Dissolution of the Provincial Council by the Governor- Writ of Certiorari and Prohibition

 

Dissolution of the Provincial Council by the Governor- Writ of Certiorari and Prohibition

 

Maithiripala Senanayake

Vs.

Mahinda Soma

 

Fact:

 

The Governor of the North Central and Sabragamuwa Provincial Councils wrote to the respective chief ministers seeking advice on the dissolution of the Provincial Councils. The chief ministers advised against dissolution. At the time of such advice, the Board of ministers in each council commanded the support of the majority of the members of the council.

 

The Governors then referred the question of dissolution for an order and direction to the president in terms of Article 154 (B) read with Article 154 (F) of the Constitution. The President made order and directed the Governors to dissolve the respective Provincial Councils and the Governors dissolved the respective Councils acting in terms of the said order and direction.

 

 

Issues:

Whether the power of the Governor to dissolve a Provincial Council is discretionary or mandatory powers of the president to give directions.

The Supreme Court on the following questions,

 

1.     Whether Article 154 B (8) (c) contemplates a discretionary power by the governor and if so, whether such power is required to be exercised on the direction of the president?

2.     Whether Article 154 B (8) (d) contemplates the exercise of the governor’s power solely as a delegate?

3.     Whether the proviso appearing immediately after Article 154 B (8) (a) applies to Article 154 B (8) (d)?

 

Held:

 

Answer to question one taken in isolation Article 154 B (8) (c) would seem to confer a discretionary power for the provision states that the governor may dissolve the Provincial Council. However, Article 154 B (8) (d) prescribes the manner in which the power of dissolution may be exercised.  The governor shall exercise his power under this paragraph in accordance with the advice of the chief minister as long as the Board of ministers commands in the opinion of the governor, the support of the majority of Provincial Council.    

Answer to question two    Article 154 B (8) (d) does not contemplate the exercise of the governor’s power solely as a delegate. The power of dissolution is one that is expressly conferred on the governor by Article 154 B (8) of the constitution. It is not a power of the president exercised by the president by means of governor.               

Answer to question three the proviso appearing immediately after Article 154 B (8) (a) does not apply to any other paragraph or sub paragraph of Article 154 B including Article 154 B (8) (c) and (d).

 

Appeals against Judgment of the Court of Appeal

 

Appeal in their judgment delivered, the court stated as follows,

The governor when dissolving a provincial council acting under the provision of Article 154 B (8) (c) has no discretion and his bound by the provisions of Article 154 B (8) (d) to act on the advice of chief minister provided the Board of Ministers commands a majority in the Provincial Council.

Accordingly, the Court of Appeal declared the orders of dissolution made by the Governors null and void and issued and granted orders in the nature of writs of Certiorari quashing the orders of dissolution and further.

 

The notification published by the commissioner of elections illegal and issued and granted orders in the nature of writ of Certiorari quashing the notification.

 

The court of appeal refused to grant the writs of prohibition prayed for against the commissioner of elections on the ground that the question of holding elections does not arise, as the terms of office of the said provincial councils would be revived by virtue of the order of the court holding the dissolution to be null and void and quashing the dissolution.