Judicial review in Srilanka
Introduction
The
principle of Parliamentary Sovereignty is a weak arm against the unlawful
executive and administration actions or sometimes legislative actions
themselves. This means that the principle of Parliamentary Sovereignty does not
always stand against the breach of’ rule of law. As Stanley de Smith stated in
his doctoral that, “...it has become clear that judicial review is not merely about the
way decisions are reached but also about the substance of those decisions
themselves. The fine line between appeal on the merits of a case and review
still exists...towards a ‘culture of justification[1]”.
The justification culture has been developed on the lap of
judicial review. The concept of judicial
review has been justified by the notion of qualities of the democratic society.
However, ‘...judicial review of statutes
on constitutional grounds tends to raise issues of high political importance’[2]
though it has addressed the qualities of the democratic society.
Jurisprudentially judicial review was (and is) based upon the traditions of
natural law [3]
which provide more freedom and flexibility in the mechanism of reasoning or
justification.
The
proposition that an administrative authority must act within the powers
conferred upon it by the legislature may well be considered the foundation of
Administrative Law. The primary purpose of administrative law, therefore, is to
keep the powers of government within their legal bounds, so as to protect the
citizens against their abuse[4].
The
juristic basis, on which courts exercise judicial review whenever there is an
allegation of administrative authorities acting outside them conferred powers,
is commonly referred to as the “doctrine
of ultra vires”. ‘Ultra Vires’ is a Latin phrase which simply means “beyond
powers” or “without powers”. However, the courts, with the view of curtailing
abuse of power by administrative authorities and providing relief for the
parties thereby affected, have developed ‘Ultra
Vires’ as a firm doctrine of law, by extending and refining its scope to
embrace various types of abuse of power committed by administrative
authorities. It is significance to examine the theoretical basis of the
doctrine of ultra vires, its expansion and, the jurisprudential arguments made
in favour of the usage of the doctrine as the central foundation of judicial
review of administrative action and the counter arguments made with regard to
such usage.
Judicial
Review in Srilanka
Srilanka has the
long history with regarding the Judicial review from British period to date. The
historical origin of the public law remedy in Sri Lanka goes beyond British
period. Relating to this, the first charter was issued in 1801[5] and
it was followed by Ceylon Charter of Justice in 1833[6]. Administration
of Justice Ordinance[7] provided
full powers to the supreme court “to grant and issue according to law” mandates
in the nature of writs of mandamus, certiorari, procedendo and prohibition
against any District court judge, commissioner, magistrate justice or another
person or tribunal. Similarly, under courts ordinance[8], had given wide powers to the Supreme Court to
issue mandate in the nature of writs.
The
administrative in Sri Lanka has expanded rapidly developed itself from its
central principle of ultra vires but this concept has been enshrined in
judgments of Srilankan courts separately since 1978 in the exercise of the writ
jurisdiction and fundamental rights jurisdiction. However, these have nurtured
the scope of exercising the power of judicial review of a given jurisdiction
and accordingly have given finer meaning to the exercise of judicial power of
the people by the judiciary and for upholding the rule of law. Apart from the
grounds of judicial review such as
ultra
vires, abuse of discretionary power and rules of natural justice, the grounds
of proportionality and legitimate expectation was developed by the judiciary.
Especially in the cases of Premarathne vs. UGC[9] ; Neidra F’do vs. Ceylon Tourist Board and,Caldera vs. University of Peradeniya[10] The concept of proportionality has been established under the Sri Lankan administrative law in Supreme Court & it has been accepted as a ground for judicial review. It was well established that the limitations on fundamental rights should be proportionate to the value of relevant right.
Development
of Judicial review after 1978
Several
decided cases espoused this approach and the “Doctrine of Public Trust” and
fairness were evolved as two key milestones to support the interpretation of
the equality and equal protection which was constitutional guaranteed during
this period. “Thus the courts have used the concepts of reasonableness, natural
justice, legitimate expectation and proportionality to give meaning to
fundamental rights contained in the constitution; principally to clarify the
content of the equality and equal protection guarantee”.
Subsequently
later on The 1978 constitution has identified the country’s writ jurisdiction. Therefore,
it can be considered as another step forward. Article 140 of the constitution
grants the power to Court of Appeal to issue writs and Article 154 P(4) of the
constitution grants powers to Provincial High Court to issue writs. Article 140
explicitly provides that ‘Subject to the provisions of the constitution, the
Court of Appeal shall have full power and authority to inspect and examine the
records of any court of first instance or tribunal or other institution and
grant and issue, according to law orders in the nature of writs of certiorari,
prohibition, procedendo, mandamus and quo- warronto against the judge of any
court of first instance or tribunal or other institution or any other person.”
The
administrative in Sri Lanka has expanded rapidly from its central principle of
ultra vires but this concept has been enshrined in judgments of Sri Lankan
courts separately since 1978 in the exercise of the writ jurisdiction and
fundamental rights jurisdiction. However, these have nurtured the scope of
exercising the power of judicial review of a given jurisdiction and accordingly
have given finer meaning to the exercise of judicial power of the people by the
judiciary and for upholding the rule of law. Apart from the grounds of judicial
review such as ultra vires, abuse of discretionary power and rules of natural
justice, the grounds of proportionality and legitimate expectation were
developed.
In Sri Lanka, judicial review of administrative action is exercisable broadly on two sets of criteria:
[1] Writ
Jurisdiction under Articles 140 & 154 [P] [4] [b] of the Constitution;
[2] Fundamental Rights Jurisdiction under the procedure laid down in Article 126 read with Article 17 of the Constitution
Writ Jurisdiction
As provided under Article 140[11] & Article 154 [P] [4] [b] [12] of the constitution the writ jurisdiction is exercised.
Thus,
Article 140 of the Constitution confers writ jurisdiction on the Court of
Appeal.
It is pertinent to note that, even though the emergence of the writ jurisdiction has been viewed essentially as a development of the English common law, the Constitution of Sri Lanka, in the present day, explicitly recognises the same.
The writ jurisdiction in Sri
Lanka is a constitutional remedy. Constitution being the supreme law of the
land, the provisions of the Constitution will prevail over any other ordinary
law. In Atapattu v. Peoples
Bank[13]
His Lordship Justice Mark Fernando observation illustrated this view
exhaustively.
Similarly, in Sirisena Cooray v. Tissa Dias
Bandaranaike[14]
the Supreme Court observed that the writ jurisdiction of the Superior Courts
conferred by the Constitution cannot be restricted by provisions of ordinary
legislation containing ouster clauses and that the writ jurisdiction conferred
by Article 140 is unfettered.
It
is pertinent to note that Sri Lankan Courts have interchangeably used
principles in Administrative law jurisprudence in fundamental rights
jurisprudence, which has substantially enriched the scope of judicial review in
Sri Lanka. This is implicit in the observation of the Supreme Court in W. A. C. Perera v. Prof. Daya Edrisinghe[15]
that:
“The
fact that by entrenching the fundamental rights in the Constitution the
scope of the writs has become enlarged is implicit in Article 126(3), which
recognises that a claim for relief by way of writ may also involve an
allegation of the infringement of a fundamental right.” [16]
Dr. Gunaratna states that the
aforesaid judicial pronouncement must be regarded as a major jurisprudential
advance, in that, it has brought into focus the significance of the phrase
“orders in the nature of writs” in Article 140 of the Constitution, in the
context of a Constitution that vests sovereignty in the people as opposed to “prerogative
writs” known to English law.[17]
It has also signified a welcome
departure from the traditional vires based judicial review of administrative
action to a right based system of review.[18]
It’s
divine to analyse the Lordship Justice Mark Fernando’s observation in the Mundy[19]
case here.
A Short
analysis of Heather Mundy vs. Central
Environmental Authority and Others (CEA)[20]
Sri Lankan Courts have interchangeably used principles in Administrative law jurisprudence in fundamental rights jurisprudence, which has substantially enriched the scope of judicial review in Sri Lanka. This is implicit in the observation of the Supreme Court in this case. It is pertinent to analyse this case because this is one of the landmark litigation in Srilankan jurisprudence in which; The judiciary has expanded the grounds of judicial review for the administrative actions when considering Individual Rights of the public in one hand & the Development of state in other hand.
In this Case,
The Supreme Court considered the
relevant legislation, the authority’s power to grant approval, the rights of
the appellants to notice and to be heard in regard to "deviations"
that were made to the original proposal, and the power and the discretion of this
Court in regard to the grant of relief.
The court was of the view that
the purposes of an Environmental Impact Assessment would not be achieved if
changes to the proposal were treated as not being alterations. The Appellants
were entitled to notice and to be heard before the final trace was approved. It
emphasized that the Court of Appeal seemed to agree that the rights of the
Appellants had been infringed. While the circumstances were such that the Court
could reasonably have concluded that, on balance, the final trace should be
left undisturbed, one of the major considerations was cost.
If a judicial discretion was exercised in
favour of the State, inter alia, to save costs, it was only equitable that the
appellants should have been compensated for the injury to their rights. If it
was permissible in the exercise of a judicial discretion to require a humble
villager to forego his right to a fair procedure before he was compelled to
sacrifice a modest plot of land and a little hut because they were of "extremely
negligible" value in relation to a multi-billion-rupee national project,
it was nevertheless not equitable to disregard totally the infringement of his
rights: the smaller the value of his property, the greater his right to
compensation.
The court concluded that the
deviations proposed by the project proponent were alterations requiring
approval by the Central Environmental Authority; that despite the lack of such
approval, the refusal of relief by way of writ, in the exercise of the Court’s
discretion was justified; but that the Appellants ought to have been
compensated for the infringement of their rights. To that extent, the appeals
were allowed, and the court granted an order directing to pay compensation to
the appellants.
The significance of Mundy case
shall be identified as on the basis of expansion of the scope of judicial
review; Especially while the Court of Appeal Dismissed the petitions &
Grant the decision as to sacrifice the Individual rights for the state
development; Supreme court expanded the scope of judicial review over
Administrative actions.
Here, the review was based upon fundamental
Rights[21]
of the people; which is based upon the Equity & Justice as prescribed by
the constitution[22].
Observation
of Justice
Mark Fernando.
It’s
more efficient to note the view of Justice Mark Fernando too.[23]
His Lordship Justice Fernando further remarked that the Supreme Court in Sri
Lanka itself has long recognized and applied the "public trust"
doctrine which proclaims that powers vested in public authorities are not
absolute or unfettered, but are held in trust for the public, to be exercised
for the purposes for which they have been conferred, and that their exercise is
subject to judicial review by
reference
to those purposes[24].
He
also noted that the executive power in Sri Lanka is necessarily subject to the
fundamental rights in general, and to Article 12(1) in particular which
guarantees equality before the law and the equal protection of the law.
Therefore, administrative acts and decisions contrary to the "public trust
“doctrine and/or violate of fundamental rights would be in excess or abuse of
power, and therefore void or voidable.
As
His Lordship has observed, the powers of review and relief of the Supreme Court
in Sri Lanka under its writ jurisdiction would not be confined to the old
"prerogative" writs as in the case of English Courts. The
Constitutional principles recognised by the Supreme Court of Sri
Lanka
such as, the “public trust’ doctrine together with the provisions in the
Constitution relating to fundamental rights and the jurisdiction of the Supreme
Court in relation to violations of fundamental rights, have shrunk the area of
administrative discretion and immunity, and have correspondingly expanded the
nature and scope of the public duties amenable to Mandamus and the categories
of wrongful acts and decisions subject to Certiorari and Prohibition, as well
as the scope of judicial review and relief.
A Short analysis Ceylon Tobacco Company vs. Minister of Health[25]
In this case the Petitioner sought the court that the Regulation
Nos. 5, 6, 7 and 8 and the added Regulation No. 11, ultra vires the
provision of the NATA Act. Concurrently
argued that the NATA Act does not empower the Minister to make regulation
generally for carrying out the intention/purpose/principles in enacting the
NATA Act.
It was criticized as The Minister is only empowered to make
regulations required to be prescribed or in which regulations are authorized or
required by the Act. The Minister cannot make regulations generally of any
matter for carrying out the intention/purpose/principles in enacting the NATA
Act.
But however on behalf of the Respondents submitted in his oral
submissions, at the very outset to the evidence of harmful effects of tobacco
smoking and invited court to, document R8, (pg. v) mainly to the material
contained in the foreword. It was also referred to the preamble of the WHO Framework Convention on
Tobacco Control more particularly to the 3rd para which states the
serious concern about the increase in the worldwide consumption and production
of cigarettes.[26]
Supreme court observed and analyzed the circumstances
and came to land mark determination in this case. From respondents to court
referred that packaging and labeling of tobacco products, more particularly to
Articles[27]
to emphasis on international standards that Sri Lanka, is bound to adopt and
follow in its national legislation, since our country was a signatory to the
WHO Framework Convention on Tobacco Control. Further it was observed above adherence to such
International Treaties and conventions is provided in terms of Section 15(J) of
the NATA Act.
It’s pertinent to note that the judiciary incorporated through some
decided case laws which emphasized the need to interpret domestic law in
harmony with Sri Lanka’s international commitments even in cases where no
specific domestic law had been enacted to give effect to its international
obligations.
Its relevant to cite the observation of judiciary in the case of Weerawansa
Vs. A.G[28]
with regarding international standards.[29]
Hence the supreme court determined that Health warnings in the context
of said section and the NATA Act need to be interpreted in a meaningful and
purposive way and not so narrowly as the Petitioner argues.
The vital note can be derived from the observation of this case as the expansion of the judicial review on conferred rights by constitution accomplished with the international law standards. It was well illustrated that The minister’s administrative action may not pronounce an Act ultra vires as contravening international law, but may recoil, in case of ambiguity, from a construction which would involve a breach of the ascertained and accepted rules of international law. The expansion towards the international standards lifts this pronouncement in landmark position in our jurisprudence.
Obstacles which are the barriers for development of Judicial review
It’s obvious in our judicial pronouncements; that even though the expansions
made through the above mentioned case laws due to some obstacles exists in our
system. It should be accepted that political constitutionalism is prevailed in
the country. Further the judicial review is absolutely base upon the
constitution rather than other acts or sources. Hence the internal conflicts
and ambiguous power sharing to the courts to grant writ jurisdiction &
fundamental rights jurisdiction leads to some obstacles in the development of
judicial review on administrative actions.
Example: Article 126(3) of the
constitution[30]
requires court of appeal to refer the matters to supreme court when a matter
comes related with fundamental rights issue.
It was observed in the case of Perera V Edirisinghe too.
The divorce of the writ jurisdiction from Supreme court; however, leads
to an ambiguous and oversighted circumstance.
Also articles (140); (35) & 126(3) of the constitution are
illustrated with some procedural conflicts that leads to ineffective judicial
review in the country.
Standard of Judicial Review
Comparison with other Jurisdictions
Lord
Woolf has described ultra vires as a fairy tale and John Laws describes it as a
fig leaf.
But
the Wednesbury test was relaxed by subsequent case law. The case of Council
of Civil Service Union vs. Minister for the Civil Service[33]
(GCHQ case) introduced the threefold division of judicial review which are
illegality, irrationality and procedural impropriety and possibility to use
proportionality
However
legitimate expectation and proportionality had been recognized in UK
implicitly. With the enactment of Human Right Act in 1998, the European
Jurisprudence of Administrative Law has been directly introduced to the British
system. The preamble of the Act[34]
indicates that it will “give further effect to the rights and freedoms
guaranteed under the European Convention on Human Rights”. However, prior to
implement the Human Rights Act there was a clear cut conflict between the
wording of the domestic law and the requirement of the convention. In the case
of Taylor Vs. Co- Operative Retail Services[35]
Lord Denning described the dilemma. But after the implementation of this
Act in 1998; it gains a solution to this dilemma. The Act provides that it is
unlawful for a public authority to act in a way which is incompatible with a convention.
restriction
is placed on a freedom guaranteed by the
convention
in that it has to be “proportionate to the legitimate aim pursued”. The
doctrine of proportionality is summed up in the phrase ‘not taking a sledge
hammer to crack a nut’. The
implementation
of this in a concrete situation is less straight forward.
India
1. Illegality
2. Irrationality
3. Procedural
impropriety
4.
Proportionality
Present Scenario
in India over Administrative Actions
Judicial review
is central in dealing with the malignancy in the exercise of power. However, in
the changed circumstances of socio-economic development in the country the
Court is emphasizing ‘self restraint’. Unless the administrative action is
violate of law or the Constitution or is arbitrary or mala fide, Courts should
not interfere in administrative decisions. Moving in this direction, the apex
Court in Sidheswar Sahakari Sakhar
Karkhana Ltd. v. Union of India[37],
was of the opinion that normally the Court should not interfere in policy
matter which is within the purview of the government unless it is shown to be
contrary to law or inconsistent with the provisions of the Constitution.
Now India
arrived at the conclusion of judicial review of administrative action is
inherent in it’s Constitutional scheme which is based on rule of law and
separation of powers. It is considered to be the basic features of our
Constitution, which cannot be abrogated even by exercising the Constituent
power of parliament. If it is failure to exercise discretion or abuse of
discretion power to settle its score or gain any private profit due to this
discretion power, then only option before the public is to go to judiciary
under Article 32,136 or Article 226 of the Constitution of India.
The main purpose of judicial review is to
ensure that the laws enacted by the legislature conform to the rule of law.
Judicial review has certain inherent limitations. It is more suited for
adjudication of disputes than for performing administrative functions. It is
for the executive to administer the law and function of judiciary is to ensure
that government carries out its duty in accordance with the provision of the
Constitution of India.
jurisdiction. For an Example Article 126(3) of the
constitution should not be considered as an obstacle to the process of
upholding people’s sovereignty in a democratic society. Another fact is that
this paper clearly pointed out that Article 140 of the constitution confers a wide
power to issue
writs ‘the jurisdiction conferred by Article 140 is not confined to
“prerogative
writs” or
“extraordinary remedies” but extends “subject to the provisions of the
Constitution to “orders in the nature of” writes of certiorari etc.’
Therefore, it
can be argued that in terms of the phrase “according to law”, English Law can
be interpreted as both English Statutory Law and English Common Law. Thus,
there is no obstacle to incorporate developed common law principles on judicial
review of administrative action in to Sri Lankan administrative jurisprudence.
Therefore, here it is argued that by using a broad interpretation judges can creatively
adopt the common law principles as a part of our administrative jurisprudence.
However, since
we have a written constitution, it is essential that these common law
principles do not contradict with the constitutional provisions. But the
ultimate purpose of the constitution is to protect and promote democracy of the
country. The purpose of common law principles is to establish a good and fair administration
and to uphold democracy. In view of the above facts, it can be successfully
argued that the Sri Lankan courts can adopt common law principles to make use of
the provisions of the Constitution in a creative manner to expand the scope of
judicial control.
******
[1] (Stanley de Smith, 6th edn 2007).
[2] (John C. Reitz, 2008)
[3] (Richard H. Helmholz, 2013)
[4] H.W.R.
Wade & C.F. Forsyth, Administrative Law, [10th ed.]
[5] Article 82 of the Ceylon Charter
[6] This charter is empowered the Supreme Court to issue mandate in the
nature of writ of mandamus , procedendo and prohibitions against District Court
in the field of Civil Law
[7] Section
22 of the Administration of Justice Ordinance No 11 of 1868
[8] section
46 of courts ordinance
[9] SLR-Year-2008-Vol. 1, p - 44
[10] NLR-Vol. 68, p 375.
[11] “Subject to the provisions of
the Constitution, the Court of Appeal shall have full power and
authority to inspect examine the records of any Court of First Instance or
tribunal or other institution, and grant and issue, according to law, orders in
the nature of writs of certiorari, prohibition, procedendo. mandamus and quo
warranto against the judge of any Court of First Instance or tribunal or other
institution or any other person: Provided that Parliament may by law provide
that in any such category of cases as may be specified in such law, the
jurisdiction conferred on the Court of Appeal by the preceding provisions of
this Article shall be exercised by the Supreme Court and not by the Court of
Appeal.”
[12] “Every such High Court shall
have jurisdiction to issue, according to law
[b] order in the nature of writs of certiorari, prohibition,
procedendo, mandamus and quo warranto against any person exercising, within the
Province, any power under
(i)
any law; or
(ii)
any statutes made by the Provincial
Council established for that Province.”
[13] [1997]
1 SLR 208
[14] [1999]
1 SLR 1.
[15] [1995]
1 SLR 148
[16] [1995]
1 SLR 148 at 156.
[17] J.
de. A. Gunaratna, “Judicial Response to the Concept of Sovereign Power of the
People” in S. Marsoof and N. Wigneswaran [Eds.],.
[18] S.
Marsoof, “The Expanding Canvass of Judicial Review” [2005] XI BALJ 18.
[19] Heather
Mundy v. Central Environmental Authority and Others SC
Appeal 58/2003, SC Minutes of 20th January 2004.
[20] (SC Appeal
58/2003, CA Application 688/2002, SC minutes 20th January)
[21] As Guaranteed
under Chapter III of Constitution
of The Democratic Socialist Republic of Sri Lanka 1978.
[22] Article 126(4) of Constitution of The Democratic
Socialist Republic of Sri Lanka 1978.
[23] His
Lordship Justice Mark Fernando observed that:
“The
jurisdiction conferred by Article 140, however, is not confined to "prerogative"
writs, or "extraordinary remedies", but extends - "subject to
the provisions of the Constitution" - to "orders
in
the nature of" writs of Certiorari, etc. Taken in the context of our
Constitutional principles and provisions, these "orders" constitute
one of the principal safeguards against excess and
abuse
of executive power: mandating the judiciary to defend the Sovereignty of the
People enshrined in Article 3 against infringement or encroachment by the
Executive, with no trace of any deference due to the Crown and its agents.
1.De Silva v Atukorale [1993] 1
SLR 283 at 296-297
2.Jayawardene
v Wijayatilake [2001] 1 SLR 132 at 149 & 159
3. Bandara
v Premachandra [1994] 1 SLR 301 at 312.
[25] (CA
Writ 366/2012, CA Minutes 12 May 2014).
[26] Article
8 (pg. 8 of R8) refer to scientific evidence that has unequivocally established
that tobacco smoke cause death, decease and disability
[27] Articles 11(1) b 11(1) (iv) of R8
[28] 2000 (1)
SLR 387 at 409
[29] Article
27(15)
requires the State to “endeavor to foster respect for international law
and treaty obligations in dealings among nations’ That implies that the State
must likewise respect international law and treaty obligations in its dealings
with its own citizens, particularly when their liberty is involved. The State
must afford them the benefit the safeguards which international law recognizes.
Where
in the course of hearing in the Court of Appeal into an application for orders
in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo,
mandamus or quo warranto, it appears to such Court that there is prima facie
evidence of an infringement or imminent infringement of the provisions of
Chapter III or Chapter IV by a party to such application, such Court shall
forthwith refer such matter for determination by the Supreme Court.
[31] [1948]
1 KB 223
[32] ‘Any administrative act or order
which is ultra vires or outside the jurisdiction is void in law i.e. deprived of
legal effect. This is because in order to be valid it needs statutory authorization
and if it is not with in the powers given by the act it has no legal leg to
stand on. The court will then quash it or declare it to
be
unlawful or prohibit any action to enforce it.’
[33] [1985]
A.C. 374
[34] Human
Rights Act 1998
[35] [1982]
Industrial Cases Report 600at 610
[37] [2004]
Insc 524
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