006-SLLR-SLLR-1994-V2-PREMACHANDRA-V.-MAJOR-MONTAGUE-JAYAWICJREMA-AND-ANOTHER-PROVINCIAL-GOVERNO.pdf
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Sri Lanka Law Reports
[1994] 2 Sri L.R.
PREMACHANDRA
v.
MAJOR MONTAGUE JAYAWICKREMA AND ANOTHER{PROVINCIAL GOVERNORS’ CASE)
SUPREME COURT.
G.P.S. DE SILVA, C.J.,
BANDARANAYAKE, J„
FERNANDO. J.
S.C. REFERENCE NOS. 2/93 & 3/93.
C.A. APPLICATION NOS. 376/93 & 377/93.
S.C. REFERENCE NOS. 4/93 & 5/93.
C.A. APPLICATION NOS. 378/93 & 379/93.
JULY 07.08 AND 09.1993.
Provincial Councils – Governors' duty to appoint the Chief Ministers – ConstitutionArticle 154F – Appointment of UNP contenders as Chief Ministers – QuoWarranto, Certiorari and Mandamus – Article 154F (4) of the Constitutionexcluding the proviso – Article 154F (2) and (6) of the Constitution – Referenceunder Article 125 of the Constitution – Governor's powers – Justiciability of theexercise of the Governor's power and discretion – Judicial review – Infringementof fundamental rights – Constitution, Article 12(1) and (2) – Reference underArticle 126(3) to Supreme Court of only the “question" of infringement of afundamental right – Validity of such reference.
Three recognised political parties – the United National Party (UNP). theDemocratic United National Front (DUNF) and the Podujana Eksath Peramuna(PEP) – contested the North-Western and Southern Provincial Council Electionsheld on 17.5.93. No party gained an absolute majority. In the North-WesternProvince Elections the UNP won 25 seats, the PEP won 18 seats and the DUNFwon 9 seats. In the Southern Province the UNP won 27 seats, the PEP won 22seats and the DUNF won 6 seats.
The Governors of the two Provinces (Major Montague Jayawickrema, Governor ofthe North-Western Province and M. A. Bakeer Markar. Governor of the SouthernProvince) were required to appoint Chief Ministers under Article 154F of theConstitution. The Governors of the two Provinces were faced with rival claims forappointment as Chief Minister – between G. M. Premachandra of the DUNF,Petitioner and Gamini Jayawickrema Perera of the UNP (2nd respondent) in theNorth-Western Province Provincial Council (S.C. Reference 2/93 & 3/93) andbetween Amarasiri Gardiyage Hewawasam Dodangoda of the PEP (Petitioner)and M. S. Amarasiri of the UNP (2nd respondent) in the Southern Province
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Provincial Council. {S.C. Reference 4/93 & 5/93). On 21.5.93 the Governor of theNorth-Western Province (Major Montague Jayawickrema) and the Governor of theSouthern Province (M. A. Bakeer Markar) appointed the UNP contenders as ChiefMinisters of the two Provinces,
Each Petitioner thereupon filed two applications in the Court of Appeal: one forQuo Warranto questioning the 2nd respondent's legal right to hold office as ChiefMinister and the other for Certiorari to quash the appointment of the ChiefMinister and Mandamus to compel the Governor to appoint the Petitioner asChief Minister. The four applications were taken up for hearing together in theCourt of Appeal.
As questions of constitutional interpretation arose, the following questions forreference under Article 125 to the Supreme Court were agreed on:
“1. Whether the exercise of the power vested in the Governor of a ProvincialCouncil (sic) under Article 154F (4) of the Constitution (excluding theproviso) is solely a matter for his subjective assessment and judgment andtherefore not subject to review by Court?
Whether the power exercised by such Governor under Article 154F (4) of theConstitution (excluding the proviso) and any act done in consequencethereof is not justiciable, and is essentially a matter political in nature?
Whether a decision made by such Governor under Article 154F (4) of theConstitution (excluding the proviso) as to the appointment of a Chief Ministerof a Provincial Council could be called in question or set aside by any Courtby reason of the provisions of Article 154F (2) of the Constitution?
Whether the decision of the Governor under Article 154F (4) of theConstitution (excluding the proviso) is not subject to judicial review on thebasis that such decision does not deny or infringe any legal right of thepetitioner in each case?
Whether the Court should not exercise such review on the basis that there isan alternative remedy provided by the Constitution whereby the Governor'sdecision can be tested in the Council?
Held:
There was no proper reference of the matter under Article 126(3) as it was notof the entire ’matter’ and only the reference under Article 125 requiredconsideration by the Supreme Court. On the objection taken in the Court ofAppeal that Court should at least have inquired whether the Chief Ministerswished to furnish additional affidavits, and being an inter partes proceeding, theCourt should not have reached a finding that there was a prima facie evidence ofan infringement of a fundamental right without hearing submissions on behalf ofthe Chief Minister.
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It is a cardinal maxim that every power has legal limits, however wide thelanguage of the empowering Act. If the Court finds that the power has beenexercised oppressively or unreasonably, or if there has been some proceduralfailing, such as not allowing a person affected to put forward his case, the actmay be condemned as unlawful.
There are no absolute or unfettered discretions in public law; discretions areconferred on public functionaries in trust for the public, to be used for the publicgood, and the propriety of the exercise of such discretions is to be judged byreference to the purposes for which they were so entrusted.
The Governor is given a discretion in order to enable him to select as ChiefMinister the representative best able to command the confidence of the Council,and thereby to give effect to the wishes of the people of the Province. Thatdiscretion is not given for any other purpose personal or political.
Answers to reference under Article 125:
The exercise of the powers vested in the Governor of a Province underArticle 154F (4), excluding the proviso, is not solely a matter for hissubjective assessment and judgment: it is subject to judicial review by theCourt of Appeal. In applications for Quo Warranto, Certiorari andMandamus, the Court of Appeal has power to review the appointment,inter alia, for unreasonableness, or if made in bad faith, in disregard of therelevant evidence, or on irrelevant considerations or without evidence.
The Governor's selection of a person for appointment as Chief Minister,under Article 154F (4). excluding the proviso, may require theconsideration of political factors, nevertheless it is not an act which ispurely political in nature, it involves the determination of legal rights,flowing from constitutional provisions concerning the allocation andexercise of powers (relating to the administration of the affairs of theProvince) by the elected representatives of the people of the Province.The appointment of a Chief Minister is justiciable, and there is no self-imposed rule or judicial restraint which inhibits judicial review.
Where a question arises as to whether the Governor must act on advice,or in his discretion. Article 154F (2) requires him to decide that question;Article 154F (2) makes his decision on that question final and precludesanything thereafter done by the Governor being called in question in anyCourt on the limited ground "that he ought or ought not to have acted inhis discretion"; that provision does not apply to the appointment of a ChiefMinister under Article 154F (4).
The Governor's decision involves a constitutional power and the duty ofthe Governor, and a constitutional right of the Petitioners (in common with
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the other Councillors) to the proper exercise of such power and duty;judicial review is not excluded.
This does not raise any question relating to the interpretation of theConstitution.
Cases referred to:
Chandrasekeram v. A.G. – SC References 1-3/92,
SC Minutes of 29.6.92.
Baker v. Carr (1962) 369 US 186.
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948]1 K. B. 223
Bhut Nath v. State of West Bengal AIR 1974 SC 806,811.
Rooke's Case (1598) 5 Co. Rep. 99 b.
Roberts v. Hopwood [1925] AC 578,613.
United States v. Wunderlich [1951] 342 US 98, 101.
Hirdaramani v. Ratnavaie [1971] 75 NLR 67, 82.
Liversidge v. Anderson (1942) A C. 206.
R. v. I.R.C. ex. p. Rossminister Ltd. [1980] A.C. 952.
Secretary of State for Education v. Tameside [1977] A.C. 1014,1047.
Adegbenro v. Akintola [1963] 3 All E.R. 544, 551.
Dinesh Chandra v. Charan Singh AIR 1980 Delhi 114,117.
Madan Murari v. Charan Singh AIR 1980 Calcutta 95.
Dissanayake v. Kaleel SC (Special) Nos. 4-11/91 S.C. Minutes of 3.12.91.
State of Rajasthan v. Union of India AIR 1977 SC 1361, 1412 -13.
Nixon v. Harndon (1926) 273 US 536.
Brown v. Board of Education (1953) 347 US 483.
Council of Civil Service Unions v. Minister for Services [ 1985] 1 AC 374, 418.
U.N.R. Rao v. Smt. Indira Gandhi 1971 (Supp. S.C.R. 46)
R. v. Governor of Wormwood Scrubbs Prison [1920] 2 K. B. 305.
The King v. Halliday [1917] A.C. 160, 170.
Jogendra Nath v. State of Assam AIR 1982 Gauhati 25,34.
Reference under Article 125 and 126(3) of the Constitution (see Judgment ofCourt of Appeal reported in [1993] 2 Sri L.R. 294.
H. L. de Silva. PC. with R. K. W. Goonesekera, Gomin Dayasiri, Nihal Jayamanne,P.C., Nimal Siripala de Silva, Nigel Hatch, Elmo Perera, N. M. Musafer and M. N.Amerasinghe for the Petitioners.
Tilak Marapana, P.C.. Attorney-General, with K. C. Kamalasabayson, D.S.G.,Kumar Paul S.C., W. D. D. de Alwis S.C. for the 1st Respondent (Governors). '
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L C. Seneviratne, P.C. with S. C. Crosette-Thambiah, D. H. N. Jayamaha, DayaPelpoia, Naufel Abdul Rahuman, Lakshman Perera, Ronald Perera and A. Brito-Muthunayagam for the 2nd Respondent.
Cur. adv. vult.
August 16,1993.
G. P. S. DE SILVA, C. J. READ THE FOLLOWING ORDER OF THE COURT:ORDER OF THE COURT:
Three recognised political parties – United National Party (“UNP"),the Democratic United National Front (“DUNF") and the PodujanaEksath Peramuna ("PEP”) – contested the North-Western and SouthernProvincial Council Elections held on 17.5.93. No party gained anabsolute majority. The official results announced on 19.5.93 were:
North-Western ProvinceSouthern Province
UNP2527
PEP1822
DUNF96
The Governors of the two Provinces were required to appoint ChiefMinisters, under Article 154F of the Constitution, which provides:
“(1) There shall be a Board of Ministers with the Chief Minister atthe head and not more than four other Ministers to aid andadvise the Governor of a Province in the exercise of hisfunctions. The Governor shall, in the exercise of his functions,act, in accordance with such advice, except in so far as he isby or under the Constitution required to exercise his functions orany of them in his discretion.
(2) If any question arises whether any matter is or is not amatter as respects which the Governor is by or under thisConstitution required to act in his discretion, the decision of theGovernor in his discretion shall be final, and the validity ofanything done by the Governor shall not be called in question inany Court on the ground that he ought or ought not have actedin his discretion. The exercise of the Governor’s discretion shallbe on the President's directions.
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. The question whether any, and if so what, advice wastendered by the Ministers to the Governor shall not be inquiredinto in any Court.
The Governor shall appoint as Chief Minister, the member ofthe Provincial Council constituted for that Province who, in hisopinion, is best able to command the support of a majority ofthe members of that Council;
Provided that where more then one-half of the members electedto a Provincial Council are members of one political party, theGovernor shall appoint the leader of that political party in theCouncil as Chief Minister.
The Governor shall, on the advice of the Chief Minister,appoint from among the members of the Provincial Councilconstituted for that Province, the other Ministers.
The Board of Ministers shall be collectively responsible andanswerable to the Provincial Council."
The proviso to Article 154F (4) did not apply as the UNP did nothave more than one half of the total number of Councillors in bothProvinces. The Governors of the two Provinces were faced with rivalclaims for appointment as Chief Minister; in the North-WesternProvince, between the Petitioner in CA Application Nos. 376/93 and377/93, a DUNF Councillor, and the 2nd Respondent, a UNPCouncillor; in the Southern Province, between the Petitioner in CAApplication Nos. 378/93 and 379/93, a PEP Councillor, and the 2ndRespondent, a UNP Councillor.
Between 19.05.93 and 21.05.93, the Petitioners repeatedlyasserted, both orally and in writing to the respective Governors, thatthey were able to command the confidence of the respectiveCouncils; each submitted documentary evidence consisting of aletter dated 19.05.93 signed by the Secretaries of the two parties thattheir Councillors had decided to work together to form the ProvincialCouncil administration, as well as written declarations and affidavitsfrom all those Councillors manifesting their support for the Petitioners.
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The 2nd Respondent, in each case, submitted a letter dated 19.05.93to the Governor, in which he claimed that he was able to command thesupport of a majority of the members of the Council, but did not explainhow he expected to obtain this majority; however, he orally informedthe Governor that he had discussions with (unidentified) Councillorsfrom the other parties and that he was confident of obtaining additionalsupport from a few Councillors; on the morning of 21.05.93 he again• met the Governor, and asserted that he was certain of obtaining thenecessary additional support, as some Councillors (again unidentified)had assured him of their support that same morning; he gave theGovernor a letter referring to these matters, and requested that he beappointed Chief Minister and given the opportunity to prove, in theCouncil, that he commanded the support of the majority of the Council.On the same day, both Governors appointed the UNP contenders asChief Ministers of the two Provinces.
Each Petitioner thereupon filed two applications in the Court ofAppeal; one for Quo Warranto questioning the 2nd Respondent'slegal right to hold office as Chief Minister, and the other for Certiorarito quash the appointment of the Chief Minister, and Mandamus tocompel the Governor to appoint the Petitioner as Chief Minister.
The four applications were taken up for hearing together in the Courtof Appeal on 21.06.93. On the next day, in response to an inquiry fromthe Court, Mr. L. C. Seneviratne. P.C., appearing for the Chief Ministers,made his submissions in regard to certain preliminary objections oflaw. The Court and all Counsel agreed that questions of constitutionalinterpretation arose, and Counsel were invited to assist Court byframing those questions. At this stage, for the first time and withoutprior notice to the Respondents, Mr. H. L. de Silva, PC., appearing forthe Petitioners, submitted that he desired to make an application for areference under Article 126 (3) as well. After a short adjournment, thequestions for reference under Article 125, as agreed to by all Counsel,were read out in open court, and then finalised as follows:
“(1) Whether the exercise of the power vested in the Governorof a Provincial Council [sic] under Article 154F (4) of theConstitution (excluding the proviso) is solely a matter for hissubjective assessment and judgment and therefore not subjectto review by Court ?
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Whether the power exercised by such Governor underArticle 154F (4) of the Constitution (excluding the proviso) andany act done in consequence thereof is not justiciable, and isessentially a matter political in nature?
Whether a decision made by such Governor under Article154F (4) of the Constitution (excluding the proviso) as to theappointment of a Chief Minister of a Provincial Council could becalled in question or set aside by any Court by reason of theprovisions of Article 154F (2) of the Constitution?
Whether the decision of the Governor under Article 154F (4)of the Constitution (excluding the proviso) is not subject tojudicial review on the basis that such decision does not deny orinfringe any legal right of the petitioner in each case?
Whether the Court should not exercise such review on thebasis that there is an alternative remedy provided by theConstitution whereby the Governor’s decision can be tested in
the Council?
Thereupon, Mr. de Silva made a formal application for a referenceunder Article 126(3) stating that the evidence disclosed that theGovernors' acts involved an infringement of Article 12 (1) and (2).Mr. Seneviratne pointed out that an allegation of the infringement of afundamental right under Article 12 had neither been pleaded, noreven referred to in the oral submissions made on 21.06.93; he furthersubmitted that the Court of Appeal should hear all parties beforecoming to a finding (for the purpose of making a reference underArticle 126(3)), that there was prima facie evidence of aninfringement or imminent infringement of a fundamental right.
Without any such hearing, the Court of Appeal recorded thesubmissions made on behalf of the Petitioners, and made thefollowing order:
"Having considered the submission of Counsel, we are of theview that there is prime facie evidence of an infringement of thefundamental rights of the Petitioners as submitted by learnedPresidents Counsel for the petitioners. We accordingly refer the
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infringement for determination by their Lordships of theSupreme Court, in terms of Article 126 (3) of the Constitution."
It is manifest that the Court of Appeal did not refer the four pendingapplications in their entirety, but only the "question" of theinfringement of a fundamental right.
VALIDITY OF THE REFERENCE UNDER ARTICLE 126(3)A reference can be made under Article 125 only of a “question" ofconstitutional interpretation; the Court making the reference retainsjurisdiction in respect of the case, and would ultimately decide thecase, applying the interpretation given by this Court. However, areference under Article 126 (3) is not of "question”, but of the "matter”in its entirety (see Chandrasekeram v. A.G.,(,)). The Court of Appealdid not refer the four pending applications, or "matters", in theirentirety. The jurisdiction of this Court is defined by the Constitution.This Court has no original jurisdiction over these four pending writapplications, and could acquire such jurisdiction only if those“matters" were properly referred by the Court of Appeal.
It was suggested that this was only a technical irregularity, and thatthis Court should proceed as if the Court of Appeal had intended torefer the entire matter. It is clear from the proceedings of 21.06.93and 22.06.93 that the Court of Appeal was troubled by thepreliminary objections, particularly the preclusive clause. It was areference under Article 125 that the Court was primarily concernedabout – and that is consistent with an intention to retain its jurisdictionto hear and determine the four applications. When the question of theinfringement of a fundamental right was suddenly raised, the Courtseems to have desired the advantage of having that question toofinally determined by this Court; but there is nothing to suggest thatthe Court of Appeal even at that stage wished to divest itself, totally,of its jurisdiction over the pending applications. Such an intention todivest itself of jurisdiction cannot lightly be attributed to the Court ofAppeal. We are faced with two inconsistent references. Upon thereference under Article 125, the Court of Appeal retained jurisdictionin respect of the “matter", which this Court could not determine; upon
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a proper reference under Article 126 (3) the “matter" would havecome for determination to this Court, which would not have had toadvise the Court of Appeal upon the questions which troubled them.We have therefore to act on one or the other. We hold, that there wasno proper reference of the matter under Article 126 (3), and that onlythe reference under Article 125 requires our consideration.
Even if this Court did have some discretion to treat the referenceunder Article 126 (3) as being of the entire “matter", there are goodreasons why that discretion should not be exercised. The writjurisdiction is traditionally available to review the decision-makingprocess, and not the correctness of the decision itself – except, to alimited extent, on the ground of unreasonableness. It may well be, asArticle 126 (3) suggests, that today the writ jurisdiction under Article140 of the Constitution has expanded to permit a direct challenge tothe merit of a decision, even on the facts, for infringement offundamental rights; if so, an allegation that the Governors hadexercised their discretion under Article 154F (4) in a manner violativeof Article 12 could properly have been included in the applicationsfor Certiorari. But the Petitioners did not plead this at the outset, nordid they seek to amend their pleadings, and thus the issues of factand law arising for determination were not made clear; nor were theRespondents given the opportunity of answering that specificcharge, it is true, as submitted on behalf of the Petitioners, that it wasthe Governors acts that were being impugned as violative offundamental rights; and that the learned Attorney-General, on theirbehalf, did not complain of any lack of opportunity to tenderadditional evidentiary material, and invited this Court to determine thewhole matter. But it was not the Governors alone who had an interestin defending their acts, for the Chief Ministers (being parties claimingrights flowing from such acts), were also entitled to be afforded aproper opportunity of justifying those acts. Mr. Seneviratne objectedto the reference both in the Court of Appeal and in this Court. We areof the view that when that objection was taken in the Court of Appeal,that Court should at least have inquired whether the Chief Ministerswished to furnish additional affidavits; and being an inter partesproceeding, the Court should not have reached a finding that therewas prima facie evidence of an infringement of a fundamental rightwithout hearing submissions on behalf of the Chief Ministers.
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REFERENCE UNDER ARTICLE 125The questions referred to this Court primarily involve two basicissues. Is the exercise of the power vested in the Governor of aProvince (and not of the Provincial Council as stated in the reference)under Article 154F(4). excluding the proviso, immune from judicialreview, either because it is a purely subjective discretion, or becauseit is intrinsically of such a (political) nature that it is not fit for judicialreview ? In any event, has judicial review been excluded by Article154F(2) or Article 154F(6)?
It is unfortunate that these questions have not been framed withgreater precision, to enable this Court to express its opinions on thereal matters which arise in the case. As framed, the answer "No" toquestions (1) and (2) will be of little assistance to the Court of Appealin determining the grounds on which judicial review is permissable.The function of this Court under Article 125 is not to attempt toprovide comprehensive answers (to abstract or academic questions)setting out all the available grounds of judicial review, but rather toprovide answers for the questions which actually arose in the courseof the proceedings in the Court of Appeal. It would have been farmore satisfactory if, after hearing parties, the questions had beenframed with specific reference to the grounds of challenge relevantto, and arising from the facts of, the pending applications. However,the learned Attorney-General and Mr. de Silva urged that this Courtshould proceed to elaborate a negative answer by indicating,although not exhaustively, at least some of the relevant grounds ofreview. To avoid further delay, in a matter of undoubted urgency andpublic importance to two Provinces, we will endeavour to answer thequestions with some degree of elaboration.
GOVERNOR’S DISCRETION UNDER ARTICLE 154F(4)The Petitioners’ first contention was that the exercise of theGovernor's discretion was subject to review according to the samenorms, principles and tests applicable in public law to otherdiscretions; thus, it was reviewabte, inter alia, for unreasonableness,or if made in bad faith, or in disregard of the relevant evidence, or on
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irrelevant considerations, or without evidence. Secondly, the fact thatthe exercise of that discretion involves political considerations doesnot make it a "political question", of the kind which in U.S.Constitutional law (cf. Baker v. Carr(ZI), is sometimes regarded as notjusticiable; in any event, that doctrine was evolved in the context ofthe strict separation of powers in the U.S. Constitution, as a means ofensuring that each organ of government accords a measure ofdeference to the decisions of the others, within their legitimatespheres of competence. Our Constitution does not embody aseparation of powers; judicial power is vested in Parliament, andexercised through the Judiciary; thus there are some matters whereinthe judicial power is exercisable directly or exclusively by Parliament.Finally, the Constitution expressly provides for certain matters whereinthe Judiciary is required to consider matters with a political flavour(e.g. Articles 38{2){d), 99(13)(a)), thereby indicating that our lawdoes not recognise any such exclusion or restriction.
On behalf of the Chief Ministers it was submitted that the phrase“in his opinion” conferred on the Governor a purely subjectivediscretion; whom to appoint as Chief Minister was a matter solely andexclusively for the Governor’s subjective assessment and judgment.In any event, the decision was essentially political in nature, and forthat reason, too, was not reviewable; it could be tested only bymeans of a vote in the Provincial Council; and, by virtue of Article154F(6) that was the only remedy.
The learned Attorney-General submitted that while there was aright of review on the ground of want or excess of jurisdiction(including error of law), there was only a very limited right of reviewon other grounds. Article 154F(4) conferred on the Governor a purelysubjective discretion, which could be challenged on the ground ofWednesburya) unreasonableness (in a broad sense, including “noevidence", and violation of fundamental rights). Further, this was apolitical question beyond review (cf Bhut Nath v. State of WestBengalm) not because of a constitutional taboo, but because of theinadequacy of the Court to decide it; it was a discretion inherentlyunsuitable for judicial review; it was a restraint not imposed by law,but judicially self-imposed because the judicial process is not
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equipped to deal with such issues (Clive Lewis, Judicial Remedies inPublic Law, p. 123).
When considering whether the exercise of a statutory power ordiscretion, especially one conferred by our Constitution, is subject toreview by the judiciary, certain fundamental principles can never beoverlooked. The first is that our Constitution and system ofgovernment are founded on the Rule of Law; and to prevent theerosion of that foundation is the primary function of an independentJudiciary.
. . The rule of law has a number of different meanings andcorollaries. Its primary meaning is that everything must be doneaccording to law. Applied to the powers of government, thisrequires that every government authority which does some actwhich would otherwise be a wrong (such as taking a man’sland), or which infringes a man’s liberty (as by refusing himplanning permission), must be able to justify its action asauthorised by law…
That is the principle of legality. But the rule of law demandssomething more, since otherwise it would be satisfied by givingthe government unrestricted discretionary powers, so thateverything that they did was within the law . . . The secondarymeaning of the rule of law, therefore, is that government shouldbe conducted within a framework of recognised rules andprinciples which restrict discretionary power …” (Wade,Administrative Law, 5th ed., p. 22).
”… If merely because an Act says that a minister may 'makesuch order as he thinks fit’, or may do something ’if he issatisfied' as to some fact, the court were to allow him to act ashe liked, a wide door would be opened to abuse of power andthe rule of law would cease to operate.
It is cardinal axiom, accordingly, that every power has legallimits, however wide the language of the empowering Act. If thecourt finds that the power has been exercised oppressively or
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unreasonably, a if there has been some procedural failing, suchas not allowing a person affected to put forward his case, the actmay be condemned as unlawful. Although lawyers appearing forgovernment departments often argue that some Act confersunfettered discretion, they are guilty of constitutional blasphemy.Unfettered discretion, cannot exist where the rule of law reigns.The notion of unlimited power can have no place in the system.The same truth can be expressed by saying that all power iscapable of abuse, and that the power to prevent abuse is theacid test if effective judicial control…" (Wade, 5th ed., p. 37).
The second principle seems to flow from the first. As Wade
observes:
. . . Statutory power conferred for public purposes is conferredas it were upon trust, not absolutely – that is to say, it can validlybe used only in the right and proper way which Parliament whenconferring it is presumed to have intended. Although the Crown’slawyers have argued in numerous cases that unrestrictedpermissive language confers unfettered discretion, the truth isthat, in a system based on the rule of law, unfetteredgovernmental discretion is a contradiction in terms. The realquestion is whether the discretion is wide or narrow, and wherethe legal line is to be drawn. For this purpose everythingdepends upon the true intent and meaning of the empoweringAct.
The powers of public authorities are therefore essentially differentfrom those of private persons. A man making his will may subjectto any rights of his dependants, dispose of his property just as hemay wish. He may act out of malice or a spirit of revenge, but inlaw this does not affect his exercise of his power. In the same waya private person has an absolute power to release a debtor, or,where the law permits, to evict a tenant, regardless of his motives.This is unfettered discretion. But a public authority may do neitherunless it acts reasonably and in good faith and upon the lawfuland relevant grounds of public interest. Unfettered discretion iswholly inappropriate to a public authority, which possessespowers solely in order that it may use them for the public good.
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… It is only where powers are given for the personal benefit ofthe person empowered that the discretion is absolute. Plainlythis can have no application in public law." (pp. 353-354).
But Rooke’s case'51, suggests that, independently of the Rule ofLaw, discretions are also limited by the “rule of reason":
“. . . and notwithstanding the words of the commission giveauthority to the commissioners to do according to theirdiscretions, yet their proceedings ought to be limited and boundwith the rule of reason and law. For discretion is a science orunderstanding to discern between falsity and truth, betweenwrong and right, between shadows and substance, betweenequity and colourable glosses and pretences, and not to doaccording to their wills and private affections ..
In Roberts v. Hopwood™,Lord Wrenbury said:
“A person in whom is vested a discretion must exercise hisdiscretion upon reasonable grounds. A discretion does notempower a man to do what he likes merely because he isminded to do so – he must in the excercise of his discretion donot what he likes but what he ought. In other words, he must, bythe use of his reason, ascertain and follow the course whichreason directs. He must act reasonably."
Justice Douglas of the United States Supreme Court observed,dissenting, in United States v. Wunderlich,m:
“Law has reached its finest moments when it has freed manfrom the unlimited discretion of some ruler, some civil or militaryofficial, some bureaucrat Where discretion is absolute, man hasalways suffered. At times it has been his property that has beeninvaded; at times, his privacy; at times, his liberty of movement;at times, his freedom of thought; at times, his life. Absolutediscretion is a ruthless master. It is more destructive of freedomthan any of man’s other inventions."
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There are no absolute or unfettered discretions in public law;discretions are conferred on public functionaries in trust for thepublic, to be used for the public good, and the propriety of theexercise of such discretions is to be judged by reference to thepurposes for which they were so entrusted.
We have no doubt whatsoever as to the purpose for which Article154F(4) gave the Governor a discretion. By the exercise of thefranchise the people of each Province elect their representatives, forthe purpose of administering their affairs. The Governor is given adiscretion in order to enable him to select as Chief Minister therepresentative best able to command the confidence of the Council,and thereby to give effect to the wishes of the people of the Province.That discretion is not given for any other purpose, personal orpolitical. On behalf of the Chief Ministers Mr. Seneviratne contendedthat the phrase ‘In his opinion" made the Governor's discretioncompletely subjective and immune from review. He was askedwhether the Governor’s decision could be questioned if – motivatedby bribery, nepotism, or other improper considerations, or influencedby a foreign power – the Governor appointed as Chief Miinister aperson whom he did not in fact consider to be best able to commandthe confidence of the Council, His reply was that such anappointment would be no appointment at all, similar to anappointment procured by duress, and could be declared void. Butit is a court which must decide such issues, and it is becausejudicial review is available that a court can so decide. Further,Mr. Seneviratne’s reply demonstrates that the exercise of theGovernor's discretion is subject to Judicial review on the ground thathe did not in fact entertain the requisite opinion. This has long beenrecognised, even in relation to a power which can be exercisedmerely because of the opinion that it is necessary to exercise it; thusin Hirdaramani v. Ratnavate ® it was held that such a decision couldbe challenged by showing that the stated opinion was incorrect,untrue or manifestly absurd or perverse (p. 79) or “unreasonable orirrational" (p. 82). And that was before the authority of Liversidge v.Anderson m, was finally swept away by R. v. I.R.C., ex P. RossministerLtd.m, precluding undue judicial deference to subjective executiveopinion. I am also in agreement with Mr, H. L. de Silva, P.C., that in
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this case we are not called upon to consider an intrinsicallysubjective opinion – such as “the member who, in his opinion, is bestsuited to be Chief Minister" or “best able to serve the Province"; thatmight have approached the realm of “pure judgment” (Secretary ofState for Education v. Tameside.""). It is true that the requisite opiniondoes not relate to past facts, and calls for “judgment", i.e. anassessment of future support; but it is not “pure judgment", for thatassessment of support cannot be made in total disregard of existingfacts. It necessarily requires a consideration of expressions ofsupport or opposition by Councillors, whether made in the Council oroutside (cf. Adegbenro v. Akintola.('2')Jrat opinion thus involves anobjective element, and is more readily subject to judicial review than“opinion" of the kind considered in Hirdaramani v. Ratnavale <w,
Mr. Seneviratne cited several Indian cases in support of hiscontention that the Governor's decision was purely subjective.However, there are three significant differences between the Indian andSri Lankan provisions. Article 154F{4) lays down the criterion whichmust guide the Governor’s decision – the ability to command thesupport of a majority – but the Indian Article 163 does not specify anyguideline; further, under the latter provision “Ministers shall hold officeduring the pleasure of the Governor"; and Article 361(1) precludesjudicial review of the Governor’s acts. In any event, none of thosecases support the proposition contended for. They dealt with situationsjn which the Governor acted in his discretion; it was contended that heshould have acted on advice (of a Chief Minister who had lost theconfidence of the State Assembly); applying Article 163(2) – whichcorresponds to our Article 154F(2) – it was held that the Governor’s actcould not be questioned on that ground that he should have acted onadvice, because Article 163(2) entrusted that decision to him alone.
Mr. Seneviratne also cited Dinesh Chandra v. Charan Singh ,,3 andMadan Mural v. Charan Singh1'*, which dealt with the exercise of thePresident’s powers, under Articles 74 and 75 of the IndianConstitution, in respect of the appointment of the Prime Minister.These are of very little assistance for several reasons. Therelationship between President and Prime Minister, is not necessarilythe same as that between Governor and Chief Minister, especially in
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a non-federal system. Further, in those cases there is not even anobiter dicta that the Presidents’ act was outside review; on thecontrary, the propriety of the President's act was examined byreference to conventions and precedents, and upheld. In thatrespect, the Privy Council decision in Adegbenro v. Akintola issimitar. Although the Governor was invested with responsibilities thatrequire of him “delicate political judgment", the Privy Council did not,for that or any other reason, hold that judicial review was excluded.
. “POLITICAL QUESTIONS”We have next to consider the submission that the appointment of aChief Minister was a “political question" and that Article 154F(6)provided the appropriate remedy to test a Governor’s decision as tothe person best able to command the confidence of a ProvincialCouncil.
We are unable to accept the Petitioners submission that theexclusion of “political questions" from judicial review in the U.S. being aconsequence of the separation of powers, there is no similar exclusionunder our law because there is no separation of powers under ourConstitution. Although Article 4(c) vests judicial power in Parliament,yet there is a functional separation of powers inasmuch as judicialpower can only be exercised by courts and other judicial tribunals,subject only to one exception in regard to Parliamentary privilege. Andeven in that field, when Parliament acts as an institution directlyexercising judicial power, there is no express exclusion or exemptionfrom judicial review under Article 140 (cf. Dissanayake v. Kaieel(,w).The Superior Courts are thus functionally a separate and co-ordinateorgan of government; its power of judicial review cannot be less thanthat of a body to Parliament; it is illogical to contend that "politicalquestions" are excluded from review by the Judiciary if it is an organ ofgovernment co-ordinate with the other organs of government, but arereviewable by the Judicary if it is a subordinate organ.
Mr. Seneviratne relied on Baker v. Carr m, where the U.S. SupremeCourt laid down certain guidelines for indentifying “politicalquestions" excluded from judicial review:
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‘Prominent on the surface of any case held to involve a politicalquestion is found a textually demonstrable constitutionalcommitment of the issue to a coordinate political department; ora lack of judicially discoverable and manageable standards forresolving it; or the impossibility of deciding without an initialpolicy determination of a kind clearly for nonjudicial discretion;or the impossibility of a court's undertaking independentresolution without expressing lack of the respect due coordinatebranches of government; or an unusual need for unquestioningadherence to a political decision already made; or thepotentiality of embarrassment from multifarious pronouncementsby various departments on one question.*
With regard to the first and the fourth of these guidelines, we mustunhesitatingly reject any suggestion that a Provincial Governor maybe regarded as a branch of government ‘co-ordinate* to either of theSuperior Courts, although the position would be different in the caseof the President and Parliament. No policy decision of the kindcontemplated by the third guidelines arises here: the Governor is tobe guided not by any considerations of policy, but solely by anassessment of support in the Council. Certainly there is no ‘politicaldecision already made* to which ‘unquestioning adherence* isneeded; ‘multifarious pronouncements* on this matter andconsequent embarrassment are not possible; thus the fifth and sixthguidelines are inapplicable. In regard to the second guideline,standards for determining political support are certainly elusive, butthat matter for judicial decision here is not whether the Governor'sassessment was correct, but only whether his decision-makingprocess was flawed, and there is no ‘lack of judicially discoverableand manageable standards' for resolving that question. Not only doesBaker v. Carr not support the contention that the Governor's decisionwas purely political, but the majority in that case held to be justiciablea question relating to the delimitation of electoral districts, althoughthat was a matter having a long (U.S.) history of political involvement.
All statutory powers have legal limits; ‘the real question is whetherthe discretion is wide or narrow, and where the legal line is to bedrawn*; and it is the Judiciary which is entrusted with the
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responsibility of determining those questions. When it comes topowers and discretions conferred by the Constitution, it is the specialresponsibility of the Judiciary to uphold the constitution by preventingexcess or abuse by the Legislature or the Executive. Any exceptionto these principles must be clearly and expressly stated. We are inrespectful agreement with the observations of Bhagwati, J., as hethen was in Sfafe of Rajasthan v. Union of India (16), in regard tojudicial review of “political questions” in the context of constitutionalpowers and duties:
"… it is true that if a question brought before the Court is purelya political question not involving determination of any legal orconstitutional right or obligation, the Court would not entertain it,since the Court is concerned only with adjudication of legalrights and liabilities. But merely because a question has apolitical complexion, that by itself is no ground why the Courtshould shrink from performing its duty under the Constitution if itraises an issue of constitutional determination. Everyconstitutional question concerns the allocation and exercise ofgovernmental power and no constitutional question can,therefore, fail to be political… It was pointed out by Mr. JusticeBrennan in the Opinion of the Court delivered by him in Baker v.Carr an epoch making decision in American Constitutionalhistory, that the mere fact that the suit seeks protection of apolitical right does not mean that it presents a political question.This was put in more emphatic terms in Nixon v. Harndon(,7), bysaying that such an objection ‘is little more than a play uponwords … Even before Baker v. Carr, courts in the United Stateswere dealing with a host of questions 'political' in ordinarycomprehension. Even the desegregation decision of theSupreme Court in Brown v. Board of Education <,* had a clearlypolitical complexion . . . The Supreme Court in Baker v. Carrheld that it was within the competence of the Federal Courts toentertain an action challenging a statute apportioning legislativedistricts as contrary to the equal protection clause. This caseclearly decided a controversy which was political in character,namely, apportioning of legislative districts, so because aconstitutional question of violation of the equal protection clause
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was directly involved and that question was plainly andindubitably within the jurisdiction of the Court to decide. It will,therefore, be seen that merely because a question has apolitical colour, the Court cannot fold its hands in despair anddeclare ’Judicial hands off. So long as a question ariseswhether an authority under the Constitution has acted within thelimits of its powers or exceeded it, it can certainly be decidedby the Court. Indeed it would be its constitutional obligation todo so … No one however highly placed and no authorityhowsoever lofty can claim that it shall be the sole judge of theextent of its power under the Constitution, or whether its actionis within the confines of such power laid down by theConstitution. This Court is the ultimate interpreter of theConstitution and to this Court is assigned the delicate task ofdetermining whether it is limited, and if so, what are its limitsand whether any action of that branch transgresses such limits.It is for this Court to uphold the constitutional values and toenforce the constitutional limitations. That is the essence of therule of law…"
However, there are matters which undoubtedly do not involve legalor constitutional rights, powers and duties, and which may thereforebe regarded as purely "political". Mr. Seneviratne referred to Councilof Civil Service Unions v. Minister for Service
“Prerogative powers such as those relating to the making oftreaties, the defence of the realm, the prerogative of mercy, thegrant of honours, the dissolution of Parliament and theappointment of ministers as well as others are not, I think,susceptible to judicial review because their nature and subject-matter are such as not to be amenable to the judicial process."
As observed in that case, the controlling factor is not the source ofthe power but its subject-matter. The fact that in the U.K. theappointment of ministers by the Queen, in the exercise of theprerogative, is beyond review does not conclude the question underour law: as indeed it did not under the laws of Nigeria and India. InAdegbenro v. Akintole m, the Privy Council did not regard the subject-
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matter of the removal of a Prime Minister by the Governor as beyondreview, and scrutinized the propriety of that removal. In India, too, theCourts have not declined to review the appointment of .the PrimeMinister by the President on this ground – Dinesh Chandra v. CharanSingh<l3).
"Our Supreme Court has, however, had to decide seeminglypolitical questions since the Constitution or a statute had to beinterpreted to answer them, ordinarily a duty which courts willnot shun. We are not, therefore, able to decline jurisdiction toconsider the questions raised in the present writ petition …
In U.N.R. Rao v. Smt. Indira Gandhi(a”, the construction ofArticle 75(3) came up directly for consideration. The SupremeCourt did not indicate any difficulties in its way of regarding thecase as justiciable by the court, but straightaway went to
decide the issues…”
In the absence of a written Constitution, defining the jurisdictions andpowers of the several organs of government, there may well bereasons why the acts of the Sovereign, particularly in relation to whatis historically the “High Court of Parliament", cannot be questioned inthe Sovereign’s own Courts. In Sri Lanka, however, it is theConstitution which is supreme, and a violation of the Constitution isprima facie a matter to be remedied by the Judiciary. Further, nojudicial deference or self-restraint is owed to subordinate executive orlegislative bodies, such as the Governor and the Provincial Council.The appointment of a Chief Minister by a Provincial Governor is not apurely political matter excluded from judicial review by the Court ofAppeal. We are not called upon to express any opinion as to theextent to which the Court of Appeal may take these political factorsinto consideration under and in terms of the law and procedurerelating to its writ jurisdiction) in deciding whether or not to exerciseits discretion to grant and issue, according to law, orders in thenature of writs of Quo Warranto, Certiorari, and Mandamus.
Bhut Nath's case w cited by the learned Attorney-General, dealtwith a question of national security, namely, the proclamation ofemergency:
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"…It was argued that there was no real emergency and yet theProclamation remained unretracted with consequential peril tofundamental rights. In our view, this is a political, not justiciableissue and the appeal should be to the polls and not to thecourts. The traditional view, sanctified largely by someAmerican decisions, that political questions fall outside the areaof judicial review, is not a constitutional taboo but a pragmaticresponse of the court to the reality of its inadequacy to decidesuch issues and to the scheme of the Constitution which hasassigned to each branch of government in the larger sense acertain jurisdiction. Of course, when a problem – which isessentially and basically constitutional – although dressed upas a political question, is appropriately raised before court, it iswithin the power of the judges to adjudicate. The rule is one ofself-restraint and of subject-matter, practical sense and respectfor other branches of government like the legislature and theExecutive. Even so, we see no force in the plea. True, anemergency puts a broad blanket blindfolding of the sevenliberties of Article 19 and its baseless prolongation may devaluedemocracy. That is a political matter de hors our ken, for thevalidity of the proclamation turns on the subjective satisfactionof the President that a grave emergency, of the kind mentionedin Part XVIII, or its imminent danger exists. In R. v. Governor ofWormwood Scrubbs Prison<2I), the Earl of Reading observed, ona similar contention:
… even if it is material to consider whether the militaryemergency has come to an end, it is not a matter which thiscourt can consider; whether the emergency continues to existor not is for the executive alone to determine …
The argument of abuse of power was urged in England butrepelled. In The King v. Halliday(ai, Lord Dunedin, met it thus:
'That is true. But the fault, if fault there be, lies in the fact that theBritish Constitution has entrusted to the two Houses ofParliament, subject to the assent of the King, an absolute poweruntrammelled by any writen instrument obedience to which maybe compelled by some judicial body. The danger of abuse is
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theoretically present; practically, as things exist it is in myopinion absentAnd Lord Wright in (1942) A. C, 206 addedeffect to the point in these words:
'The safeguard of British liberty is in the good sense of thepeople and in the system or representative and responsiblegovernment which has evolved. If extraordinary powers arehere given, they are given because the emergency isextraordinary and are limited to the period of the emergency.’
Of course, the British have no written constitution, but theargument remains.”
The appointment of a Chief Minister does not involve matterscomparable to considerations of national security; further, neither theexecutive nor the legislature have “an absolute power untrammelledby any written instrument obedience to which may be compelled bysome judicial body"; and we are not dealing with the acts of the headof the executive, but only concerned with a subordinate executivebody.
EXCLUSION OF JUDICIAL REVIEW BY ARTICLE 154F (6)It was submitted on behalf of the Chief Ministers that theConstitution provided an appropriate alternative remedy becauseArticle 154F (6) made the Board of Ministers collectively responsibleand answerable to the Provincial Council; if a Chief Minister was notable to command the support of a majority in the Council, that wouldbe revealed by a vote in the Council; a Chief Minister who lacked theconfidence of the Council would have no option but to resign; if hedid not, the Governor had the power to remove him (this power ofremoval being implied from the power of appointment); while this wasa discretionary power, it should be presumed that the Governorwould act properly; and if the Governor did not, the President coulddismiss the Governor. In answer to the Petitioners submission that theGovernor might refrain from removing a defeated Chief Minister,Mr. Seneviratne, submitted that since the Governor could not carryout his duties in regard to the administration of the affairs of theProvince, with a Chief Minister who had lost the confidence of theCouncil, he would have no option but to appoint as Chief Minister the
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Councillor who enjoyed the support of the majority. It was pointed outon behalf of the Petitioners that the Governor might dissolve theCouncil instead. I am inclined to agree with Mr. Seneviratne that weshould not assume that the Governor would not act properly.However, the question is whether Article 154F (6) assures thePetitioners of an alternative remedy which is effective andexpeditious; the procedure of a vote in the Council is not such aremedy. Firstly, there is no certainty that even if the Councilimmediately expresses a lack of confidence in the Chief Minister, thePetitoner would be appointed to succeed him; litigation may becomenecessary. Secondly, a more fundamental difficulty is that a vote inthe Council is a means of ascertaining whether the Chief Minister hasthe support of the Council, i.e. whether the Governor’s decision wasright on the merits. Such a vote does not even attempt in any way todetermine the propriety of the Governor's decision-making process,which is what the Petitioners sought to review in the pendingapplications.
EXCLUSION OF JUDICIAL REVIEW BY ARTICLE 154F (2)Mr. de Silva and the learned Attorney-General submitted thatArticle 154F (2) does not apply to the appointment of a Chief Ministerby the Governor, but Mr. Seneviratne contended that it precludedjudicial review of any exercise of discretion by the Governor.
In order to determine whether Article 154F (2) excludes from judicialreview the exercise of the Governor’s discretion under Article 154F (4),it is necessary to consider Article 154F in its entirety, and in the contextof Chapter XVII A. Article 154F (1) expressly lays down a general rulethat the Governor must act in accordance with the advice of the Boardof Ministers; but provides that he must act in his discretion where he isrequired to do so by or under the Constitution. It is not inconceivablethat a genuine doubt or difficulty may arise, in regard to a particularfunction, whether the Governor must act on advice, or in his discretion.Normally any such question of interpretation would have to be judiciallydetermined. Article 154F (2) is found immediately after Article 154F (1);was it intended to exclude judicial review only in that situation? Or wasit intended to deal with every exercise of discretion by the Governor ?The phrase “if any question arises whether … the Governor is by or
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under this Constitution required to act in his discretion" clearlyindicates that Article 154F (2) applies only to the Governor’s decisionas to whether he should act on advice or in his discretion. Judicialinterpretation is excluded, and instead the Governor is empowered todecide that matter in his discretion; and that decision is made final.Where the Governor having decided such a question (e g. that it isone where he may act in his discretion) thereafter proceeds to thenext step, and exercises his power, by taking some decision or doingsome act, there arises the possibility that such (subsequent) decisionor act may be challenged (e.g. on the ground that he should haveacted on advice). Article 154F (2) precludes such a challengebecause “the validity of anything done by the Governor shall not becalled in question in any Court on the ground that he ought or oughtnot have acted in his discretion"; plainly it does not preclude achallenge on any other ground. In Jogendra Nath v. State ofAssam|23), cited by Mr. Seneviratne, the corresponding Indian Article163 (2) was interpreted to make the Governor “the sole and finalJudge whether any function is to be exercised in his discretion or onthe advice of the Council of Ministers". Even if there had been someambiguity, being a preclusive clause it must be given a narrowerrather than a wider interpretation.
Chapter XVIIA applies to all Provincial Councils; it would thereforebe undesirable that in respect of the same function the Governor ofone Province should take the view that he is required to act onadvice, while another Governor decides that he must act in hisdiscretion. In the absence of judicial determinations, since oneGovernor would not be bound by the decision of another, there wouldbe no way of ensuring uniformity. Consistency is achieved by theprovision in Article 154F (2) that “the exercise of the Governor’sdiscretion shall be on the President's directions". Taken in isolation,this may suggest that the Governor’s discretion must always beexercised on the President's directions; taken in the context ofChapter XVIIA, however, this provision is restricted to the exercise ofthe Governor's discretion in deciding the question specificallyreferred to in the opening clause of Article 154F (2).
CONCLUSIONWe therefore answer the questions referred to this Court as follows:
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The exercise of the powers vested in the Governor of a Provinceunder Article 154F (4), excluding the proviso, is not solely a matterfor his subjective assessment and judgment; it is subject tojudicial review by the Court of Appeal. In applications for QuoWarranto, Certiorari and Mandamus, the Court of Appeal haspower to review the appointment, inter alia, for unreasonableness,or if made in bad faith, or in disregard of the relevant evidence, oron irrelevant considerations, or without evidence.
The Governor's selection of a person for appointment as ChiefMinister, under Article 154F (4), excluding the proviso, mayrequire the consideration of political factors; nevertheless it is notan act which is purely political in nature; it involves thedetermination of legal rights, flowing from constitutionalprovisions, concerning the allocation and exercise of powers(relating to the administration of the affairs of the Province) by theelected representatives of the people of the Province. Theappointment of a Chief Minister is justiciable, and there is no self-imposed rule of judicial restraint which inhibits judicial review.
Where a question arises as to whether the Governor must act onadvice, or in his discretion, Article 154F (2) requires him todecide that question; Article 154F (2) makes his decision on thatquestion final, and precludes anything thereafter done by theGovernor being called in question in any Court on the limitedground “that he ought or ought not to have acted in hisdiscretion"; that provision does not apply to the appointment of aChief Minister under Article 154F (4).
The Governor’s decision involves a constitutional power and dutyof the Governor, and a constitutional right of the Petitioner’s (incommon with the other Councillors) to the proper exercise ofsuch power and duty; judicial review is not excluded.
This does not raise any question relating to the interpretation ofthe Constitution,
Case sent back to the Court of Appeal with determination of the
Supreme Court.