Real Executive Powers of Provinces Rest With Chief Ministers, Not With Governors

8/9/2019 Real Executive Powers of Provinces Rest With Chief Ministers, Not With Governors

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Real Executive Powers Of Provinces Rest With

Chief Ministers, Not With Governors

by Varatharaja Perumal-Saturday, 07 February 2015

Function of democracy depends on rule of la and for ensurin! proper function of rule

of la the separation of poers is essential" #n the process of pro!ressin! democratic

system, the de$olution of poers to the re!ional units of !o$ernance has become

fourth pillar of the separation of poers, hich in fact ensure the chec% and balance

for !ood !o$ernin! of the country"

Sri &an%a has more than 2' years e(perience of Pro$incial )ouncil *P)+ system since it

as formed in 1 under the 1.th /mendment *1./+ of the )onstitution of Sri &an%a"

et, the issues re!ardin! the implementation of the 1./ are not resol$ed" #t is !enerally

ac%noled!ed that the poers de$ol$ed to P)s are insufficient for the P)s to be

effecti$e as to the social and economic de$elopment of the people and the re!ions of

their respecti$e pro$inces" o increase the poers of the P)s, the 1./ should be fully

re$ised and replaced by another amendment to the )onstitution" his is idely called

amon! the political circle 1. plus" hether the leaders of Sri &an%a3s major political

parties are ready for it at present circumstances is a matter of debate" he immediate

concern is related ith the defects en!ra$ed ithin the 1./, such as ambi!uities in the

pro$isions of the 1./ and the problems arisin! out of the )oncurrent &ist in the 1./,

hich le!ally facilitate the 4o$ernment of Sri &an%a *4oS&+ to curtail the poers and

restrain the functional efficiency of the P)s" ithout necessary amendments to the 1./

by another set of amendments, such defects cannot be rectified" oe$er, as a short

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term solution for immediate concerns there is a ay if the political leaders of the rulin!

parties in Sri &an%a has ish and ill to ensure the de$olution meanin!fully reali6ed

on the !round as it as en$isa!ed hen ma%in! the 1./" o miti!ate the effects of such

defects temporarily the leadership of the 4oS& should be !enerous toards the P)s,

for hich at present the ne !o$ernment led by the President aithripala Sirisena and

the Prime inister 8anilic%ramasin!he seem to ha$e been attemptin!" he Supreme

)ourt of Sri &an%a *S)S&+ also could contribute to remo$e the effects of such defects

from practice by establishin! le!al interpretations in fa$our of the P)s on the basis of

the principle that the de$olution of poers to P)s is a part of the basic structure of the

)onstitution"

# do not here ish to rite my opinion on the 1./ plus or the conspicuous defects in

the 1./" y purpose is to present a note of my opinion in respect of /rticles 159) and

159F inserted in the )onstitution of Sri &an%a *)oS&+ by the 1./" # rite this article

mainly because :orthern Pro$ince )hief inister r" i%nesaran, he is an le!al

e(pert and has 90 years of judiciary e(perience and r Sumanthiran, he is the de facto

spo%esman of the :/ and also 20 years e(perienced layer, both repeatedly say to

the media and in $arious forums that the 1./ pro$ides the 4o$ernor e(ecuti$e poers

of the P)s and the 4o$ernor direct and control the functions and administration of

P)s" :o doubt, the :orthern and ;astern Pro$incial 4o$ernors of the 8ajapa%sa!o$ernment understood, e(plained and e(ercised as if that 1./ empoered them to

personally e(ercise the e(ecuti$e poers in the functions of pro$incial !o$ernance as

they desire"


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ron! understatin! idely pre$ailin! in Sri &an%a, in the respect of the le!al

propositions re!ardin! the poers of the 4o$ernors"

# am not a le!al e(pert" oe$er, # rite this note since # ha$e !ained a little le!al

%noled!e on the #ndian and Sri &an%an )onstitutions and e(perience by practice as

the former )hief inister of the former :orth-;ast Pro$incial )ouncil" ith that

limitation, # present this piece of ritin! for the consideration of the political leaders in

poer and the constitutional e(perts in Sri &an%a" 8i!ht understandin! and practicin!

accordin!ly are imperati$e to the hole purposes of the 1./"

Pro$isions of the 1./ as re!ards to e(ercisin! the ;(ecuti$e poers of the P)s are as

folloin!=

;(ercise of e(ecuti$e poers by the 4o$ernor159)" ;(ecuti$e poer e(tendin! to the matters ith respect to hich a Pro$incial

)ouncil has poer to ma%e statutes shall be e(ercised by the 4o$ernor of the Pro$ince

for hich that Pro$incial )ouncil is established, either directly or throu!h inisters of

the uestion arises hether any matter is or is not a matter as respects hich the

4o$ernor is by or under this )onstitution re>uired to act in his discretion, the decision

of the 4o$ernor in his discretion shall be final, and the $alidity of anythin! done by the

4o$ernor shall not be called in >uestion in any )ourt on the !round that he ou!ht or

ou!ht not ha$e acted on his discretion" he e(ercise of the 4o$ernor?s discretion shall

be on the President?s directions"

*.+ he >uestion hether any, and if so hat, ad$ice as tendered by the inisters to

the 4o$ernor shall not be in>uired into in any )ourt"


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*'+ he uired by or under the


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)onstitution of Sri &an%a for the 4o$ernor to act at his discretionA

9" hether the 4o$ernor can decide at his discretion any of the e(ecuti$e functions

of the pro$incial !o$ernance as he may act in such function at his discretion, ith or

ithout any aid or ad$ice of the )hief inisterA

5" hether any pro$ision of the Pro$incial )ouncils /ct of 17 *P)/ of 17+ can

be read in isolation from the pro$isions of the )onstitution as the P)/ of 17

empoers the 4o$ernor independently or be interpreted in contra$ention or

inconsistent to any pro$ision of the )onstitution of Sri &an%aA

'" hether the Parliament has the poer to e(tent the e(pression of Be(ceptionC

referred in the /rt" 159F *1+ in order to ma%e any la or any pro$ision in any la for

independently empoer the 4o$ernor to act personally at his discretion in any of thefunction in any of the matters ith respect to hich a Pro$incial )ouncil has poer to

ma%e statutesA

#t is better to note that the abo$e-!i$en pro$isions of the 1./ are almost the copy of the

pro$isions in the )onstitution of #ndia as re!ards to the same matter" he said

pro$isions in the constitution of #ndia are=

159" ;(ecuti$e poer of State"-

*1+ he e(ecuti$e poer of the State shall be $ested in the 4o$ernor and shall be

e(ercised by him either directly or throu!h officers subordinate to him in accordance

ith this )onstitution"

1'2" ;(tent of e(ecuti$e poer of State"-

Subject to the pro$isions of this )onstitution, the e(ecuti$e poer of a State shall

e(tend to the matters ith respect to hich the &e!islature of the State has poer to

ma%e las=

Pro$ided that in any matter ith respect to hich the &e!islature of a State and

Parliament ha$e poer to ma%e las, the e(ecuti$e poer of the State shall be subject

to, and limited by, the e(ecuti$e poer e(pressly conferred by this )onstitution or by

any la made by Parliament upon the Dnion or authorities thereof"

1'." )ouncil of inisters to aid and ad$ise 4o$ernor"-


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*1+ here shall be a )ouncil of inisters ith the )hief inister at the head to aid and

ad$ise the 4o$ernor in the e(ercise of his functions, e(cept in so far as he is by or

under this )onstitution re>uired to e(ercise his functions or any of them in his

discretion"

*2+ #f any >uestion arises hether any matter is or is not a matter as respects hich the

4o$ernor is by or under this )onstitution re>uired to act in his discretion, the decision

of the 4o$ernor in his discretion shall be final, and the $alidity of anythin! done by the

4o$ernor shall not be called in >uestion on the !round that he ou!ht or ou!ht not to

ha$e acted in his discretion"

*.+ he >uestion hether any, and if so hat, ad$ice as tendered by inisters to the

4o$ernor shall not be in>uired into in any court"

1'9" Ether pro$isions as to inisters"-

*1+ he )hief inister shall be appointed by the 4o$ernor and the other inisters shall

be appointed by the 4o$ernor on the ad$ice of the )hief inster, and the inisters

shall hold office durin! the pleasure of the 4o$ernor=

*2+ he )ouncil of inisters shall be collecti$ely responsible to the &e!islati$e

/ssembly of the State"

# do not need to e(plain here as to ho the 4o$ernors and )hief inisters are

functionin! in #ndia" # referred the rele$ant pro$isions from the )onstitution of #ndia

only for the purpose of shoin! similarity" here are so many ud!ments of the

Supreme )ourt of #ndia *S) of #ndia+ clarifyin! e(act le!al position of the abo$e-

referred pro$isions" Gecision of the #ndian courts may not bind the Sri &an%an courts"

hey are $aluable for references and considerations of the Sri &an%an courts since so

far hi!her courts of Sri &an%a ha$e not clarified or held any decision on the >uestions

as to ho and by hom the e(ecuti$e poers of the P)s ha$e to be e(ercised" hose ho are interested to %no and understand the e(act le!al position of the abo$e-

referred pro$isions of the #ndian )onstitution may read at least some of the land-mar%

ud!ments of the S) of #ndia, li%e Samsher Sin!h $" State of Punjab, /#8 179 S)

212, 8am aaya $" State of Punjab, /#8 155 S) 59 and D":" 8" 8ao $s Smt" #ndira

4andhi, 171 /#8 1002, 171 S)8 9'" # ish that this my article may encoura!e a


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debate in Sri &an%a" Since Sri &an%a too a part of the )ommonealth, the rele$ant

decisions held by the S) of #ndia are important for the )onsideration of the S) of Sri

&an%a"

#n Sri &an%a it is idely understood or belie$ed that the 1./ ma%es the 4o$ernor not

only as the head of the Pro$ince but also as the head of pro$incial e(ecuti$e authority

i"e" Pro$incial 4o$ernment, as similar to the e(ecuti$e Presidential system of Sri

&an%a" ;stablishment of the Pro$incial )ouncil system in Sri &an%a is not based on the

constitutional model of DS/ or France but on the tradition of estminster system i"e"

cabinet system of !o$ernment, hereas, it is ell %non, the system of central

!o$ernance of Sri &an%a is based on the combination of DS/ and France models" ere

in the pro$inces, the de facto e(ecuti$e authority is formed by the elected

representati$es of the people and the 4o$ernor is nominee of the President to function

as the )onstitutional ead of State at Pro$incial le$el" Ence the elected body ta%es o$er

the seat of !o$ernance the 4o$ernor becomes as nominal ead of the Pro$ince until

that elected body enjoys the majority support of the elected members of he Pro$incial

council"

Gurin! the ne!otiations held in 19 beteen 8 eyaardane *8+ and D&F

leaders ith the mediation of 4"Parthasarathy and also in 1' beteen 8 and

#ndian 4o$ernment representati$es in consultation ith the D&F leaders, late r"

/mirthalin!am anted an e(ecuti$e 4o$ernor system li%e in DS/"


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to that body or person ith re!ard to such duty"

he )hief inister and other inisters in the uired to e(ercise his functions or any of them in his discretion"

#t is ron! to interpret that there is no ord BonlyC to compel the 4o$ernor to act only

in accordance ith the ad$ice of his inisters" #t is a constitutional con$ention of the

)ommonealth )ountries hich follo the estminster system that it is compulsory

that the 4o$ernor should act only on the ad$ice of his ministers hen he is re>uired by

the )onstitution that he shall act on or in accordance ith ad$ice of his inisters" #

ish to >uote here the rele$ant )onstitutional pro$isions of )anada and /ustralia ithre!ard to the relations beteen the head of State and the )ouncil of inisters in

e(ercisin! the e(ecuti$e poers"

/rticle '5 of the )anadian /ct 1'7

/ll Poers, /uthorities, and Functions hich under any /ct of the Parliament of 4reat


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or may be e(ercised by the &ieutenant 4o$ernor of Entario and Iuebec respecti$ely,

ith the /d$ice or ith the /d$ice and )onsent of or in conjunction ith the respecti$e

;(ecuti$e )ouncils, or any embers thereof, or by the &ieutenant 4o$ernor

indi$idually, as the )ase re>uires, subject ne$ertheless *e(cept ith respect to such as

e(ist under /cts of the Parliament of 4reat


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ad$iceC" he ar!ument that the 4o$ernor may or may not accept the ad$ice of his

ministers is inconsistent to and a!ainst the spirit of the )ommonealth )onstitutional

)on$entions" he pro$ision that the 4o$ernor shall act in accordance ith the ad$ice

of his ministers, means that the 4o$ernor is mandatorily re>uired by the )onstitution

to act only on the ad$ice of his inisters" Etherise, the )hief inister and other

inisters in the uired by or under the

)onstitution to act at his discretion then the !o$ernor may act ith or ithout the

ad$ice of the )hief inister and the other inister in the


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the functions in !o$ernin! the pro$ince is totally contrary to the precise meanin! of the

discretionary poer referred in the /rticle 159F of the )onstitution of Sri &an%a" he

clause *2+ of /rt"159 should be read, harmoniously and not inconsistently, ith the /rt"

159< *11+ hich clearly establish that the uent to

the /rt"0*.+ of the constitution, >uestion of $alidity cannot be raised in any court"

oe$er, the Supreme )ourt of Sri &an%a is empoered by the )onstitution to pro$ide

ri!ht interpretation to any pro$ision of any la of the country" Since no pro$ision ofthe P)/ of 17 is established to be inconsistent to any pro$ision of the )onstitution,

the pro$isions of the P)/ of 17 should be practiced in accordance ith and

compliance to the pro$isions of the )onstitution"

ence, the P)/ of 17 does not pro$ide any poer on any function of the !o$ernance

to the 4o$ernor to act at his discretion" #nstead, the 4o$ernor has to act in accordance

ith and compliance to the /rt 159F of the )onstitution" he 4o$ernor cannot be

empoered by the P)/ of 17 independently, to act at his discretion in his functionsof pro$incial !o$ernance, but only by and under the )onstitution" #n case the

understandin! and the e(planation of the former 4o$ernors of the !o$ernment led by

former President ahinda 8ajapa%sa are accepted, then there shall not be de$olution

by the )onstitution but only a re!ulated and controlled administrati$e decentrali6ation

of the poers and functions at the mercy of the 4o$ernment of Sri &an%a"


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#f the 4o$ernor has e(clusi$e poer to decide at his discretion that in hich functions

he has to act in aid of and ith the ad$ice of inisters and in hich functions he has

the poer to decide arbitrarily to act ithout the ad$ice of his ministers and also if his

discretion on such decision is final, then there is no need of definin! the discretionary

poers e(pressed in the latter part of /rt"159F *1+"

#, therefore, conclude that the 4o$ernor should act in e(ercisin! the e(ecuti$e

functions in the matters ith respect to hich a Pro$incial )ouncil has poer to ma%e

statutes" he 4o$ernors are only the constitutionally nominal heads of the respecti$e

P)s hen the elected Pro$incial )ouncil is sustainin! ith the )hief inister ho

commands the support of the Pro$incial )ouncil" here is no e(ecuti$e discretionary

poer entrusted ith the 4o$ernors by or under the )onstitution"

# hopefully e(pect that the forthcomin! 1th /mendment to the )onstitution ould

clear the clouds of e(istin! confusion pre$ailin! no ith re!ard to the understandin!

and application of the /rticles 159) and 159F of the )onstitution and the pro$isions of

the P)/ of 17" hoe$er may be appointed as 4o$ernor since he is a representati$e

of the President, imperati$e is ho he acts in the !o$ernance of the pro$ince" Proper

implementation is the essential step for the full implementation of the 1./ of the

)onstitution of Sri &an%a"

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Real Executive Powers of Provinces Rest With Chief Ministers, Not With Governors