It is a feature of modern democratic life that the courts be permitted to review administration action. The administrative power of the State, exercised by government officials and bureaucrats, should be subject to scrutiny by an autonomous body. Sri Lankan courts have over the past several decades or so, advanced the frontiers of judicial review. Judicial review is at a fundamental level concerned with public accountability. It seeks to ensure that public power is exercised according to certain well established norms and principles. Those who wield state power need to account for their actions. It seeks to exclude the arbitrary exercise of power.
Writ Jurisdiction of the Court
A citizen who is aggrieved by a decision of a public body or inaction of a public body has a variety of remedies available under public law. The administrative action and / or inaction on the part of a judge of any court, tribunal of first instance or other institutions or any person having legal authority to determine questions affecting the rights of subjects having the duty to act judicially may be challenged by way of judicial review. One means of the Court through which executive acts and decisions affecting rights of the people may be reviewed is its writ jurisdiction.
Mark Fernando J, who pronounced the judgement of Heather Mundy v Central Environmental Authority and Others for the Supreme Court reviewing the jurisdiction of the Court of Appeal under Article 140 of the Constitution stated as follows:
“The jurisdiction conferred by Article 140, however, is not confined to ‘prerogative’ writs or ‘extra-ordinary 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.”
The 13th Amendment to the Constitution effected on 14.11.1987 established Provincial Councils as a measure of devolving power directed at a settlement of the ethnic problem and the then ongoing conflict. Article 154P of the 13th Amendment vested an appellate jurisdiction in the Provincial High Court in respect of Magistrate’s Courts and Primary Courts within the Province. It also vested a writ jurisdiction in the Court with regard to matters set out in the Provincial Council List. Article 154P (c) left an opening to widen the jurisdiction of the Provincial High Court by stating that the Court could ‘exercise such other jurisdiction as Parliament may by law provide’.
It is in pursuance of this provision in the Constitution that the High Court of the Provinces (Special Provision) Amendment Act No.54 of 2006, was enacted by Parliament and certified on 28.12.2006. This Act amend the previous Act No. 19 of 1990, which vested in the High Court of the Provinces appellate jurisdiction in respect of orders of Labour Tribunals and those made in terms of sections 5 or 9 of the Agrarian Services Act. Section 5A of the Act No.54 of 2006 provides that High Courts established by Article 154P of the Constitution shall exercise appellate and revisionary jurisdiction in respect of judgments, decrees and orders delivered and made by the District or Family Courts, within such Province.
The Grounds or Standards of Review
The exercise of administrative power is reviewed against three sets of criteria:
(i) General principles of administrative justice, (ii). Doctrine of public trusts and (iii). Human rights standards.
(i). General Principles of Administrative Justice
There are standards of review the courts have developed over a considerable period of time. These include grounds such as the lack of jurisdiction, the violation of the rules of natural justice, abuse of discretionary power and error of law on the face of the record. In Council of Civil Service Unions v Minister for the Civil Service Lord Diplock re-classified the traditional grounds as illegality, irrationality and procedural defects. He also noted the emergence of the new ground of proportionality. It is also important that judicial standards do not become a fetter on progressive administrative decision making. The writ process should not be used to block enterprising and innovative administrative acts. Lord Scarman has cautioned that, although judicial review is a great weapon in the hands of judges, it should be used by judges, conscious of the constitutional context in which they function.
(ii). The Public Trust Doctrine
Mark Fernando J. in the Heather Mundy judgement stated that the Supreme Court itself has long recognized and applied the ‘Public Trust Doctrine’: 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. The Supreme Court utilizes this doctrine as a potential tool for a multitude of purposes: (a) to rectify the abuse of discretionary power, (b) to prevent the exploitation of natural resources and ( c) to shield the underprivileged.
(iii). Human Rights Standards
Apart from the above the executive power is also 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. The link between the writ jurisdiction and fundamental rights is also apparent from Article 126(3), which contemplates that evidence of an infringement of fundamental rights may properly arise in the course of hearing a writ application, whereupon such application must be referred to the Supreme Court which may grant such relief or make such direction as it may deem just and equitable. Thus although the Supreme Court would still be exercising the writ jurisdiction, its powers of review and relief would not be confined to the old ‘prerogative’ writs.
Equal Protection Clause
Equality of human beings before the law is one of the most important of human rights and that it may be regarded as fundamental in the sense that it is the basis for the development of guarantees of specific human rights. There are two famous legal expressions linked to the right to equality, namely (1) all persons equal before the law and (2) all persons are entitled to equal protection of the law. For example, this expression is also found in UDHR (Article 7), ICCPR (Article 26), US Constitution (14th Amendment), Indian Constitution (Article 14), 1972 Constitution of Sri Lanka (Article 18) and 1978 Constitution of Sri Lanka (Article 12).
Today it is a well accepted principle at least in the developing world that what equal protection of the laws seeks is not mathematical equality or formal equality but substantive equality among various groups in society. Formal equality with its focus on the abstract individual has failed to address deeply entrenched patterns of social disadvantage. In framing an alternative concept of substantive equality, distributive justice plays a central role. It calls for a duty upon the State to take positive measures to promote equality including where appropriate allocation of sources. Resource allocation made by the State requires a complex assessment of wide ranging facts and necessitates the setting of priorities and balancing of interests.
Once State takes steps to allocate resources for the benefit of a particular group or groups, it automatically has to exclude other groups. However, if the State’s such classification for exclusion is based on the reasonable criteria or grounds, such classification is not considered as violative of equal protection clause. Here the classification is made by the elected body of the people and not by the Courts. The Court’s role is therefore confined to evaluate the criteria used by the State for classification. The tool used by the Courts in such evaluation is based on the equality principle. Therefore equality is not only a right but also an evaluative tool for the courts. In order to give effect to this important task, the right to equality needs be expressly incorporated as a fundamental right in the FR Chapter of the Constitution. Even if important economic social and cultural rights (ESC) are not incorporated into our present Constitution, the Courts have been able to assert only to some extent such ESC rights particularly through the application of equality rights as a fundamental right enshrined in Article 12 of present Constitution.
New Concept of Equality
In 1973, E.P Royappa v State of Tamilnadu the Indian Supreme Court laid down a ‘new dimension’ to Article 14 of the Indian Constitution. Accordingly, equality is antithetic to arbitrariness. In fact equality and arbitrariness sworn enemies. The recognition that a violation of a legal norm is a violation of the equal protection clause would mean that a violation of the principles of administrative law also amount to a violation of the equal protection clause, thus giving rise to constitutional remedies in addition to remedies in administrative law. This development did take place both in India and Sri Lanka. Equality is a new frontier in judicial activism in Sri Lanka.
Administrative Justice through Equal Protection Clause
By embracing the aforesaid new concept of equality, our Supreme Court has infused a new dimension to the guarantee of equal protection of the law by pronouncing that it also embraces the right of the public to administrative justice – to be free from the caprice of arbitrary, executive or administrative action. The entrenchment of a specific remedy in Sri Lanka’s constitutional fabric to question administrative action which violates fundamental rights, has resulted in Sri Lankan judges borrowing frequently from the lush and fertile jurisprudence of administrative law.
In Wickramtunge v Ratwatte, an application filed under Article 126 of the Constitution, the Supreme Court laid down several principles of fair conduct that a public body must observe. Many of these principles were drawn from the area of administrative law. The Supreme Court stated that a statutory public body must act reasonably and in good faith and not erode the fundamental rights recognized and declared in the Constitution. The Court found that the respondent had been motivated by ‘improper purposes’ in deciding to terminate the dealership. The case also dealt with the sudden withdrawal of a facility granted to a petroleum dealer to pay by cheque. The Supreme Court held that in the circumstances of the case the failure to provide reasons for withdrawing this facility pointed to arbitrariness. The Court found that the dealer’s rights under Article 12 had been violated.
Jayawardene v Wijetilleke, another fundamental rights application under Article 126, was a classic violation of the rules of natural justice. The person who occupied the post of Inquirer into Sudden Deaths in Gampaha was removed without a hearing. The Supreme Court held that this action violated the ‘equal protection of law’ clauses in Article 12(1) of the Constitution. The Court also held that the respondent had acted without legal authority. In Tennekoon v de Silva the Court quoting administrative law scholar H W R Wade, held that not providing reasons for the transfer of a police office may deprive him of ‘the protection of the law’ guaranteed by Article 12(1) of the constitution.
In Bandara v Premechandra the Court held that public officers who hold office at pleasure may be dismissed without reasons being provided. However, this does not mean that no reasons need ‘exist’. When the Court (as distinguished from the applicant) asks for reasons, they should be provided. Failure to provide reasons to the court can lead to a conclusion that the act was arbitrary and therefore violated Article 12. These powers are not absolute or unfettered and should be exercised fairly. According to the Court it is now possible to claim relief for the violation of a fundamental right by way of a writ.
The initial application would be filed in the Court of Appeal and since it involves a question of fundamental rights the matter would have to be referred to the Supreme Court for adjudication.
The above line of cases show that the Sri Lankan Supreme Court has not been reluctant to borrow concepts from administrative law in interpreting Article 12 of the Constitution. This fusion of administrative law concepts with constitutional ideas has substantially enriched the public law jurisprudence of this country. The judicial review of legislative or administrative action can have political consequences. In tightly controlled and authoritarian societies its political repercussions are even more pronounced. In a legal system where the Courts are vested with the power of judicial review, on occasions issues with social, political and economic overtones come up for consideration. Some of them are of transient importance while others have portentous consequences for generations to come. More often than not such issues are emotionally hypercharged and raise a storm of controversy in the society. Reason and rationalism become the first casualties, and sentiments run high. While dealing with them the courts have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view, the long term interests of the society as a whole. Such problems cannot always be answered by the strict rules of logic. Social realities which have their own logic have also their role to play in resolving them.
(The writer is Retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney –at – Law with Ph.D. in Law as well)
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