Equality and Court’s Writ Jurisdiction

https://www.dailynews.lk/2019/01/15/features/174296/equality-and-court%E2%80%99s-writ-jurisdiction

It is a feature of modern democratic life that the courts be permitted to review administration action. The administrative power of
the State, exercised by government officials and bureaucrats, should be subject to scrutiny by an autonomous body. Sri Lankan
courts have over the past several decades or so, advanced the frontiers of judicial review. Judicial review is at a fundamental level
concerned with public accountability. It seeks to ensure that public power is exercised according to certain well established
norms and principles. Those who wield state power need to account for their actions. It seeks to exclude the arbitrary exercise of
power.

Writ Jurisdiction of the Court

A citizen who is aggrieved by a decision of a public body or inaction of a public body has a variety of remedies available under
public law. The administrative action and / or inaction on the part of a judge of any court, tribunal of first instance or other
institutions or any person having legal authority to determine questions affecting the rights of subjects having the duty to act
judicially may be challenged by way of judicial review. One means of the Court through which executive acts and decisions
affecting rights of the people may be reviewed is its writ jurisdiction.

Mark Fernando J, who pronounced the judgement of Heather Mundy v Central Environmental Authority and Others for the
Supreme Court reviewing the jurisdiction of the Court of Appeal under Article 140 of the Constitution stated as follows:

“The jurisdiction conferred by Article 140, however, is not confined to ‘prerogative’ writs or ‘extra-ordinary remedies’, but
extends – subject to the provisions of the Constitution – to ‘orders in the nature of’ writs of Certiorari etc. Taken in the context of
our constitutional principles and provisions, these ‘orders’ constitute one of the principal safeguards against excess and abuse of
executive power: mandating the judiciary to defend the Sovereignty of the people enshrined in Article 3 against infringement or
encroachment by the Executive, with no trace of any deference due to the Crown and its agents.”

The 13th Amendment to the Constitution effected on 14.11.1987 established Provincial Councils as a measure of devolving
power directed at a settlement of the ethnic problem and the then ongoing conflict. Article 154P of the 13th Amendment vested
an appellate jurisdiction in the Provincial High Court in respect of Magistrate’s Courts and Primary Courts within the Province. It
also vested a writ jurisdiction in the Court with regard to matters set out in the Provincial Council List. Article 154P (c) left an
opening to widen the jurisdiction of the Provincial High Court by stating that the Court could ‘exercise such other jurisdiction as
Parliament may by law provide’.

It is in pursuance of this provision in the Constitution that the High Court of the Provinces (Special Provision) Amendment Act
No.54 of 2006, was enacted by Parliament and certified on 28.12.2006. This Act amend the previous Act No. 19 of 1990, which
vested in the High Court of the Provinces appellate jurisdiction in respect of orders of Labour Tribunals and those made in terms
of sections 5 or 9 of the Agrarian Services Act. Section 5A of the Act No.54 of 2006 provides that High Courts established by
Article 154P of the Constitution shall exercise appellate and revisionary jurisdiction in respect of judgments, decrees and orders
delivered and made by the District or Family Courts, within such Province.

The Grounds or Standards of Review

The exercise of administrative power is reviewed against three sets of criteria:

(i) General principles of administrative justice, (ii). Doctrine of public trusts and (iii). Human rights standards.

(i). General Principles of Administrative Justice

There are standards of review the courts have developed over a considerable period of time. These include grounds such as the
lack of jurisdiction, the violation of the rules of natural justice, abuse of discretionary power and error of law on the face of the
record. In Council of Civil Service Unions v Minister for the Civil Service Lord Diplock re-classified the traditional grounds as
illegality, irrationality and procedural defects. He also noted the emergence of the new ground of proportionality. It is also
important that judicial standards do not become a fetter on progressive administrative decision making. The writ process should
not be used to block enterprising and innovative administrative acts. Lord Scarman has cautioned that, although judicial review is
a great weapon in the hands of judges, it should be used by judges, conscious of the constitutional context in which they function.
(ii). The Public Trust Doctrine

Mark Fernando J. in the Heather Mundy judgement stated that the Supreme Court itself has long recognized and applied the
‘Public Trust Doctrine’: that powers vested in public authorities are not absolute or unfettered but are held in trust for the public,
to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by
reference to those purposes. The Supreme Court utilizes this doctrine as a potential tool for a multitude of purposes: (a) to rectify
the abuse of discretionary power, (b) to prevent the exploitation of natural resources and ( c) to shield the underprivileged.

(iii). Human Rights Standards

Apart from the above the executive power is also necessarily subject to the fundamental rights in general and to Article 12(1) in
particular which guarantees equality before the law and the equal protection of the law. The link between the writ jurisdiction and
fundamental rights is also apparent from Article 126(3), which contemplates that evidence of an infringement of fundamental
rights may properly arise in the course of hearing a writ application, whereupon such application must be referred to the Supreme
Court which may grant such relief or make such direction as it may deem just and equitable. Thus although the Supreme Court
would still be exercising the writ jurisdiction, its powers of review and relief would not be confined to the old ‘prerogative’ writs.

Equal Protection Clause

Equality of human beings before the law is one of the most important of human rights and that it may be regarded as fundamental
in the sense that it is the basis for the development of guarantees of specific human rights. There are two famous legal
expressions linked to the right to equality, namely (1) all persons equal before the law and (2) all persons are entitled to equal
protection of the law. For example, this expression is also found in UDHR (Article 7), ICCPR (Article 26), US Constitution (14th
Amendment), Indian Constitution (Article 14), 1972 Constitution of Sri Lanka (Article 18) and 1978 Constitution of Sri Lanka
(Article 12).

Today it is a well accepted principle at least in the developing world that what equal protection of the laws seeks is not
mathematical equality or formal equality but substantive equality among various groups in society. Formal equality with its focus
on the abstract individual has failed to address deeply entrenched patterns of social disadvantage. In framing an alternative
concept of substantive equality, distributive justice plays a central role. It calls for a duty upon the State to take positive measures
to promote equality including where appropriate allocation of sources. Resource allocation made by the State requires a complex
assessment of wide ranging facts and necessitates the setting of priorities and balancing of interests.

Once State takes steps to allocate resources for the benefit of a particular group or groups, it automatically has to exclude other
groups. However, if the State’s such classification for exclusion is based on the reasonable criteria or grounds, such classification
is not considered as violative of equal protection clause. Here the classification is made by the elected body of the people and not
by the Courts. The Court’s role is therefore confined to evaluate the criteria used by the State for classification. The tool used by
the Courts in such evaluation is based on the equality principle. Therefore equality is not only a right but also an evaluative tool
for the courts. In order to give effect to this important task, the right to equality needs be expressly incorporated as a fundamental
right in the FR Chapter of the Constitution. Even if important economic social and cultural rights (ESC) are not incorporated into
our present Constitution, the Courts have been able to assert only to some extent such ESC rights particularly through the
application of equality rights as a fundamental right enshrined in Article 12 of present Constitution.

New Concept of Equality

In 1973, E.P Royappa v State of Tamilnadu the Indian Supreme Court laid down a ‘new dimension’ to Article 14 of the Indian
Constitution. Accordingly, equality is antithetic to arbitrariness. In fact equality and arbitrariness sworn enemies. The recognition
that a violation of a legal norm is a violation of the equal protection clause would mean that a violation of the principles of
administrative law also amount to a violation of the equal protection clause, thus giving rise to constitutional remedies in addition
to remedies in administrative law. This development did take place both in India and Sri Lanka. Equality is a new frontier in
judicial activism in Sri Lanka.

Administrative Justice through Equal Protection Clause

By embracing the aforesaid new concept of equality, our Supreme Court has infused a new dimension to the guarantee of equal
protection of the law by pronouncing that it also embraces the right of the public to administrative justice – to be free from the
caprice of arbitrary, executive or administrative action. The entrenchment of a specific remedy in Sri Lanka’s constitutional
fabric to question administrative action which violates fundamental rights, has resulted in Sri Lankan judges borrowing
frequently from the lush and fertile jurisprudence of administrative law.

In Wickramtunge v Ratwatte, an application filed under Article 126 of the Constitution, the Supreme Court laid down several
principles of fair conduct that a public body must observe. Many of these principles were drawn from the area of administrative
law. The Supreme Court stated that a statutory public body must act reasonably and in good faith and not erode the fundamental
rights recognized and declared in the Constitution. The Court found that the respondent had been motivated by ‘improper
purposes’ in deciding to terminate the dealership. The case also dealt with the sudden withdrawal of a facility granted to a
petroleum dealer to pay by cheque. The Supreme Court held that in the circumstances of the case the failure to provide reasons
for withdrawing this facility pointed to arbitrariness. The Court found that the dealer’s rights under Article 12 had been violated.

Jayawardene v Wijetilleke, another fundamental rights application under Article 126, was a classic violation of the rules of
natural justice. The person who occupied the post of Inquirer into Sudden Deaths in Gampaha was removed without a hearing.
The Supreme Court held that this action violated the ‘equal protection of law’ clauses in Article 12(1) of the Constitution. The
Court also held that the respondent had acted without legal authority. In Tennekoon v de Silva the Court quoting administrative
law scholar H W R Wade, held that not providing reasons for the transfer of a police office may deprive him of ‘the protection of
the law’ guaranteed by Article 12(1) of the constitution.

In Bandara v Premechandra the Court held that public officers who hold office at pleasure may be dismissed without reasons
being provided. However, this does not mean that no reasons need ‘exist’. When the Court (as distinguished from the applicant)
asks for reasons, they should be provided. Failure to provide reasons to the court can lead to a conclusion that the act was
arbitrary and therefore violated Article 12. These powers are not absolute or unfettered and should be exercised fairly. According
to the Court it is now possible to claim relief for the violation of a fundamental right by way of a writ.

The initial application would be filed in the Court of Appeal and since it involves a question of fundamental rights the matter
would have to be referred to the Supreme Court for adjudication.

The above line of cases show that the Sri Lankan Supreme Court has not been reluctant to borrow concepts from administrative
law in interpreting Article 12 of the Constitution. This fusion of administrative law concepts with constitutional ideas has
substantially enriched the public law jurisprudence of this country. The judicial review of legislative or administrative action can
have political consequences. In tightly controlled and authoritarian societies its political repercussions are even more pronounced.
In a legal system where the Courts are vested with the power of judicial review, on occasions issues with social, political and
economic overtones come up for consideration. Some of them are of transient importance while others have portentous
consequences for generations to come. More often than not such issues are emotionally hypercharged and raise a storm of
controversy in the society. Reason and rationalism become the first casualties, and sentiments run high. While dealing with them
the courts have to raise the issues above the contemporary dust and din, and examine them dispassionately, keeping in view, the
long term interests of the society as a whole. Such problems cannot always be answered by the strict rules of logic. Social
realities which have their own logic have also their role to play in resolving them.

(The writer is Retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney –at – Law with Ph.D. in Law
as well)