Tuesday 31 July 2018

Gajalakshmi Paramasivam

31 July 2018

Northern Province CM Delivers as per his Judicial Expertise


In his news brief  dated 29 July 2018,  to the Media, the Chief Minister of Northern Province has addressed the issue regarding the appointment and removal of ministers within the Provincial Council.


The Sunday Times summarised the matter as follows:


[Northern Chief Minister C.V. Wigneswaran has filed a writ petition in the Supreme Court, seeking a ruling that a Court of Appeal order offering interim relief to a sacked provincial minister be declared null and void.
Last week the Court of Appeal granted an interim relief to Northern Province Fisheries, Transport, Trade and Rural Development Minister B. Deniswaran, after he claimed that the Chief Minister acted arbitrarily when he removed him from the board of ministers. He prayed that he be allowed to remain in his post.
The two-Judge Court of Appeal Bench of Justices K.K. Wickremasinghe and Janak de Silva issued an interim ruling preventing the recently appointed ministers from carrying out the petitioner’s ministerial responsibilities. It also cancelled the letter issued by the CM, removing the petitioner from the board of ministers unlawfully and pointed out that the CM he did not have the power to do so. The court also held that Mr. Deniswaran was duly appointed and he continues in his post as before.
The Court of Appeal also held that interim relief was granted on the basis that Mr. Deniswaran has not been removed from his Ministerial post according to law. The court also instructed the appointing authority — the Governor — to consider the Constitutional restriction on the number of Ministers and take suitable action, as it was pointed out there are 7 Ministers including the CM, in the NPC Board of Ministers, whereas the Constitution provides for only five Ministers, with the CM.]


Mr Wigneswaran has referred to Article 154F(5) of the Sri Lankan Constitution and has claimed that the ruling by the Court of Appeal could not be carried out.


Article 154F states as follows:



(1) There shall be a Board of Ministers with the Chief Minister at the head and not more than four other Ministers to aid and advise the Governor of a Province in the exercise of his functions. The Governor shall, in the exercise of his functions, act in accordance with such advice, except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.

(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question in any Court on the ground that he ought or ought not have acted on his discretion. The exercise of the Governor’s discretion shall be on the President’s directions

(3) The question whether any, and if so what, advice was tendered by the Ministers to the Governor shall not be, inquired into in any Court.

(4) The Governor shall appoint as Chief Minister, the member of the Provincial Council constituted for that Province, who, in his opinion, is best able to command the support of a majority of the members of that Council : Provided that where more than one-half of the members elected to a Provincial Council are members of one political party, the Governor shall appoint the leader of that political party in the Council, as Chief Minister.

(5) The Governor shall, on the advice of the Chief Minister, appoint from among the members of the Provincial Council constituted for that Province, the other Ministers.

(6) The Board of Ministers shall be collectively responsible and answerable to the Provincial Council.

(7) A person appointed to the office of Chief Minister or member of the Board of Ministers shall not enter upon the duties of his office until he takes and subscribes the oath, or makes and subscribes the affirmation, set out in the Fourth Schedule


There was no jurisdiction to find fault with the CM – not only because of Article 154F(5) which deals with appointments but also due to Article 154F (3) which provides immunity from prosecution, to all Ministers of  Provincial Councils – including the Chief Minister. Any decision that they make are ‘advice’ and not lawfully binding decisions. Section 154F(3) protection is the parallel of Section 154F(2) protection rendered to the Governor when using discretionary powers. When the law spells out the course – there is no room for use of discretionary powers.


We had a similar stalemate situation in regards to the issue of Certificates of Heirship without Administration – in Testamentary matters.   Our matter is important in relation to ordinary citizens – so they do not get cheated by lawyers and the judiciary.


On 27 July 2018, we wrote to the lawyer representing our opposition in the Northern Province Court of Appeal:


[Our Lawyer Mr Manivannan advised my wife when my wife contacted him during her last visit to Jaffna, that you needed to file the Appellate Court Judgment in Mallakam District Court  to obtain the Certificates of Heirship.
But we are not able to work out which Section of the Law permits you to obtain such an order after we objected.

It is my understanding that  where there are no objections the  authority flows from Section 531(1)(b)(ii) which states :
‘(b) If no objections are received in relation to any application received under section 524 or 528 in response to a notice published under section 529, on or before the date specified in such notice in respect of such application, the court shall-
(ii) make order for the issue of a certificate of heir ship in form No. 87A in the First Schedule, to each of the heirs mentioned in the application, stating also the share of the estate which each heir is entitled to receive, if agreed to by the heirs; ‘

As we all know, I did object and I have not agreed to the issue of Certificates of Heirship without any Administration.  My wife advises me that your application is fundamentally flawed because of the deductions to creditors shown in your Application. Also, when we are ‘ordered’ by the Court – that in itself becomes Administration. Section 531 applies only when we ‘agree’.
Section 532 however states:
532. Procedure where there are objections to applications under section 524 or 528.
(1) If any objections are received in relation to any application under section 524 or 528 in response to a notice published under section 529, on or before the date specified in such notice in respect of such application, the Court shall proceed to hear, try and determine such application in accordance with the procedure herein provided and may for such purpose name a day for final hearing and disposal of such application and may in addition, make such order as it may consider necessary under section 541 hereof.
Section 541 is about Administration pendente lite.
Hence we conclude that your Petition  cannot be executed without  clear orders in relation to issuance of Certificates of Heirship where objections have been raised through Due Process. Even though our objections were set aside / dismissed – Certificates of Heirship only cannot be issued without consent from us.  We conclude that you need an Administrator to execute as per your own Application.  ]

The lawful decisions to dismiss or appoint are by the Governor and not by the Chief Minister.   The decisions by the Governor of  Northern Province are bad in law.  The Governor needs to be suspended until this issue is sorted out by the Judiciary.

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