It is a feature of modern democratic life that the Courts be permitted to review the administrative power of the state, exercised by government officials and bureaucrats. Sri Lankan Courts have over the past forty years 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. Traditional scholarship drew a distinction between administrative action and judicial action.
According to traditional ideas of scholarship, administrative power could be exercised by the executive, unfettered by any prior principles of conduct. It was subject only to the accountability that Parliament exercised over the Minister concerned. In modern context, however, this argument is deeply flawed Parliamentary accountability in most cases, appears to be not very effective. It depends to a large degree on the vigour and competence of the opposition, the efficiency of the committee system and the autonomy of individual MPs. Moreover, the accountability that Parliament exercises are of a more general nature. Specific grievances are not addressed. It is important that citizens have recourse to judicial tribunals to question individual cases of administrative abuse.
Regular elections, a vibrant media, an effective Parliamentary opposition and a vigorous public opinion are some general methods of ensuring accountability. Judicial review would be a more specific method.
In a constitution founded on democracy and the rule of law, there is something fundamental and sacrosanct about judicial review.
Public power is held in trust by the administration to be exercised in a democratic manner. It is one of the tasks of judicial review to ensure that this trust is not violated. It is of the essence of the democratic State that power should be exercised according to certain principles or standards. When courts review administrative acts they consider whether these standards of conduct have been followed.
The grounds or standards of review
The exercise of administrative power is reviewed against three sets of criteria:
Human rights standards, general principles of administrative justice and the Doctrine of Public Trust. The procedures laid down in Article 126 of the Sri Lankan Constitution are an example of the former. Courts review ‘administrative or executive action’ against the human rights standards laid down in Chapter III of the Constitution. Under this Article, citizens have the right to petition the Supreme Court in cases where the rights in Chapter III are violated.
The Doctrine of public trust which derives strength and legal validity from provisions of the 1978 Constitution and other constitutional principles such as the Rule of Law highlights that executive and administrative act must have a public benefit and public purpose. The Doctrine also highlights that no discretionary power is absolute or unfettered and that it is essential that public officers are held to a high standard in the execution of their powers for the purpose for which it was conferred. The abuse of power is a violation of the trust that public has reposed in such officials by virtue of Articles 3 and 4 of the Constitution and is therefore supported by the Directive Principles of State Policy and Fundamental Duties of the 1978 Constitution.
Under the 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, an 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.
Judicial review
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. A decision which goes against a State Agency, government department or Minister, is often looked at as a rebuke of the government of the day.
In the area of public law, the pronouncements of the Courts have significant political repercussions. And it is also clear that the Courts are influenced by this political culture in reaching their decisions. At times political elites have reacted with hostility to judgments they have considered unfavourable. One such example is the hostility that came in the Vivienne Goonewardene Case. Two days after the Supreme Court found that a police officer had violated the rights of the petitioner, a left-wing politician; a gang of thugs stoned the houses of the three judges who participated in the decision.
Article 126 of the Constitution
Articles 140 and 141 of the Constitution give the Court of Appeal the power to grant the writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus. In Sri Lanka apart from an application for a writ, it is also possible to apply under Article 126 of the Constitution to challenge administrative action. To succeed in an application under this provision, the petitioner would have to establish a violation of one of the fundamental rights contained in Chapter III of the constitution. This dual system of remedies has seen an increasing use of concepts developed in administrative law in cases brought under this constitutional remedy. While the constitution now explicitly vests in the Sri Lankan courts the power to issue writs, the emergence of this writ jurisdiction has been viewed essentially as a development of the English common law.
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 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.
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 officer may deprive him of ‘the protection of the law’ guaranteed by Article 12(1) of the Constitution. The Court found that the transfer was unreasonably and arbitrary and violated Article 12(1) of the Constitution.
In Surendran v UGC the Supreme Court, borrowing a concept from administrative law, held that a candidate from Jaffna who sat a ‘special advanced level examination in April 1991, had a legitimate expectation that there would be no discrimination between this examination and the advanced level examination held in August 1990.
When the UGC sought to make a distinction between the two examinations the Court held that the candidate’s fundamental right under Article 12(1) was violated. A similar position was taken in Gunaratne v Sri Lanka Telecom where the Supreme Court struck down a scheme of recruitment on the ground that the ‘legitimate expectations’ of non-graduate clerks had been disregarded.
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. The power that must be governed by reason and not caprice. These powers are not absolute or unfettered and should be exercised fairly. A similar view was taken the Gunaratne v Petroleum Corporation. While reasons need not be provided at the initial stage, proper reasons for administrative decision making must exist. The Court held that there was a violation of Article 12 since the Petroleum Corporation failed to justify why it had terminated a dealership agreement. The concept of reasonableness had previously been used by the Sri Lankan Supreme Court in the case of Siriwardene v Liyanage in deciding whether acts taken under Emergency Regulations violated the right to free expression guaranteed by Article 14 of the Constitution.
Fusion of administrative law concepts
The above line of cases shows that the Sri Lankan Supreme Court has not been reluctant to borrow concepts from the administrative law in interpreting Article 12 of the Constitution. In fact, the Court has ‘borrowed’ freely and frequently. This fusion of administrative law concepts with constitutional ideas has substantially enriched the public law jurisprudence of this country.
The Sri Lankan Courts have also used fundamental rights to enlarge the scope of the writs. In Perera v Prof. Daya Edirisinghe the Supreme Court held that the rules and examination criteria of the University of Kelaniya, read together with article 12 of the Constitution, gave a duly qualified candidate a right to a degree.
The Court added that there was a duty on the University to award the degree without discrimination, and even where the University had reserved some discretion, the exercise of such discretion would be subject to Article 12. In the same case the Supreme Court observed that the Bill of Rights in the Sri Lankan Constitution had enlarged the scope of the writs. 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.
Natural Justice has emerged as a universal legal principle transcending almost all legal systems. Its scope and content have been progressively expanded over the past 50 years. Natural justice is one way in which the public are allowed to participate in decisions which affect their lives.
A significant limitation which existed both in the law of Sri Lankan and England was that the rule applied only in cases of judicial and quasi-judicial action. Administrative acts did not attract the principles of natural justice according to previous judicial authority.
This position, however, has been jettisoned by the courts in favour of the more acceptable position that the principle applies in almost all cases. Natural justice has been expanded significantly by imposing on administrative bodies a duty to furnish reasons.
Sri Lanka needs a considerable overhaul of its public law framework. And this overhaul will be done best through legislation. While not underplaying the role of the judiciary in developing the law, procedural changes and a new public law framework will best be introduced through legislation. The substantive grounds of review though should be kept broad enough to allow judges to develop them through the common law method.
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