ROHAN EDRISINHA & ASANGA WELIKALA
The North Central and Sabaragamuwa Provincial Councils have been dissolved by Proclamation of the respective Governors effective as of midnight on Monday 9th May 2008 (see Gazette Extraordinary No. 1553/6 (North Central Province) and No. 1553/7 (Sabaragamuwa Province), 9th June 2008). Both Councils were dissolved approximately fourteen months before their respective terms of office would have expired at the end of five years from the date of election in terms of Article 154E of the Constitution. In the ordinary course of things, the North Central Provincial Council would have ended its term on 11th August 2009, and the Sabaragamuwa Provincial Council on 09th August 2009.Â
While the Proclamations do not set out reasons for the dissolutions, media reports quoting the Chief Minister of the North Central Province seem to suggest that the dissolution in respect of that Province at least was because the Board of Ministers had lost the support of the majority of members of the Council. To the best of our knowledge, at the time of dissolution, the configuration of representation out of a total of 33 members in the North Central Province was as follows: SLFP/UPFA, 14 members; UNP, 10 members; JVP, 08 members; and SLMC, 01 member. In the Sabaragamuwa Province, out of a total of 44 members, the party configuration was as follows: SLFP/UPFA, 18 members; UNP, 15 members; JVP, 10 members; and CWC, 01 member. The Chief Minister of the North Central Province has been quoted in the media as stating that administration proving difficult in the absence of a majority, it was decided that the Governor be advised to dissolve the Council, so that the people would have an opportunity at the resulting election to give a fresh mandate. It should also be recalled that in the last elections to these Provincial Councils held in 2004, the SLFP and the JVP contested as a single alliance political party in the form of the UPFA. From what we understand, it was only in 2005 that the JVP decided to sit in opposition due to policy differences relating to the P-TOMS that had arisen within the UPFA.
The dissolutions have generated considerable public debate, with opposition political parties, notably the UNP and JVP vowing legal action. Both parties have claimed that they have communicated to the respective Governors in writing that the combined opposition in the two Councils constituted a majority, although they do not seem to have suggested that the combined opposition in the two Councils are ready to form an alternative administration.
In this context, it would be useful to unpack the constitutional and political issues raised by the dissolutions, with a view to dispassionately assessing the options available within the framework of the constitutional provisions governing the question of dissolution of Provincial Councils.
While the Constitution provides for the dissolution of a Provincial Council at any time prior to the expiry of its term, the Governor’s power to do so is neither substantively nor procedurally absolute. The relevant provisions of the Constitution are Article 154B (8) (c) and (d). Article 154B (8) (c) is a specific provision regarding the Governor’s power over dissolution, which states that ‘The Governor may dissolve the Provincial Council.’ The use of the word ‘may’ suggests that this is a permissive or directory power granted in the nature of a discretion to the Governor. Article 154B (8) (d) is a general provision applicable to all other provisions of Article 154B (8), including in relation to the power of dissolution under sub-paragraph (c), which provides that ‘The Governor shall exercise his powers under this paragraph [i.e., Article 154B (8)] in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council.’ Here the word ‘shall’ indicates that this is a mandatory constitutional duty placed upon the Governor in the exercise of his discretion with regard to dissolution, provided that the other elements of the provision are present.
Within this framework, there appear to be two broad legal interpretations suggesting possible courses of action in relation to the political facts under consideration. The provisions read as a whole are ambiguous and therefore capable of more than one interpretation. Â Both approaches have their strengths and weaknesses, their own logic in terms of both the text and purpose, and it is our intention in what follows to (a) outline the two approaches; (b) point out some of their relative merits; and finally (c) to flag some of the broader constitutional principles that are engaged in the interpretation of the specific constitutional provisions on dissolution, which ought to be kept in mind regardless of which interpretation eventually prevails.
THE FIRST APPROACH
The first possible interpretation of Article 154B (c) and (d) is as follows. The Governor is granted a discretionary power to dissolve a Provincial Council by Article 154B (8) (c), but this is subject to a mandatory duty, imposed by Article 154B (8) (d), to exercise the power only according to the advice of the Chief Minister, who must further, in terms of Article 154B (8) (d), command the support of a majority in the Council. There is strong appellate judicial authority for the proposition that the Governor’s power to dissolve is only exercisable on the advice of the Chief Minister enjoying the support of a majority (see Mahindasoma v. Maithripala Senanayake and Another (1996) 1 SLR 180: in the Court of Appeal, per Gunawardena J. and Maithripala Senanayake, Governor of the North Central Province and Another v. Gamage Don Mahindasoma and Others (1998) 2 SLR 333: in the Supreme Court per Amerasinghe J.). According to this argument, the Governor has no discretionary power of dissolution independent of the advice of a Chief Minister with a majority. The Governor is a creature of the Constitution, and does not enjoy prerogative powers to dissolve an elected legislature in the nature of a head of state in a parliamentary system, or indeed any power similar to the constitutional powers over the dissolution of Parliament vested in the President of Sri Lanka. Due to the duty imposed on the Governor by Article 154B (8) (d), the condition precedent to any exercise of the power under ArticleÂ 154B (8) (c), is the advice of theÂ Chief Minister enjoying the support of a majority.
Thus the argument based on this position, distinguishing the cases cited earlier on the facts from the issue presently under consideration, is that in those cases, the Governor dissolved the Provincial Council, against the advice of the Chief Minister commanding majority support, in the mistaken and ultimately illegal belief that he had a discretionary power to do so under instructions from the President. In the present circumstances, the Chief Ministers of the North Central and Sabaragamuwa Provinces did not command the support of a majority within the respective Provincial Councils. They were not, therefore, entitled to tender advice recommending dissolution to the Governors. Consequently, the Governors could not legally exercise their power under Article 154B (8) (c). For these reasons, in this interpretation, the purported dissolutions of the North Central and Sabaragamuwa Provincial Councils last week, would be unconstitutional and null and void.
A key weakness of this argument is that it represents a highly rigid approach to constitutional interpretation. There is no doubt that there are strong dicta in the cases cited above supporting the proposition that the Governor, as an appointed official, must heed the advice the advice of the Chief Minister, an elected official, when exercising the power to dissolve a Provincial Council. But the salient and undisputed matter on which those cases turned was the fact that the Chief Ministers commanded the support of a majority of their Councils. Consistently and repeatedly in the judgments of both the Court of Appeal and the Supreme Court, their Lordships have used the phrase in Article 154B (8) (d) ‘…so long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council’ in coming to the conclusion that the Governor acted illegally in disregarding the advice of the Chief Minister. Furthermore, in those cases, the position taken up by the Governors was that they could ignore the advice of the Chief Ministers and take instructions directly from the President in the exercise of their discretion to dissolve. In those circumstances, the courts had no hesitation in applying the plain meaning of Article 154B (8) (d) to uphold both, the duty of the Governor to heed the advice of the Chief Minister, as well as the broader principle of devolution within the framework of the Thirteenth Amendment, on the question of dissolution.
However, in the current scenario, the Chief Ministers of the North Central and Sabaragamuwa Provinces do not command a majority in their respective Councils. In such circumstances, to rigidly insist that a Chief Minister must command a majority in order for the procedure for dissolution to be at all possible may well risk the possibility of deadlock and debilitate administration in these Provinces, until such time as elections must be held with the expiry of the Councils’ terms of office.
On the other hand, notwithstanding that the Chief Ministers have now asked for dissolution, they have managed minority administrations in these Provinces since mid-2005, when the JVP crossed to the opposition on policy differences that had emerged within the UPFA. The question naturally arises then, as to why they should now ask for dissolution with only fourteen months to go for a scheduled election, when they seem to have managed without major administrative failure or legislative deadlock for three years. Indeed, it may be pointed out, there appears to have been no major crisis of administration within these Provinces as to precipitate a step as drastic as dissolution at this time.Â
THE SECOND APPROACH
The second possible interpretation of the constitutional rules with regard to dissolution of a Provincial Council requires consideration of the structure of Article 154B (8) as a whole. In sub-paragraphs (a), (b) and (c), the draftsman has enumerated certain discretionary powers of the Governor in relation to the Provincial Council as a legislature. These are, respectively, the power to summon, prorogue, and dissolve the Council. Then in sub-paragraph (d), it is provided that all these powers must be exercised on the advice of the Chief Minister, so long as the latter in the opinion of the Governor commands a majority. The implicit meaning of this is that if the Chief Minister is heading a minority administration and therefore does not command the support of a majority of members in the Council, the power of the Governor to act in his own discretion in respect of the matters enumerated in sub-paragraphs (a), (b), and (c), is restored. This approach has the flexibility to ensure that, should it become necessary, the option of dissolution in mid-term is available even where there is a minority administration.
A drawback of this approach, however, is that it seems to give the Governor substantial discretionary powers in the event of a minority administration. The concern here is one that has been made in relation to the position of the Governor in general within the scheme of devolution established by the Thirteenth Amendment as a potential impediment to devolution. The Governor, appointed by the President, and in certain circumstances enjoined to act on the instructions of the latter, is vested with powers that are unusually broad in a constitutional scheme seeking to devolve power. In such a constitutional framework that quite unequivocally positions the Governor as an agent of the centre within the provincial administration, there is cause for concern that the Governor is vested with a discretionary power of sole agency as fundamental as dissolution. In other words, it can be the gateway to major central incursion and interference with the functioning of the provincial sphere. This is exacerbated by the fact that, in this interpretation of Article 154B (8), this power becomes exercisable at his discretion at a time when arguably the provincial administration is in a minority and therefore is politically weaker than usual.
There is perhaps another potential problem with this approach to Article 154B (8). If in the event that the safeguard for devolution and provincial autonomy offered by Article 154B (8) (d) is unavailable to a Chief Minister by virtue of a minority administration, and the Governor thereby exercises the power of dissolution at his own discretion, there is also the danger that he may do so without adequate reflection and assiduity of effort to explore whether an alternative administration may be formed by another member of the Provincial Council. Dissolution entailing an election should be an act of last resort, but if the Governor has the power of dissolution without at the same time the incentive to explore alternatives (for the reason that his interest is that of the centre and not the Province), there is the possibility of hasty dissolution, of exceeding his powers, and of taking into consideration factors which are not relevant or which are not in the best interests of the Province. This could result in challenges to these decisions on grounds of substantive ultra vires. Indeed, it would seem that the exploration of alternatives such as asking the Provincial Leader of the Opposition to form an administration is a factor that is fundamental to a rational and reasonable decision of dissolution in the event those initiatives fail.Â
In the decisions regarding dissolutions of Provincial Councils mentioned above, as well as in other well known decisions on the nature of the decision-making power of the Governor (see Premachandra v. Major Montague Jayawickrema and Another (1994) 2 SLR 180), the Supreme Court in particular has clearly indicated that it will review decisions that are substantively ultra vires. This means that a very high standard of substantive justifiability (including tests relating to reasonableness, legality, rationality, proportionality and the public interest), in addition to compliance with proper procedure, will be reviewable by the courts. A key factor is that the specific nature of the Governor’s office in terms of the Thirteenth Amendment as an extension of presidential power deprives him of the legitimacy to take discretionary decisions in respect of the provincial legislature.
In the events leading up to the dissolutions last week, there is no evidence to suggest that the Governors explored the possibility of an alternative administration even in the light of written representations of the combined opposition confirming an opposition majority. That the perceived policy gulf as between various parties in the opposition made it unlikely that they could form an alternative administration together, it is submitted, was not a conclusion that the Governor should have arrived at by himself, without first asking those parties whether they could in fact do so. It is in this context that questions inevitably arise as to whether the Governors were motivated by the dictates and imperatives of the central government. The political legitimacy of the Governors’ decisions is further called into question when it is perceived that both these appointments have been essentially patronage appointments by the President.
DEVOLUTION AND THE RULE OF LAW
As observed before, whatever interpretative approach is adopted with respect to the specific question of dissolution, they also raise some broader and more fundamental constitutional issues with respect to devolution and good governance.
In Maithripala Senanayake, Governor of the North Central Province and Another v. Gamage Don Mahindasoma and Others (1998), Amerasinghe J.Â held in the Supreme Court that:
“Article 154 B (8) (c) and (d), it seems to me, was designed to promote the purpose of devolution. When that Article was enacted, Parliament had before it Article 70 of the Constitution which provides that the President may, from time to time, by Proclamation summon, prorogue and dissolve Parliament. It is not without significance that in enacting the Thirteenth Amendment, a similar power was not conferred on the Governor. Instead, in Article 154 B (8) (c) and (d) Parliament underscored the purpose of the Thirteenth Amendment by enacting that the Governor shall exercise his powers of dissolution in accordance with the advice of the Chief Minister, so long as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Provincial Council…and in the exercise of that power, the Governor is subject to certain procedural safeguards which have been imposed by Parliament, having regard to the purpose of the Thirteenth Amendment, for the benefit of the voters and their elected representatives at a Provincial level, who might be affected by the exercise of the Governor’s power of dissolution.” (op cit., pp. 352-3; emphasis added)Â
These observations are salutary. The government has claimed that it is committed to a policy of ‘full implementation’ of the provisions of the Thirteenth Amendment until such time as the All Party Representative Committee (APRC) reports on recommendations for more substantive constitutional reform. The Thirteenth Amendment as a framework of devolution is structurally flawed, and a fortiori therefore, ‘full implementation’ would require that political and administrative practices around it also ensure the promotion of devolution. We know that almost all other Provincial Councils operate with minority UPFA administrations which are also due for dissolution by operation of law in August 2009 (except the Eastern Province in both respects). A healthy scepticism of officialdom in a democracy will therefore raise the question as to why only two Provincial Councils have been dissolved at this time. As a matter of electoral politics, it has been our experience during both UNP and SLFP-led governments at the centre, that conducting staggered provincial elections places the ruling party in a position of tremendous advantage over the opposition. If political considerations of electoral advantage for the ruling party at the centre (and of all the minority provincial administrations) have entered the equation in dissolving some Provincial Councils and not others, then the fundamental rationales of devolution and democracy would be undermined.
This also brings to the fore another key concern: that of the conduct of free and fair elections and the non-implementation of the Seventeenth Amendment. Like in the experience of the Eastern Province, the elections contemplated for the North Central and Sabaragamuwa Provinces would in all likelihood be held without the implementation of the Seventeenth Amendment to the Constitution which provides among other things for an independent Elections Commission, Police Commission and Public Service Commission. The recent elections to the Eastern Provincial Council was a sad demonstration of the futility of attempting to conduct free and fair elections in the present political environment without independent institutions to administer and monitor such elections. The Commissioner of Elections’ consistent refusal to assert his powers, the abdication of responsibility, due to fear and intimidation, by Senior Presiding Officers and other election officials (public servants) and the politicisation of the police, all clearly demonstrated in the Eastern Province elections, highlight the need for elections to be held in conformity with the Rule of Law. In these circumstances, the regrettable consequence will be that the legitimacy of the forthcoming provincial elections will be the subject of partisan contestation and the further erosion of public confidence in democratic institutions.