JUDICIAL POWER OF PHC

ART. 154 P – Constitutional framework for the PHC

Art. 154 P 1) recognizes that there shall be a high court for each province which shall be established with the electment
of the 13th amendment and they are to be designated as the Provincial High Court.

The composition – the CJ is to nominate among the Judges in the high court in SL, such number of Judges that may be
necessary to each such high court. And every such Judge shall be transferrable by the CJ.

Since the CJ is nominating the Judges from the High Court to the Provincial High Court, so, therefore, it is essentially the
same set of Judges sitting both at the High Court and the Provincial High Court, it’s just that these Judges will be
functioning in different capacities based on whether they are working as the High court or Provincial High Court.

Because the Jurisdiction of the PHC is as provided in this particular article, It says that every Court is to exercise its
original criminal jurisdiction in relation to offences and then apart from Criminal jurisdiction there’s also appellate and
revisionary jurisdiction in relation to sentences, convictions, orders by Magistrate Courts and the Primary Courts and
also other jurisdictional powers that the parliament will provide. Therefore they have the original criminal jurisdiction,
appellate and divisionary jurisdiction and also most significantly there’s also the writ jurisdiction which was until then
mainly given to the CA under art. 140. So now in addition to that there’s also the PHC capacity to issue writs (habeus
copus etc.) But there’s a limitation in their capacity to issue writs in the sense that, writs can be issued by the provincial
high court against any person exercising within the province any power, under any law or any statute made by the
provincial council established for that province in respect of any matter set out in the provincial council list. Therefore
there are 3 limitations for the writ jurisdiction of the PHC.

1) The writs can only be issued against any person taking action within the province.
2) Exercising powers that are coming by any law or statute established by the provincial council
3) This also has to be in relation to any matter set out in the provincial council list.

So, therefore, we know that even in relation to laws made by the parliament, they will continue to function and that
according to the Provincial Councils consequential act, after the establishment of the provincial council, even the
parliamentary act continues to be in force, whenever the implementation of the parliamentary act comes about, if it’s
with regard to a matter which is devolved to the provincial council, then the provincial level authority will be
implementing this parliamentary act.

Therefore, those who are functioning within the province can get their powers under parliamentary laws or under
statutes (it also has to be in relation to a matter that is set out in the provincial council list, not in relation to matters in
the concurrent lists). Then in those instances those exercises of power are subject to the writ jurisdiction of the
provincial high court.

Those are basically the powers of the PHC and with that there are two other provisions and those together lay out the
basic layout of the PHC. And to add to that there’s also a parliamentary act to supplement this constitutional provision
and we saw that within the art. itself it is recognized that the parliament can provide further details , therefore there’s
also the high court of the provinces special provisions act 19 of 1990, which is also supplementing to the judicial powers,
provides details on the high court at the provincial level. Therefore mainly its art. 154 P but also the parliamentary
legislation together provide for the PHCs.

IN RE THIRTEENTH AMENDMENT
The majority of the Judges were of the view that this doesn’t affect the structure of the courts overall or the judicial
power of the people (sec 4). The majority was arguing this because the SC and CA continue to exercise several
jurisdictions, and their jurisdiction is unimpaired. And the court notes the fact that there is only one SC and CA for the
whole country, unlike in a federal system and that the writ jurisdiction that is given to the PHC does not prejudice the
CA. and notes the benefits of having a PHC as bringing justice closer to home and reducing delays and cost of litigation.
Therefore the argument of the Majority is that this doesn’t affect the court structure, the SC and CA retain their
superiority as the central apex courts in the court structure and also additionally the appointment of the Judges is done
by the President on the nomination of the CJ. And the appointment, transfer, and dismissal are subject to the judicial
service commission, so, therefore, it is not that the provincial councils are having any powers over the provincial high
court, it’s the central court structure and the Judicial Service Commission that are having the control over the PHC, that
it’s just becoming another court within the overall court structure.

Therefore, the majority justifies the establishment of a PHC and mentions its benefits.

Then the dissenting Judges, argue that this is affecting the basic structure of the constitution and affects the judicial
power of the people, and it might potentially undermine the independence of the judiciary. And the dissenting Judges
were particularly concerned about devolving the writ jurisdiction because they were of the view that devolving the writ
jurisdiction might result in eroding the status of this very important judicial remedy. So that’s where the main distinction
between the majority and the minority lies in relation to the judicial powers.

Then we have several cases dealing with the question of whether the PHC have jurisdiction over a certain matter

NIMALARATNE V ASSISTANT COMM. OF AS (2000)

this goes back to the case that we discussed with regard to agrarian services. There there was an agrarian services
amendment that was introduced, in 1991, that was questioned before the courts, and the courts held that everything in
the amendment dealt with matters of national policy so therefore this amendment is within the capacity of the central
government because it dealt with matters in the reserved list. Then it lead to this confusion as to whether agrarian
services is devolved at all. Even though its in the reserved provincial council list, after this judgement the confusion was
whether it’s a devolved matter or what it’s status is.

the particular issue here was about an unlawful disposition issue of a tenant cultivator by the particular assistant
commissioner for agrarian services through an ex parte hearing. Therefore that was the question that was being
challenged. And the question here that is of particular interest to us in relation to PHC is the fact that, whether the PHC
had the jurisdiction in this particular instance to issue a writ of certiorari and a prohibition against the particular board of
review under the agrarian services act.

therefore one of the arguments that were being made is that its agrarian services of the provincial councils, while
agrarian services, our part of provincial councils list there’s also reference to agrarian services in the concurrent list.
There was an argument that these particular inquiries that were taking place in relation to these agrarian services were
a concurrent item. However, there was also on another hand recognition given in the sec 5 of the high court of the
provinces sector special provisions act no. 19 of 1990, that the section 5 & 9 of the Agrarian services act also came
within the purview of the high court of the provinces. Therefore there was recognition on the part of the central
government itself when making the high court of the provincial special provisions act that the particular inquiries that
were supposed to happen under the sec 5 & 9 of the agrarian services act which was what was in question here. They
were falling within the jurisdiction of the provincial high court. And the courts in this particular instance took into
account the provincial high court act and also recognized the fact that the whole purpose of having art. 154 P is to
recognize that there are writs against administrative bodies who are acting under statutes or law or against an order
made by an administrative tribunal within the particular province. So therefore if this is not recognized the argument of
the court was that art. 154 P will not be meaningful. Because the whole point of giving writ jurisdiction to the provincial
high court was to ensure that they could hear the exercise of authority by a person within the province on a matter
that’s within the provincial council list based on a law or a statute of the province. So if that is not allowed the courts in
this instance recognize that art. 154 P will not be meaningful and also courts refer to the fact that creation of a high
court to the provinces was to give effect to the devolution of power so therefore in order to facilitate that its important
to facilitate this interpretation of recognizing that inquiries under the agrarian services act here, the writs against the
decisions taken on the basis of inquiries under the agrarian services act fall within the purview of the provincial high
court.
Therefore, this recognized the fact that in relation to the inquiries happening under the agrarian services act, the
provincial high court can exercise their writ jurisdiction. And it was clear cut because this was an inquiry that was
happening under the section 5 & 9 of the Agrarian services act which was expressly recognized also in the high court of
the provinces special provinces act coming within the purview of the high court of the provinces.

MADDUMA BANDA V ASSISTANT COMM. OF AS (2003)

Here, the order that is being challenged was an order based on sec 18 of the agrarian services act. This is more
complicated because it is not recognized by the high court of the provinces special provinces act expressly that this is
coming within the purview of the jurisdiction of the PHC. Therefore, the court goes into looking at here, firstly that sec
18 deals with the consequences of the failure of a tenant cultivator to pay the rent. And sec. 5 deals with the rights of
tenant cultivators who are evicted from the paddy lands. And then sec. 9 talks about disputes related to the devolution
of rights to tenant cultivators. (Very interconnected specific aspects relating to the rights and interests of the tenant
cultivators).

Therefore the question is here is how to interpret the scope of an order that is made under sec. 18.It’s clear the sec 9
and 5 come within the jurisdiction of the provincial high courts because the parliament has expressly recognized it.
However, then what happens to sec 18 which is not recognized by the legislation but it deals with a very closely related
issue to sec 5 & 9 of the agrarian services act.

Here the court says that, they have to look at the intention of the legislation. The court refers to this book from Salmon
on jurisprudence to argue that, the court needs to look at the essence, not just the letter of the law. Here they are going
for a more of a holistic interpretation and not a narrow interpretation, looking at the essence and the spirit of the law
rather than looking at just the text.

In looking at the intention of the legislature, the court says that was to empower the provincial centers to deal with the
specific subjects devolved to such centres and its not limited to just executive and legislative subject matters but it also
extends to judicial matters. That’s the broad intention here of the legislature.

And going specifically the court says the whole purpose of having a PHC is to permit the people to deal with their day to
day life within the province itself. Therefore, it would make sense for these tenant cultivators to challenge the order
relating to the payment of agricultural rent in the PHC rather than having to come to colombo. Therefore the court says
that sec. 18 inquiries is not excluded from the provincial council list.

This is also an instance where the court is rectifying their position in the Agrarian services amendment bill of 1999 saying
that the agrarian land and property also includes paddy lands and tenant cultivators.

Therefore, on the basis that the whole purpose of this particular legislative framework is to devolve power, not just
legislative, executive but also judicial and that to facilitate people to deal with their issues within the province itself and
refers back to the benefits in the thirteenth amendment determination about brining justice closer to the home…

SOLAIMUTHU RASU
Here the courts interpreted land to be not a provincial council list item but to be reserved list item in the sense that all
the state lands are with the center and only the lands that are made available to the provincial councils they can use and
administer. On the basis of that final argument, the final part of decision was to say that, therefore the PHC does not
have the jurisdiction in relation to hearing a writ that was challenging the particular quick notice that was issued under
the state lands recovery of positions act. So therefore the courts here, after interpreting that state lands are falling
within the reserved list. There’s not much to argue to say that the PHC does not have jurisdiction.

Previously we discussed how there are 3 restrictions on the writ jurisdiction of the PHC. Here the courts says it in these
terms, saying that, there are 3 determinative ingredients for the PHC to have jurisdiction. And one of those ingredients
are that, this has to be matter that is set out in the provincial council list and here that element is lacking. Therefore the
PHC didn’t have jurisdiction in this particular instance. And that J. Mohan Peiris.
J. Shreepavan also writing the concurrent opinion refers to the fact that, looking at the case of wearagam.. v eksath
lanka vathu kamkaru samithiya also, that the intention of the legislature is to only engage in a specific devolution of
power, so therefore, there is nothing here to suggest that there’s general intention to devolve powers to the provinces
so therefore only what is specifically mentioned is devolved and others are reserved to the central government. So
judicial powers are also similarly only what is expressly devolved will be given to the PHC. Therefore J. Shreepavan goes
onto say that, there was nothing more than a rearrangement of jurisdiction in terms of the Judicial power sharing.

So that means that in this particular instance the PHC does not have the capacity to hear the writ application, it has to be
filled with the CA.

Broadly looking at not just the cases we’ve discussed here but also the cases in relation to sharing of mainly legislative
powers with the provinces and also to an extent executive powers you can basically categorize the case law from the
courts to two main categories,

There are cases that facilitate devolution and there are cases which says that there is no general intention of devolution,
there is only a very specific attempt at sharing power. Therefore based on the views that the Judges take towards the
intention of the parliament in relation to enacting the 13 th amendment on the basis of whether the Judges are thinking
whether it was to facilitate devolution generally or other judges saying that there was no general intention of devolution
thereby saying that this was a very specific arrangement based on also looking at the reserved list, the final item (all
subjects and matters not mentioned not devolved remains the with center).

PARAMESWARY JAYATHEVAN V AG
This is a case where the petitioner who was unsuccessful in detaining her lodging at the government quarters at the
Vavuniya base hospital was challenging that her FR to equality was violated because she was asked to leave the
government quarters in the Vavuniya base hospital and when she resisted to do so, the government transferred her to
Batticaloa as a punishment.

The court here does not agree with the petitioner because she was a pharmacist, who was initially not entitled at all to
government quarters. She was only given quarters as a temporary measure to protect her from the dangers due to civil
disturbances. So therefore, the courts here recognize the fact that the Northeastern Provincial council in this instance
had the power to transfer her to Batticaloa and her petition, therefore, was dismissed.

The question here was as to what happens when a provincial administration is allegedly violating FR. Because the PHC
has jurisdiction to issue writs but the FR remains exclusively with the SC. The court says here that the Provincial councils
also come under art. 17 of the constitution and could violate FR. Therefore, it could be done based on its executive and
administrative actions and can become liable under art. 126. So, therefore, even in relation to actions of the provincial
authorities, those can be challenged under art. 126.

The court emphasizes here that the 13 th amendment did not erode the judicial power held by the people under art. 4 c),
so therefore the SC possess the power to fully enforce its orders under art. 126 4) in every part of the island.
Accordingly, the FR jurisdiction of the SC remains with the SC and even relation to a violation by the provincial authority,
the SC the full capacity to issue an order. Therefore the SC jurisdiction as the 13 th determination mentioned, remains
unimpaired as the highest/apex court of the land. So therefore SC’s FR jurisdiction even in relation to the provincial
authorities.

MOHOMED ISHAK V MORAIS

This was filed seeking a writ in the CA of Colombo. Here the issue was about the suspension of the Kuchchaweli
Pradeshiya Sabha which was in Nilaweli in the Trinco district in the Northeastern Province which was what it was called
at the time (bc as soon as the 13 th amendment came about in 1988 there was a presidential order following art. 154 A 3)
amalgamating the north and the east). This suspension happened after an inquiry that was held in the office of the
commissioner of local government for north eastern province in English language and the Kuchchaweli Pradeshiya sabha
was ordered to be dissolved. Therefore the chairman of the now dissolved pradeshiya Sabha was trying to seek a writ of
certiorari to quash the decision and writ of prohibition and other reliefs.

So therefore there was a case commenced in Colombo while the proceedings of the same dispute were going before the
high court of the North Eastern Province. And the CA here concluded that they will defer to the PHC of the north eastern
province recognizing that the whole point of the case was that the chairman or the petitioner was challenging the
inquiry made in English and the decision made thereafter. Therefore the court was recognizing how this would be placed
such psychological pressure among the applicant because bringing the case to Colombo to the CA which is functioning in
English. Therefore considering all those factors concerned the courts in this particular instance held that, the
psychological pressures in addition to the costs and delays and all the other concerns, the courts say that, all these
factors needs to be taken into account moving out from the jurisdiction to the CA, when the PHC also has the similar
powers, therefore the courts in this instance didn’t decide to refer to the PHC and stayed the application that has
started at the CA level.

Therefore this is an instance once again where the CA recognize the importance of the provincial high court hearing a
matter when they have jurisdiction when the courts have simultaneous jurisdiction when taking all the matters into
account, the CA will defer to the PHC in hearing the case.