JUDICIARY AND REMEDIES IN PUBLIC LAW | Daily News

JUDICIARY AND REMEDIES IN PUBLIC LAW

The system of administration of justice that we have now commenced with the Charter of Justice introduced by the British in the year 1801, which established the Supreme Court. This brought about for the first time a separation between the Governor who exercised Executive and Legislative power and the Courts which exercised Judicial power. Thus, a firm tradition of separation of power was established which forms the bedrock of the Rule of Law. The Courts Ordinance that came into force in 1890 consolidated the laws with regard to Courts and their powers and established the Magistrate Courts, the District Courts and the Supreme Court. This structure continued till the Administration of Justice Law was enacted in 1973, which established for the first time the High Courts in this country. The High Courts thus established functioned in the respective zones throughout the country and were not vested with appellate jurisdiction but exercised only the original criminal jurisdiction hitherto exercised by the Supreme Court.

The Court of Appeal

The next change came with the enactment of the present Constitution in 1978. It established for the first time the Court of Appeal. The Appellate jurisdiction hitherto exercised by the Supreme Court was vested in the Court of Appeal and the Supreme Court was vested with Constitutional jurisdiction as the final Appellate Court. A two tired Appellate structure was thus created with the first appeal to the Court of Appeal from any original court to be availed of as of right by an aggrieved party and a second appeal to the Supreme court to be exercised only with leave to be granted in respect of substantial questions of law or where the matter was considered fit for review by the Supreme Court (Article 128 of the Constitution).

This innovation of the establishment of a Court of Appeal to which all appeals then pending before the Supreme Court stood removed, brought about a delay in the process of disposing of appeals. The fact that there was another appeal to the Supreme Court made it incumbent on the Court of Appeal to deliver considered judgements on all matters that were decided upon slowing down the pace of disposal to a point where the Court accumulated a backlog of appeals. Several steps were taken over the years to relieve the burden of the Court of Appeal. Quite apart from the inordinate delay, the exercise of appellate jurisdiction by the Court of Appeal, based only in Colombo has other negative factors, they are (i) litigants from far remote parts of the country have to trek to Colombo for the purpose of their civil appeals and (ii) they have to retain Counsel in Colombo and incur a higher overall costs than at Provincial Level.

The Provincial High Court

Gradually steps were taken to transfer the appellate jurisdiction of the Court of Appeal to the High Courts. The process commenced with the 11th Amendment to the Constitution effected in 1987 which amended Article 111(1) of the Constitution by deleting the reference to the High Court as being a Court of original jurisdiction. This paved the way for the High Court to exercise appellate jurisdiction, in addition to its original jurisdiction. The 13th Amendment to the Constitution effected in 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 and power as Parliament may by law provide’.

It is in pursuance of this provision in the Constitution that the High Court of the Provinces (Special Provisions) Amendment Act No.54 of 2006, was enacted by Parliament and certified on 28.12.2006. This Act amends 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 judgements, decrees and orders delivered and made by the District or Family Courts, within such Province.

In general, when a person wishes to seek redress from a judgement or order of a lower court by appealing therefrom or moving a Revision, three questions have to be addressed. They are;

(i) What Court has appellate and revisionary jurisdiction in respect of the impugned judgement or order;

(ii) The right or status of a party to invoke appellate or revisionary jurisdiction;

(iii) The procedure including time limits in regard to the invocation of such appellate or revisionary jurisdiction.

Section 5A of Act No.54 of 2006, vests in the Provincial High Court with a concurrent jurisdiction with that of the Court of Appeal in regard appeals and applications in revision from District Court within the Province.

With regard to right of parties to invoke the jurisdiction of the Appellate Court, in regard to appeals, this is considered a right of appeal and as regards revision application this is considered as locus standi, since revision is not restricted to a party in the original action. With regard to the third matter referred to above- time limits and procedure- as stated above section 5A(2) of Act No. 54 of 2006 makes all the relevant provisions of the Civil Procedure Code and Rules of the Supreme Court (being written law in terms of the definition in Article 170 of the Constitution) applicable in relation to Court of Appeal to be operative in relation to the Provincial High Courts that are now vested with concurrent jurisdiction.

Writ Jurisdiction

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.”

Fernando J. further added in the judgement 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. (De Silva v Atukorale; Jayawardene v Wijayatilake; Bandara v Premachandra) and that Public Trust Doctrine extends to national and natural resources (such as air-waves, Fernando v SLBC), and mineral deposits, (Bulankulama v Secretary, Ministry of Industrial Development.)

Utility of the Public Trust Doctrine of Sri Lanka

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 under privileged.

(a). A tool to rectify abuse of discretionary power.

It is an essential reality in Sri Lanka that legislature cannot legislate for every possible circumstance. In consequence, the conferring of discretionary power upon public official is essential. However, such discretionary power so conferred are not unlimited, unconstrained power. The Supreme Court echoes this sentiment in Palihawadana v AG and Two Others by observing that ‘when a power is entrusted to a high and responsible officer, he may be expected to act reasonably, objectively and without bias while discharging his duties. When a public official exceeds his discretionary powers, the Court on the basis of public trust doctrine can hold such person accountable for his actions.

(b). To prevent the exploitation of natural resources.

In Bulankulama Case, where the Doctrine of Public Trust and equality provisions were invoked, the Supreme Court recognizing the right to sustainable development with its component of inter generational equity decided that the State had failed to fulfill its obligation as public trustee resulting in infringement of fundamental rights of petitioners.

( c). A shield for the under privileged

Public Trust Doctrine also serves as a shield for the under privileged. This Doctrine may be uses to facilitate the Rule of Law, thereby serving as a shield to protect the minorities and the under privileged. Therefore ensuring dignity and respect for all regardless of their socio-economic standing and belief is a logical extension of the doctrine as well.

FR Jurisdiction of the Supreme Court

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. For the purposes of the appeals the protection of the law would include right to notice and to be heard.

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.

These constitutional principles and provisions according to Fernando J., have shrunk the area of administrative discretion and immunity and have correspondingly expanded the nature and the 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. Due to the excessive time taken to reach finality in a writ application, in average three to four years, in appropriate cases, there is a tendency to evoke the jurisdiction of the Supreme Court by way of a Fundamental Right Application. It is also noted here that as provided under the recent 19th Amendment to the Constitution, the right of a person to make a FR Application under Article 126 against the Attorney General in respect of anything done or omitted to be done by the President is secured.

Public Interest Litigation and Locus Standi

There appears to be constitutional obstacles for class action or public interest litigation involving the jurisdiction of the Supreme Court in terms of Article 126 of the Constitution. In terms of Article 126(2) where any person alleges that any such fundamental right or language right relating to such person has been infringed or about to be infringed by executive or administrative action, he may himself or by an Attorney at law on his behalf, within one month thereof in accordance with the rules of the courts apply to the Supreme Court for relief. Therefore it is clear that only the person whose fundamental rights have been violated could complain either by himself or by an Attorney at law.

In Somawathie v Weerasinghe the Supreme Court rejected an application by the wife complaining that her husband, who was in detention was subject to torture, inhuman and degrading treatment on the basis that the petitioner (wife) had no locus standi in terms of Article 126 (2) of the Constitution. The turning point in public interest litigation in fundamental rights applications was Environmental Foundation Ltd v Urban Development Authority and Others (also known as Galleface Green case). In this case His Lordship Sarath N Silva CJ., upheld the locus standi of Environmental Foundation Ltd which had acted in public interest in the matter of protecting the environment holding that the refusal of the UDA to disclose the information constituted an infringement of Article 14(1)(a) of the Constitution, even prior to the recent amendment of the 19th Amendment to the Constitution recognizing the right to access to information as an enforceable right.

In the recent times, public interest litigation / locus standi has been permitted in a number of cases filed in terms of Article 126 of the Constitution such as in Mendis and Others v Kumaratunge and Others (also known as Water’s Edge case) and in Vasudewa Nanayakkara v Choksy and Others also known (Lanka Marine Services Case). In Vasudewa Nanayakkara case, His Lordship Sarath N Silva CJ held:

‘Where the Executive being the custodian of the people’s power, acts ultra vires in derogation of the law and procedures that are intended to safeguard the resources of the State, it is in the public interest to challenge such action before Court.

(Professor Sarath Mathilal de Silva read law for his PhD and taught the subject at the University of Sri Jayawardenapura. Upon retirement, he is now a full time Attorney-at-Law.) 


 

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