by Varatharaja Perumal –
Function of democracy depends on rule of law and for ensuring proper function of rule of law the separation of powers is essential. In the process of progressing democratic system, the devolution of powers to the regional units of governance has become fourth pillar of the separation of powers, which in fact ensure the check and balance for good governing of the country.
Sri Lanka has more than 26 years experience of Provincial Council (PC) system since it was formed in 1988 under the 13th Amendment (13A) of the Constitution of Sri Lanka. Yet, the issues regarding the implementation of the 13A are not resolved. It is generally acknowledged that the powers devolved to PCs are insufficient for the PCs to be effective as to the social and economic development of the people and the regions of their respective provinces. To increase the powers of the PCs, the 13A should be fully revised and replaced by another amendment to the Constitution. This is widely called among the political circle 13 plus. Whether the leaders of Sri Lanka’s major political parties are ready for it at present circumstances is a matter of debate. The immediate concern is related with the defects engraved within the 13A, such as ambiguities in the provisions of the 13A and the problems arising out of the Concurrent List in the 13A, which legally facilitate the Government of Sri Lanka (GoSL) to curtail the powers and restrain the functional efficiency of the PCs. Without necessary amendments to the 13A by another set of amendments, such defects cannot be rectified. However, as a short term solution for immediate concerns there is a way if the political leaders of the ruling parties in Sri Lanka has wish and will to ensure the devolution meaningfully realized on the ground as it was envisaged when making the 13A. To mitigate the effects of such defects temporarily the leadership of the GoSL should be generous towards the PCs, for which at present the new government led by the President Maithripala Sirisena and the Prime Minister RanilWickramasinghe seem to have been attempting. The Supreme Court of Sri Lanka (SCSL) also could contribute to remove the effects of such defects from practice by establishing legal interpretations in favour of the PCs on the basis of the principle that the devolution of powers to PCs is a part of the basic structure of the Constitution.
I do not here wish to write my opinion on the 13A plus or the conspicuous defects in the 13A. My purpose is to present a note of my opinion in respect of Articles 154C and 154F inserted in the Constitution of Sri Lanka (CoSL) by the 13A. I write this article mainly because Northern Province Chief Minister Mr. Wikneswaran, he is an legal expert and has 40 years of judiciary experience and Mr Sumanthiran, he is the de facto spokesman of the TNA and also 20 years experienced lawyer, both repeatedly say to the media and in various forums that the 13A provides the Governor executive powers of the PCs and the Governor direct and control the functions and administration of PCs. No doubt, the Northern and Eastern Provincial Governors of the Rajapaksa government understood, explained and exercised as if that 13A empowered them to personally exercise the executive powers in the functions of provincial governance as they desire. But, I was disturbed whenever, the TNA leaders also was repeatedly uttering in their political campaigns and also in their media interviews that the Governors are given the executing power of the PCs and 13A have left the Chief Ministers and the other provincial ministers with nothing in the governing the administration of their provinces. In my opinions, the Governors of the Eastern and Northern provinces were acting in violation of the provisions of the 13A when exercising the executive powers in the functions of the provincial governance. TNA leaders never legally or publicly challenged the acts of the Rajapaksa’s Governors as unconstitutional, rather, nonetheless of their frustrated and angry cries against the Governors, they have been in a way indirectly justifying the way of functions of the Governors, as if they were legally valid. By doing so, TNA leaders also contribute to the wrong understating widely prevailing in Sri Lanka, in the respect of the legal propositions regarding the powers of the Governors.
I am not a legal expert. However, I write this note since I have gained a little legal knowledge on the Indian and Sri Lankan Constitutions and experience by practice as the former Chief Minister of the former North-East Provincial Council. With that limitation, I present this piece of writing for the consideration of the political leaders in power and the constitutional experts in Sri Lanka. Right understanding and practicing accordingly are imperative to the whole purposes of the 13A.
Provisions of the 13A as regards to exercising the Executive powers of the PCs are as following:
Exercise of executive powers by the Governor
154C. Executive power extending to the matters with respect to which a Provincial Council has power to make statutes shall be exercised by the Governor of the Province for which that Provincial Council is established, either directly or through Ministers of the Board of Ministers, or through officers subordinate to him, in accordance with Article 154F.
Board of Ministers
154F.(1) There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advise the Governor of a Province in the exercise of his functions. The Governor shall in the exercise of his functions act in accordance with such advice except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s directions.
(3) The question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be inquired into in any Court.
(6) The Board of Ministers shall be collectively responsible and answerable to the Provincial Council.
First here, I briefly list the existing pattern as to how the Provincial Governor functions:
1. The Governor is exercising the executive powers, not according to the advices of the Chief Ministers and the Ministers in the Board of Ministers, but according to his own discretion only.
2. Governor is exercising the executive powers, deliberately ignoring the advices of the Chief Ministers and the Ministers in the Board of Ministers.
3. Governor is exercising the executive powers on his own discretion in violation / contrary to the advice of the Chief Ministers and the Ministers in the Board of Ministers.
4. Governor is exercising the executive powers in violation / contrary to the rules and regulations and code of conduct made by the Board of Ministers / passed by the Provincial Council, with regard to conducting the Business of the Provincial Administration.
Hence, I raise the following questions, which are necessary for debates and decisions for achieving right perception and practices so that the PCs shall be redeemed from their white elephant status and making the elected representatives to act as effective and efficient political commanders at their provincial level functions:
1. Whether without the advice of the Chief Minister and his council of ministers, the Governor can at his discretion exercise any of the executive powers in the matters for which the legislative powers are vested with the Provincial council?
2. Whether the Governor can, in the exercise of his functions, act in contravention of the advice of the Chief Minister or his council of ministers, except in so far as he is by or under the Constitution expressly required to exercise his functions in his discretion?
3. Whether there is any function anywhere specifically required by or under the Constitution of Sri Lanka for the Governor to act at his discretion?
4. Whether the Governor can decide at his discretion any of the executive functions of the provincial governance as he may act in such function at his discretion, with or without any aid or advice of the Chief Minister?
5. Whether any provision of the Provincial Councils Act of 1987 (PCA of 1987) can be read in isolation from the provisions of the Constitution as the PCA of 1987 empowers the Governor independently or be interpreted in contravention or inconsistent to any provision of the Constitution of Sri Lanka?
6. Whether the Parliament has the power to extent the expression of “exception” referred in the Art. 154F (1) in order to make any law or any provision in any law for independently empower the Governor to act personally at his discretion in any of the function in any of the matters with respect to which a Provincial Council has power to make statutes?
It is better to note that the above-given provisions of the 13A are almost the copy of the provisions in the Constitution of India as regards to the same matter. The said provisions in the constitution of India are:
154. Executive power of State.-
(1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
162. Extent of executive power of State.-
Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
163. Council of Ministers to aid and advise Governor.-
(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.
164. Other provisions as to Ministers.-
(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minster, and the Ministers shall hold office during the pleasure of the Governor:
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
I do not need to explain here as to how the Governors and Chief Ministers are functioning in India. I referred the relevant provisions from the Constitution of India only for the purpose of showing similarity. There are so many Judgments of the Supreme Court of India (SC of India) clarifying exact legal position of the above-referred provisions. Decision of the Indian courts may not bind the Sri Lankan courts. They are valuable for references and considerations of the Sri Lankan courts since so far higher courts of Sri Lanka have not clarified or held any decision on the questions as to how and by whom the executive powers of the PCs have to be exercised. Those who are interested to know and understand the exact legal position of the above-referred provisions of the Indian Constitution may read at least some of the land-mark Judgments of the SC of India, like Samsher Singh v. State of Punjab, AIR 1974 SC 2192, Ram Jawaya v. State of Punjab, AIR 1955 SC 549 and U.N. R. Rao vs Smt. Indira Gandhi, 1971 AIR 1002, 1971 SCR 46. I wish that this my article may encourage a debate in Sri Lanka. Since Sri Lanka too a part of the Commonwealth, the relevant decisions held by the SC of India are important for the Consideration of the SC of Sri Lanka.
In Sri Lanka it is widely understood or believed that the 13A makes the Governor not only as the head of the Province but also as the head of provincial executive authority i.e. Provincial Government, as similar to the executive Presidential system of Sri Lanka. Establishment of the Provincial Council system in Sri Lanka is not based on the constitutional model of USA or France but on the tradition of Westminster system i.e. cabinet system of government, whereas, it is well known, the system of central governance of Sri Lanka is based on the combination of USA and France models. Here in the provinces, the de facto executive authority is formed by the elected representatives of the people and the Governor is nominee of the President to function as the Constitutional Head of State at Provincial level. Once the elected body takes over the seat of governance the Governor becomes as nominal Head of the Province until that elected body enjoys the majority support of the elected members of The Provincial council.
During the negotiations held in 1984 between JR Jeyawardane (JRJ) and TULF leaders with the mediation of G.Parthasarathy and also in 1986 between JRJ and Indian Government representatives in consultation with the TULF leaders, late Mr. Amirthalingam wanted an executive Governor system like in USA. But, JRJ and envoys of the Government of India came to an understanding to establish Indian-type of Provincial State system.
Collective Responsibility of the Governance
In this system head of the state and the head of the government are different identity. The President of Sri Lanka is, as per the Art. 42 and 43 of the Constitution, a member and the head of the Cabinet, which is collectively responsible and answerable to the Parliament. But, the Governor here is neither a member or the head of the Board of Ministers nor he bears the collective responsibility. In the Provincial system here the collective responsibility of the governance is burdened with the Board of Ministers including the Chief Minister. It is a basic principle of jurisprudence that a body or person cannot be burdened with responsibility to any duty without providing authority to that body or person with regard to such duty.
The Chief Minister and other Ministers in the Board of Ministers are not appointed by the Governor at his discretion or desire but appointed in accordance with Constitution from the representatives elected by the people.
How the Executive power shall be exercised by the Governor and whether he shall exercise either directly or through Ministers of the Board of Ministers, or through officers subordinate to him are conditioned by the Article 154F.
The Art. 154 says that there shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advise the Governor of a Province in the exercise of his functions. The Governor shall in the exercise of his functions act in accordance with such advice except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
It is wrong to interpret that there is no word “only” to compel the Governor to act only in accordance with the advice of his Ministers. It is a constitutional convention of the Commonwealth Countries which follow the Westminster system that it is compulsory that the Governor should act only on the advice of his ministers when he is required by the Constitution that he shall act on or in accordance with advice of his Ministers. I wish to quote here the relevant Constitutional provisions of Canada and Australia with regard to the relations between the head of State and the Council of Ministers in exercising the executive powers.
Article 65 of the Canadian Act 1867
All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exercisable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice or with the Advice and Consent of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant Governor of Ontario and Quebec respectively, with the Advice or with the Advice and Consent of or in conjunction with the respective Executive Councils, or any Members thereof, or by the Lieutenant Governor individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland,) to be abolished or altered by the respective Legislatures of Ontario and Quebec.
Commonwealth Of Australia Constitution Act
Article 61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.
Article 62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.
63. The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.
In these countries including UK, the executive powers are vested with Queen of Great Britain and not with the Prime Ministers of these countries, however as far as the UK is concerned the executive powers are exercised by the Queen in accordance with the advice of the Prime Minister and the other Ministers in the Cabinet of UK, except Royal Prerogative i.e. discretionary power. As far as Canada and Australia are concerned the executive powers, though vested with the Queen of England, shall be exercised by the Governor Generals at federal level and by the governors at Provincial levels, only in accordance with the advice or advice and consent of the Ministers. Therefore, in real practice, the executive powers are vested with the Ministers in Council.
It is to be noted that in the above – given Constitutional provisions of India, Canada and Australia, there is only the term “on the advice” and not the term “only on the advice”. The argument that the Governor may or may not accept the advice of his ministers is inconsistent to and against the spirit of the Commonwealth Constitutional Conventions. The provision that the Governor shall act in accordance with the advice of his ministers, means that the Governor is mandatorily required by the Constitution to act only on the advice of his Ministers. Otherwise, the Chief Minister and other Ministers in the Board shall be reduced to the status of non-governmental consultants. If so assumed, then the elections and peoples mandate shall become farce and redundant.
Barring the exception, the Governor should not act without aid and advice of the Chief Minister and the other Ministers in the Board. The Governor has no authority to act on his own whims and fancies. His discretionary power is well defined.
1- Here the term “functions’ is defined in the Art.154C as the functions in the matters with respect to which a Provincial Council has power to make statutes.
2- The functions in such matters exempted from the “aid and advice” of his ministers and left to the discretion of the Governor are limited to as “in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion”.
Unless and otherwise it is provided by or under the Constitution, the Governor shall not act at his discretion in exercising the executive powers of the PCs. No law other than the Constitution shall provide any of the functions defined above, to the discretion of the Governor. The Constitution of Sri Lanka does not provide any such function specifically for the discretion to or prerogative of the Governors. He cannot on his own assume any administrative power or function for his discretion. In a situation where any governing power or function is specifically required by or under the Constitution to act at his discretion then the governor may act with or without the advice of the Chief Minister and the other Minister in the Board. No question, whether the Governor has acted in such function only at his discretion or with the advice of any of the Ministers, can be raised in or inquired by any court on the ground that the Governor ought or ought not to have acted in his discretion.
Hence, the interpretation that the governor has discretionary power to decide any of the functions in governing the province is totally contrary to the precise meaning of the discretionary power referred in the Article 154F of the Constitution of Sri Lanka. The clause (2) of Art.154 should be read, harmoniously and not inconsistently, with the Art. 154B (11) which clearly establish that the Board of Ministers is the real executive body of the Provincial governance, Otherwise the provisions in the Art.154B (11) shall either become repugnant to the provisions in the Art.154F or degrade the Chief Minister and other Ministers as paid subordinate servant of the Governor.
The last Government of Sri Lanka and the former Governors of the Eastern and the Northern provinces explained that the Provincial Councils Act of 1987 (PCA of 1987) charged and empowered them to exercise in the functions of the provincial governance to act, regulate and control directly and also to make rules and regulations of various functions at their discretion. This understanding or explanation is absurd and completely contrary to the constitutional convention and also nullify relevant constitutional provision. Sri Lanka is a Constitutional Democratic Country. Here the Constitution is the Supreme. The PCA of 1987 should not be read or interpreted in isolation or independently from the provisions of the Constitution. As a consequent to the Art.80(3) of the constitution, question of validity cannot be raised in any court. However, the Supreme Court of Sri Lanka is empowered by the Constitution to provide right interpretation to any provision of any law of the country. Since no provision of the PCA of 1987 is established to be inconsistent to any provision of the Constitution, the provisions of the PCA of 1987 should be practiced in accordance with and compliance to the provisions of the Constitution.
Hence, the PCA of 1987 does not provide any power on any function of the governance to the Governor to act at his discretion. Instead, the Governor has to act in accordance with and compliance to the Art 154F of the Constitution. The Governor cannot be empowered by the PCA of 1987 independently, to act at his discretion in his functions of provincial governance, but only by and under the Constitution. In case the understanding and the explanation of the former Governors of the government led by former President Mahinda Rajapaksa are accepted, then there shall not be devolution by the Constitution but only a regulated and controlled administrative decentralization of the powers and functions at the mercy of the Government of Sri Lanka.
If the Governor has exclusive power to decide at his discretion that in which functions he has to act in aid of and with the advice of Ministers and in which functions he has the power to decide arbitrarily to act without the advice of his ministers and also if his discretion on such decision is final, then there is no need of defining the discretionary powers expressed in the latter part of Art.154F (1).
I, therefore, conclude that the Governor should act in exercising the executive functions in the matters with respect to which a Provincial Council has power to make statutes. The Governors are only the constitutionally nominal heads of the respective PCs when the elected Provincial Council is sustaining with the Chief Minister who commands the support of the Provincial Council. There is no executive discretionary power entrusted with the Governors by or under the Constitution.
I hopefully expect that the forthcoming 19th Amendment to the Constitution would clear the clouds of existing confusion prevailing now with regard to the understanding and application of the Articles 154C and 154F of the Constitution and the provisions of the PCA of 1987. Whoever may be appointed as Governor since he is a representative of the President, imperative is how he acts in the governance of the province. Proper implementation is the essential step for the full implementation of the 13A of the Constitution of Sri Lanka.
– Asian Mirror