22) EXECUTIVE POWER OF THE PROVINCIAL COUNCILS

In terms of the constitutional framework, we are looking mainly at these three articles here.

ARTICLES 154B, 154C AND 154F

And we’ve already referred to the executive involved in the provincial council levels when we are discussing the 13 th
amendment determination. So basically, at the provincial level, there is a governor who is to be appointed by the
President and the provisions relating to the governor and some of his powers are laid out in art. 154 b). So, you will see
that there has to be a Governor for each province as established by art. 154 a) and then the Governor is to be appointed
by the President and then shall hold office in accordance with art. 154 b) during the pleasure of the President. So,
therefore, the idea is that the President can remove the Governor at will.

There’s of course the initial understanding of the pleasure principle, which was that when someone is holding a position
at the pleasure of the queen or the king or any of the appointing body, that means that, that appointing body can
remove that person without even giving a reason. That has been the historical interpretation but in the current context,
there has also been reasoning that judicial decisions which are open to recognize the fact that even in these instances
the persons’ fundamental rights need to be protected, there need to be reasons, given the fact that there is no
unfettered discretion on the part of any public official in the current context. So based on those public law principles,
constitutional law principles and also based on FR grounds there is the capacity to interpret this provision a bit narrowly
but still, this gives a lot of capacity for the appointing authority to decide about the tenure of the person concerned.

According to the 13th amendment determination, he is also called the delegate of the President. So that’s why the
majority opinion says that the President remains superior and thereby maintains the unitary structure of the state in this
instance. Because they consider the Governor to be a delegate of the President.

And then art. 154 b) goes on to refer to how the Governor can be removed and the tenure and the term of the Governor
and also goes on to lay out the powers of the Governor with regards to summoning, proroguing and dissolving the
Provincial Councils. And also the Governor has the power of pardoning and then also facilitates dialogue with the
Provincial Councils and the Chief Minister also has a duty to communicate with the Governor.

And then 154 c), refers to the fact that executive powers extending to the matters with respect to a provincial council
have the power to make statutes shall be exercised by the Governor of the Province, for which the Provincial Council
was established either directly or through the Ministers of the board of Ministers or through the Officers subordinate to
him in accordance with art. 154 F.

So therefore the executive powers with regard to the provincial councils, meaning the implementation of the law
relating to the matters that are devolved to the provincial council are not with the Governor and the Governor can
exercise those executive powers directly or through the Board of Ministers or thirdly through the Officers subordinate to
him according to art. 154 F.

Art. 154 F is providing for the Board of Ministers with the Chief Minister at the head and no more than…..

Therefore the main requirement is for the Governor to act on the advice of the Board of Ministers unless the
constitution specifically requires him to exercise his discretion. And then according to 154 F 2) the exercise of the
Governor’s discretion is to be on the President’s direction, and this is an attempt by the constitution to say that the
courts can’t review the exercise of discretion by the Governor. But then of course we see in case law the courts have
interpreted that ouster clause very narrowly saying that the courts will review the discretion the Governor exercises.

So basically these are the 3 main provisions relating to the exercise of executive powers at the provincial level and we
see three main actors involved in this instance. Of course, the President who has certain powers, and the President’s
powers relating to executive actions and administrative actions relating to provinces increase if there is an emergency
(for example if you look at art. 154 K L M, where there is a failure to comply with directions……) So in a variety instances
the President can interfere with the Provincial level. Therefore, there’s the President from the center. And then there is
the board of Ministers consisting of the Chief Minister and four other Ministers who are the members of the provincial
councils who are elected from the people of that province. And then in between the executive elected by the centre and
also the executive elected from the people in provinces, sandwiched in between the two we have the Governor who is
appointed by the President but who is to act on the advice of the Chief Minister and the Board of Ministers in the
exercise of his executive functions unless the constitution requires him to exercise discretion in which case he needs to
follow the directions of the President.

PREMACHANDRA AND DODANGODA V JAYAWICKREMA AND BAKEER MARKER AND OTHERS (CA)
The issue, in this case, was related to the appointment of the Chief Ministers to the Northwestern Province and the
Southern Province. And in this particular instance, at the election that was in issue, the united national party in this
particular instance had won a higher number of seats but they have not won a clear majority (they didn’t win more than
half of the seats in the provincial councils concerned but they have the highest number of seats at the provincial
councils’ elections). And there were also two other parties involved in both instances. One was the people’s alliance (led
by SLFP at the time) and then the Democratic United National Front which was basically a breakaway party from the
UNP at the time. And in this instance, in relation to both of these provinces, the DUNF and the People’s alliance decided
to form a coalition so therefore they were able to produce a majority within the provincial council level. So therefore
there was a request by those party members to make an appointment of an agreed member from within the coalition
for the provincial councils but then the Governor refused to do so. The Governor at the end of the day went on to make
an appointment from the United National Party which was the party in power at the center at the time.

And the legal question in this instance was with regard to the interpretation of art. 154 F 4) which talks about how the
Governor is supposed to appoint the Chief Minister. So the Governor is supposed to appoint the Chief Minister a
member of the Provincial Council constituted for that province who in his opinion……..

So therefore from this point its seems like the Governor has the discretion to make an assessment as to who in his
opinion is best able to command the support of the Majority. And then secondly, provided that more than one-half of
the members elected to the Provincial council members are from one political party then the Governor shall appoint the
leader of that political party in the council as Chief Minister. Therefore in that instance, there is no discretion involved
for the Governor so where one political party has returned more than one-half of its members to the provincial council
then, the Governor must appoint the leader of the political party as the Chief Minister. That’s the implication of ‘shall’
here there is no discretion here.

And then however the first para of that art. deals with an instance where it is not so clear when in an instance where no
party has been able to produce more one-half of the members to the provincial council, then it is for the Governor to
decide in his discretion who is best capable of commanding the support of the majority members.

So then the courts in this instance had to interpret these two provisions because this was specifically an instance where
no one political party has managed to produce more than one-half of the members. So therefore this was an instance
where the Governor according to the provision had the discretion to decide who is best able to command the
confidence of the provincial council. So the courts interpreted the article in that way. So in the first instance, there is
discretion for the governor and in the second instance, there isn’t, but of course this is a question with regard to the first
instance. So there is an element of discretion involved to the Governor. So then the question before the court was as to
how the Governor should have exercised his discretion in this instance.

And then the court goes on to say that, the Governor’s exercise of discretion in this instance has to be based on the
Principles of public law. And they referred to two main principles of public law. Firstly, rule of law and secondly, the
public authorities must be mindful of the purpose for which the statutory power is given to them. So, therefore, based
on rule of law and based on adhering to the purposes for which the statutory power is given to public officials, the
courts say that, there is no unfettered or absolute discretion on the part of the Governor. The Governor is given the
power in this instance based on the basic mandate of democracy that the People’s will has to prevail. So, therefore, in
deciding who commands the support of the majority of the members of the council the Governor in exercising his
discretion has to exercise his discretion to uphold the will of the people. so, where there is a clear support by the people
with more than one half of the members being from one political party then the Governor has no discretion because the
people’s will is clear in this instance, but when the people’s will is not so clear the Governor has to still exercise his
discretion in a way that best upholds the will of the people.

And secondly, on asking whether the decision is reasonable, the court goes onto say that, in making a reasonable
decision the Governor or any decision maker, take matters that are relevant into consideration and exclude matters that
are irrelevant and then come to the decision. Then only the decision will be reasonable. According to the courts, firstly
the Governor has to consider the support expressed by the political parties towards the members of the Council or the
Chief Minister. Secondly, the Governors has to look at the extent to which the individual members in the provincial
councils are supporting the particular person to be the chief minister. And then, have to make the decision to make sure
that the people’s will prevail.

And in this particular instance the members of the people’s alliance, as well as the members of the DUNF, both these
parties had provided affidavits, to the Governor saying that they are supporting the petitioners to become the Chief
Minister. Therefore, there were signed affidavits (recognized legal docs) showing support for the petitioners to be
appointed as chief ministers. However, what the Governor did was ignore those affidavits on the basis that they made
confidential secret inquiries to the members concerned within the provincial councils and that they agreed to support
the person who has been appointed by the UNP.

Therefore the question before the court here is whether it was reasonable of the Governor to ignore the affidavit which
is legal docs expressly showing support in favour of secret inquiries that they made for which there is no evidence that
the Governor can produce before the courts. And the courts in this instance gave prominence, they accepted and even
the state in this instance agreed that the petitioners gave the best possible evidence, the affidavits so therefore that
needs to have been taken into account by the Governors in making the decision rather than what they found secretly or
based on confidentiality which cannot be proven. Therefore the courts recognize the fact that in a democracy
transparency is important so, therefore, it’s reasonable to give priority to affidavits rather than confidential inquiries in
this instance.

So therefore, based on the interpretation of the art. the CA recognize the fact that there is a discretion involved for the
Governor in this instance but the court held that the discretion has to be exercised based on the principles of public law
and also based on reasonableness. And on that basis it was decided that the governor did not exercise his discretion
according to the law, therefore the courts gave the writs in favour of the petitioner.

Then there’s an appeal from this case before the SC

PREMACHANDRA V MAJOR MONTAGUE JAYAWICKREMA (SC)

So here the court once again deals with these few questions,
Therefore, firstly focusing on the Governor’s discretion under art. 154 F (4), firstly says the Governor has to appoint as
Chief Minister the member of the provincial council in his opinion who is best able to command the support of the
majority, Therefore this part of the provision seems to involve discretion.

Therefore the question is whether the nature of this discretion and whether it can reviewed by the courts or not. So
therefore here also the courts question about the Governor’s discretion under art. 154 F (4) and the courts in this
instance also goes into looking into the argument that was made on behalf of the Governor, whether the Governor was
exercising purely subjective discretion and whether this was a decision which was only political in nature, so thereby not
requiring the involvement of the courts.

So here, the courts answering the first issue, whether the particular discretion was only subjective, the courts says that
our constitution and our system of government are founded on the rule of law. And this means that to protect that
foundation there’s also privacy given to an independent judiciary to engage in ensuring that the foundation is protected.

So, therefore, the courts say that it requires going into the meaning of the rule of law in this particular instance, the
courts say that it has a number of meanings but of course, the primary meaning would be that everything has to be done
in accordance with the law. So the actions of the officials of the state have to be according to the law. And therefore that
the officers of the state should be able to justify their decisions based on the law. And they say that, that is called
legality.

SO, therefore, the court from the basis of rule of law the court says that there’s no unrestricted discretion given to any
public official that is not subject to the law. So therefore every power according to the courts has legal limits no matter
how wide the language of the law is in the particular circumstance. And the courts say that, if they are to say otherwise,
to say that a statute or an act here giving unfettered discretion that would be constitutional blasphemy. In the sense
that it is against the core of constitutional thinking.

So therefore first is the idea that our system of governance is based on rule of law. And that means that all public
officials are subject to the law and there’s no unfettered discretion.

The second principle which is connected to the first is that the statutory power is given for public services based on
trust. Therefore the meaning that statutory power can be given to public officials can only be used to promote public
interest for the purpose for which it was given and it cant be used in any way that they want because it’s given in trust.
So the second principle is the fact that statutory powers have been given for public purpose therefore the legislative
powers that are given have to be exercised for the purpose for which it is given and not for anything else. So, therefore,
the court on that basis, (this in a way reiterating the reasoning of the CA – public law principles, rule of law, no
unfettered discretion in public law) here also the rule of law but also focusing on the public trust doctrine, the fact that
the statutory powers are given to public officials in public trust for public purposes. And both of these principles of
course reaffirm the fact that there is nothing called unfettered discretion, or unrestricted discretion in constitutional law.

Therefore, the courts then go into looking for what purpose art.154 gives Governor this discretion, the purpose is for the
Governor to select a Chief Minister who is best able to command the confidence of the council and thereby give effect
to the wishes of the people. The Court in this instance says that this discretion is not given for any other purpose,
personal or political, it’s given only for this particular purpose of facilitating or making sure that people’s will is reflected
in the appointment made to the Chief Ministers’ office.

Next the Political nature of the question,

Basically it was argued on behalf of the Governor that this is a political question, therefore the court does not have the
capacity to answer such questions. This political argument question comes from a very specific US peculiarity where the
US SC (baker v carr) has refused to answer or deal with political questions because that would Jeopardize the court’s
decision. But here, looking at Baker V Carr the courts shows that, they lay out in the US context, to qualify to be a
political question, that the courts cant deal with, it has to have certain features. For example, its textually clear from the
constitution that it is an issue that is to dealt by a coordinate political department (legislature or executive) or the fact
that there is no judiciary discoverable and major standard for resolving it. Therefore its within the competence of the
legislature and the executive and the judiciary does not have the capacity or competence to decide it, because of the
fact that , there are initial policy determinations to be made which is not the function of the Judiciary. or because this
would violate the due respect that the court should give to the legislature and the executive and also it’s a technical
question where the decision is best taken by the executive or the legislature or because it involves studying of an issue
in more detail which cannot be dealt within the confines of the court. So therefore due to some of these features if the
matter is unable to be addressed at a court of law and best taken as a decision by the executive or the legislature. Then
the courts will defer to the executive and the legislature and let them decide.

But here, the courts says that this is not a question that is of a purely political nature. Why the courts are saying that
here is because according to the court this also involves determination of legal rights flowing from the constitutional
provisions concerned with the allocation and exercise of powers by the elected representatives of the people of the
province. SO therefore you know that the moment, rights are involved, that is within the competence, expertise and
capacity of the court. So the courts say that this is not just a political decision because there might be a particular right
that is available or legally arising here on the part of the petitioners who challenged the decision of the Governor
because the petitioners have demonstrated by affidavits that they have the capacity to best command the confidence of
the provincial council. So therefore the court says that because of that, there are legal rights of the petitioners are being
affected in this instance. And of course by extension legal rights of the people that the petitioners are representing
(because they are elected with the majority support of the people at the provincial council level). So because the legal
rights are affected here, this is not just a political question and gives the courts the capacity to engage in judicial review
here.

And also the courts here know that the governor’s decision in this instance involves a constitutional power and a duty
(Governor has a constitutional power to appoint the Chief Minister but it is also a duty on the part of the Governor)
therefore correspondingly there is a constitutional right on the part of the petitioner in common with of course the
other council the court says, to the proper exercise of that power and duty. So, therefore, Governor has the power and
the duty to exercise that power properly. And based on that duty to exercise the power properly, correspondingly, there
is a constitutional right created on the part of the petitioners for that duty on the part of the Governor to be exercised
properly, meaning reasonably, in accordance with the law, upholding the constitutional, republic law principles etc.

So therefore because of this nature, because this is a Governor’s power as well as duty and there is a constitutional right
being created on the part of the petitioners for the Governor to exercise that power and duty properly, the judicial
review is not excluded. So that’s how the courts respond to that matter.

(it’s a right not in the sense of FR but it’s a legal right)

And then final two issues come from the fact that, on behalf of the Governor it was argued here that Art. 154 F (2) ……
this is what we call an ouster clause, meaning the purpose of this clause is to oust the jurisdiction, basically to shut down
the jurisdiction of the court. And the courts do not take well to these kinds of clauses. The trend in SL (you will see this
position more clearly in administrative law) of the courts is to interpret ouster clauses as narrowly as possible (because
the courts would take the interpretation that would give them the best capacity to exercise their jurisdiction). And how
the courts interpret this narrowly, the courts says that the Governers exercise or the discretion that is protected by this
ouster clause in this instance is limited to the decision that is taken by the Governor to exercise his discretion or not.
Meaning the only matter that is protected by this clause is the Governors decision whether to exercise his discretion or
not. And once he exercises his discretion then that can be reviewed by the courts.

According to this judgement the courts will not review the Governor’s decision to review his discretion or not, but once
he decides to exercise his discretion courts can review the exercise of that discretion following the public law principles.
The courts jurisdiction in this instance is not ousted as a result of art. 154 F (2).

And then the other point that was made on behalf of the Governor was based on art. 154F (6) on the basis that the
board of Ministers are to be collectively responsible and answerable to the provincial council. So it was argued that the
appointed Chief Minister did not command the majority of the provincial council. Then the remedies to go through the
political process to take a vote and challenge the particular decision to appoint the chief minister and rather than
coming before the courts. Its to basically rather than following the judicial mechanism here the argument here is that
the proper remedy to be followed is to go through the political process and to show by a vote in the provincial council
that the current chief minister does not have the majority in the provincial council. But the courts says that, that is not
the case, that the availability of that political route in itself does not exclude the judicial remedy before the courts like
this. Because firstly, there is no certainty even if the provincial council immediately expresses a lack of confidence in the
Chief Minister, there is no certainty that the petitioners will be appointed to succeed that particular chief minister.
Therefore in that particular instance, in order to look at the petitioners interest the judicial remedies is still important.

And secondly, the court points out to the fact that, when the provincial council is voting against the current chief
minister, and checking whether the Governor’s decision is right or not. That is checking the merits of the decision of the
Governor. Whereas here, what the court is doing is to question the decision making process of the Governor. By asking
whether this was in accordance with the constitution, whether this was reasonable, whether this took into account
relevant factors, whether this ignored the irrelevant factors… by questioning all those the courts are reviewing the
procedure of the decision rather than questioning the decision itself. Therefore the performance of the courts in this
instance is a different mechanism, therefore the remedy of the judicial mechanism is still required even though the
provincial council can take a vote and decide to challenge the decision of the governor politically. Therefore the courts
said that even if there was a political remedy available the judicial remedy can also function on side by side. Because this
is taking into account particularly the interest of the petitioners and the court is engaging in reviewing the decision
making process rather than the decision itself.

Therefore on that basis, once again reaffirmed the decision taken by the court of appeal.

MAHINDASOMA V MAITHRIPALA SENANAYAKA AND ANOTHER (CA)

What happened in this case was that, the Governor’s in these particular instances were initially trying to seek the views
of the Chief Ministers whether they should dissolve the Provincial Councils. But ofcourse both the Chief Ministers advice
was in opposition. But then both the Governors went ahead with the dissolution and later claimed that they were acting
on the directions of the President.

So here the provisions that came into question was the interpretation of art. 154 b) 8) c & d.

154 B 8) c) – refers to the fact that the Governor may dissolve the provincial council and then immediately after there is
this other provision d) saying that the Governor shall exercise his powers under this para with accordance with the
advice of the Chief Minister……

So the question here, the Governor’s asked for the opinion of the Chief Ministers and clearly the Chief Ministers were
having the majority within the provincial council.
The questions were manifold. Firstly, the questions related to interpreting of these two provisions and the other
question was whether the Governors can in this instance act on the directions of the President rather than following the
advice of the Chief Minister.

In the CA decision the court goes to interpret these two provisions in this way,

Plain meaning - the court here is of the view that its very clear in this instance the governor shall only exercise powers
under the particular provision, on the advice of the Chief Minister, so long as board of Ministers command the majority
of the provincial council. So therefore, the court says that this is clear, precise, unambiguous wording and also referring
to the interpretation of statutes by Bindra, the courts refer to the fact that the word ‘shall’ in its ordinary significance is
to be mandatory. However, there might be considerations which would be based on considering the intention of the
legislature, the court might decide differently.

And here the courts goes to say that looking at the plain meaning of this particular article it seems that the Chief
Ministers advice seems to be taken in this particular circumstance.

However the question then is, the relevance of that particular sub article d, when the governor is exercising his power
under sub article c. And then court here then goes onto argue the fact that it is important to engage in a smooth,
harmonious construction of the statute as a whole. Basically, when there are two avenues available for the court to
interpret a statute the courts had to also take into account of the constitution as a whole and give an
interpretation/construction that is smooth and harmonious. Where when we read the constitution as a whole it reads
smoothly and harmoniously. And the courts says here that on that line, it would be abhorrent to common principles of
construction to disregard the provisions in the immediate sub article d, if the statute/ the constitution is to be read
through a smooth or harmonious construction.

Therefore the reading of the article in context and then ofcourse thirdly, overrachingly taking into account the purpose
of the whole amendment, the intention of the framers. Here the court reminds that the 13 th amendment was brought
based on promoting devolution of power as mentioned in art. 27 4) to strengthen the democratic structure, to enhance
the participation of people in governance through devolution rather decentralization. Therefore if this is to facilitate
devolution, following also the directions of the directive principles of state policy. So that intention needs to be
manifested in interpreting the constitution here.

And finally, because this is a written constitution, that the specific provisions will prevail over the general. On that basis
only the courts are saying that, because art. 154 B 8 d) is a specific provision that would take precedence over the
general provision which is referring to here the executive power of the President. And on the argument that therefore
the presidential power should override the advice of the chief Ministers. The court says that the general executive
power given to the President is a general power in art. 4 B and this is a specific constitutional provision requiring the
Chief Ministers and that needs to be given precedence.
Therefore, when the Board of Ministers are commanding the support of the majority of the provincial council, that
needs to be taken into account when the Governor is going to dissolve the provincial council. That was the reasoning of
the courts.

MAITHRIPALA SENANAYAKA AND ANOTHER V MAHINDASOMA (SC)

Here the court is trying to answer 2/3 questions.

Ofcourse in the CA instance the court was taking this as a one whole issue and was asking whether the Governor has a
discretion in this instance when he was exercising his power of dissolution based on arti. 154 B 8 C), based on the use of
the word ‘may’ also and whether he is bound by the advice of the Chief Minister in accordance with art. 154 B 8 d), that
was the issue the court was addressing here and answering going in these steps. And here the courts asks 3 questions,
because the appeal would have been on these questions of law.

In answering the first question, the court says that according to once again referring to the principles of public law, the
provisions has to be interpreted by taking into account whether the decision falls into the four corners of the particular
statute. So therefore the argument of the court is that, the Governor’s reference to ‘may’ in the in the dissolution
provision in art. 154 B 8 c), the courts say that it is subject to sub article d here, because the governor has to exercise the
power in sub article c following the procedure laid out in sub article d. so then broadly, the words of the particular
provisions should be taken into account and the fact that, c & d has to be read together on the basis that the power
given in sub article c is to be exercised in accordance with the procedure laid out in sub article d.

And the reasoning of the court is that, these procedural safe guards given in these particular circumstances is laid out in
the constitution itself for the benefit of the voters. So that their elected representatives will have the say in these
particular circumstances where they command the confidence of the provincial council.

Therefore because this procedural safeguard is putting the constitution, for the benefit of the voters, to represent the
will of the voters, so therefore a limitation in the constitution to uphold the public interest of the people of the
provinces, this the court says that is not discretionary read together, this is an instance where it is mandatory for the
Governor to follow the procedure that is constitutionally laid out in sub article d. Therefore the court says that sub
article c cannot be considered in isolation but rather it has to be read together with sub article d because it is laying
down the constitutional procedure which is important, because the procedure is there to protect the people’s interest.

And the court says here, that there is no relevance of art. 154 F 2) once again because it is the duty of the decision
maker to understand the law correctly. So basically art. 154 F 2) ousting the jurisdiction of the courts and on the basis
that the Governor is exercising discretion. That whole provision once again becomes irrelevant, meaningless based on
the interpretation of the court.

So in the first set of cases we said that, it is only the Governor’s decision to exercise discretion or not is protected. Here
the court is saying that, even that decision, whether to exercise discretion or not, has to be in accordance with the law
because it’s the duty of the public official to understand the law correctly and the court obviously has the final say in
interpreting the law. So therefore once again has the capacity to say whether this is an instance where the Governor’s
discretion is involved or not. Here the courts say that there’s no discretion involved because the procedure to dissolve
the parliament must be followed in this particular instance.

The next question that the court deals with is,

• Whether Art 154B (8) (c) contemplates the exercise of the Governor’s power solely as a delegate?

This is on the basis of the parallel made, so at the central government level it’ll be the President dissolving the
parliament. So therefore isn’t this an exercise of the Governor’s power at the provincial council level as a delegate of the
President (doing the samething that President would be doing at the central level therefore a direct delegation of the
powers of the President) So therefore by extension Presidents’ direction should take precedence over the advice of the
Chief Minister.

But here the court says that, this is not the case because the parliament has given this power directly to the Governor
and this is not a power that the parliament or the 13th amendment has given to the President and had then gone and
delegated it to the Governor. So therefore this is not an instance where the Governor is exercising his power as a
delegate of the President. And also the court goes onto the fact that there are limitations on the pleasure principle, so
just because the Governor is holding office at the pleasure of the Principle, doesn’t mean that he has to follow the
Presidents’ direction at each an every point. It has to be subject to the constitution and this is not an instance where the
constitution is requiring the Governor to seek the advice of the President but rather the procedure is clear, it’s to seek
the advice of the Chief Minister, when the conditions are right and that’s what the constitution says.

• Whether the proviso appearing immediately after Art 154 B (9) applies Art 154 B (8) (d)?

Art. 154 B (9) is about the pardon powers that the governor has and there clearly powers that are there to the President.
And in recognizing that fact impliedly in the proviso, the proviso says that where the Governor does not agree with the
board of Ministers in those particular circumstances, or where he considers it necessary to do so in the public interest,
he may refer that to the president for the orders. So therefore the question is whether this proviso is also applicable to
art. 154 B 8 d), meaning that if the Governor does not agree with the Chief Ministers position can he go and seek
direction of the President and whether that is overriding. But the courts says that, looking extensively at the Provisos,
the Proviso here in sub article 9 is only relevant to that particular sub article because sub article 8 & 9 are dealing with
completely different factors. So therefore the court says that the 9 proviso is only applicable 9, and if it applicable to the
entirety of the section it would apply at the very end of art. 154 B, therefore it is not to be read extensively in that way
before provisos are generally of narrow application.

So on that basis the court says that the sub article 9 proviso does not apply to sub article 8 so therefore there is no
overriding requirement to seek advice or capacity for the governor to seek advice of the President. Therefore the chief
ministers advice in this particular circumstance must be taken into account, that it’s a mandatory procedural
requirement.

PROVINCIAL PUBLIC SERVICE

PROVINCIAL COUNCILS ACT, NO 42 OF 1987,
SECTION 32, 33
When we take the provincial public service their regulations, appointments, transfers, dismissals, disciplinary control, all
that is to be done by the Governor. You will recall when we discussed about the public service commission, how we
were questioning how the involvement of the cabinet of ministers are affecting, the politicizing the public service. So
here there is the concern thereof there not being an independent provincial public service to regulate the provincial
public service. But there is also the concern of the centers appointing/ centers representative at the provincial council
level being having the powers vested in relation to handling the provincial administration. So therefore the Governor has
the powers to regulate the provincial public service (subsection 2) and then it’s the Governor that can from time to time
delegate his powers of appointment, dismissal, transfer and disciplinary control of the provincial public service to the
provincial public service commission.

So therefore the provincial public service commission does not have any original powers to regulate the provincial public
service. They can only exercise the powers delegated to them by the Governor. So they are not in a position to act
independent. On one hand their using the derivative powers delegated to them by the governor and if you also look at
how the provincial public service is constituted (sec 33 1)). Therefore their appointed by the Governor and they can also
be removed by the Governor for cause assigned(33 3)). Therefore the Governor is clearly the significant person here.

Governor’s powers for the regulation of the provincial public service can be delegated to the provincial public
commission. And also the provincial public commission can further delegate those powers to chief secretary or any
other officer of the provincial public service. So that’s how the system works in relation to the provincial public service.

The Governor having the main powers, the provincial public service commission only having the delegated powers.

PODI NILAME V MATHEW

The question here was on the basis of sec. 33 1) and 33 3) of the provincial council act. What the Governor has done was
to remove the members from the provincial service commission but has not assigned any reason to remove those
members except saying that this was to enable him to reconstitute the commission. And we just saw according to sec.
33 3), the members can be removed only for caused assigned. And according to the holding here the reasons for
removing the cause assigned has to be serious enough to prevent these people from performing their duties in the
manner the public would except them to.

So the Governor has gone to remove members from the provincial public service commission and saying that, on the
first instance, informing these members that this is to enable the Governor to reconstitute the provincial public service
commission. So then, the question was whether this is sufficient in terms of the sec. 33 3). So that was the initial reason
given but when this case came before the courts the Governor stated before the courts that another reasoning that
went into that decision was the fact that the respondents had strong political affiliations and they participated in active
politics which was detrimental to the proper functioning of the provincial public service commission.

Therefore at the first instance the question was whether the reasoning given to the petitioners, whether that is
sufficient? So the court says that that’s not sufficient reasoning, on the basis that does not provide enough detail as to
ascertain what the issue was really here. So the court says that when it is just that this is for the purposes of
reconstituting the provincial public service commission. The question arises as to why it is necessary to reconstitute the
commission. Were the members of the commission incapable of discharging their functions properly or guilty of any
offences. So those questions come up and those are not responded. And then the courts go onto refer to the fact that,
there is nothing called absolute or unfettered discretion in public law. Therefore citing premachandra V Dayawickrama.
Citing that the court says that just stating that this is to reconstitute the provincial public service commission is not
enough. Therefore the courts say that, reasons for removing these respondents must be so serious of a nature as to
prevent them from performing their duties as the public would expect them to. Therefore this is based on the reading of
the public law principles into this provision to say that, this cause assigned is a requirement, whereby to show that the
removal of these members from the provincial public service commission is happening because there are reasons,
causes available that makes these members incapable of performing their functions in the public interest.

So therefore, the exercise of Governor’s discretion here is limited, its not unfettered, it has to be following the principles
of public law. And the court says that, the removal of the members cannot be just because he was so minded.

Then the question is about what is reasonable, reasonableness of course means that it has to be in accordance with the
law by taking into account matters that relevant and not taking into account matters that are not relevant and it cannot
be absurd. Accordingly, the courts says that the decision here has to be reasonable and it cant be an arbitrary decision
just because the Governor wanted it to be so.

Therefore that is the standard that the governor is held here under sec. 33 3)

And in relation to the arguments made on behalf of the governor that the political affiliations of these members were
the reason why they were removed. The court says that, these are strong words coming from a nominee of the
President, but the Governor has failed to produce a single complaint against the respondents from any member of the
public service or member of the public that they were unfairly treated or victimized due to the political affiliations.

So therefore the courts says that in this instance that the Governor has acted ultra vires the provisions of sec 33 3) in
removing the official from the provincial public service commission.

Ofcourse however the court says that in this instance there are no powers vested in the board of ministers to advice the
Governor or the public service commission because clearly by the act itself the powers are given to the Governor. And
also the court says that this is also a power vested in the Governor in sec. 33 2) of the act as a specific power and its not
just an executive function for which the provincial council has power to make statutes or other functions that the
governor is to be perform under art. 154 B.

DHANAPALA V PROVINCIAL DIRECTOR OF EDUCATION

This was a case where the petitioner was first a teacher and then went on to receive certain promotions. He was apart of
the Sri Lanka Education administrative Service attached to the public service commission. The main facts would be that,
he was apart of the teaching carder and he was initially attached to the SL Education administrative Service which was
part of the educational personnel regulated by the public service commission of the center. And then at a particular
point he was sent to work at the provincial level and then his transfers were handled by the North Central Director of
Provincial education and then however, later, once again the Secretary of the Education service board of the public
service commission (the central public service) transferred the petitioner finally to the ministry of education and the
higher education. So therefore someone else was appointed to fill in the vacancy created thereunder.

The petitioner here was challenging that he was apart of the Provincial Public service because he was working with the
provincial public service until the central public service commission made this particular transfer. And he was challenging
this decision of the central public service commission, the particular branch, saying that they did not have the power to
transfer him because he was a part of the provincial public service. And then however, when going through his history of
service, there was no evidence shown to show that he was relieved at any time from the central public service to serve
at the provincial council level.

For this purpose, the court had to once again look at the three lists and here particular the provincial council list
appendix 3. So appendix 3 comes from, its based on item 3 which refers to education and educational services and
education to the extent set out in appendix 3. Here if you look at appendix 3 para 3, there you’ll see the reference to
transfer and disciplinary control of all educational purposes belonging to a national service but serving the provincial
authority on secondment will have the right of appeal to the public service commission. And then the second one refers
to the officers belonging to the public service, have a right of appeal to the public service commission against dismissal.

Therefore, according to the courts here there are two categories of officers, mentioned in this section, first one is, those
who are part of the national service, but serving the provincial authority on secondment (secondment meaning an
official mechanism to release a person from the particular institution to work at a different public institution) they have
a right of appeal to the public service commission, meaning here the main public service commission. So when they are
transferred or their subject to disciplinary control at the provincial level, then they have a right of appeal to the public
service commission. Then the second category of officers who are belonging to the provincial public service, they only
have a right of appeal to the public service commission when they are dismissed. So therefore these are the two
categories that are constitutionally recognized.

Therefore the question here is where does this petitioner concerned, where does he fall? And the court here finds that,
he doesn’t belong to the provincial public service. But then, the court also finds that though he is an officer belonging to
the national service, but he has not been seconded at anytime to work at the provincial level. So therefore that is
because there is no official evidence that the petitioners have given to show that he has been seconded to the provincial
level. So therefore in this event, the court says that there is a third category of officials involved. And this third category
is the officers who are not seconded, who are part of the national public service but who are made available to the
provincial level based on an informal arrangement.

So therefore the informal arrangement in this case is put under the category of, their under the national public service,
but they are made available to the provincial level. And the court says that, the regulation of these kind of officers, their
transfers promotions, disciplinary control and all that is to be come within the purview of the national public service
commission. Therefore on this basis the court recognizes that there are three kind of officials working in the provincial
council level.

In relation to the first two categories, based on this appendix 3, there are certain powers to the governor or the
provincial public service commission (rights of appeal to the public service commission). But then the third category
recognized under this case, there considered to be continuing to be a part of the national public service so therefore
there fully within the regulatory capacity of the public service commission. And therefore the provincial administration
(the governor and the provincial public service commission) they are not the authority recognized here to regulate this
kind of officers. The national public service continues to have that capacity. Therefore, in addition to the two
constitutionally recognized category of educational personnel that there are also this kind of officials who are informally
made available to the provincial level.

WEERASINGHE V DISSANAYAKE

Here the same question as the above case came about in relation to once again a petitioner who was working in the
teacher service, starting out as a temporary assistant teacher in Anuradhapura and then the question here was once
again with regard to transferring of educational personnel who are neither officers of the provincial public service nor
the officers of the national service serving the provincial council on secondment but those who belong to the national
service and whose services are made available to the provincial council.

So here the court goes onto reaffirm the case we discussed saying that those who are not part of the provincial public
service and those who are also not seconded through the official procedure to the provincial level fall within this third
category to officers who are part of the national service but are made available to the provincial level and they remain
subject to the powers of the National Public Service Commission with regard to transfer and disciplinary control.
Therefore in that way, in relation to this third category of officers, the central public service commission remains to be in
control.

RANJANI PRIYALATHA V PROVINCIAL PUBLIC SERVICE

The petitioners here were once again, Grade 2 ayurvedic medical officers, who were initially a part of the Sri Lanka
Ayurvedic medical service which is an all island service. They were therefore initially appointed as ayurvedic medical
officers by the Director of local government authorities. But in1990 they were absorbed to the provincial public service,
because the local government service ceased to exist from 1990.
So here the question was a conflict between two authorities. Firstly there was the service minute of Sri Lanka Ayurvedic
service which says that the proper appointing authority for this medical service is the public service commission of SL.
But then if you look at, however, the provincial council list, items 12 1) & 2). So therefore provincial councils have
authority with regard to these, and following this particular devolved power in provincial council list item 12 1 & 2, the
central provincial council has made an ayurvedic statute no. 18 of 1990 which provides firstly for a provincial ayurvedic
commissioner who is to be the head of the central provincial ayurvedic department and therefore the argument is that,
the provisions of the particular service minute, coming from the central medical service is in consistent with the
particular provincial statute no. 18 of 1999. So therefore that service minute is in operative for the central province for
the duration of the provincial statute. SO therefore in this instance the court says that, the proper appointing authority
for the central provincial commissioner of ayurveda, it is vested with the Governor or the provincial public service.

Therefore the courts here recognize firstly recognizes the fact that, the ayurvedic statute of the central province here
mentioned prevails over the particular service minute of the SL ayurveda medical service, which was only approved by
the cabinet. Therefore, it’s the Governor or the provincial public service for the particular province who has the
authority to make the appointment.

Therefore this is a case that recognizes, the capacity of the provincial level to make appointments to provincial public
service, giving also prominence to the provincial statutes, in the event that, the provincial statute has been duly made
on a devolved matter.