THE EXPANDING CANVAS OF JUDICIAL REVIEW

Justice Saleem Marsoof P.C.

Judge of the Supreme Court of Sri Lanka

Introduction

Judicial review is a facet of the judicial power of the People, which in terms of our
Constitution is exercised ordinarily through the courts1. The power of judicial review of
administrative action is primarily vested in the Court of Appeal by Article 140 of the
Constitution, which empowers that court to grant and issue “according to law” writs such as
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.

While certiorari is available to have an invalid decision or order quashed or nullified,

prohibition and procedendo are available to restrain unlawful action and mandamus is used
to compel the performance of a public duty. Quo warranto is the remedy available to
challenge the authority of someone purporting to hold public office. In terms of Article 141
of the Constitution the Court of Appeal also has the power to grant and issue orders in the
nature of habeus corpus to deal with unlawful or illegal detention.

It is important to note that the Supreme Court may also exercise the writ jurisdiction in
certain circumstances. The proviso to Article 140 of the Constitution has expressly enacted
that Parliament may by law provide that the jurisdiction vested in the Court of Appeal in
terms of Article 140 shall be exercised by the Supreme Court. Article 104H of the
Constitution (17th Amendment) and Section 4(1) read with Section 6 of the Urban
Development Projects (Special Provisions) Act2 provide examples of situations in which the
writ jurisdiction of the Court of Appeal is vested by law in the Supreme Court.

The Thirteenth Amendment to the Constitution has also conferred a limited writ jurisdiction
on Provincial High Courts with respect to devolved subjects. Article 154P(4)(b) of the
Constitution provides that-

“……the Provincial High Court shall have jurisdiction to issue, according to law, an
order in the nature of writs 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,

in respect of any matter set out in the Provincial Council List.”

In Weragama v. Eksath Lanka Wathu Kamkaru Samithiya and Others3 the Supreme Court
interpreted this article by treating the semi-colon found between “law” and “or” as if it was
a coma. Mark Fernando J. observed-

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 “……learned Counsel for the Respondent contends that the final clause of Article
154P (4) does not qualify “any law”, but only sub-paragraph (ii). The semicolon
appearing after “any law” is an obvious error, because the preceding word “under”
must govern both sub-paragraphs (i) and (ii), if sub-paragraph (ii) is to make any
sense. Learned Counsel says it should be a full stop, but even then sub-paragraph (ii)
would be meaningless. Accordingly, that semicolon must be ignored, or a comma
substituted. In that event the final clause qualifies both sub-paragraphs which then
make perfect sense: if a law or a statute is covered by a matter in the (exclusive)
Provincial Council List, but not otherwise, the exercise of powers thereunder are
subject to the writ jurisdiction of the High Court.”4

This is an authoritative pronouncement which very clearly restricts the power of judicial
review of Provincial High Courts to subjects that have been devolved to the Provinces in
terms of List I of the Ninth Schedule to the Constitution.

It is expressly provided in Articles 140, 141 and 154P (4) of the Constitution that the power
of review conferred on the Court of Appeal, the Supreme Court and the Provincial High
Court by those articles should be exercised “according to law”. The phrase “according to
law” was interpreted by the Privy Council in Nakkuda Ali v Jayaratne5 to mean “the
relevant rules of the English Common Law”6 but in Mohideen v Goonewardane7 Siva
Selliah J. emphasized that the phrase would also embrace “the Statute Law of this country”8.
In B. Sirisena Cooray v. Tissa Dias Bandaranayake and Two Others 9 it was noted by the
Supreme Court that-

“The phrase “according to law” in Article 140 was also used in section 42 of the
Courts Ordinance and was judicially interpreted to mean that writs should be issued
in the circumstances known to English Law……..We must assume that the phrase
was used in Article 140 in the same sense and that proposition admits of no
controversy.”10

In this context, it must be remembered that the history of judicial review is inextricably
bound up with the development of remedies as opposed to the creation of new heads of
review, and the ancient prerogative writs developed by the courts in England, constitute the
foundations of judicial review.11

However, legislative reforms on the procedural side, in particular the advent of the
„application for judicial review‟ as a general remedy which seeks to overcome the
procedural deficiencies and complexities of prerogative writs,12 and the incorporation of the
European Convention on Human Rights into the English law13 have brought about far
reaching changes into British constitutional law.14

Hence, our courts may no longer be able to be guided by modern English law in regard to
the grant of writs, although as pointed out by the Supreme Court in the Sirisena Cooray
case, they would continue to issue writs “in the circumstances known to English law”, that
is the law of England prior to the aforesaid reforms. Such an approach can be justified on
the basis that the old law is part of the Common Law of Sri Lanka, which our courts are free
to develop to suit changing conditions of society.15

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Ambit of Certiorari

When administrative powers grow in expanse and strength, it is imperative that the powers
of judicial review should also expand in reach and effectiveness. For this reason, as Lord
Parker CJ observed in R v Criminal Injuries Compensation Board ex parte Lain,16 “the
exact limits of the ancient remedy by way of certiorari have never been and ought not to be
specifically defined. They have varied from time to time, being extended to meet varying
conditions.”17 Nevertheless, Courts have found some guidance in the famous dictum of
Atkin L.J. in R. v. Electricity Commissioners18, that the writ of certiorari will be issued
“wherever any body of persons having legal authority to determine questions affecting the
rights of subjects, and having the duty to act judicially, act in excess of their legal
authority…..”19 In Ridge v Baldwin20 Lord Reid reinterpreted the phrase „duty to act
judicially‟ found in the above quoted dictum as a mere corollary of the power „to determine
questions affecting the rights of subjects‟,21 and criticized the earlier decisions22 which
treated the phrase as a superadded condition. In O’Reilly v. Mackman23 Lord Diplock sought
to abridge the Atkinian formula by dropping the words “having the duty to act judicially”,24
so that the decisions and determinations of every body of persons having legal authority to
determine questions affecting the rights of the subjects are subjected to judicial review.
Thus, although earlier our courts seeking to review any order or decision of an inferior
tribunal or authority took pains to point out that such authority had a duty to act judicially,25
recent judicial decisions have dispensed with this requirement on the basis that all that is
necessary is a duty to act fairly.26

In the Atkinian formula noted above, the focus was on the source of power sought to be
reviewed. It was earlier thought that „body of persons‟ amenable to writ must be a State
organ created by statute.27 The focus has now shifted to the nature of the power sought to be
reviewed.28 While this shift has made a larger category of bodies amenable to the writ of
certiorari, it has also given rise to uncertainty as to the boundaries of judicial review. The
criteria for amenability suggested by the House of Lords in R v Panel on Takeovers and
Mergers, ex p Datafin29 is the public nature of the function performed by the body in
question. The shift in focus from the source of power sought to be reviewed to the nature of
the function performed by the body sought to be made amenable to the writ, is illustrated by
two recent Sri Lankan decisions. In Saheer and others v. Board of Governers Zahira
College and Others30 a writ in the nature of certiorari was sought to challenge a decision
taken by the Board of Governors of a privately owned assisted school to run an international
school within the premises of the assisted school allegedly in contravention of certain
provisions of the incorporating statute. The respondents resisted the grant of the writ inter
alia on the basis that the petitioners are parents of children studying in the assisted school
who had a contractual relationship with the school for the enforcement of which certiorari
and other prerogative remedies would not be available. Despite the private ownership of the
school and the contractual nexus that the petitioners had with the school, the Court of
Appeal extended the reach of judicial review on the basis that the Board of Governors of the
assisted school was exercising public functions. The Court observed that-

“The powers of the Board of Governors as spelt out in the Act cannot be abused or
exceeded. When it does writ would lie. Within the scheme of national education, the
Board of Governors is a statutory public authority receiving and spending State

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 funds, being subject to government regulations in the admission of students,
employment of teachers, etc. As Wade says certiorari and prohibition are designed to
prevent excess or abuse of power by public authorities.”31

Similarly, in Harjani and another v Indian Overseas Bank and Others32 the writ jurisdiction
of the Court of Appeal was invoked by way of certiorari to review a resolution passed by an
overseas private bank in terms of Section 4 of the Recovery of Loans by Banks (Special
Provisions) Act33 to sell by public auction the property mortgaged to the Bank as security
for a loan. It was contended on behalf of the respondent bank that it was not amenable to the
writ jurisdiction of the Court of Appeal as it was not a statutory body and the transaction in
question was purely contractual. Overruling this contention, the Court of Appeal
emphasized that –

“…….the dynamism of law has driven the traditional remedy of certiorari away
from its “familiar moorings by the impetus of expanding judicial review” (H.W.R
Wade & C.F Forsyth, Administrative Law, 8th Edition page 627). As Professor Wade
observes, Courts have through their decisions extended the pale of judicial review
“to bodies which, by the traditional test, would not be subject to judicial review and
which, in some cases, fall outside the sphere of government altogether.”(ibid.,) A
variety of commercial, professional, sporting and other activities are regulated by
powerful bodies which are devoid of statutory status, and Courts in Sri Lanka and
elsewhere have demonstrated a willingness to „recognize the realities of executive
power‟ and to review the decisions of a number of such bodies. In their desire to
prevent the abuse of „executive power‟ in the hands of these powerful non-statutory
bodies, the courts have ventured to review the decisions of these bodies…….The
rationale for making such non-statutory bodies amenable to prerogative remedies
appears to be that they are discharging functions of a public nature.”34

The Court of Appeal observed that the respondent bank “has sought to take advantage of the
provisions of the Recovery of Loans by Banks (Special Provisions) Act relating to parate
execution”.35 The Court emphasized that the said Act lays down special procedures for the
exercise of the powers conferred on such Banks, and that the Court is “bound to exercise
supervisory jurisdiction over the exercise of such powers despite the fact that some at least
of these Banks are local or foreign Banking companies.”36

Ultra Vires

When a public authority acts outside its powers, that is to say, without or in excess of its
jurisdiction, its action is said to be ultra vires and devoid of legal validity. Although the
doctrine of ultra vires has been described as the “central principle of administrative law”,37
over the years this has been questioned by the likes of Lord Woolf of Barnes who described
it as a “fairy tale”,38and Sir John Laws who called it a “fig leaf”,39but the concept has
somehow survived and still has vociferous defenders.40 The ongoing debate really focuses
on the issue whether ultra vires is the single juridical basis for judicial review, or whether it
has other foundations41or put in another way, whether judicial review should be vires-based
or rule-based. Mark Elliot observes that-

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 “The shortcomings of the ultra vires doctrine as it is traditionally understood have
long militated in favour of its abandonment as the foundation of the existing law of
judicial review, in favour of a set of common law rules of good administration.”42

Such a change of approach is not difficult to make in Sri Lanka given the fact that the
Constitution of Sri Lanka contains a chapter on fundamental rights 43 broadly similar to the
European Convention on Human Rights which inspired the UK Human Rights Act of 1998.
Indeed, a study of some of the Sri Lankan decisions might suggest that our courts have
already adopted a right-based approach to judicial review.

Nonetheless, ultra vires has been the foremost tool of judicial review in Sri Lanka, and the
want or excess of jurisdiction has been the major ground for the issue of certiorari.44 In
recent times, the remedy has been issued on the basis of want or excess of power, to quash a
decision made by the Secretary to the Ministry of Defence to send a Deputy Inspector
General of Police on compulsory leave45 and an order made by the Director General of
Customs to release a vehicle which has been already forfeited under the Customs
Ordinance.46

Relief has been granted on this basis setting aside an arrangement to issue temporary driving
licences to holders of driving licences valid for life47 and quashing a field staff circular
calling for applications from Surveyors attached to the Survey Department for the issue of
annual licences to practice as private surveyors.48 Similarly, in a rather controversial
decision, our courts also have quashed a recommendation signed by only two out of the
three members of a special presidential commission.49 Our courts have also set aside on the
ground of ultra vires, a decision taken by the Board of Governors of an assisted school to
run an international school50 and an order made by the Commissioner of Labour awarding
compensation in lieu of reinstatement under Section 6 of the Termination of Employment of
Workmen (Special Provisions) Act51.

There also have been a few recent decisions relating to arbitral awards made under the
Industrial Disputes Act which illustrate the utility of certiorari to rectify ultra vires orders
and decisions. The Industrial Disputes Act provides for the resolution of industrial disputes
in various ways, such as through voluntary52 or compulsory53 reference for arbitration. In
terms of the said Act, a dispute may be referred for arbitration to a labour tribunal or to an
arbitrator nominated jointly by the parties or nominated by the Minister.

Although our courts have taken the view that the decision of the Minister to refer or not to
refer a matter for arbitration is purely administrative and is not amenable to judicial
review,54 it has been held that once the Minister makes a reference, he has no power to
revoke the same55 or to make further references for arbitration of the same dispute56. In
Upali Newspapers Ltd. v. Eksath Kamkaru Samithiya57 the Court of Appeal differed from
earlier decisions of the same court58 and held that the Minister is not competent to refer a
matter pending before a Labour Tribunal for arbitration, as that would infringe the
independence of the judiciary. Similarly, in Volanka Ltd. v. Seneviratne, Minister of Labour
& others59 the Court of Appeal held that a matter governed by a collective agreement in
force, cannot be referred for arbitration. The awards in all these cases were quashed on the
ground of ultra vires.

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Good Administration

Wade observes that “by developing the principles of natural justice the courts have devised
a kind of code of fair administrative procedure.”60 He also points out that natural justice has
played the same role in English law as has „due process of law‟ in the Constitution of the
United States. The first rule of natural justice is the audi alteram partem rule, which was
applied in cases such as the Board of Trustees of Maradana Mosque v Minister of
Education61 in which the Privy Council set aside the order made by the Minister to takeover
a private school without giving its administrators a hearing. In a more recent decision, the
writ of certiorari was granted to quash a decision of the REPIA made without hearing the
tenant of the affected property.62 The audi alteram partem rule was also held to have been
violated when witnesses were allowed to testify regarding the character and military
reputation of an officer at an Army Court of Inquiry in the absence of the accused officer63
and when an opportunity to peruse witness statements and to cross examine witnesses was
refused in the course of a University disciplinary inquiry.64

Natural justice also requires that the arbitral tribunal should not be biased, and in particular,
that no one should sit in judgment in his own cause (nemo judex in causa sua potest).65 In
Mohamed Mohideen Hassen and others v N.S. Peiris and others66 the Court of Appeal set
aside a decision made by a Rent Board against a landlord on the ground that the Chairman
of the Rent Board who had participated in the decision making process was also a tenant of
the same landlord. In the recent decision of Shell Gas Lanka Ltd v All Ceylon Commercial
& Industrial Workers Union and others67 Hector Yapa J. set down the basis of determining
bias in proceedings of this nature: “In law what is material is not the subjective belief of the
Petitioner on the issue of bias. It is an objective test.” It is noteworthy that in both these
cases, the following dictum of Lord Denning, M. R. in the case of Metropolitan Properties
Co. (F.G.C.), Ltd. v. Lannon and others68 was quoted and applied in determining the issue
of likelihood of bias.

“In considering whether there was a real likelihood of bias, the Court does not look
at the mind of Justice himself or at the mind of the Chairman of the Tribunal, or
whoever it may be, who sits in a judicial capacity. It does not look to see if there is
real likelihood that he would, or did, in fact favour one side at the expense of the
other. The Court looks at the impression which would be given to other people.
Even if he was as impartial as could be, nevertheless if right-minded persons would
think that, in the circumstances, there was a real likelihood of bias on his part, then
he should not sit. And if he does it, his decision cannot stand.”

Notions of good governance also postulate that public authorities make their decisions and
take action in a rational manner. Our courts have not been circumscribed by the doctrine of
ultra vires in exercising the power of judicial review, and have been prepared to review
administrative decisions and orders even where they have been made in accord with rules of
natural justice if they lack rationality. Error on the face of the record has been regarded as a
species of irrationality for the grant of certiorari.69 The observation of Lord Denning in
Baldwin & Francis Ltd. v. Patents Appeal Tribunal and Others70 that “there should be
included in the record, not only the formal order, but all those documents which appear
there from to be the basis of the decision - that on which it is grounded” has been followed

6
by our courts in recent judgments.71 It has been held that there is an error on the face of the
record where irrelevant facts or evidence have been taken into consideration in arriving at
the decision, but there could be other kinds of errors.

In Kundanmal Industries v. Commissioner of Labour the Court of Appeal set aside a

decision of the arbitrator as it did not “accord with the established principles of the payment
of annual bonus” 72. The Court also took the view that the arbitrator committed an error on
the face of the record by taking into account figures provided with the written submissions
of the Union which were not in evidence. The Court followed the dicta of Basnayake J. in
Dissanayake v. Kulatillake73 to the effect that material other than which appears in the
record could not be used by an inferior tribunal and that the use of such material amounts to
an error on the face of the record. Similarly, in Chas P. Hayley and Co. Ltd. v. Commercial
and Industrial Workers and Others74 the Court of Appeal held that an arbitrator was guilty
of error on the face of the record where he failed to appreciate that salaries paid to
executives depended on market factors of supply and demand. The Court also held that
there was an error on the face of the record when he refused to consider a report regarding
loss on the basis that the loss was temporary without evidence to substantiate that position.

The concept of gross unreasonableness has been used to grant relief to persons aggrieved by
administrative decisions. The concept was recognized as a basis for certiorari in Rookies
case75 and Associated Provincial Picture Houses Ltd v. Wendsbury Corporation.76 In Sri
Lanka , in Podimahathaya v. Land Reform Commission,77 Pelakindar J also applied this
principle and observed that “this court can interfere where there is a manifest act”. The test
is whether the administrative authority has acted within the rules of reason and justice.
When applying the concept of gross or manifest unreasonableness, it would be prudent for a
Court of law to bear in mind the words of caution contained in his judgement in Short v.
Pool Corporation78 by Warrington LJ quoted below:

“with the question whether a particular policy is wise or foolish the court is not
concerned; it can only interfere if to pursue it is beyond the powers of the authority.”

The question of proportionality is also probably an aspect of Wendsbury‟s

unreasonableness79. The essence of the test of proportionality is that administrative
measures must not be more drastic than is necessary for attaining the desired results. The
question of proportionality has been considered in Sri Lanka in two recent cases.80 In this
context, it is necessary to refer to the three points made by Lord Steyn in a recent English
case:

“First, the doctrine of proportionality may require the reviewing court to assess the
balance which the decision maker has struck, not merely whether it is within the
range of rational or reasonable decisions. Secondly, the proportionality test may go
further than the traditional grounds of review in as much as it may require attention
to be directed to the relative weight accorded to interests and considerations. Thirdly,
even the heightened scrutiny test developed in [Smith and Gandy v UK81] is not
necessarily appropriate to the protection of human rights.”

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It is relevant to note that our courts have not only sought to protect the rights but even the
legitimate expectations of the people. In Meril v Dayananda de Silva and Others82 the Court
was not only willing to strike down a decision which had not been made on rational
grounds, but it also recognized the need to protect legitimate expectations by judicial
review.

In Sri Lanka the exclusive jurisdiction of the Supreme Court to determine case of
fundamental rights violations has caused some concern in the context of writ applications
coming up in the Court of Appeal and the Provincial High Court. In Heather Therese Mundy
v Central Environmental Authority and Others83 in which the Supreme Court set aside (on
appeal) the decision of the Court of Appeal in certain cases filed with a view of challenging
action taken by the relevant authorities to construct the Southern Expressway, Mark
Fernando J said-

“Did the Court of Appeal err in refusing relief in the exercise of its discretion?
Although the Court of Appeal seemed to agree that the rights of the Appellants had
been infringed, that their sacrifice had not been duly recognized, and that the Court
should minimize as much as possible the effect on their rights, nevertheless it felt
obliged to choose between two options only: to grant relief or to dismiss the
applications. The Court did not take note of the impact of the fundamental rights on
its writ jurisdiction……If a judicial discretion was exercised in favour of the State,
inter alia, to save costs, it was only equitable that the Appellants should have been
compensated for the injury to their rights. Had the matter been referred to this Court
under Article 126(3), the Appellants would have been held entitled to compensation
in lieu of further Environmental Impact Assessment procedures. That jurisdiction is
an equitable one, and since equity regards as done that which ought to have been
done, the matter must now be dealt with as if it had been duly referred to this Court.”

Other Writs

A remedy which is popularly invoked along with certiorari is madamus, the objective of
which is the enforcement of the obligation to perform a public duty, more often than not
embodied in a statute. A recent decision which illustrates the use of the writ of mandamus is
Rashid v Rajith Senaratne, Ministry of Lands and others84. In this case the court issued the
mandate to compel the Minister of Lands to divest a land acquired by the State as it had not
been utilized for any public purpose. It has however been emphasized in the recent decision
of Credit Information Bureau of Sri Lanka v. Jafferjee & Jaferjee (Pvt) Ltd85 that the
mandate will not be issued where there is no public duty owed to the person seeking relief.
The various requirements for the issue of mandamus have been clearly set out in the
illuminating judgment of Justice J.A.N De Silva. In this case it was contended on behalf of
the credit information bureau that it was not a State entity or instrument of the State, and
that it did not therefore attract the public law remedy of mandamus. His lordship J.A.N De
Silva, overruled this objection citing with approval a passage from Halsbury‟s Laws of
England which is quoted below:

“An order of Mandamus will be granted ordering that an act to be done which a
statue requires to be done and for this rule to apply it is not necessary that the party

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 or corporation on whom the statutory duty is imposed should be a public official or
an official body.”86

Another useful remedy is the writ of quo warranto which is available to challenge the
authority of anyone purporting to hold public office. This remedy was recently invoked to
have a member of Parliament who was disqualified from holding office removed from
office.87

Locus standi

Considerable development has taken place in recent times in the law relating to standing.
The starting point of any discussion on „standing‟ or locus standi is the classic decision in
Durayappa v. Fernando,88 in which the Privy Council held that the Mayor of a Municipal
Council cannot seek redress from Courts with respect to a legal wrong or injury caused to a
Municipal Council. Lord Upjohn expressed the opinion of the Court at page 274 in these
words-

“Their Lordships therefore are clearly of opinion that the Order of the Minister on
29th May 1966 was voidable and not a nullity. Being voidable it was voidable only
at the instance of the person against whom the Order was made, that is the Council.
But the Council has not complained. The appellant was no doubt Mayor at the time
of its dissolution but that does not give him any right to complain independently of
the Council.”

However, our law relating to locus standi has undergone great change since the days of
Durayappa v. Fernando. English Courts have shown great latitude in regard to standing in
the context of prerogative remedies such as certiorari and mandamus. In R v. Greater
London Council ex.parte Blackburn89 the applicant was permitted to pursue the prerogative
writ of mandamus in proceedings brought against the Police, even though his interest was
no greater than the interest of other persons in general. Lord Denning in Mc Whirter v.
Independent Broadcasting Authority90 referring to the Blackburn case and observed that -

“Mr Blackburn had a sufficient interest even though it was shared with
thousand of others….. We heard Mr Blackburn in his own name. His
intervention was both timely and useful. ”

As Lord Denning noted in R v Inland Revenue Commissioners ex p. National Federation of

Self Employed and Small Businesses Ltd91, English Courts have orchestrated the generous
view that “if there is good ground for supposing that a government department or public
authority is transgressing the law, or is about to transgress it, in a way which offends or
injures thousands of her majesty‟s subjects, then any one of those offended or injured can
draw it to the attention of the court of law and seek to have the law enforced” In the course
of his judgement in the same case, Lord Diplock observed as follows-

“It would, in my view, be a grave lacuna in our system of public law if a pressure
group, like the federation, or even a single public spirited tax payer, were prevented

9
 by outdated technical rules of locus standi from bringing the matter to the attention
of court to vindicate the rule of law and get the unlawful conduct stopped.”

The change in legal policy reflected in the decision of the House of Lords in this case was
considered by Lord Diplock to be a major step “towards a comprehensive system of
administrative law” which he regard as the greatest achievement of the English Courts
during his life time. The rationale for the expanding canvas of locus standi in the context of
certiorari and prohibition was explained by H.W.R.Wade fin the following words-

“The prerogative remedies, being of a „public‟ character as emphasized earlier, have

always had more liberal rules about standing than the remedies of private law.
Prerogative remedies are granted at the suit of the Crown, as the titles of the cases
show; and the Crown always has standing to take action against public authorities,
including its own ministers, who act or threaten to act unlawfully. As Devlin J said:
“Orders of certiorari and prohibition are concerned principally with public order, it
being the duty of the High Court to see that inferior courts confine themselves to
their own limited sphere”. In the same sense Brett J had said in an earlier case that
the question in granting prohibition “is not whether the individual suitor has or has
not suffered damage, but is, whether the royal prerogative has been encroached upon
by reason of the prescribed order of administration of justice having been
disobeyed”. Consequently the court is prepared to act at the instance of a mere
stranger, thought it retains discretion to refuse to do so if it considers that no good
would be done to the public.”92

Wade further goes on to observe that-

“….the House of Lords is clearly now determined to prevent technicalities from

impeding judicial review so as to protect illegalities and dereliction‟s committed by
public authorities.”93

Sri Lankan courts too have applied the same test in regard to standing. For instance, in
Premadasa v Wijewardena and others94 Tambiah CJ observed that –

“The law as to locus standi to apply for certiorari may be stated as follows: The writ
can be applied for by an aggrieved party who has a grievance or by a member of the
public. If the applicant is a member of the public, he must have sufficient interest to
make the application.”95

Sri Lankan Courts have been quick to recognize standing of any citizen to seek relief against
public authorities that stray outside their legitimate bounds. In Bandaranaike v de Alwis and
Others, Wimalaratne J. observed that “every citizen has standing to invite the Court to
prevent some abuse of power, and in doing so he may claim to be regarded not as a
meddlesome busybody, but as a public benefactor.”96 In Meril vs. Dayananda de Silva
Gunawardana J observed “I strongly feel that…… denying locus standi to an applicant for
judicial review for no better reason than that his interest or grievance is shared by many
others in common with the applicant is as illogical and irrational as refusing to treat anyone
member of the public for a disease which has assumed proportions and has affected virtually

10
the entire community”97. In Forbes & Walker Tea Brokers v Maligaspe and Others98
Gunawardana J went on to trace the developments in the law in this field and observe that-

“The traditional view is that an applicant for certiorari must show some interest
before being accorded standing…… The older, rather the conservative, view is that
applicant must show that he has legal capacity to challenge the act or decision by
means of prerogative writs in that he is an “aggrieved person” in the sense that there
is some harm personalized to the applicant. In other words, the applicant is required
to establish or prove some individual harm over and above that of the general
community or the public at large - although the waning of the rigid reliance on the
concept that an applicant must have an interest of his own at stake, seems to be a
universal trend. A necessary corollary of the rule that the applicant ought not to be
accorded standing because his (applicant‟s) requirement or grievance is one which is
complained of “in common with the rest of the public” is to deny to the applicant
access to court for no other or better reason than that governmental irregularity or
illegality does affect a large number of people. This seems irrational for as Craig
(tutor in law - Worcester College - Oxford) had said: “To deny access in such a case
seems indefensible. If the subject matter of the case is otherwise appropriate for
judicial resolution . . . to erect a barrier of “no standing” would be to render many
important areas of governmental activity immune from censure for no better reason
than that they do affect a large number of people. One might be forgiven for thinking
that the common sense of the reasonable man would indicate the opposite
conclusion; that the wide range of people affected is a positive reason for allowing a
challenge by someone”99.

Similarly, when one looks across the Palk Straits, one cannot help but notice the landmark
decision of the Indian Supreme Court in S.P Gupta v. Union of India100 holding that lawyers
have a vital interest in the independence of the judiciary, and therefore have standing to
agitate before Courts important issues affecting the judiciary. This decision has since been
followed in several other cases involving consumer concerns, such as Akhila Bharatiya
Grahak Punchayat v A.P.S.E.Board101 in which a Consumer Council was held to have locus
standi to challenge the action of an electricity board for increasing the rates of electricity,
and P. Nella Thampy Thera v Union of India102 in which the Supreme Court of India
entertained a petition at the behest of a railway commuter against the Indian Railways for
improving the railway services.

In Sri Lanka there has been considerable progress in the public interest litigation arena, and
the courts have liberalized rules relating to standing or locus standi, and permitted not only
persons aggrieved but also others to challenge violations of fundamental rights. Landmark
decisions such as Mediwake and Others v Dayananda Dissanayake, Commissioner of
Elections and Others103, Lilanthi De Silva v. Attorney General104 Sunila Abeysekera v.
Ariya Rubasinghe105 and Leader Publications v Ariya Rubasinghe106 reflect this liberal
approach. As Amerasinghe J observed in Bulankulama and others v. Secretary, Ministry of
Industrial Development and others107 (better known as the Eppawala case) –

“The Court is concerned in the instant case with the complaints of individual
petitioners. On the question of standing, in my view, the petitioners, as individual

11
 citizens, have a Constitutional right given by Article 17 read with Articles 12 and 14
and Article 126 to be before this Court. They are not disqualified because it so
happens that their rights are linked to the collective rights of the citizenry of Sri
Lanka - rights they share with the people of Sri Lanka. Moreover, in the
circumstances of the instant case, such collective rights provide the context in which
the alleged infringement or imminent infringement of the petitioners‟ fundamental
rights ought to be considered. It is in that connection that the confident expectation
(trust) that the Executive will act in accordance with the law and accountably, in the
best interests of the people of Sri Lanka, including the petitioners, and future
generations of Sri Lankans, becomes relevant.”

Time and time again, our courts have repeated that the fact that the irregularity or the
grievance for which redress is sought is shared by a large number of people or society as a
whole would not prevent one of the many affected persons from seeking relief from the
Courts. In the recent case of D.U.M Jayatilleka and others v. Jeevan Kumaratunge and
others108 it was observed by Sriskandarajah J. that -

“The standing rules applicable to applications for prerogative writs have to be

considered in the light of the developments taking place in this sphere of relevant
law.”

The latest decision of our courts that symbolizes a judicial turnaround from Durayappa v.
Fernando is A.R.Perera, Chairman, Ceylon Association of Ships’ Agents and Others v The
Central Freight Bureau of Sri Lanka109 In the latter case, the office bearers of the Ceylon
Association of Ships‟ Agents (as opposed to the Ceylon Association of Ships‟ Agents,
which is a company limited by Guarantee, incorporated under the Companies Act No. 17 of
1982) invoked the jurisdiction of the Court of Appeal by way of certiorari seeking to
challenge the imposition of certain levies and service charges by the Central Freight Bureau
of Sri Lanka. The application was resisted on the ground that the said office bearers lacked
locus standi, but the Court ruled that the office bearers of the Ceylon Association of Ships‟
Agents were not mere “busy bodies” and had sufficient interest in the matter to maintain the
application.

Conclusion

Judicial review of administrative action is vital in democratic society not only to keep public
authorities within their lawful bounds, but more for the purpose of redressing the grievances
of those who are affected by the decisions and actions of these authorities. While the
doctrine of ultra vires still plays an important role in this arena, this is not the sole
foundation of judicial review. The content of the rules of natural justice, the concept of
irrationality and the like are judicial constructs which are part of the notion of good
governance, which constitute a broader juridical basis for judicial review. Our courts have
been mindful of the need to protect not only the rights but even the legitimate expectations
of the people, and have not forgotten that the power of judicial review is derived from the
Sovereignty of the People.

12
1
See Art. 4(c) of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978.
2
Act No. 2 of 1980.
3
[1994] 1 Sri LR 293.
4
ibid., pages 297 to 298 per Mark Fernando, J (Italics added).
5
51 NLR 457.
6
ibid., at 461 per Lord Radcliffe.
7
[1986] Vol. II Colombo Appellate Law Reports 487.
8
ibid., at page 493.
9
[1999] 1 Sri LR 1.
10
ibid., pages 14 to15 per Dheeraratne, J (Italics added).
11
Paul Craig, „Ultra Vires and the Foundations of Judicial Review‟[1998] CLJ 63
12
The remedy was introduced through amendments to Order 53 of the Rules of the Supreme Court brought
about by SI 1977 No. 1955 supplemented by Section 31 of the Supreme Court Act 1981 and now
embodied in the Civil Procedure Rules 1998.
13
On this question, see Mark Elliott, „Fundamental Rights as Interpretative Constructs: The Constitutional
Logic of the Human Rights Act of 1998‟ constituting Chapter 12 in Christopher Forsyth, Judicial Review
and the Constitution (Oxford 2000).
14
On this issue, see generally, Wade and Forsyth, Administrative Law (9th ed., 2004), page 161.
15
See, Kodeeswaran v. Attorney General, (1969) 72 N. L. R. 337, at p. 342. See also, L.J.M. Cooray, An
Introduction to the Legal System of Sri Lanka [Colombo: Lake House Investments Limited, 2nd edn.,
1992), page 97. Cf. Soyza v. Arsecularatne [2001] 2 Sri LR 293 criticised in Shivaji Felix, ‘A Decent
Burial for Dead Concepts: Engaging Causa / Consideration in the Context of the Common Law of Sri
Lanka‟, [2005] Law College Law Review page 157.
16
[1967] 2 All ER 770.
17
ibid., at page 778.
18
R v Electricity Commissioners ex p. London Electricity Joint Committee Co. (1920) Ltd. [1920] 1 KB 171.
19
ibid., at page 205.
20
[1964] AC 40.
21
ibid., at page 130.
22
Notably, R v Legislative Committee of the Church of England ex p Haynes-Smith [1928] 1 KB 411 at page
415.
23
[1983] 2 AC 237.
24
ibid., at page 279.
25
See, Ceylon Transport Board v Gunasinghe 72 NLR 76.
26
See, Mowjood v. Pussadeniya (1987) 1 SLR 63 and Chas P. Hayley & Co. Ltd. v. Commercial and
Industrial Workers and Others [1995] 2 Sri LR 42.
27
See, Trade Exchange (Ceylon) Ltd., v Asian Hotels Corporation [1981] 1 SLR 67.
28
See, R v Panel on Takeovers and Mergers, ex p Datafin [1987] 1 QB 815 and R v Panel on Takeovers
and Mergers, ex p Guinness [1990] 1 QB 146.
29
[1987] 1 QB 815.
30
[2002] 3 SLR 405.
31
ibid., at page 411 per Nihal Jayasinghe J.
32
[2004] Vol. X Part II BALJR 134; [2005] 1 Sri LR 16.
33
Act No. 4 of 1990.
34
ibid., pages 135 to 136 per Saleem Marsoof, J (Italics added)
35
ibid., page 137.
36
ibid., page 137.
37
Wade and Forsyth, Administrative Law (9th ed., 2004), page 35 approved in Baddington v British
Transport Police [1999] 2 AC 143 at 171 per Lord Steyn.
38
Lord Woolf of Barnes „Droit Public-English Style‟ [1995] Public Law 57 at 66, adopting the phrase
coined by Lord Reid in „The Judge as Lawmaker‟1972] The Journal of Public Teachers of Law 22, to
describe those who denied the judiciary any law making role.
39
Sir John Laws, „Illegality: the problem of jurisdiction‟ in Supperstone & Goudie (eds), Judicial Review
(1992) 67.
40
See, Christopher Forsyth, „Of Fig Leaves and Fairy Tales: The Ultra Vires Doctine, the Sovereignty of
Parliament and Judicial Review, [1996] 55 CLJ 122.

13
41
The debate, which mesmerized a small expert conference held in Cambridge on 22 th May 1999 has been
captured into a fascinating collection of papers which are published in a revised form in Christopher
Forsyth (ed) Judicial Review & the Constitution (ed 2000).
42
Mark Elliott, „Fundamental Rights as Interpretative Constructs: The Constitutional Logic of the Human
Rights Act 1998, constituting Chapter 12 in Christopher Forsyth (ed) Judicial Review & the Constitution
(ed 2000) at page 287.
43
Chapter III of the Constitution of the Democratic Socialist Republic of Sri Lanka, 1978. According to
Article 3 of the Constitution, fundamental rights are included in „sovereignty‟ and Article 4(d) of the
Constitution imposes a duty on all organs of government (including the Courts) the duty of recognizing
and respecting fundamental rights.
44
See, G.L. Peiris, Essays on Administrative Law (1980) page 116.
45
Gunaratne v Chandananda de Silva [1998] 3 SLR 265.
46
Bangamuwa v S.M.J.Senaratne, Director General of Customs [2000] 1 SLR 106.
47
Gunaratne v Kotakadeniya, Commissioner of Motor Traffic and Others [1990] 2 Sri LR 14.
48
The Surveyors’ Institute of Sri Lanka v The Surveyor General and Another [1994] 2 Sri LR 319.
49
Wijayapala Mendis v P.R.P. Perera and Others [1999] 2 Sri LR 110.
50
Saheer and others v. Board of Governers Zahira College and Others [2002] 3 SLR 405.
51
No. 45 of 1971 as subsequently amended. See, Wickremasinghe v Nethasinghe [2005] 1 Sri LR 97.
52
Section 3(1)(d) of the Industrial Disputes Act, ibid.
53
Section 4(1) of the Industrial Disputes Act, ibid.
54
See, Aislaby Estates Ltd.,v Weerasekera 77 NLR 241, Nadaraja Ltd., v Krishnadasan 78 NLR 255 and
Volanka Ltd., v Seneviratne, Minister of Labour (2000) 2 Sri LR 19.
55
Nadaraja Ltd., v Krishnadasan 78 NLR 255.
56
Equipment and Construction Co. Ltd. v. Ranasinghe [1985] 1 Sri LR 182.
57
[1999] 3 Sri LR 205, confirmed by the Supreme Court in SC Appeal No. 70 / 99 decided on 24th August
2000.
58
See, Wimalasena v Navaratne and others (1978-79) 2 Sri LR 10 and Ceylon Tyre Rebuilding Co. Ltd., v.
Perera (1980) 2 Sri LR 36.
59
[2000] Vol. 2 Sri LR 19.
60
Wade and Forsyth, Administrative Law (9th ed., 2004), page 439.
61
68 NLR 217.
62
Gnanasambandam v. The Rehabilitation of Property and Industries Authority (REPIA) [1997] 1 Sri LR
178.
63
Amerasinghe v Daluwatte and Others [2001] 3 Sri LR 258.
64
Rajakaruna and Others v. University of Ruhuna and Others [2004] Vol. X Part II BALJR 45.
65
Geeganage v Director General of Customs [2001] 3 Sri LR 179; Nadira Fernando v Ceylon Tourist
Board and Others [2002] 2 Sri LR 169.
66
[1982] 1 Sri LR 195.
67
[2000] 3 Sri L. R. 170.
68
(1968) All ER 304 at 310. Also see Kumarasena v. Data Management System Ltd. (1987) 2 Sri LR 190 at
200.
69
See, Hayleys Ltd v de Silva 64 NLR 130 and Kundanmals Industries v Comm. of Labour [1994] 3 SLR 20.
70
[1959] 2 All ER 433.
71
See, for example, Virakesari Ltd v Fernando 66 NLR 145 at page 150 (per Weerasooriya SPJ) and
Jayawardena and Another v Pegasus Hotels of Ceylon Ltd., and Others [2004] Vol. X Part II BALJR 21
at page 34. (per Saleem Marsoof J.).
72
(1994) 3 Sri LR pages 22-23.
73
59 NLR 310.
74
[1995] 2 Sri LR 42.
75
[1958] 5 Co. REP 996.
76
[1948] 1 KB 323.
77
[1990] Volume 2 Sri LR 416 at 419.
78
[1926] Ch 66 at 91.
79
See Inre Harry Hook [1976] 3 All ER 456 and R v Secretary for the Home Department ex.p.cox 1993 5
Adm Law Rep. 17.

14
80
Premaratna v University Grant Commission [1998] 3 SLR 395 and Neidra Fernando v. Ceylon Tourist
Board & Others [2002 2 SLR 169 at 187 – 8.
81
(1999) 29 EHRR 493.
82
[2001] 2 Sri LR 11.
83
S.C Appeal 58/2003, S.C Appeal 59/2003 and S.C Appeal 60/2003, S.C.Draft Minutes dated 20th January
2004. The judgment is available at ‹http://www.elaw.org› but has not still got into the law reports. For a
critical discussion of the decision, see the case note by Althaf Marsoof in (2004) Law College Law Review
pages 189 to 195.
84
[2004] 1 Sri LR 312.
85
[2004] BASLR Volume X Part II 105.
86
Halsbury‟s Law of England Volume 1,14th Edition – Paragraph 132.
87
Dilan Perera v. Rajitha Senaratne [2000] 2 Sri LR 79.
88
69 NLR 265.
89
[1968] 2 QB 118.
90
[1973] QB 629.
91
[1982] AC 617.
92
Wade and Forsyth, Administrative Law (9th ed., 2004), pages 684 to 685.
93
ibid., at page 683.
94
[1991] 1 Sri LR 333.
95
ibid., at 343.
96
[1982] 2 Sri LR 664 at page 682.
97
[2001] 2 Sri.LR 11 at pages 41-42.
98
[1998] 2 Sri LR 378.
99
ibid., at page 406.
100
AIR 1982 SC 149.
101
AIR 1983 (Andhra Pradesh) 283.
102
AIR 1984 SC 74.
103
[2000] 1 Sri LR 177.
104
[2000] 3 Sri LR 155.
105
[2001] 1 Sri LR 315.
106
[2001] 1 Sri LR 265.
107
[2000] 3 Sri LR 243.
108
C.A Application No 1312/2004 (CA Minutes dates 29.7.2004).
109
CA Application 999/2003(C.A Minutes dated 10.1.2005).

15