (9).
Learned counsel for the appellants accepted the fact that ordinarilyaprovisomustbetakentorelatetothewords
immediately preceding it, but they submitted, citing Bindra p. 80 and Piper v. Harvey (supra), that exceptionallyaproviso
may have a wider operation. Piper v. Harvey was a case in which there was a repeal of sections, butitwasheldthatthe
proviso remained because it extended beyond the repealed enactment, whereas usually the repeal of a section also repealsthe
proviso. Bindra at p. 79-80 states as follows:
. . .cases have arisen in which the Supreme Court has held that despite the fact that a provision is called a proviso, itis
really a separate provision and the so-called proviso has substantially altered the main section. For example,relyingupon
the dictum laid down in Piper v. Harvey that if the language of the proviso makes it plain that it wasintendedtohavea
operation more extensive than that of the provision which it immediately follows, it must be given such wider effect. Itwas
held that the clear language of the proviso to subsection (2)ofsection202,Cr.P.C.,madeitobligatoryuponthe
Magistrate in a -case exclusively triable by the Court of Session, to proceed to inquire and at such inquirycalluponthe
complainant to produce his entire evidence -The emphasis is mine.
There is nothing either in the language of the proviso or in any other part of Article 154 B suggesting that it wasintended
to be a separate provision or that it was intended to have a more extensive application than the usual one of qualifyingthe
words immediately preceding the proviso in Article 154 B (9).
On the other hand, as we have seen, Bindra points out that the proviso cannot possibly deal with an entirely differenttopic
or subject. That, he said, was a cardinal ruleofinterpretation.Article154B(9)dealswithpardon,respiteand
remission. The proviso cannot be made applicable to the entirelydifferentsubjectofthedissolutionofaProvincial
Council, which is what Article 154 B (8) (c) and (d) deals with.
Halsbury, vol. 44 paragraph 881 note 3, refers to several decisions, and draws attention to thefactthat:Thedangerof
construing a proviso, which is merely a limitation on the enactment to whichitisattached,asifitwereageneral
limitation to other enactments or were itself a positive enactment has often been pointed out.
The factual circumstances which trigger the operation of a legal provision isoftheutmostimportance.Theprovisois
inappropriate in the context of Article 154 B (d) which provides that the Governor shall exercise his powersofdissolution
in accordance with the advice of the Chief Minister, so long as the Board ofMinisterscommands,intheopinionofthe
Governor, the support of the majority of the Provincial Council.Theprovisodealswithanentirelydifferentfactual
situation, namely where the Governor does not agree with the advice of the Board of Ministers and he considersitnecessary
to do so in the public interest and refers the matter to the President fororders.Thisisnotwithoutsignificancein
deciding whether the proviso is applicable to Article 154 B (8) (d). In the UK, the powerofadvisingthedissolutionof
Parliament within the five-year period prescribed the Parliament Act of 1911, is by convention vested in the PrimeMinister,
rather than in the Cabinet of Ministers. O. Hood Phillips and Paul Jackson, Constitutional and Administrative Law,7thed.,
at p. 150, observe that: This power of timing is a weapon of great political importance in the hand ofthegovernment,and
especially of the Prime Minister. The matter is further, explained by Wade and Phillips,ConstitutionalandAdministrative
Law, 9th ed., at p. 163 in the following terms:
It is today not necessary that the Cabinet should have decided in favour of dissolution,althoughthePrimeMinistermay
have discussed the desirability of a dissolution with the Cabinet or with selected colleagues. Theopportunityofchoosing
the timing of a General Election is an important political power at the disposal of the Prime Ministerthus he may choosea
time when there is a revival in the economy or when opinion polls and by-elections resultsindicatethattheGovernment's
popularity is rising. It is sometimes said, that the right to request a dissolution is a powerful weapon in thehandsofa
Prime Minister to compel recalcitrant supporters in the Commons to conform.
The proviso makes good sense where it is located, but it would not do so if it is made applicable to Article 154 B(8)(d).
Instead, it would interfere with a power the Chief Minister alone was obviously meant to have. Moreover,areadingofthe
proviso into Article 154 B (8) would create ambiguities where none exist.
With regard to the submission of learned counsel for the appellant on the colon immediately preceding theproviso,Iagree
that although punctuation forms part of an enactment and is an unamendable descriptive component of such enactment.Yet,in
general, punctuation is of little weight, since the sense of a provision should be the same with or without itspunctuation.
Punctuation is a device not for making meaning, but for making meaning plain. Where mistakes in punctuation occur, weshould
have little hesitation in altering them. However in Hanlon v. The Law Society(4) Lord Lowry said:
I consider that not to take account of punctuation disregardstherealitythatliteratepeople,suchasParliamentary
draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why shouldnot
other literate people, such as Judges, look at the punctuation in order tointerpretthemeaningofthelegislationas
accepted by Parliament?
Lord Shaw of Dunfermline in Houston v. Burns(5) observed that:
Punctuation is a rational part of English composition and is quite significantly employed.
In the matters before me, the sense of Article 154 B (9) remains the same with or without the colon. What the colondoesin
that provision is to divide the provision into two parts, carving out from the main clause, which in general termssetsout
the power of the Governor to grant a pardon, respite or remission which, in terms of Article 154 F (1), he mustexercisein
accordance with the advice of the Board of Ministers. The procedure he should adopt, should he disagree withtheadviceof
the Board of Ministers on the exercise of his power of pardon, follows the colon. The colon preceding the proviso inArticle
154 B (9) is a circumstance of importance in that it helps to make clear the meaning of 154 B (9). Ignoring it does notmake
the proviso applicable to Article 154 B (8) (c) and (d).
Learned counsel for the appellants urged us to adopt. a 'purposive approach'. Bennion (op.cit.)pointsoutatpage657
A purposive construction of an enactment is one which give effect to the legislative purpose by -
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (inthis
code called a purposive-and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislativepurpose(intheCode
called a purposive-and-strained construction).
What this court is invited to do is to adopt a 'purposive' and strained construction.
Lord Diplock in Jonesv.WrothamParkSettledEstates(6),statedasfollowswithregardtopurposive-and-strained
. . . I am not reluctant to adopt a purposive construction where to apply the literal meaningofthelegislativelanguage
used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which acourtof
justice is engaged remains one of construction, even where this involves reading into the Act words which arenotexpressly
included in it. Kamins Ballrooms Co., Ltd. v. Zenith Investments (Torque) Ltd. (1971) AC 850 provides aninstanceofthis
but in that case the three conditions that must be fulfilled in order to justify this course were satisfied.First,itwas
possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief wasthat
it was the purpose of the Act to remedysecondly, it was apparent that the draftsmanandParliamenthadbyinadvertence
overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Actwastobe
achievedand thirdly, it was possible to state with certainty what were the additional words that would havebeeninserted
by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passedintolaw.
Unless this third condition is fulfilled any attempt by a court of justice to repairtheomissionintheActcannotbe
justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed.
Have the conditions calling for a purposive-and-strained construction been satisfied?
Although purposive construction. is an almost invariable requirement, a non-purposive construction maybeunavoidablewhen
there is insufficient indication of what the legislative purpose is or just how itistobecarriedout:l.R.C.v.
Hinchy(7), I.R.C. v.AyrshireEmployersMutualInsuranceAssociationLtd.(8).Judgesrarelyattemptelaborate-and
comprehensive statements of purpose. We usually say what seems to us enoughtodealwiththepointatissue.However,
Sharvananda, CJ, whose judgment in Re. the Thirteenth Amendment to the Constitution, (supra), was heavily relied upon bythe
appellants in their several submissions, at pp. 326-327, stated as follows:
... The Bill does not in any way affect the sovereignty of the people. Instead of the legislative and executive power ofthe
people being concentrated in the hands of Parliament and President it is sought to be diversified in terms oftheDirective
Principles of State Policies found in Article 27 (4) of the Constitution. This Article provides that:
The State shall strengthen and broaden the democratic structure of government and the democraticrightsofthePeopleby
decentralising the administration and by affording all possible opportunities to the people to participateateverylevel-
in national life and government.
Article 27 (1) states that -
the Directive Principles of State Policies contained herein, shall guide Parliament, the President and the Cabinet of
Ministers in the enactment of laws and the governance of Sri Lanka for the establishment of a just and free society.
True the Principles of State Policy are not enforceable in a court of law but that shortcoming does notdetractfromtheir
value as projecting the aims and aspirations of a democratic government. The Directive Principles require tobeimplemented
by legislation. In our view, the two Bills [the Bill for introducing the Thirteenth AmendmentandtheProvincialCouncils
Bill] represent steps in the direction of implementing the programme envisaged by the Constitution-makers to buildasocial
and democratic society.
Healthy democracy must develop and adapt itself to changing circumstances. The activities of central governmentnowinclude
substantial powers and functions that should be exercised at a level closer to the people. Article 27 (4)hasinmindthe
aspirations of the local people. Article 27 (4) has in mind theaspirationofthelocalpeopletoparticipateinthe
governance of their regions. The Bills envisage a handing over of responsibility for the domestic affairs ofeachprovince,
within the framework of a united Sri Lanka. They give new scope for meeting the. particular needs and desires ofthepeople
for each province. Decentralization is a useful means of ensuring that administration intheprovincesisfoundedonan
understanding of the needs and wishes of the respective provinces. The creation of electedandadministrativeinstitutions
with respect to each province - that is what devolution means - gives shape to the devolutionary principle.
The concept of devolution is used to meanthedelegationofcentralgovernmentpowerswithouttherelinquishmentof
Professor Cass R. Sunstein, in a paper entitled Federalism in South Africa? Notes from the American Experience. TheAmerican
University Journal of International Law and Policy, vol. 8 Nos. 2 & 3, Winter/ Spring 1992/1993, 413 atp.437,statesas
Citizen participation in public affairs is highly unlikely at thenationallevel.Becausepeopleperceivethenational
government at the lower and smaller levels, a constitutional system can increase participation and responsiveness,andalso
cultivate citizenship. This is an important democratic advantage insofar as a prime goalofdemocracyistoensurethat
government is responsive to the people's desires and aspirations.
Article 154 B (9) gives the Governor of a Province the powerofgrantingapardon,respiteorremissiontoaperson
convicted in respect of an offence against a statute made by the Provincial Council or by Parliament in respect of whichthe
Provincial Council has power to make statutes. In terms of Article 154 F (1), that function is ordinarilyexercisedbythe
Governor on the advice of the Ministers of the Provincial Council. Where the Governor does not agree with the adviceofthe
Ministers in any case, and he considers it necessary to do so in the public interest, he may refer the case to thePresident
for orders. So, the powers of pardon, respite and remission which were reposed solely in the President by Article 34ofthe
Constitution were devolved on the Governor in respect of certain specified matters of anessentiallyProvincialcharacter.
However, the supremacy of the President in that regard was in no way impaired, for (1) Article 154B(9)expresslystates
that that provision is 'without prejudice to the powers of the President' underArticle34,sothatthePresidentmay,
regardless of the views of the Governor or the Ministers grant. a pardon, respite or remissioninanycase and(2)the
Governor's powers are stated in Article 154 B (9) to be 'subject to [the President's] directions'.
In order to achieve its object of ensuring a more democratic constitutional regime, ParliamentcreatedProvincialCouncils
by enacting the Thirteenth Amendment. After considering the proposed provisions of theThirteenthAmendmentBillandthe
Provincial Councils Bill, the Court held in Re the Thirteenth Amendment (supra) that theproposedstructureofGovernment
did not violate Article 2 of the Constitution which provides that the Republic of Sri Lanka is aUnitaryState:Thecourt
found that, although certain functions were to be exercised by the Provincial Councils, yet in allspheresofactivity,-
legislative, executive and judicial - the government of Sri Lanka was supreme. On the other hand, if oneweretoreadthe
proviso in Article 154 B (9) into Article 154 B (8) (d), it might by asidewindnegatethepurposeoftheThirteenth
Amendment. Bindra, op. cit., at page 80 puts the matter succinctly: unless the words are clear,theCourtsshouldnotso
construe the proviso as to attribute to the Legislature to give with one hand and take awaywithanother.Sharvananda,CJ
was not troubled by the form of Article 154 B (8) and did notsaythatthepowersofthePresidentwereretainedby
importing the proviso from Article 154 B (9) in construing Article 154 (8) or that itwasnecessarytodoso.Whathis
Lordship did point out, citing Bribery Commissioner v. Ranasinghe(9), was that the imposition of proceduralrestraintsdoes
not erode the powers of an organ of government. So long as the Board of Ministers commands, in the opinion oftheGovernor,
the support of the majority of the Provincial Council, the Governor shall exercise his powers ofdissolutioninaccordance
with the advice of the Chief Minister.TheHonourableAttorney-Generalsubmittedthatanexerciseofthepowersof
dissolution even when the Chief Minister commands the support of the majority of members of the council would not hamperthe
democratic process, for another election would be held and perhaps the same political party with an enhanced majority maybe
returned. Elections are of vital importance. So is stability. Professor Herman Schwartz, in his paper,EconomicandSocial
Rights, The American University Journal of International Law and Policy, volume B, Nos. 2&3,Winter/Spring1992/1993,
points out that governmental structures must obviously be relatively stable so that the country canfunction,andsothat
people can know and rely upon 'the rules of the game.
If corruption and maladministration were meant to trigger Article 154 B(8)(c)and(d)asanimportantsafeguardof
executive supremacy, what is the explanation for the failure to specifically refertothem?Parliamentmayhavehadno
intention of elevating Provincial Councils to the level of co-ordinate bodies,but,itcertainlyseemstohavehadno
intention of dealing with them as iftheywerebodieslikeMunicipalCouncils,(cf.section277MunicipalCouncils
Ordinance, (cap. 252)), Urban Councils (cf. section 184 Urban Councils Ordinance, (cap.255),)orPradeshiyaSabhas(cf.
section 185 Pradeshiya Sabhas Act No. 15 of 1987) with regard to the matter of dissolution. Different 'rulesofthegame',
to use Herman Schwartz's phrase, were prescribed for Provincial Councils.
In India, the Constitution provides in Article 175 as follows with regard to the State legislatures:
(2) The Governor may from time to time -
(a) prorogue the House or either House
(b) dissolve the Legislative Assembly.
Learned counsel for the respondents submitted that, although certain provisions of the Indian Constitution were closely
followed in enacting our own Constitution, deliberate departures were made in other in stances, one of them being the
procedure for the dissolution of Provincial Councils. This would appear to be so.
Article 154 B (8) (c) and (d), it seems to me, was designed to promote the purposeofdevolution.WhenthatArticlewas
enacted, Parliament had before it Article 70 of the Constitution which provides that The President may, fromtimetotime,
by Proclamation summon, prorogue and dissolve Parliament. It is not without significancethatinenactingtheThirteenth
Amendment, a similar power was not conferred on theGovernor.Instead,inArticle154B(8)(c)and(d)Parliament
underscored the purpose of the Thirteenth Amendment by enacting that the Governor shall exercise hispowersofdissolution
in accordance with the advice of the Chief Minister, so long as the Board ofMinisterscommands,intheopinionofthe
Governor, the support of the majority of the Provincial Council. There isnosuggestionthatthePresidenthasgreater
powers in dissolving Parliament than in dissolving Provincial Councils. The powers of the President are not in issue inthis
case. The power of dissolving a Provincial Council is vested by Parliament in the Governor, and not in the President: andin
the exercise of that power, the Governor is subject to certain procedural safeguards which have been imposedbyParliament,
having regard to the purpose of the Thirteenth Amendment, for the benefit of the voters and their elected representativesat
a Provincial level, who might be affected by the exercise of the Governor's power of dissolution.
In the circumstances, I should give what Bennion (op. cit., p. 657) called a purposive-and-literalconstructiontoArticle
154 B (8) (c) and (d), that is, one which follows the literal meaning of the enactment because that meaning is inaccordance
with the legislative purpose. The construction suggested by the appellants would be inimical to the legislative purpose.
Halsbury, (op. cit., paragraphs 856 and 857) states as follows:
856. The object of all interpretation of a written instrument is to discover the intention of the author as expressed inthe
instrument. The dominant purpose in construing a statute is to ascertain the intention of thelegislatureasexpressedin
the statute, considering it as a whole and in its context. This intention, and thereforethemeaningofthestatute,is
primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be appliedas
they stand, however strongly it may be suspected that the result does not represent the real intention of Parliament.
857. If the words of a statute are clear and unambiguous, they themselves indicate whatmustbetakentohavebeenthe
intention of Parliament, and there is no need to look elsewhere to discover the intention or their meaning.
Halsbury, (op. cit., paragraph 858) points out that itisonlywhereastatuteisambiguousthat'theintentionof
Parliament' must be sought by reference to such matters as what was the law before thelawinquestion,themischiefor
defect for which the law did not provide, the remedy Parliament resolved and appointed to 'cure the disease'andthe'true
reason of the remedy'.
Learned counsel for the appellants contended that a construction that aGovernormustactontheadviceoftheChief
Minister would place the power of dissolution in the hands of one man - the Chief Minister.Thatsubmissionoverlooksthe
fact that the Chief Minister's advice is of value because of his representative character in ademocraticinstitution.His
power base lies in the majority in the Council. The Chief Minister's advice on the question of dissolution mustbefollowed
so long as the Board of Ministers commands, in the opinion of the Governor, the support of themajorityoftheProvincial
Council. (Article 154 B (8) (d)). Article 154 F provides as follows:
(4) The Governor shall appoint as Chief Minister, the member of the Provincial Council constituted for that 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 than one-half of the members elected to a Provincial Council are membersofonepoliticalparty,
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, appointfromamongthemembersoftheProvincialCouncil
constituted for that Province, the other Ministers.
A Provincial Council is constituted upon the election of members of such Council inaccordancewiththelawrelatingto
Provincial Councils elections. (Article 154 A (2)).
The second condition for the adoption of a purposive-and-strained construction set out by Lord Diplock inJonesv.Wrotham
Park Settled Estates, (supra), was that itmustbe'apparentthatthedraftsmanandParliamenthadbyinadvertence
overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Actwastobe
The Constitution andActsofParliamentareproducedby'precisiondrafting'(asdistinguishedfrom'disorganized
composition'), where (although there are occasional lapses and errors) the draftsman aimstouselanguageaccuratelyand
consistently. There is nothing to suggest that the Thirteenth Amendment or any of its provisionswassloppilydrafted,so
that the text is confused, contradictory or incomplete in expression. We must presume that the drafting wascompetent.This
is an aspect of the maxim omnia praesumuntur rite et solemniter esse acta - all thingsarepresumedtobecorrectlyand
solemnly done. Cf. Bennion, op. cit., at 177-180. Accordingly, I should prefer to follow a construction whichflowsfroma
reading based on correct and exact drafting rather than one based on error. Halsbury, (op. cit., paragraph 862), statesthat
There is a strong presumption that Parliament does not make mistakes. If blunders are foundinlegislation,theymustbe
corrected by the legislature, and it is not the function of thecourttorepairthem...Eventually,theThirteenth
Amendment must be seen as an Act of Parliament and in the circumstances it is usual for a court to proceed on theassumption
that 'the legislature is an ideal person that does not make mistakes'. See per Lord Halsbury in Income TaxSpecialPurposes
Commissioner v. Pemsel (10)Richards v. McBride(11). I am unable to acceptthesubmissionforlearnedcounselforthe
appellants that the proviso was placed inArticle154B(9)asaresultof'obviousinadvertence'.Theburdenof
establishing such a submission lies heavily upon those who assert it. Cf. the observations of LordHewart,CJinSpillers
Ltd. v. Cardiff Assessment Committed( 12) approved by Lord Macmillan in New PlymouthBoroughCouncilv.TaranakElectric
Power Board(13). In my view, the appellants have failed to discharge that burden. Indeed everything pointsintheopposite
direction. The words as they are can be given a sensible meaningindeed, what we are invited to do will have theeffectof
causing ambiguitythere is no need to supply omitted words or to transpose, interpolate or otherwise alterwordstoavoid
manifest absurdity or injustice. I must give the words in Article 154 B (8) (c) and (d) its 'ordinaryandprimarymeaning.
As Halsbury, (op. cit., paragraph 864) observes:
If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it
is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by
investing plain language with some other than its natural meaning to produce a result which it is thought the legislature
must have intended.
The third condition for adopting a purposive-and-strained interpretation was said by -Lord Diplock in Jones v.WrothamPark
Settled Estates, (supra), to be the possibility of stating with certainty what were theadditionalwordsthatwouldhave
been inserted by the draftsman and approved by Parliament. Arguably, Lord Diplock's third point wasoverstated.(SeeRv.
Scfuldkamp(14)). The suggestion of learned counsel for the appellants was that the additional words to be placedinArticle
154 B (8) (d) are the words in the proviso to Article 154 B (9). As I have pointed out,thisisnotfeasiblebecauseit
would introduce ambiguity and uncertainty into Article 154 B (8) (d). It would also undermine the purpose oftheThirteenth
Amendment by conferring a discretion on the Governor even where the advice tendered is that of a Chief Minister of aCouncil
with a Board of Ministers which commands the support of the majority of the Council. I am therefore unable to holdthatthe
words of the proviso in Article 154 B (9) were intended by Parliament to be inserted into Article 154 . B (8) (d).
I am of the view that the proviso appearing immediately after Article 154 B (9) does not apply to any other paragraph or sub
paragraph of Article 154 B, including Article 154 B (8) (c) and (d).
DOES ARTICLE 154 B (8) (C) CONTEMPLATE A DISCRETIONARY POWER BY THE GOVERNOR AND IF SO IS SUCH POWER REQUIRED TO BE
EXERCISED ON THE DIRECTIONS OF THE PRESIDENT.
This ground of appeal raises two questions: (1) whether Article 154 B (8) (c) confers a discretionary power on theGovernor
and if so (2) whether such power has to be exercised on directions given by the President.
The submissions of the appellants on the question whether Article154 B (8) (c) contemplates a discretionary power.
Article 154 B (8) (c) of the Constitution which provides that: 'The Governor may dissolve the Provincial Council'standsby
itself and is not in any way qualified. If, on the other hand, Article 154 B (8) (d) is to be interpreted asqualifyingall
the provisions in paragraph (8), this would make paragraph (8) (a) meaningless, for how can the Governor in terms of (a)act
as he 'thinks fit and at the same time be bound by the advice of the Chief Minister? Moreover, such aninterpretationcould
lead to conflict where the Governor and Chief Minister would both have power to summon the Provincial Council. Article 154B
(8) (a) states that the Governor shall exercise his powers . . . inaccordancewiththeadviceoftheChiefMinister.
Although shall in its ordinary signification is mandatory, yet, having regard, inter alia, to the nature anddesignofthe
statute, the consequences which would flow, and the impact of other provisions, the real intentionofParliamentmightbe
that the provision was directory. (Bindra, op. cit., page 1113)Uttar Pradesh v. Babu Upadhaya(15).
Article 154 F (2) provides that if any question arises whether any matter is orisnotamatterasrespectswhichthe
Governor is by or under the Constitution required to act in his discretion, the decision of the Governorinhisdiscretion
shall be final, and the validity of anything done by the Governor shall not be called in question in any court on theground
that he ought or ought not to have acted in his discretion. If, therefore,theGovernorinhisdiscretiondecidedthat
Article 154 B (8) (c) gave him a discretion to dissolve the Provincial Council despite the provisions of Article (154B(8)
(d), such a decision is final and cannot be challenged. The decision whether Article 154 B(8)(c)givestheGovernora
discretion is also a matter to be exercised according to the Governor's discretion. The question of law whetherArticle154
B (8) (c) contemplates a discretionary power by the Governor has already been answered by the very actoftheGovernorin
deciding in his discretion that the dissolution of the Council is a matter as respects which he can act in his discretion.
It is only by 'reading a discretion into Article 154 B (8) (c) that directions by the President regarding dissolution canbe
given. Full effect must be given to Article 4 (b). It is the existence of a discretion in regard to thedissolutionofthe
Council enabling directions from the President that ensures that the executive supremacyofthePresidentiseffectively
achieved. This is essential for the preservation of the unitary character oftheRepublic:RetheThirteenthAmendment
The submissions of the respondents on the question whether Article 154 B (8) (c) contemplates a discretionary power.
Article 154 E provides that a Provincial Council shall, unless sooner dissolved, continue for a periodoffiveyearsfrom
the date appointed for its first meeting and the expiration of the said period of five years shall operate asadissolution
of the Council. The Provincial Councils (Amendment) Act No. 27 of 1990 provides that where more than one -half ofthetotal
membership of a Council repudiates allegiance to the Constitution, the Governor is required to communicate such facttothe
President. Upon such communication being made, the Council stands ipsofactodissolved.Thedissolutiontakesplaceby
operation of law and not by direction of the President. The only otherprovisionthatprovidesforadissolutionofa
Council before five years is to be found in Article 154 B (8). The power of dissolution set out inArticle154B(8)(c)
must be exercised in accordance with the advice of the Chief Minister, so long as the BoardofMinisterscommandsinthe
opinion of the Governor the support of the majority of the Provincial Council, for Article 154 B(8)(d)statesthatthe
Governor shall do so. The power of dissolution given by Article 154 B (8) (c) is not discretionary.
The Governor's functions under the Constitution fall into three categories: (a) those exercised by him on the adviceofthe
Board of Ministers(d) those exercised by him on the advice of the Chief Minister: and (c) those exercisedbyhiminhis
discretion. Chapter XVII A of the Constitution does notcataloguethemattersthatarewithinthediscretionofthe
Governor. Article 154 F (1) provides that the Governor shall act in accordance with the advice oftheBoardofMinisters,
except insofar as he is required by the Constitution to act in his discretion. In the matter of dissolution, the Governoris
required by Article 154 B (8) (d) to act on the advice of the Chief Minister. Since it is not a matterinwhichhehasa
discretion, Article 154 F (2), which states that the exercise of theGovernor'sdiscretionshallbeonthePresident's
direction, has no applicability. Where a Constitutional duty is expressly cast on the Governor,hehasnodiscretionand
must carry out his legal duty in accordance with the relevant provision: Premachandra v. Jayawickrame and another(16).
Article 4 (b) has no application here. Article 4 (b)designatesoridentifiestheConstitutionalorgansinwhichare
deposited the three aspects of sovereignty referred to in Article 3. It confers on each organ, i.e Parliament, thePresident
and the Courts, their respective powers in general terms. In the case of the executive power of the people,itisprovided
that it shall be exercised by the President. But it does not, and cannot, follow in law or in common reasonthatArticle4
(b) dominates the entire spectrum of executive action and overrides all other provisions of theConstitutionapplicableto
the exercise of executive power, including Articles of the Constitution which make specificorexpressprovisionforthe
exercise of a particular executive power in a particular manner. eg Articles 43 (3), 70 (1) (a), 70 (1) proviso (b) and(c),
154 F (4), 154 F (4) proviso and 154 F (5) show that Article 4 (b) does not give the President the degree of executivepower
claimed. If the President has the powers claimed by reason of the provisions of Article4(b),thegreaterpartofthe
Constitution will be rendered nugatory and the President will be in a position to override the Constitution at will. Suchan
interpretation, elevating Article 4 (b) to such a supra-level, is wholly unacceptable.
In Re The Thirteenth Amendment, (supra), thecourtwasprincipallyconcernedwiththequestionwhethertheproposed
amendment detracted from Article 2 which declares that the Republic of Sri Lanka is a unitary state. The dicta at pages318-
327 and 357-359 show that the court regarded the President's right to give directions to the Governor in the exercise ofthe
Governor's discretionary powers was an adequate retention of powerinthecentretopreventProvincialCouncilsbeing
regarded in constitutional law as co-ordinate bodies.ThecourtdidnotrulethatthePresidentretainedoverriding
executive powers under Article 4 (b) which supersede the express provisions relating to Provincial Councils contained inthe
My view on the question whether Article 154 B (8) (c) contemplates a discretionary power.
S. A. de Smith, Lord Woolf and Jeffrey Jowell in Judicial Review of Administrative Action, 1995,5thed.295,observeas
An administrative decision is flawed if it is illegal. A decision is illegal if
(1) it contravenes or exceeds the terms of the power which authorises the making of the decision
(2) if it pursues an objective other than that for which the power to make the decision was conferred.
The task for the courts in evaluating whether a decision is illegal is essentially one of construing thecontentandscope
of the instrument conferring the power in order to determine whether the decision falls withinits'fourcorners'.Inso
doing the courts of law enforce the rule of law, requiring administrative bodies to act within the bounds of the powersthey
have been given. They also act as guardian of Parliament's will-seekingtoensurethattheexerciseofpoweriswhat
O. Hood Phillips and Paul Jackson, Constitutional and Administrative Law, 7th ed., at p. 662, observe as follows:
A Minister, a local authority and any public body may only validly exercise powers within the limitsconferredonthemby
the common law or statute. A decision may fall outside those powers and so be ultra viresbecausethebodyconcernedhas
attempted to deal with a matter outside the range of the power conferred on it - substantive ultra vires - or because ithas
failed, in reaching its decision, to follow a prescribed procedure - procedural ultra vires.
After discussing the question of judicial review of prerogative powers, Phillips and Jackson, (ibid), state as follows:
As regards the innumerable statutory powers, the question is one of the interpretation of the statute concerned. The actsof
a competent authority must fall within the four comers of the powers given by the legislature. Thecourtmustexaminethe
nature, objects and scheme of the legislation, and in the light of that examination must considerwhatistheexactarea
over which powers are given by the section under which the competent authority purports to act.
Sir William Wade and Christopher Forsyth, Administrative Law, 1994, 7th ed., p. 245, states as follows:
When the question arises whether a public authority is acting unlawfully, the nature and extent of the power or dutyhasto
be found in most cases by seeking the intention of Parliament as expressed or implied in the relevant Act. The principlesof
administrative law are generalized rules of statutory interpretation.
The matter in issue is whether the dissolution of the Provincial Council by the Governor was legal or illegal.Didtheact
of dissolution fall within the four comers of Article 145 B (8)? Did the Governor contravene or exceed the termsofArticle
154 B (8) which authorises him to dissolve a Provincial Council? Did he follow the procedure fordissolutionprescribedby
that Article, or did he follow some other procedure? The Governor maintains that he acted in his discretion in termsofthe
power conferred on him by Article 154 B (8) (c) of the Constitution, and he, therefore, consulted thePresident,andacted
on the orders of the President as he .was obligedtodo.TheChiefMinistermaintainsthat,sincetheGovernorhad
disregarded his advice in-dissolving the Provincial Council when, in the opinion of theGovernor,theBoardofMinisters
commanded the support of the majority of the ProvincialCouncil,theGovernorhadactedillegally,andthereforethe
dissolution of the Council is void.
The answer to the matter in issue depends on what the relevant provision of the Constitution states and means.Therelevant
provision is Article 154 B (8) of the Constitution. Taken in isolation, Article154B(8)(c)wouldseemtoconfera
discretionary power, for the provision states that the Governor may dissolve the Provincial Council'. However, Article 154B
(8) (d) prescribes the manner in which the power of dissolution may be exercised, if it needs to beexercisedatall:The
Governor shall exercise his powers under this paragraph in accordance with the advice of the Chief Minister, so longasthe
Board of Ministers commands, in the opinion of the Governor, the support of the majority of the ProvincialCouncil.Itwas
not in dispute that the relevant provision of law applicable to the question of dissolution was Article 154 B(8),norwas
there any dispute that the factual circumstances that were required to trigger the applicationofthatprovisionexisted:
the Board of Ministers, in the opinion of the Governor, did command the support of the majority of the Provincial Council.
It was contended that the qualification of the exercise of discretionary power set out in Article 154 B(8)(d)couldnot
have been intended to apply to the preceding provisions of the paragraph because to do so would cause ambiguity. Perhaps,as
suggested by learned counsel for the appellants, there may be some ambiguity when Article 154 B (8) (d) is read withArticle
154 B (8) (a). There may be not. It is a matter that will need consideration when a question with regardtotheGovernor's
powers to summon the Provincial Council to meet requires consideration. I am concerned with the question of dissolution,and
in that regard, it is my view that Article 154 B (8) (c) is subject to Article 154 B (8) (d), for itisclearlystatedin
Article 154 B (8) that the Governor shall exercise his powers underthisparagraphthemannerprescribedtherein.This
paragraph obviously refers to paragraph (8) of Article 154 B. Article 154 B (8) (c) confers a power expressedinpermissive
language because the word used is may. See per Cotton, W in Re Baker(17). However, when a power is given to a personbythe
word 'may', but it is coupled with a duty to refrain from exercising it in certain prescribed circumstances, itbecomeshis
duty not to exercise it in those circumstances. (Cf. Wade andForsyth,.AdministrativeLaw,7thed.at265wherethe
converse case is dealt with). A Governor may dissolve a Provincial Council in terms of Article 154 B (c) but hemustdoso
in accordance with the duty prescribed by Article 154 B (8) (d). Article 154 B (8) (c)readwithArticle154B(8)(d)
presents no ambiguity either in respect of the verbal formula that constitutes the relevant law norinitsapplicationto
the facts of the instant cases. There is no doubt as to the legal meaning and the legislative intention conveyedbyArticle
154 B (8) (c) and (d) and it is both unnecessary and improper in the circumstances to attempt to give. it some othermeaning
by calling in aid other provisions of the Constitution.
It is of importance to decide whether a statutory duty is mandatory - words such as'absolute','obligatory','imperative'
and 'strict' may be used instead - or whether it is directory. ('Permissive' is sometimes used,buttheuseoftheterm
'directory' in the sense of permissive has been criticised by Craies, Statute Law, 7th ed. 1971 p.61n.74.)Ordinarily,
where the relevant statutory duty is mandatory, failure to comply with it invalidates the thingdone.Whereitismerely
directory the thing done will be unaffected, though there may be some sanction for disobedience imposed on the personbound.
If the Governor's duty to act on the advice of the Chief Minister was mandatory and not directory,thenfailuretocomply
with his duty invalidated the dissolution. Article 154 B (8) (d) uses the word shall in describing the mannerinwhichthe
Governor should exercise his power of dissolution. I am in agreement with the view that although thewordshallordinarily
imposes a mandatory duty, there may be cases in which it has the same meaning as 'may'. However, I find no reason adducedin
the matters before us to give Article 154 B (8) (c) read with Article 154 (8) (d) any meaning other thanthattheGovernor
will have to or must, if the Board of Ministers commands, in the opinion of the Governor, the support of the majority ofthe
Provincial Council, exercise his powers of dissolution in accordancewiththeadviceoftheChiefMinister.Wadeand
Forsyth, op. cit., p. 245 observe that: Powers confer duties whether to act or not to act,andalsoinmanycases,what
action to take, whereas duties are obligatory and allow no option. De Smith, Woolf and Jowell,op.cit.,p.296,observe
that: if only one course can lawfully be adopted, the decision taken is not the exercise of a discretion but theperformance
of a duty. Since the Board of Ministers in the opinion oftheGovernorcommandedthesupportofthemajorityofthe
Provincial Council, there was only one, uniquely right course of action prescribed -tofollowtheadviceoftheChief
Minister in deciding whether to exercise his power of dissolution. Therewasnodiscretion.Byhisfailuretoactin
accordance with the duty imposed on him by law, the Governor acted illegally.
I am unable to accept the suggestion that if a Governor supposes or believes something to be in hisdiscretion,itbecomes
finally and conclusively a discretionary matter on which he should consult the President, and therefore ifheconsultsthe
President, then, he is obliged to follow the directions of the President. Article 154 F (2) states as follows:
If any question arises whether any matter is or is not a matter as respects whichtheGovernorisorbyorunderthis
Constitution required to act in his discretion, the decision of the Governor shall be final, andthevalidityofanything
done by the Governor shall not be called in question in any court on the ground that he ought or ought not to haveactedin
his discretion. The exercise of the Governor's discretion shall be on the President's directions.
With !regard to the dissolution of the Provincial Council, there was nothing 'forming, or capable of forming, the basis ofa
problem, nor any difficulty or doubt or uncertainty as far as the Constitutional provisions of Article 154 B (8) (c) and(d)
were concerned. There was no question whether the Governor was required to act in his discretion. The fact thathehonestly
believed there was one, did not make it so. Perhaps, the Governor misunderstood the law? It isthedutyofthedecision-
maker to understand correctly the law that regulates his decision-making power andgiveeffecttoit:CouncilofCivil
Service Unions v. Minister for the Civil Service(18).
It was not said by Sharvananda, CJ in Re the Thirteenth Amendment, (supra), that the Amendment was not violativeofArticle
2 (which states that Sri Lanka is a Unitary State), because the President had unlimited executive powers. What he did sayin
relation to executive powers was that therewas.asufficientretentionofpowersbythePresidentinrelationto
discretionary powers so as to ensure the position that Sri Lanka remained an unitary state. There was no suggestion thatthe
President had to have powers additional to those conferred by the Thirteenth Amendment, eg in the matter ofdissolution,in
order to maintain the status of Sri Lanka as a unitary state, nor was thereanysuggestionthat,becauseParliamenthad
imposed procedural restraints on the manner in which executive power may beexercised,thePresident'sposition,asthe
person exercising the executive power of the People, was undermined. On the other hand, it was acknowledgedthatprocedural
restraints on the exercise of power did not limit supremacy in the relevant sphere of activity: See Re ThirteenthAmendment,
(supra), at pp. 320-321.
If, as I have said, Article 154 B (8) (d) introduced procedural safeguardsontheexerciseoftheGovernor'spowerof
dissolution for the benefit of the voters and their elected representatives who might be affectedbytheexerciseofthe
power, - what other reason could there have been?-, then we have another reason for concluding that the Governor's powerwas
not discretionary. Wade and Forsyth, op. cit., p. 255, observe:
Procedural safeguards which are so often imposed for the benefit ofpersonsaffectedbytheexerciseofadministrative
powers are normally regarded as mandatory so that it is fatal to disregard them.
I am of the view that Article 154 B (8) (c) does not contemplate a discretionary power by the Governor.
In view of that conclusion, the further question in ground (a) for appeal, namely, if so whether such powerisrequiredto
be exercised on the directions of the President does not arise.
DOES ARTICLE 154 B (8) (C) CONTEMPLATE THE EXERCISE OF THE GOVERNOR'S POWER SOLELY AS A DELEGATE?
The Submissions of the Appellants
If Article 154 B (8) (c) is subject to Article 154 B (8) (d), then the Governor must exercise his powers as adelegate,for
the Governor's role is that of a delegate. See the judgment of Sharvananda, CJ in Re the Thirteenth Amendment, at pages322-
323. Article 154 B (2) provides that: The Governor shall be appointed by the President by warrant under his hand,andshall
hold office, in accordance with Article 4 (b), during the pleasure of the President. The Governor's position isunlikethat
of the Auditor-General, the Commissioner of Elections or Judges oftheSuperiorCourtswho,althoughappointedbythe
President, cannot be removed from office at will. The subjection of Article 154 B (2) to Article 4 (b) makes the Governoran
agent and representative of the President in the Provincial area. The Governor derives his authority from thePresidentand
exercises executive power vested in him as a delegate. The dissolution oftheCouncilisanexecutiveact.InRethe
Thirteenth Amendment, (supra), the court emphasized that, so long as the President retains the power togivedirectionsto
the Governor regarding the exercise of his executive functions and the Governor is bound by such directions, supersedingthe
advice of the Board of Ministersand the President can take over the functions andpowersoftheProvincialCouncilby
virtue of Articles 154 K and 154 L, there can be no gainsaying the fact that the President remains supremeorsovereignin
the executive field and the Provincial Council is only a body subordinate to him. The notion that the ChiefMinistershould
prevail over the Governor who is acting as a delegate and/or on the directions of the President asregardsthedissolution
of a Council, is contrary to the decision in Re the Thirteenth Amendment,(supra),onthequestionoftheexerciseof
executive sovereignty. It is the discretionary power to dissolve a Council that ensures executivesupremacy.Thetemporary
take over of the Council for a year under Article 154 K in no way achieves this supremacy.
In the performance of his functions, the Governor is required to act in his discretion (the test of which istheGovernor's
conception of the discretion), the Governor is obliged to seek the President's directions. The resulting actionthenarises
from the President's fiat, the Governor being a mere instrumentality. No doubt the Governor has a part toplay,namely,to
decide that there exists a discretionary matter, and to seek the President's directions beforetheGovernorexerciseshis
discretion. It is only in situations of discretion arising from powers conferred on the Governor by the ThirteenthAmendment
that the Governor acts as adelegateofthePresident.Article154B(8)(c)contemplatesadiscretionarypower.
Consequently in exercising this power in terms of Article 154 (8) (d), the Governor is acting solely asadelegateofthe
President. So much so that for this purpose, the word shall occurring in the said Articleneednotbeconstruedasmay,
since the President can give directions superseding the advice of the Board of Ministers. Totheextentthattheensuing
action has the President's approval (through his directions), the Governor is giving effect to the President'sfiatandso
acting as a delegate.
The Submissions of the Respondents
The fact that a person is appointed by the President, eg the Auditor General, the Commissioner of Elections or Judges ofthe
Superior Courts, does not cant' with it the corollary that he becomes theagentordelegateofthePresidentandmust
therefore carry out his orders and directions. The executive power of the President in regard to Provincial Councilscanbe
exercised only in two situations: (i) where express provision is contained (eg Articles 154 K and154L) (ii)wherethe
Governor is exercising a discretionary power, in which case he can seek the advice and directions of the Presidentinterms
of Article 154 F (2). Otherwise the Governor is obliged to carry out his functions as laid down in thevariousArticlesof
the Constitution. In Premachandra v. Jayawickrame and another, (supra), the Supreme Court heldthattheGovernorwasnot
exercising a discretionary power and that, therefore, Article 154 F (2) did not apply. The present case is thesame.Itis
only in instances where the Governor is acting in pursuance of a discretionary power that he can seek the President'sadvice
under Article 154 F (2), and not otherwise.
A Provincial Council, like Parliament, is an elected body. Accordingly, Article 154 (8) (c) and (d) makes specificprovision
for the manner of dissolution. This provision alone must apply todissolution.NeitherthePresident,northeGovernor
claiming to act through the President, can ignore this Article and take refuge under Article 4 (b). Even if theGovernoris
a delegate of the President as claimed (which is not conceded), neither the President nor the Governor were entitledtoact
in the manner complained against. The only relevant Article is Article 154 B (8) (c) and (d). All that isrequiredisthat
it should be applied to determine whether or not theGovernorhasactedconstitutionallyindissolvingtheProvincial
Council. If the words of a statute are clear and unambiguous, they themselves indicate what must be taken tohavebeenthe
intention of Parliament, and there is no need to look elsewhere to discover their intention or their meaning. (Halsbury,4th
ed. vol. 44 paragraph 857)see also Somawathie v. Weerasinghe(19) Halsbury,op.cit.,paragraph857 Basu,page33
Bindra, op. cit., page 941.
Article 154 B (2) does not have any application in the present case. This Articlerelatesonlytotheappointmentofa
Governor. The reference in it to Article 4 (b) is only for the purpose of showing that his appointmentisinpursuanceof
the President's executive powers. The reference to Article 4 (b) does not meanthatallthedutiesandfunctionsofa
Governor referred to in Article 154 B are madediscretionary,orthattheGovernormustactinaccordancewiththe
President's directions, notwithstanding express provision to the contrary governing the exerciseofaparticulardutyor
function in Article 154 B itself.
In any event, the maxims generalia specialibus non derogant, and expressio unius est exclusio alterius apply and effect must
be given to the specific provision contained in Article 154 B (8) (c) and (d): Halsbury, op. cit., paragraph 875.
My View on the Question
It has been observed that an element which is essential to the lawful exercise of power is that itshouldbeexercisedby
the authority upon whom it is conferred, and by no one else. (See Wade and Forsyth, op. cit., at 347), and that thereisno
general principle that administrative functions are delegableand that the principle is rather that, where any decisionhas
to be made, it must be made by the authority designated by Parliament and by no one else: (Wade andForsyth,op.cit.,at
353). The power of dissolution of a Provincial Council is conferred by Parliament on the Governor by Article 154 S(8)(c).
Parliament has not given that power to the President and made it delegable to the Governor. When a decision hastobemade
on the question of dissolution, the decision must be that of the Governor, whatever other descriptive labels may ormaynot
be attached to him, and regardless of the course of action that may be open to him to follow or may be obliged tofollowin
respect of other matters. Where the Chief Minister advised the Governor against dissolution, the Governor hadnooptionin
the matter: He was required by Article 154 B (8) (d) to act in accordance with the advice oftheChiefMinister,forthe
Governor was of the opinion that the Board of Ministers commanded the support of the Provincial Council. AsIhavepointed
out earlier, he had a legal duty in the circumstances to act on the advice of the Chief Minister.
Nowhere in the Constitution is the Governor described as a 'delegate', nor are the duties and functions oftheGovernoror
how they should be exercised, defined or described in terms of his being a 'delegate'. The description of the Governorasa
'delegate' occurs in the following observations of Sharvananda, CJ in Re the Thirteenth Amendment, (supra), at op. 322-323:
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 154 B (2)). The Governor derives his authority from the President and exercises the executive powervestedinhim
as a delegate of the President. It is open to the President therefore by virtue of Article 4 (b) of the Constitution togive
directions and monitor the Governor's exercise of this executive power vested in him. Although he is required by Article154
F (1) to exercise his functions inaccordancewiththeadviceoftheBoardofMinisters,thisissubjecttothe
qualification 'except insofar as he is by or under the Constitution required to exercise his functions or any of them inhis
discretion'. Under the Constitution the Governor as a representative of the President is required to actinhisdiscretion
in accordance with the instructions and directions ofthePresident.Article154F(2)mandatesthattheGovernor's
discretion shall be on the President's directions and that the decision of the Governor astowhatisinhisdiscretion
shall be final and not be called in question in any court on the ground that he ought or oughtnottohaveactedinhis
discretion. So long as the President retains the power to give directions to theGovernorregardingtheexerciseofhis
executive functionsand the Governor is bound by such directions superseding the advice of the Board of Ministers andwhere
the failure of the Governor or Provincial Council to comply with or give effect to any directions given totheGovernoror
such Council by the President under Chapter XVII of the Constitution will entitle the President to hold that a situationhas
arisen in which the administration oftheProvincecannotbecarriedoninaccordancewiththeprovisionsofthe
Constitution and take over the functions and powers of the Provincial Council (Article 154 K and 154L),therecanbeno
gainsaying the fact that the President remains supreme or sovereign in the executive fieldandtheProvincialCouncilis
only a body subordinate to him.
Article 55 (1) of the Constitution provides that the appointment, transfer, dismissalanddisciplinarycontrolofpublic
officers is vested in the Cabinet of Ministers, and that all public officers shall hold office at pleasure. (The emphasisis
mine.) in the UK, public servants hold office during the pleasure of the Crown. (Cf. Dunn v.TheQueen(20) Halesv.The
King(21)Denning v. Secretary of State for India(22), unless otherwise provided. The rule, even in England, is not basedon
connection with the royal prerogative, except, perhaps in a loose sense, butratheronthegroundthat'thegovernment
should be able to disembarrass itselfofanyemployeeatanymoment':WadeandForsyth,op.cit.,atpp.70-71.
Paradoxically, both in the UK and in Sri Lanka, there are legal restrictions on the exercise of the 'pleasure' principle.It
seems to me that when Article 154 B (2) provided that the GovernorshallbeappointedbythePresident,andthatthe
Governor shall hold office, in accordance with Article 4 (b), during the pleasure of the President, an exception wascreated
to Article 55: what was sought to be done was to enable the President, instead of the Cabinet of Ministers,toappointand
remove a Governor. It does not mean that because the Governor holds office duringthepleasureofthePresident,heis
obliged to comply with the directions of the President, disobeying the provisions of the Constitution, which in itsPreamble
is stated to be the Supreme Law, and which the Governor has, in terms of Article 154 B (6) solemnly undertaken to uphold.
Article 154 B (2) provides that the Governor shall be appointed by the President and shall hold office,inaccordancewith
Article 4 (b), during the pleasure of the President. His tenure of office is thereforelesssecurethanthatofcertain
others who are also appointed by the President. The fact that his employment is precarious becauseheholdsofficeduring
the pleasure of the President may, as a matter of self-interest, make it desirable for him consult the Presidentinmatters
of importance. There is no disagreement that, although generally the GovernormustactontheadviceoftheBoardof
Ministers, he is not required to do so where he is by or under the Constitution required to exercise his functions or anyof
them in his discretion. Where he so acts in the exercise of his discretion, he is subject to thedirectionsandordersof
the President. (Article 154 F (1) and (2)). It is not only prudentbutalsoaconstitutionalrequirementprescribedby
Article 154 F (2) that he shall exercise his discretion on the President's directions.Itmaybeappropriateinmatters
where the Governor is required by the Constitution to act in his discretion to describe him as a'delegate'becauseheis
required to exercise his discretion on the President's directions and might be taken to have beendeputedtoactforthe
For the reasons I have already given, the Governor had no discretion in the circumstances of the case in thematterofthe
dissolution of the Provincial Council. Article 154 F (2) which requires the exercise of the Governor'sdiscretionarypowers
on the directions of the President has no applicability in this matter. ParliamentinitswisdominArticle154B(8)
expressly conferred the power of dissolution on the Governor, and not on the President, andspecificallyandunambiguously
in apt words provided the manner and circumstances in which the Governor should exercise his power of dissolution. Thepower
cannot be exercised by implication having regard to Article 4 (b) read with Article 154 B (2) and Article 154 F.Admittedly,
the general words in Article 4,(b) are wide enough to cover the case of the dissolution of a Provincial Councilhowever,it
does not do so because specific provision is made in that regard by Article 154 B (8). Bennion, op.cit.,p.378explains
the matter in the following words:
General bus specialia derogant Where the literal meaning of ageneralenactmentcoversasituationforwhichspecific
provision is made by some other enactment within the Act or instrument, it is presumed that the situation was intended tobe
dealt with by the specific provision.
Conversely, general words are taken not to be intended to disturb express stipulations - clausula generalisnonrefertaad
expressaand general provisions do not override special ones - generalia specialibus non derogant
Halsbury, (op. cit., paragraph 875), states as follows:
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 apply. This is merely one application of themaximthat
general things do not derogate from special things.
Therefore, in my view, since Article 4 (b), taken in its most comprehensive sense, would not override Article 154B(8),I
hold that Article 154 B (8) must be operative on the question of the power of the Governor to dissolve a Provincial Council.
No inference is proper if it goes against the express words Parliament has used. Expressum facitcessaretacitum.AsLord
Dunedin observed in Whiteman v. Sadler(23), Express enactment shuts the door to further implication.Thechiefapplication
of the principle expressum facit cessare taciturn lies in the so-called expressio unius principle. Article 4 does statethat
the executive power of the people shall be exercised by thePresident.However,Article154B(8)createsanexpress
exception to that provision, and the principle expressio unius est exclusio alterius mustapply.Itisanordinaryrule
that: if authority is given expressly, though by affirmativewords,uponadefinedcondition,theexpressionofthat
condition excludes the doing of the act authorised under other circumstances thanthosesodefined:expressiouniusest
exclusio alterius. (Per Willes, J in N. Stafford Steel Co. v. Ward(24). In Felix v.Shiva(25),Everleigh,LJsaid:Ifa
power is given by statute, and the statute lays down the way in which the power is to be brought into existence, itmustbe
brought into existence by that method and none other.
A Governor is bound to act in accordance with the express provisions in Article 154 B (8). He cannot rely onthefactthat
the executive power of the people is ordinarily exercised by the President. If the Governor isadvisedagainstdissolution
by a Chief Minister, so long as the Board of Ministers commands, in the opinion of the Governor, the support of themajority
of the Provincial Council, the Governor must act on the adviceoftheChiefMinister.Heisneitherrequiredbythe
Constitution, nor is he permitted, in those circumstances, to act in his discretion or on the orders anddirectionsofthe
President. Where Parliament has prescribed the manner in which a power may be exercised, no one has any discretion toignore
those directions. Unless he complies with the directions, he acts illegally.TheruleoflawrequirestheGovernorto
justify his action as authorised by law. (See de Smith, Woolf and Jowell, op. cit., p. 295 quoted above). This he hasfailed
It was suggested by the appellants that, since the Governor was a delegate, his action in dissolving theProvincialCouncil
could not be questioned because of the immunity from suit conferred on the President by Article 35 of theConstitution.The
matters before the court do not concern the President's acts or omissions. The respondentschallengetheexerciseofthe
powers of the Governor, not as a delegate, but as a person directly conferred by Parliament with thepowerofdissolution.
The Governor has no immunity from suit. He is not beyond the reach of the law, anditisnotappropriatetoinventnew
A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed., 1965, p. 193, observed as follows:
Every man whatever his rank or condition is subject to the ordinary law of the realm andamenabletothejurisdictionof
ordinary tribunals . . . with every official from Prime Minister down to a constable or a collector oftaxesisunderthe
same responsibility for every act done without legal justification as any other citizen.
My answer to the question whether Article 154 B (8) (c) contemplates theexerciseoftheGovernor'spowersolelyasa
delegate is that it does not. The power of dissolution is one that is expressly conferred on the Governor byArticle154B
(8) of the Constitution. It is not a power of the President exercised by the President bymeansoftheGovernor.Inthe
matter of dissolution, the Governor derives his authority from a specific provision of theConstitutionthatconfersthat
power on him and on no other person. His power does not come to him vicariouslybyreasonofhispositionasaperson
substituted for the President. The power has been conferred on the Governor by Parliament and itishisdutytoexercise
that power exactly in the manner prescribed by Parliament.
For the reasons set out in my judgment, I affirm the decisions of the Court of Appeal in respect of SC Appeal No.41%96and
SC Appeal No. 42/96 and dismiss the appeals in both cases.
The first appellant in each of the appeals shall pay Rs. 7,500 as costs.
G. P. S. DE SILVA, CJ. - I agree.
RAMANATHAN, J. - I agree.