In the case of Migultenne v Attorney General the Supreme Court had to consider the status of an ouster clause in Article 106(3) of the 1972 Constitution. The plaintiff had instituted action in the District Court contending that he was not holding office at pleasure and that his termination was arbitrary and without lawful cause or reason. He sought a declaration that he continued to be a public servant. The Supreme Court held that unlike Article 55(5) of the current Constitution, Article 106(3) of the 1972 Constitution was a complete bar to the plaintiff’s action for a declaration.
The Supreme Court noted that the contention that ouster clauses in the Constitution should be strictly interpreted, restricting the ambit of ouster, can be far more readily accepted where the Constitution itself contains other indications of an intention to permit review; such as the entrenchment of the fundamental rights and other jurisdictions of this Court, and the writ jurisdiction of the Court of Appeal.
The Sri Lankan judiciary has held that Article 55(5) would not oust the court’s jurisdiction if the impugned order is made by an officer who does not have the legal authority to issue it. In such cases our courts have held that the decision of the relevant authority is null and void and the preclusive clause in the Constitution (Article 55(5)) does not bar the review. This approach was taken by our courts in cases such as Gunaratne v Chandrananda de Silva. However, it is also noted that the impugned decision cannot be declared a nullity if it has been adopted by a proper authority as required in the definition (per Sharvananda J., in Abeywickrama case).
In Abeywickrama v Pathirana case the petitioner had challenged the election of the respondent as a Member of Parliament to the Akmeemana electorate. The petitioner argued that the respondent’s election was void because he was the holder of a public office at the time of election. The respondent’s purported resignation had not been accepted by the person authorized to accept such resignation. Counsel for the respondent, H. L. de Silva, argued that the court’s jurisdiction was ousted by virtue of Article 55(5) of the Constitution. He contended that the preclusive clause shut out any review of the validity or legality of any order or decision of a public officer, even if it was ultra vires or incompetent for him to make that order or decision.
The Supreme Court rejected this argument and stated that;
“if a particular officer had no legal authority….. Article 55(5) does not bar a challenge of that order…..An order or decision by an official who had no legal authority to make that order/ decision is in law a nullity and is nonexistent in the eye of the law; such an order/ decision is inoperative and void and it is open to a court to declare that it is a nullity”.
Citing Wade, the Court went on to observe that ‘ouster clauses do not prevent the court from intervening in the case of excess of jurisdiction; unreviewable administrative action is just as much a contradiction as is unfettered discretion’. The Supreme Court also referred to the Privy Council decision in South East Asia Fire Bricks v Non Metallic Union where the Privy Council had to construe a similar provision.
It was held in Wijesiri v Siriwardene case that unlawful decision can be quashed notwithstanding the operation of Article 55(5). This seems to demonstrate the judicial recognition that illegality of a decision is a ground for review notwithstanding the operation of Article 55(5). Wijesiri v Siriwardene case, concerned an application by the Opposition Member of Parliament. He petitioned on behalf of 53 candidates who were selected for appointment to the Sri Lanka administrative service, but were not issued their letters of appointments.
He applied for a writ of mandamus to compel the Secretary to the Ministry of Public Administration to issue their letters of appointment. One of the questions before the Court was whether the petitioner had standing to maintain the application. The Court found that he was acting in the public interest and bona fide and therefore did have locus standi to apply for a writ. The other question that the court had to decide was whether Article 55(5) precluded review. Counsel for the petitioner, leading constitutional lawyer H. L. de Silva was required to argue a contrary position this time and argued that review was not barred. Answering the question in the affirmative the Supreme Court noted;
“The modern trend after the decision in Anisminic Ltd v Foreign Compensation Commission is not to give effect to such preclusive clauses if the decisions sought to be quashed are proved to be unlawful; and that notwithstanding the fact that the preclusive clause is contained in a written Constitution rather than in an ordinary statute, it would not afford an answer to unlawful acts of the executive”
The Court found that the petitioner had been unable to establish that the act was unlawful. Hence the ouster applied and no relief could be given.
In contrast, it has been established in Ratnasiri and Others v Ellawala and Others that the validity of a decision cannot be called into question in the face of Article 61A ouster. This view was reaffirmed in the subsequent judgement by the Court of Appeal in Lokuage et al v Dayasiri Fernando et al. An important feature of Article 55 (5) ouster is that it gave effect to the ‘pleasure principle’ which is borrowed from English administrative law and recognizes that public authorities held office at the pleasure of the Crown. This principle was abolished by the 17th Amendment as spurned by the introduction of Independent Commissions. As stated by the Supreme Court in Ratnasiri and Others v Ellawala and Others the changes imposed by the 17th Amendment are of relevance in interpreting Article 61A. The Court held in this case that ouster in Article 61A should stand to preclude judicial review.
Article 61A of the Constitution as amended
Article 61A is a comparatively recent addition to the 1978 Constitution introduced by the 17th Amendment and modified by the 19th Amendment. Article 61A bears a clause functional resemblance to Article 55 (5) which existed prior to the 17th Amendment, as well as Article 105(5) of the first Republican Constitution of 1972. The judiciary has held that an act by an administrative authority can be reviewed on the grounds of illegality notwithstanding the operation of Article 55 (5), while in contrast, the courts have shown reluctance to question the legality of a decision in the face of Article 61A. This difference in the way in the Article 61A and Article 55 (5) has been interpreted is indicative of a deviation in judicial approach since the advent of the 17th Amendment.
The deviation in judicial reasoning was given impetus by other changes introduced in the 17th Amendment: Primarily the abolishment of the pleasure principle and the availability of extra judicial remedies. An important feature of Article 55 (5) ouster is that it gave effect to the pleasure principle borrowed from English administrative law. The existence of English principle was acknowledged by Justice Mark Fernado in Bandara and other v Premachandra, Secretary of Ministry of Land irrigation and Mahaweli development and others. One of the major changes brought about by the 17A was the abolishment of the pleasure principle spurned by the introduction of Independent Commissions.
The introduction of the Public Service Commission (PSC) brought along with it a series of extra judicial remedies. Article 58 (1) provides that any public officer aggrieved by a decision of a public officer or commission wielding authority delegated to it by the PSC may appeal to the PSC against such decisions. Moreover, the decision of the PSC itself may be challenged at the Administrative Appeals Tribunal appointed by the Judicial Service Commission pursuant to Article 59. Justice Saleem Marsoof observes that the changes imposed by the 17th Amendment are of relevance in interpreting Article 61A. (Ratnasiri and Others v Ellawala and others).
Commenting on the extensive list of provisions available to resolve matters relating to the public service, Justice Marsoof observes that this further strengthens the argument that the ouster in 61A should stand to preclude judicial review. In addition to these extra judicial remedies it is also observed that not barring review in instances where there is an infringement of fundamental rights, the option of seeking judicial redress is still left open to the people. Considering the significant phase at which the Sri Lankan fundamental rights jurisdiction has been expanding in recent years, it is even more understandable that the courts would not feel pressurized to intervene by attempting to disregard the express language of a constitutional ouster clause.
Effect of section 22 of the Interpretation Ordinance
Interpretation Ordinance No.21 of 1901 as amended by the Act No.18 of 1972 and Law No. 29 of 1974 sought to clarify the legal position with regard to ouster clauses after the seminal judgement in Animinic Case. While section 22 of the Ordinance supports the validity of the ouster clause in general with specific exceptions therein however, this is not the case with regard to constitutional ouster clauses. Since the Courts exercise its writ jurisdiction pursuant to Article 140 of the Constitution which requires such power to be exercised ‘subject to the provisions of the Constitution, it has been accepted that an ouster clause contained in the Constitution itself would operate notwithstanding the exceptions set out in the Interpretation Ordinance.’
In this regard, Justice Mark Fernando’s application of the genaralia specialibus non-derogant principle of interpretation in Migultenne v The Attorney General in interpreting sections 106 and 107 of the first Republican Constitution of 1972 would be of relevance. His Lordship argues that the specific provisions contained in the Constitution itself would supersede the application of the general principle under the Interpretation Ordinance. This remains true with regard to the present Constitution. Thus, the provisions of the Interpretation Ordinance have in fact no effect on the operation of Constitutional ouster clauses in Sri Lanka.
The courts appear to have recognized two instances where Article 61A does not preclude the courts from exercising its supervisory jurisdiction: firstly, when there is an infringement or imminent infringement of fundamental rights and secondly, when the impugned decision is made by an authority whose power has not been properly delegated as specified in the Article; i.e., instances of improper delegation. Therefore the courts have been less inclined to exercise their supervisory jurisdiction in the face of Article 61A ouster. In a new refreshing, but complex process of reasoning, the Supreme Court in Peter Atapattu v Peoples’ Bank, held that the language of Article 140 of the Constitution was ‘broad enough to give the Court of Appeal the authority to review even on grounds excluded by the ouster clause.’
To be continued
