SECOND DRAFT THE DISSOLUTION OF THE NORTH CENTRAL AND SABARAGAMUWA PROVINCIAL COUNCILS: THE CONSTITUTIONAL ISSUES 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. 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. 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 APPRAOCH 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 Article 154B (8) (C), is the adviCe oF the 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.