prerogative powers of our courts

 

A BRIEF INTRODUCTION TO THE WRIT

JURISDICTION OF SRI LANKA .

Published with a sense of gratitude to the 

(Author of the Article)

Theekshana A.W. Pathirana

Legal Counsel, Attorney-at-Law of the Supreme Court of Sri Lanka, LL.B. (Hons.) (UK), Pg Dip in Diplomacy 

 

Legal Counsel, Attorney-at-Law of the Supreme Court of Sri Lanka, LL.B. (Hons.) (UK), Pg Dip in Diplomacy

The proposition that public authorities should exercise their powers within the four corners of the legislation may well be understood as the foundation of Administrative Law in Sri Lanka, the primary purpose of which, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizens against their abuse, exercise of judicial power of people and to uphold the rule of law. In this regard the principle of judicial review plays a pivotal role. The central principle of administrative law in the present context is the protection of individuals which demands the preservation of the principles of good administration. This has undoubtedly given the way to, inter alia principle of proportionality, legitimate expectation, public trust doctrine and right to equality which have nurtured the scope of exercising the power of judicial review. The juristic basis, on which courts exercise judicial review whenever there is an allegation against administrative authorities of abuse of powers is known as the “doctrine of ultra vires”(beyond the powers or without powers).

The canon of construction of the doctrine of ultra vires was intelligibly explained as follows in the words of Lord Selborne in Attorney General v G. E. Rly. Co., (1880) 5 AC 473 (478) :

 

"I agree with Lord Justice James that this doctrine ought to be reasonably, and not unreasonably understood and applied, and that whatever may fairly be regarded as incidental to. or consequential upon those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held by judicial construction, to be ultra vires."

In Sri Lanka one would find two ways of challenging the discretionary power of public authorities: writs and fundamental rights.

Writ Actions in Sri Lanka are regulated by Articles 140 and 141 of its Constitution. However, in the Sri Lankan context Writs are not granted for the enforcement of Fundamental Rights. Fundamental Rights Jurisdiction exists apart from and independent of Writ Jurisdiction in Sri Lanka, where Writ Jurisdiction is exercised independently by the Court of Appeal (and appealable to the Supreme Court), the Fundamental Rights Jurisdiction is exercised exclusively by the Supreme Court.

In its recent judgment CA WRIT 440/ 2014 dated 17.03.2021. Mohammed Laffar, J. at page 16 held that-

Fundamental right jurisdiction is invoked in relation to violation of fundamental rights expressly stated in the Constitution whereas the writ jurisdiction is, broadly speaking, invoked to control the power of the bodies, which discharge duties of a public nature. The acts complained of in a writ application do not necessarily give rise to complaints of violation of fundamental rights guaranteed by the Constitution.

Under the 13th Amendment to the Constitution concurrent jurisdiction to hear writ matters has been vested with the Provincial High Courts under article 154 P (4). Pathirana vs. Victor Perera (DIG Personal Training Police) [2006] 2 SLR 281 at 284-285, Sriskandarajah J. stated:

In applications for writs the courts have relaxed the rules of standing even wider than the rules of standing in fundamental rights applications in order to ensure good administration.

As observed by Marsoof, J. in J. S. Dominic vs. Minister of Lands & Others SC Appeal No. 83/08, S.C. Minutes dated 07.12.2010 writs in the nature of certiorari and mandamus, which are granted by our courts “according to law” as provided in Articles 140 and 154P (4) (b) of our Constitution, had their origins in English common law and were known as “prerogative writs” as they were the means by which the Crown, acting through its courts, ensured that inferior courts or public authorities acted within their proper jurisdiction. The hallmark of such writs was that they were granted in the name of the Crown, as the title of every case indicated, but as the law developed, initially individual litigants were permitted to initiate proceedings in the name of the Sovereign, and in jurisdictions such as Sri Lanka, even without expressly referring to the Crown. An interesting point regarding the jurisdiction of the Writs was reiterated in the said case at page 15-16 where it held that "the fact that our Constitution expressly refers to these writs by their ancient names shows that our Constitution makers intended to preserve the beneficial characteristics of these ancient remedies, which possess the inherent character and virility to be able to change to suit changing circumstances and needs." This shows the willingness of our courts to exercise its discretion in order to ensure the objectives of the said remedies are met despite technicalities.

Writs may be sought to obtain relief against a public body where it is acting ultra vires (even in situations which do not necessarily infringe a ‘Fundamental Right’).

The power to issue writs vested by Article 140 of the Constitution is a supervisory power and not an appellate jurisdiction (vide The Board of Trustees of the Tamil University Movement vs. F.N. de Silva [1981] 1 SLR 350) and in exercising the writ jurisdiction, this Court will not consider whether the decision is right or wrong in the context of the greater benefit of the society or otherwise, but whether the decision is lawful or unlawful in the eyes of the law. (Vide Public Interest Law Foundation vs. Central Environment Authority [2001] 3 SLR 330 & CA/WRIT/173/2015, C.A. Minutes dated 03.07.2018).

Article 140 grants the power to issue writs, other than writs of habeas corpus. Accordingly:

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 institution or any other person: 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 Court and not by the Court of Appeal.

Writ of certiorari and Writ of prohibition

The nature of a writ of certiorari is explained in Wade's Administrative Law, where it says "Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed - that is to say, it is declared completely invalid, so that no need to respect it. "

Both have much in common and are issued to prevent administrative authorities from exceeding their jurisdiction. However, Writ of Prohibition would be issued while a matter is pending to prevent a decision so it is a prevention rather than a cure, whereas Writ of Certiorari is normally issued against a decision already made by an administrative authority so it is a cure rather than a prevention. Both certiorari and prohibition lie against public bodies which act in the administrative or executive capacity. In the Article 'Unlawful Administrative Action' in (1967) 83 L.O.R. 499, H. W. R. Wade expressed the view that one of the merits of Certiorari is that it is not subject to narrow rules about Locus standi, but is available even to strangers, as the Courts have often held, because of the element of public interest. In other words, it is a genuine remedy of public law, and all the more valuable for that reason (at p. 504).

Availability of a Writ of Prohibition is discussed by Dr. Sunil Cooray in “Principals of Administrative Law in Sri Lanka” where he states as follows: “The Writ of Prohibition is available to prevent a proceeding in a given matter, to exercise a power which it does not have under the law, or act in violation of the rules of natural justice where the law requires such officer or authority to observe them. The Writ of Prohibition is not a remedy to restrain the doing of a purely physical act, to restrain which the proper remedy is an injunction. Further, where it is necessary to restrain an official purporting to Excise Power which he does not have, it is an order in the nature of a Writ of Prohibition to restrain him that must be sought, and not a mandamus to compel him not to act.”

Writ of mandamus is normally granted against the inaction of a public body and in present Courts tend to issue against ultra vires (i.e., use of discretion for improper purposes) actions too with a view to preserve rule of law.

The nature of a writ of mandamus is explained in Wade's Administrative Law, as follows: "the prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities of all kind. ............ the commonest employment of mandamus is as a weapon in the hands of the ordinary citizens when a public authority fails to do its duty by him. The way of enforcing the order of Court, that is to say the way of using the weapon, is punishing the person for contempt of Court if he fails or neglects to act according to the direction given by court."

Urban Development Authority v. Minister of Lands and 5 others (2009 B.L.R.) at p 252 the Supreme Court had observed by reference to “Administrative Law (Ninth Edition) by Wade and Forsyth as follows: “….the issue is a Writ of mandamus issue is not that of an abuse of discretion, but whether the public authority failed to discharge a duty owed to the applicant.” The position is emphasized in a subsequent section at page 620 which reads as follows: “Obligator duties must be distinguished from discretionary powers. With the latter Mandamus has nothing to do….”

However, for a writ of Mandamus to be issued there should be a public duty owed by a public authority towards the claimant and the public authority should have the necessary power to carry out the said function [issuance of a mandamus will otherwise be futile] and also there should be a refusal to carry out the same having been asked to. It is trite Law that in the absence of a refusal a Writ of mandamus will not be available. It was held in S.I. Syndicate v. Union of India AIR 1975 SC 460 "As a general rule the order will not be granted unless the party complained of has known what it was, he was required to do so that he had the means of considering whether or not he should comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce and that that demand was met by a refusal." Ratnayake and Others vs C.D. Perera and others [1982] 2 Sri LR 451- to succeed with the prayer for the Writ of Mandamus, the claimant must establish that they have a legal right to the performance of a public duty by the Respondents.

Writ of Procedendo- In common law jurisprudence, procedendo is one of the prerogative writs. It is a writ (in this case a mere order) that sends a case from an appellate court (court of superior jurisdiction) to a lower court (inferior jurisdiction) to proceed to judgment.

Writ of Quo Warranto- Quo warranto ("by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they do possess for exercising the right or power they claim to hold.

A recent example of an application of this nature is the Court of Appeal case (CA Writ Application 362/2015) against the then MP Geetha Kumarasinghe where an Application for a mandate in the nature of Writ of Quo Warranto in terms of Article 140 was made challenging to show by what authority she claims to hold office as a Member of Parliament in the light of the recent amendments to the constitution by the 19th Amendment. The said challenge is on the basis that she is not qualified to hold office as a Member of Parliament as she is a holder of a dual citizenship as per Article 91 (1) (d) (xiii).

Writs of habeas corpus- Article 141 of the Constitution deals with the power to issue writs of habeas corpus. Accordingly, the Court of Appeal may grant and issue orders in the nature of writs of habeas corpus to bring up before such Court –

(a) the body of any person to be dealt with according to law ; or (b) the body of any person illegally or improperly detained in public or private custody, and to discharge or remand any person so brought up or otherwise deal with such person according to law.

A writ of habeas corpus ( "produce the body") is a court order to a person (prison warden) or agency (institution; police, prison) holding someone in custody to deliver the imprisoned individual to the court issuing the order. The very name of the Writ - Habeas Corpus - means “have his body” and this empowers the Court to cause any person who is alleged to be unlawfully confined to be brought before the Court to enable the Court to inquire into the reason why he is confined, and to set him at liberty then and there, should it seem fit.

Habeas corpus, unlike other prerogative orders still remains as a writ. It is not discretionary and therefore it cannot be denied on the basis of availability of an alternative remedy. This is a writ of remedial nature and is available as a remedy in all cases of wrongful deprivation of personal liberty. The basis of the writ of habeas corpus is the illegal detention or imprisonment, which is incapable of legal justification and the appellant’s complaint, involved the liberty of the corpora. The writ of habeas corpus remains one of the cornerstones of ensuring the liberty of persons and appears to be a crucial antecedent to the right of judicial review of an enforced disappearance. Article 141 of the constitution is identified as a constitutional provision intended to safeguard the liberties of citizens.

In the totality, a party invoking the writ jurisdiction should not be guilty of having slept over his rights. The gross delay [unless satisfactorily explained] would result in a dismissal of the application. However, in Biso Menika Vs. Cyril de Alwis (1982) 1 SLR 368, 379 it was held that,

“one satisfactory way to explain the delay is for the petitioner to show that he has been seeking relief elsewhere in a manner provided by law. ……. Where the authority concern has been acting altogether without basic jurisdiction, the court may grant relief in spite of the delay unless the conduct of the party shows that he has approbated the usurpation of jurisdiction. In any such event, the explanation of the delay should be considered sympathetically.”

In Pathirana vs. Victor Perera (DIG Personal Training Police) (2006) 2 SLR 281, 291 it was held as follows; “an application for a writ of certiorari will not be refused on the ground of delay is not attributable to the petitioner. Laches could be excused if the order is nullity. As the circular is a nullity there are no laches.” In Ramasamy v. Ceylon State Mortgage Bank (1976) 78 NLR 510, it was held that “the principles of laches must ... be applied carefully and discriminately and not automatically and as a mere mechanical device.’’

Further, the remedy being of a discretionary nature [like in the case of an Injunction] suppression of material facts would disqualify a person from succeeding. Also adding all the necessary parties whose rights will be affected by an order is a material condition in invoking the jurisdiction of the Court.

"It is trite law that any person whose rights are affected by an order that a petitioner is inviting a Court of law to make in his favour is entitled to be named as a party and is entitled to be heard, before Court makes any order adverse to such person. The rule is that all those who would be affected by the outcome of an application should be made respondents to such application. [Hatton National Bank PLC vs Commissioner General of Labour and Others. Also see [CA (Writ) Application No. 457/2011; CA Minutes of 31st January 2020; per Janak De Silva, J]

It was held in Rawaya Publishers and others v Wijedasa Rajapaksha, Chairman Sri Lanka Press Council and Others [2001] 3 Sri LR 213, 216 that:

“In the context of writ applications, a necessary party is one without whom no order can be effectively made. A proper party is one in whose absence an effective order can be made but whose presence is necessary to a complete and final decision on the question involved in the proceedings.

In the case of Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another [AIR 1963 – SC 786 at 788], it has been held that where a writ application is filed in respect of an order of the Board of Revenue not only the Board itself is a necessary party but also the parties in whose favour the Board has pronounced the impugned decision because without them no effective decision can be made. If they are not made parties then the petition can be dismissed in limine. It has also been held that persons vitally affected by the writ petition are all necessary parties. If their number is very large, some of them could be made respondents in a representative capacity (vide Prabodh Verma and others v. State of Uttar Pradesh and others [AIR 1985 SC 167]"

Arulsamy v Upcountry Peoples Front and Others [2006] 3 SLR 386- “This court also takes the view that when mala fides are alleged against the purported expulsion, the members of the Central Committee who took the decision must necessarily be made parties to this application. Since the preliminary objection raised by the learned President’s Counsel is of a fundamental nature which strikes at the heart of the jurisdiction of this Court, I hold that the conduct of the respondents do not disentitle them from taking the objection relating to “necessary parties” even though it was not specifically pleaded in their statement of objections. In my view, it is not only mandatory but fairness too requires prima facie that the members of the Central Committee be made respondents , an opportunity be given to explain, controvert or mitigate the case against them and the right to make submissions.”

In the case Dominic v Minister of Lands and Others [2010] 2 Sri LR 398, at the stage of argument the Petitioner moved to add the respondents as parties. Holding that the application to add parties is belated, Sriskandaraja, J quoted the following passage from Principles of Administrative Law in Sri Lanka: S. F. A. Coorey; 2nd Edition at page 537 [See page 1120 of the 4th Edition] “The failure to make a necessary party a respondent is fatal. If the omission is discovered during the pendency of the application for the writ the Petitioner is well advised to apply to court to add such party as a respondent. Such an application for addition will be allowed only if the application is not yet ready for final disposal by court; Vinnasithamby v. Joseph 65 NLR 359. Once the final hearing of the application by court commences, such an application made thereafter will be refused; Goonetileke v. Government Agent, Galle 47 NLR 549; Jamila Umma v. Mohamed, Dharmaratne v. Commissioner of Elections 52 NLR 429.”

Dr. S. F. A. Coorey‟s Principles of Administrative Law in Sri Lanka (2nd Edition)- “The failure to make a necessary party a respondent is fatal. If the omission is discovered during the pendency of the application for the writ the Petitioner is well advised to apply to court to add such party as a respondent. Such an application for addition will be allowed only if the application is not yet ready for final disposal by court; Vinnasithamby v. Joseph (1961) 65 NLR 359. Once the final hearing of the application by court commences, such an application made thereafter will be refused; Goonetilleke v. Government Agent, Galle (1946) 47 NLR 549; Jamila Umma v. Mohamed (1948) 50 NLR 15, 17; Dharmaratne v. Commissioner of Elections (1950) 52 NLR 429, 432.”

Saleem Marsoof PC, J. in his judgment S. C. Appeal No. 83/08 [J S Dominic v. Hon. Jeevan Kumarathunga, Minister of Lands and others] after considering the impugned decision of the Court of Appeal to refuse the application to add parties on the mistaken basis of belatedness held as follows:

As this Court noted in V. Ramasamy v. Ceylon State Mortgage Bank (1976) 78 NLR 510, the validity of a plea of delay must be tried on principles which are substantially of an equitable nature, and the principles of laches must “be applied carefully and discriminatingly, and not automatically and as a mere mechanical device (per Wanasundera, J. at page 517). There is no doubt that in all the circumstances of this case, equity would very much favour the Appellant........The fact that our Constitution expressly refers to these writs by their ancient names shows that our Constitution makers intended to preserve the beneficial characteristics of these ancient remedies, which possess the inherent character and virility to be able to change to suit changing circumstances and needs. It is therefore unthinkable that a court of law will subvert the objectives of these beneficial remedies by non-suiting a party through a process of tying it down in unshakable knots, as the Court of Appeal has sought to do in the instant case.

In its very recent decision CA WRIT 238/ 20 dated 21.05.2021 Justice Obeysekara, J./PCA at pg 11, the Court of Appeal held having considered the objections raised regarding the failure to name necessary parties in the application "the position therefore is that if a necessary party is not made a respondent, the application is liable to be dismissed in limine. I use the word liable as, for reasons that I would advert to later, it is a decision that is within the discretion of Court that must be exercised judicially having carefully considered the facts and circumstances of each case."

•    Two interesting judgments regarding the scope of the Writ jurisdiction

(1). The Court of Appeal has held that the High Courts of the Provinces, established under article 154(P) of the Constitution of Sri Lanka, have jurisdiction to issue Writs of Certiorari, Mandamus, and prohibition in respect of State lands. Accordingly, whilst the State lands are vested in the State, the utilization, administration and control of State lands, in accordance with the List 1 (Provincial Council List) item 18 which is subject to Appendix II, could be with the provincial council and the jurisdiction of the Provincial High Courts will be limited to those matters in issuing Writs regarding state lands. (This was futher discussed by their Lordships in extensive separate judgements in the case of SC Appeal 21/2013 [Solaimuththu Rasu vs The Superintendent, Stafford Estate])

(2). An interesting discussion relating to the exercise of Writ jurisdiction by the Court of Appeal was seen in the decision which reviewed the impeachment process of Chief Justice Dr. Shirani Bandaranayake. She filed a Writ Application in the Court of Appeal, requesting the Court to quash the findings, against her by the Parliamentary Select Committee (PSC). In this instance the Court of Appeal issued a Writ of Certiorari quashing the findings of the Parliamentary Select Committee (PSC). The Court of Appeal, in its judgment, referring to the recent Supreme Court interpretation held that a PSC to query the conduct of a judge, must be appointed under the law passed by Parliament and not by a Standing Order. It said the recent Select Committee appointed under Standing Order 78A was therefore void in law. However, this decision of the Court of Appeal was later overruled by the Supreme court. It was held that the Judiciary could not look into an inquiry against its own members since the power to remove judges had been taken completely out of the judiciary. The Attorney General took up the position that it is questionable whether the Court of Appeal had the jurisdiction to look into a procedure before Parliament since powers of the Parliament were not amenable to the Courts by Article 4. According to 1978 Constitution, a Justice is removed by the President after an address of Parliament. In the light of the above considerations the question whether the Writ jurisdiction of the Court of Appeal could be extended to the proceedings of Parliament was answered in the negative with reference to the English law.

It should be borne in mind that where a party seeks a writ, he/ she will not stand to benefit from an order if proceeding with such an application would be held futile since a person invoking the Writ jurisdiction must be aggrieved by the order that is sought to be impugned [locus standi]. However, the idea that to successfully plead in a Writ application the applicant must have a sufficient personal interest to the remedy sought appears to have been changed in the spirit of 'public nature' of the remedy. In Wijesuriya vs. Sawasdee 1982 1 SLR 171, 175 it was thus held that:

in suitable case, subject always to discretion, the Court should be able to award the remedy on the application of a public-spirited citizen who has no other interest than a due regard for the observance of the law-Wade- Administrative Law (4th Ed) 608. The result of a restrictive doctrine of standing, therefore, would be to encourage the government to break the law; yet this is exactly what the prerogative writs should be able to prevent (p. 609). To restrict Mandamus to cases of personal legal right would in effect make it a private law remedy (p 610).

It was further held that,

"these observations, with which I am in respectful agreement, appear to make the second requirement, insisted upon by Tambien J. i.e.: some personal interest in the matter complained of, unnecessary. But the first requirement ought, in my view, to be satisfied and it is satisfied if the applicant can show a genuine interest in the matter complained of, and that he comes before Court as a public-spirited citizen concerned to see that the law is obeyed in the interest of all, and not merely as a busy body perhaps with a view to gain cheap publicity. As to whether an applicant satisfies this second requirement will depend on the facts of each case.