RASIAN THURAIRATHNAN VS. CHIEF MINISTER, EASTERN PROVINCE AND OTHERS

RASIAN THURAIRATHNAN
VS.
CHIEF MINISTER, EASTERN PROVINCE AND OTHERS

COURT OF APPEAL
SISIRA DE ABREW, J.
GOONERATNE, J.
SALAM, J.
CA 178/2012
JULY 25, 26, 30, 2012

Constitution-13th Amendment-Article 154[F]1 -Article 154 B [8]-Articte 154 [8] [d] - Article 154F - Provincial Councils Act 42 of 1987 - Dissolution of Eastern Provincial Council before expiration of 5 years - Resolution to enable the Council to function - Dissolution of Council- by whom? Governor to act on the advice of the Board of Ministers? Could the Council be dissolved in view of the resolution? Formation of the opinion by Governor- Scope-Necessary parties not made parties -Fatal?

The petitioner, member of the Eastern Provincial Council, complained that, X a member of the Council gave notice of an urgent resolution to be taken up on 24.4.2002 - indicating that, there were many reports in the newspapers that the Council would be dissolved before the expiration of 5 years which ends on 10.5.2013 and moved that the Council should continue to function until the end of its term. The resolution was adopted without objections. The 2nd respondent -Governor of the Province dissolved the Council on 27.6.2012 The Commissioner of Elections [8th respondent] had taken steps to conduct elections for the Council.

It was contended by the petitioner that the Governor has to act on the advice of the Chief Minister and that the Governor could not dissolve the Council In view of the resolution and further that in view of the said resolution, the Chief Minister could not have advised the Governor to dissolve the Council.

Held

(1) Article 154[F] states that the Governor has to act on the advice of the Board of Ministers of the Council in accordance with his functions-This article does not talk about a situation whether the Governor has to act on the advice of the Board of Ministers in the exercise of his powers to dissolve the Council Whose advice he has to act on In terms of Act 154 B [8] - it is the advice of the Chief Minister.

(2) In considering Article 154 B [8] it does not support the position that, for the Governor to exercise his powers under this Article he must form the opinion that the Board of Ministers commands the support of the minority of the Council on the question of dissolution.

Per Sisira de Abrew. J

"Can the Provincial Council pass such a resolution that the Council should continue to function its full term. Can the Council pass such a resolution? Under our Constitution who is empowered to dissolve the Council - Is it the Provincial Council? The answer is No. It is the governor who is empowered. Resolution has no validity in law?"

(3) Considering Article 154 B [8] (d) the Governor could without going to the floor/the house for the said opinion on credible evidence before him form an opinion on the affidavits signed by the 18 members and the Chief Minister's letter.

(4) Article 154 B [8] (d) provides that the Governor can exercise his power to dissolve the Council in accordance with the advice of the Chief Minister so long as the Board of Ministers in his opinion, commands the support of the majority of the Council.

(5) There are 37 members in the Eastern Provincial Council, the petitioner has named only 6. This is fatal They arc necessary parties and the petitioner has failed to bring them before Court.

APPLICATION for a Writ of Certiorari/Prohibition.

Cases referred to:-

1. Adegbenvo vs. Akentola- 1963 - A1 614.
2. Maithripala Senanayake, Governor NC Province vs Mahindasoma and others 1998 - 2 NLR 333.
3. Jayawardane and another vs. Pegasus Holdings of Ceylon Ltd vs. Looy - 2 Sri LR 39.
4. Rawaya Publishers and others vs. Wijedasa Rajapaksha - Chairman, Sri Lanka Press Council and others - 2001 3 Sri LR 213.
5. Abeywardane and 162 others vs Dr. Stanley Wijesundara Vice Chancellor, University of Colombo and others 1983 - 2 Sr

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