Administrative law – its Constitutional background | Daily News

Administrative law – its Constitutional background

Part 2:

Judicial review must be distinguished from an appeal against a decision. The Court and tribunal structure provide a appeal structure for those aggrieved by a judicial decision. The Appellate Courts (in Sri Lanka Supreme Court, Court of Appeal and Provincial High Courts) will have the power to reconsider the case and to substitute its own decision for that of the lower court. An appeal may be made on both the law and the facts of the case so that a full rehearing may take place.

Judicial review, by contrast, is concerned solely with the manner in which the decision maker has applied the relevant rules. It is thus procedural in nature. It is not for the court in judicial review proceedings to substitute its judgements for that of the decision making body to which powers have been delegated but, rather to ensure that the adjudicator has kept within the rules laid down by statutes and common law.

In short, the role of the courts’ in judicial review is to exercise a supervisory not an appellate jurisdiction. Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made.

Application for judicial review by the aggrieved party

It must be noted here that there is no unfettered right to judicial review. The aggrieved party or person must seek leave (permission), to apply for judicial review and a number of criteria governed the exercise of the superior courts’ discretion to grant or refuse the application for judicial review. It is also noted here that there are limitations on judicial review.

About Judicial Review

Judicial review represents the means (Or methods) by which the courts control the exercise of governmental power. Government departments, local authorities, tribunals, state agencies exercising power which are governmental in nature must exercise their power in a lawful manner. Judicial review is concerned with the legality of the decision made, not with the merits of particular decision. In other words under the judicial review superior courts review issues of law and not the issues of facts. Accordingly, the tasks of the judges is to ensure that the exercise of any power which has been delegated to Ministers and other administrative bodies is lawful according to the power given to that body by Act of Parliament.

The traditional view is where the administrative body acts within its powers and according to Common law based rules of natural justice, that bodies’ decision is not be challengeable under the public law process of judicial review. From these traditional perspective, judicial review is primarily concerned with questions of jurisdiction and natural justice.

The primary question to be asked is (a) whether a particular person or public body with delegated law making or adjudicating powers had acted intra vires or ultra vires and (b) whether decision making process entailed (required) the application of natural justice. If that body has acted within the law, the courts will not interfere with that decision.

Nowadays, while judges conduct their review if administrative body makes an error of law - the court will interfere through their process of review. In UK Human Rights Act of 1998 now requires that all public bodies comply with rights protected by European Convention on Human Rights and Judicial Review proceedings may be brought to enforce that legal duty. It is through judicial review that requirements of legality of the exercise of powers by public bodies is tested. From this perspective judicial review exemplifies the application of the rule of law in a democratic society.

This raises a further question of constitutional significance. To what extent is it legitimate for a non-elect judiciary to intervene to correct the administrative process which is controlled through power granted by the democratically elected Parliament? One response to this question is that judicial review - with respect to the review of delegated law making and adjudicatory process - ensures that Parliament's will is observed and judicial review may thus be regarded as an aspect of Parliamentary sovereignty.

The balance to be struck between these two views can be understood by the Traffic light example. There are theorists who are suspicious of the executive and believe that executive- state should be controlled to prevent violation of individual rights. (Red Light).

On the other side there are theorists (Green Light) who believe that administrative law should be used to facilitate the operation of the executive/ government rather than controlling. Accordingly, courts should be less interventionist. According to Green light theory political and democratic form of accountability are preferable to courts. In response two of these schools of thoughts, a third way has been advocated- Amber light (Yellow) theory. It lies between red and green extremes and takes view that the approach to be used will be by the individual case.

This suggests that solutions should be found inside and outside the courts and more flexibility in approach will support a more successful outcome.

Judicial Review of Administrative Action in Sri Lanka (Types of Courts)

In Sri Lanka judicial review of administrative action is exercible broadly on two sets of criteria:

1. Writ jurisdiction under Articles 140 and 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 of our Courts

Article 140 of the Constitution provides that:

“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 institutions or another other persons: 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 Courts and not by the Court of Appeal.”

Article 154P (4) (b) of the Constitution under the 13th Amendment to the Constitution provides that:

“Every such High Court shall have jurisdiction to issue according to law

[b] order in the nature of writ 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”.

Thus Article 140 of the Constitution confers writ jurisdiction on the Court of Appeal. Article 154 (P) (4) (b) of the Constitution confers a limited writ jurisdiction on the Provincial High Court. In Weragama v Eksath Lanka Kamkaru Samithiya and Others the Supreme Court held that the writ jurisdiction of the Provincial High Court is confined only to circumstances involving the exercise of powers under a law or a statute covered by a matter in the Provincial Council list of the Constitution. Although it is well known that the emergence of the writ jurisdiction is attributable to the development of English Common law further the Constitution of Sri Lanka explicitly recognizes the same.

(The writer is a retired Professor in Law in the University of Sri Jayawardenepura. He is an Attorney-at -Law and practiced in Courts with PhD in law)

To be continued

 


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