EVOLVEMENT AND CHALLENGES OF JUDICIAL REVIEW ON ADMINISTRATIVE ACTION IN SRI LANKA.


CONTENTS…

  • INTRODUCTION.
  • HISTORY OF JUDICIAL REVIEW ON ADMINISTRATIVE ACTION IN SRI LANKA.
  • EXTENSIONS OF THE APPLICATION OF JUDICIAL REVIEW ON ADMINISTRATIVE ACTION.
  • JUDICIAL REVIEW ON ADMINISTRATIVE ON ACTION IN ANOTHER JURISDICTION.
  • DE MERIT OR BARRIERS WHICH LASTING ON THE APPLICATION OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN SRI LANKA.
  • CONCLUSION AND RECOMMENDATION.

 

 

 

INTRODUCTION.

In general sense, just and fair administrative action is needed in every aspects of people’s ordinary day to day activities. The cardinal phenomena roots over the administrative action is based on celebrated well known principle as Public Trust Doctrine. According to the 1978 constitution people are sovereign[1] and those power can exercise by government organs.[2] Therefore from above footing, the people can to be considered as beneficiary, administrative bodies as trustee and the constitution as trust document. Thereby administrative bodies upon exercise of its power must be in benefit, just and fair manner towards people.

In this backdrop, by this paper author analyzed that, in one hand there have been significant developments recently in the field of judicial review on administrative action in Sri Lanka, on the other hand the coregent development are suppressed by prima facie defect upholding in the arena of rule of law and contemporary judicial precedent which is spelt out from legal pronouncement.

In this sense demarcation of the Administrative Law is essential. In one extent it is encompasses law relating administrative matter and another extent postulates the control of the governmental power.[3] In this way, rule of law on face of recode elucidates of every things must be done accordance with law. Therefore in another way around it refers the   establishment of limited form of the government.[4]

The similar result can to be observed upon the Judicial Review on Administrative Action (review the action) when it spontaneously work through in either form of effectiveness and progress manner. There by it interconnects the Administrative Law and Rule of law.[5] The action (commission/omission) of the administrative body/executive body when itself subject to the review by judiciary can be called as judicial review of administrative action.[6]

Nonetheless when trace back the reason why this reviewing the action inserted in the scope law that, this principle spontaneously produce the rule of law, protect the people  from abuse of power and prescribes the manner on administrative action.

 

HISTORY OF JUDICIAL REVIEW ON THE ADMINISTRATIVE ACTION IN SRI LANKA.

In Sri Lanka no express provision dealing that judiciary has the power to judicial review on administrative action. Nevertheless it come to know from which authority having the power to issuing writ and redress for fundamental rights. Because writ and fundamental rights is basic factors for seeking judicial review on administrative action. In this regard according to the history Ceylon charter,[7] Ceylon Charter of justice in 1833 and Section 46 of court ordinance empowered the Supreme Court to issue writs. Nonetheless according to 1978 constitution writ jurisdiction empowered to Court of appeal[8] and Provincial High Court[9] and fundamental rights jurisdiction vested with Supreme Court.[10] Despite in early period writ was granted according to the English Law.[11]

In the light of contemporaneous approach in respect judicial review on administrative action shall not restricted in some factors or heads.[12] If it is happened protection of the citizen against the abuse is obvious one. However it is evident from the history that in early period judicial review on administrative action limited in reliance of orthodox grounds. It is meant that when any administrative action brought before the court on this circumstances the judiciary willing to review the action upon the fulfillment of those ground only not in wider sense. Such grounds   are

  • Ultra vires
  • Un reasonableness
  • Proportionality
  • Irrationality

 

 

ULTRA VIRES.

Ultra vires is the so long ground which is being entertained upon the reviewing the action as traditional ground[13], based on juristic basis and central principal of administrative law.[14] The simple preposition about the ground that when administrative bodies exercise the power in excess or exercise the power without jurisdiction such act is subjected to review and declare null and void. Therefore it consider the intention of the legislature[15] and control discretionary power. In line with the matter in Sri Lankan judiciary spelt many sound out comes of pronouncement in relied with ultra vires.[16]

UN REASONABLENESS.

This ground considers the relevant and irrelevant consideration. When the action consider irrelevant such act declared as void. This significance approach was established on English law in Wendesbury case.[17] The same standard uphold on reviewing the action in several cases in Sri Lanka.

PROPORTIONALITY.

It might fitly referable that proportionality is a latest ground and dealing with decree of proportionate with imposing administrative action and public rights and interest.[18]When it exceed such act is void. Therefore this principle would be an effective to examine of action taken by the executive and ensuring such act should be proportionate and adherence to necessary to individual’s interests.[19] In Sri Lanka this approach availed in Environmental Foundation Ltd Colombo V Urban Development Authority[20] and other cases[21].  This ground is summed up in phrase not taking sledge hammer to crack a nut.[22]

ILLEGALITY, IRRATIONALITY, PROCEDURAL IMPROPRIETY.

Illegality refers the observation over the action legal or illegal, irrationality examines the reasonable rationale and procedural impropriety considers the proper procedure. This grounds were established GCHQ[23] case and followed in Sri Lanka too.

DEFECT AND CRITICISM OVER THE ORTHODOX GROUNDS.

Having reminded above grounds when goes to deeper manner in to current position, it can be noted that these grounds have defects heavily having criticism.  special attention on ultra vires, it can be used for reviewing only limited area and struggle balancing between non complete elimination of discretion and granting unfettered power[24]. This grounds under criticism of scholar[25] and based on juridical review.

Nonetheless pertaining to unreasonableness only considers relevant/irrelevant consideration rather than consideration upon the merit of the decision and not exhaustive ground for review.[26] Despite the proportionality failed within context controlling discretionary power.[27]

In this sense all orthodox grounds are being defect in case of protection of the individual rights against establishment of national mega development.[28] The orthodox grounds on itself restricted particular fulfillment of requirements within its four corners and not reflect no any rights based approach.

EXTENSIONS OF THE APPLICATION OF JUDICIAL REVIEW ON ADMINISTRATIVE ACTION.

On the basis of above reasoning the reviewing the action restricted by parameters which are laid down in the orthodox grounds. Though this short outs have been debated struggle point on this application. Thus in order to eradicate those barriers the judiciary restore the tools as judicial activism and judicial development.

The judicial activism remarks that the law want to be survived it should be complied with contemporaneous approach. Therefore the judiciary not only relied on the oldest approach but also they liberalized itself and incorporates the fair and justiciable principle in to their approach and judge not relied on the statutes they awarded the decision in just and equitable manner (judge made law).It turn to be focused on the judicial development that it removed the detract on law and proper apply of substantial, procedural law in suitable for current position.

It is well evident that in Sri Lanka extensions of review has been taken placed in Heather Mundy V Centre Environmental Authority and others,[29] Ceylon Tobacco Company V Minister of Health[30] and Environmental Foundation Ltd Colombo V Urban Development Authority[31] cases.

 

 

 

EXTENSION BY MUNDHY CASE.

So far Sri Lankan judiciary review the action by orthodox grounds and writ basis. Nonetheless this case was the starting point to incorporated the new approach. In this case review the action up held in manner of constitutional, Public Trust Doctrine and natural justice concepts.

In this case the administrative action (construction of southern express way by RDA) reviewed in accordance with Article 12(1) of the 1978 constitution.[32] Hence court ruled that if any administrative action infringed the rights which are guaranteed by constitution, such act is subjected to review. Thereby it shows that by this case judiciary started the review based on constitution.

Hence another extension has been placed over in adherence with Public Trust Doctrine.[33] This doctrine want to be scrutinized read with Article 3[34] and 4[35] of the 1978 constitution. Thus, by this doctrine people are the beneficiary, administrative bodies are the trustee and constitution is trust document. Thereby according to this case court ruled that administrative body want to perform fair and just manner towards people and when its breached such act is subjected to review.

In administrative law natural justice is well defined concept which comprises two fundamental rules of fair procedure; that the man may not be judge in his own cause and man’s defense must always be fairly heard.[36] The first clear denial of the rule of natural justice occurred in Nakkuda Ali V Jayaratne.[37] Nevertheless in this case (Mundhy case) extension of review made on the basis of recognized natural justice and pronounced that when natural justice breached such act is subjected to review.

It is important to notice that in this case the right based approach was analyzed and review basis extended. It is meant that in Sri Lanka in no any provision of statutes or constitution expressly refers the right based approach. However while read with Article 140,[38] 17,[39] 126 (3)[40] and 126(4)[41] of 1978 constitution the right based approach can be gathered. The plain meaning of the right based approach indicates that review the action in line with rights. Thereby Article 140 denotes that court of appeal shall have writ jurisdiction. So writ is the general remedy cast upon the review the action. By combining Article 17 ,126(3) and 126 (4) speaks about, the supreme court has the jurisdiction to determined fundamental rights violation, upon writ sued  when fundamental rights issues arise it should be hand over to Supreme Court and it should be decided in just and equitable manner. Thus upon the codification of aforesaid matter the review can be made on the right based approach. It is witnessed from Saleem Masroof J denotation[42] that the right based approach followed in several case which was established by Mundhy case. In some cases this right based approach extended with natural justice in Dissanayke V Kaleel[43] and Rajakaruna V University of Rhuna.[44]

EXTNSION BY TOBACCO CASE.

This case is the best example how far Sri Lankan judiciary extent the review the action by incorporated the international convention, applied liberal interpretation and unequivocal role by judicial activism.

Before this case the judicial review on administrative action only relied on the basis of municipal law (statutes interpretation). Petitioner of this case sought the remedy based on the ground of unreasonable and disproportionate. However Anil Gooneratne J granted the verdict by following extension on review the action that, administrative action (Regulation made by Health Minister- including 80% pictorial warning) not only review based on the statutes where it derived the power, in this occasion it should be reviewed adherence to the international covenants and instruments, applied and interpreted the statutes in liberal way (legible printing including-pictorial warning too).

Therefore it can be expressed that this case was the turning point where Sri Lankan judiciary started the journey in review the action not only line with municipal statute but also international law which is complied Article 27(15) of 1978 constitution.[45]

EXTENSION BY ENVIRONMENTAL FOUNDATION LTD V URBAN DEVELOPMENT AUTHORITY.

This is the land mark case where judicial activism interplay with judicial development each others. So far review the action has been extended. In deed this is a case where expansion of review the action up held in wider sense and judiciary move the journey with new path. Locus standi stand for who have rights to sue or vindicate before the court law. Ab initio Locus standi was extended in Sriyani Silva V Iddamalgoda OIC.[46] On the other hand in this case also expansion of Locus standi occurred on the basis of question of/sufficient interest that resulted on extension on reviewing the action. Therefore it pointed out that whoever having in the interest in case of public can file the case.[47] Thereby in this case NGO (petitioner) accepted that who had interest over the public.

Extension of the Locus standi automatically transferred to the concept called Public Interest Litigation. Hence it indicates that upon the welfare of the public when it mingled with interest, whereas it has breached or it is going to breached upon the interest of public any one can sue. Thus in this case review the administrative action admitted the public interest litigation. In Sri Lanka mostly public interest litigation filed in the name of environmental issues.[48]

In this case upon the review the action Public Trust Doctrine also played the major role. In fact by this case the expansion of locus standi interconnected the Public Trust Doctrine and Public Interest litigation. Therefore review the action stand on own leg in new dimension. In addition in this case review the action rooted in a way of constitutional review upon the restriction over relative rights under Article 14 (a) of 1978 constitution as freedom of expression. The court in this case exposed that when restriction to the relative rights placed in un reasonable and disproportionate such act is subjected to review and declare null and void.

ANOTHER EXTENSION ON JUDICIAL REVIEW ON ADMINISTRATIVE ACTION.

Legitimate expectation is another expansion on review the action. Legitimate expectation refers that a reasonable anticipation over the administrative action when such anticipation is violated (commission/omission) such action is subjected to review the action.

In early period the court not willing to recognized the legitimate expectation. It was reflected in Laub v A.G.[49] even though later on several cases legitimate expectation used as tool for review the action.[50]

On this part it can be referred that, the extension of judicial review on administrative action has been occurred is an obvious one. It worthily to codified that such expansion is taken place under the heads of Public Trust Doctrine, Constitutional, People Sovereignty, Right Based Approach and following indigenous method in Legitimate Expectation, Locus Standi And Public Interest Litigation.

 

 

 

JUDICIAL REVIEW ON ADMINISTRATIVE ON ACTION IN ANOTHER JURISDICTION.

UNITED KINGDOM POSITION.

In early period the judicial review on administrative action was established under orthodox grounds. However later on when United Kingdom became the member of the European union major verification was taken place in administrative law in United Kingdom. By bay of Article 41 European union Charter of fundamental rights declared that good administration is a fundamental rights[51] and when the United Kingdom accessed the European Convention on Human Rights, on this point only United Kingdom started to review the administrative action by right based approach in express way. This approach encompassed the natural justice. In Interpoc V Commission[52] the principle of good administration was established.

Nevertheless in this point correctly to refer that United Kingdom extended the review the action in wider sense in heads of orthodox grounds, Public Trust Doctrine, Pubic Interest Litigation, Locus Standi, Legitimate Expectation and Right Based Approach. By contrast in United Kingdom there is stopping point that upon the judicial review on administrative action the judiciary exercise the review on the consideration and within the ambit of supremacy of parliament.

AUSTRALIAN POSITION.

The establishment of Administrative Appeals Tribunal Act[53] confer the power to review to tribunals. The Administrative Decisions (Judicial Review) Act[54] extends the scope of judicial review to investigate functions and other conduct engaged in for the purpose of a making decision and codifies the grounds of judicial review. Such grounds are administrative improper exercise of power,[55] relevant and irrelevant consideration,[56] ulterior purpose,[57] inflexible policy,[58] unreasonableness,[59] un certainty,[60] natural justice,[61] no evidence ground,[62]and fraud.[63]

FRANCE POSITION.

The French may claim credit for evolving the machinery capable of implementing it in modern conditions in review the action.[64] Its briefly stated that in France the jurisdiction to review is empowered to the administrative court and exercised the power in aid of persons whose interests are going to violated or whose rights have been violated.[65]

DE MERIT OR BARRIERS WHICH LASTING ON THE APPLICATION OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTION IN SRI LANKA.

According to the application on judicial review on administrative action in Sri Lanka its figure out that expansion of this application can not be keep in sustainable one. The main factors are identified as the lacking character on rule of law and inconsistence of judicial precedent. Under these factors the following can be considered.

 

RULE OF LAW.

Constitutionalism is the one of the pillar for rule of law. However Sri Lankan constitution having many defect in itself. Fundamental rights is the one of the basic elements of constitution. In Sri Lanka the fundamental rights are not comprises more rights compare to another nations and the rights which are guaranteed by constitution mostly being the relative rights. Thereby it can be restricted. In this sense the Sri Lankan review system known as constitutional review system. Therefore when the judiciary started to review the action based on rights it faces difficulties on wider sense its applications. Because the review the action based on rights restricted within the four corners of constitution.

Besides the success point on the constitutionalism that substantial mater should be refer in express way. Thus judicial review in administrative action is a important element. But in Sri Lanka this element not refer in express way. Therefore it can be construed only from Article 140,[66]154(p),[67]17,[68]126(3)[69] and 126 (4)[70] that the judiciary has the power to review and that on basis of right based approach, therefore writ and fundamental rights are basic criteria  for the judicial review and  respectively these jurisdiction hand over to court of appeal(writ-island wide) provincial high court(writ-within its province) and supreme court(fundamental rights). In this mater there is the chance can arise to reluctant to follow the right based approach because it is not refer in express manner.

On the other hand the another defect in this review on the basis of people sovereignty is arisen from lacking character of separation of power. In Sri Lanka the sovereignty is in the hands of the people[71] and it can be exercised by the government bodies.[72] Thereby it shows about separation of power. However in Sri Lanka it is well experienced that in practice most occurrences the executive body interfere into another bodies. Therefore it on the face of record affects the separation of power then it resulted as struggle point on review the action on the basis of people sovereignty.

The another de merit arises from the defect on independence of judiciary in Sri Lanka. It is evident from the history that the independence of judiciary always undermined by the executive and legislative action and political influence. For this the best example that the removal of the former Chief Justice  Shirani Bandarnayake.[73] Hence the another challenging matter on review the action is exclusion clause or immunity clause.[74] So in this movement the judiciary can not review the action.[75]

It is interesting to noted that hand over the fundamental rights and writ jurisdiction in separate sectors also found as barriers on review the action. Generally writ and fundamental rights jurisdiction respectively empowered to court of appeal and Supreme Court.[76] In two circumstances the Supreme Court shall exercise the court of appeal jurisdiction under Article 126(3) and first Amendment to the 1978 constitution.[77] According to first amendment speaks about parliament by law shall transferred jurisdiction of court of appeal to Supreme Court. Though indeed it impossible that in all circumstances the parliament shall hand over the court of appeal jurisdiction to Supreme Court.

Having remind the aforesaid matters, it can be stated that in Sri Lanka one person can not obtain remedy as writ and redress for violation of fundamental rights in spontaneously. Thus he want to get both two remedy he want to files separate case in separate court. Thereby this defect produces the expansive on money consideration, consuming time and delay for verdict.

The another struggle point in judicial review of administrative action is there is no wider power with regard redress. Neither supreme court or court of appeal have the power to issue  the mandate ,order rather than issuing writ and redress for violation for fundamental rights towards administrative bodies. But in this aspect Indian Supreme Court has the power to issuing writ, order, direction, and redress for fundamental rights.[78]

IN CONSISTENT JUDICIAL PRECEDENT.

Judicial precedent is the one of the mechanism where the judicial review of administrative action can be kept in survive and produce the just and fair manner. When the judicial precedent started to contradict within itself its mean not constant uphold of judicial pronouncement, in this occasion that defect ultimately affect the judicial review of administrative action. There have been number of occasion witnessed that Sri Lankan judiciary awarded in consistent of judicial precedent. Example for this one is in Bandarnayake v de silva Alwis and others[79] the court recognized the locus standi and ruled that court can admit the sue in the name of public interest which is filed by any citizen. Even though in Duraiyappa v fernado the locus standi was restricted.

CONCLUSION AND RECOMMENDATION.

Upon this above analysis it can be concluded that in early period the Sri Lankan judiciary followed orthodox grounds as restricted parameters in judicial review on administrative action. Nonetheless later by way of judicial activism and judicial development the expansion has been taken placed in the heads of Public Trust Doctrine, Constitutional, People Sovereignty, Locus Standi, Public Interest Litigation and Legitimate Expectation.

Therefore nowadays Sri Lankan judiciary move on the track on its own legs and it passionate in new dimension. Namely Sri Lanka has unique approach on Legitimate Expectation, Public Interest Litigation and Public Trust Doctrine[80]. Hence Sri Lankan approach called as “free judicial review on administrative action.” Because unlike United Kingdom, Sri Lanka not bound to consider the supremacy parliament upon it’s review. On the other hand Sri Lankan judicial review on administrative action still not attained the absolute substance due to defect cast on rule of law and in consistence of the judicial pronouncement.

Thus upon this matter it can be recommended that enhance the rule of law, follow the judicial precedent, refer the right based approach in express manner, added the good administration principle as rights as like United Kingdom, combine both writ, fundamental rights and hand over that jurisdiction to one judicial body and extended the jurisdiction to issue the mandate and order towards administrative bodies.

 

 

 

 

 

 

 

 

 

 

BIBLIOGRAPHY.

  • W .R WADE AND C.F.F . FORSYTH -ADMINISTRATIVE LAW-TENTH EDITION .OXFORD UNIVERSITY PRESS.
  • L. PEIRIS- ESSAYS ON ADMINISTRATIVE LAW IN SRI LANKA-SECOND EDITION-STAMFORD LAKE PUBLICATION.
  • JOHN ALDER-PALGRAVE MACMILLAN LAW MASTERS CONSTITUTIONAL AND ADMINISTRATIVE LAW-SEVENTH EDITION.
  • L . PEIRIS- RECENT DEVELOPMENT IN ADMINISTRATIVE LAW-FIRST EDITION SARVODAYA BOOK PUBLISHING SERVICES.
  • RADHANT NAYAK-ADMINISTRATIVE JUSTICE IN INDIA-FIRST EDITION-SAGE PUBLICATION.
  • THE CONSTITUTION OF THE DEMOCRATIC SOCIALISTIC REPUBLIC OF SRI LANKA

 

 

 

 

[1] Article 3 of the 1978 constitution – In the Republic of Sri Lanka sovereignty is in the people and is alienable. Sovereignty includes the powers of government, fundamental rights and the franchise.

[2] Article 4 of the 1978 constitution –  the sovereignty of the people shall be exercised and enjoyed in the following manner

  • The legislative power of the people shall be exercised by parliament, consisting of elected of representatives of the people and by the people at a Referendum.
  • The executive power of the People, including the defense of Sri Lanka, shall be exercised by the President of Republic elected by the people.
  • The judicial power of the people shall be exercised by parliament through courts, tribunals and institution created  and established by law except in regard to matters relating to the privileges, immunities and powers of parliament  and of it members , where in the judicial power of people may be exercised directly by Parliament according to law.

[3] H.W.R Wade and Forsyth, Administrative Law, (10th ed) Oxford University Press.

[4] A.V Diecy in ‘The Law of The Constitution’.

[5]Per Lord Hoffmann in  R(Alconbury Developments Ltd) v Secretary of state for the Environment, Transport and the Regions(2001)2 All ER 929,981

[6] John alder,Palgrave macmillan law masters- constitutional and administrative law,7th ed palgrave macmillan press.p-309

[7] Article 82 of the Ceylon Charter.

[8] Article 140 of the 1978 constitution-. Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and 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 :

[9] Article 154 (p) (4)- Every such High Court shall have jurisdiction to issue, according to law – (a) orders in the nature of habeas corpus, in respect of persons illegally detained within the Province ; and (b) 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.

[10] Article 126(1) of 1978 constitution-The Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV

[11] Abdul  Thasim v Edmord Rodigro-(1947) 48 NLR 121.

[12] Lord Diplocks Formal statement on Judicial Review- Lord Hoffman said in lecture-(1997) 32 Ir. Jur .49 at 53

[13]UAT Udayanganie, Article on  Ensuring Good Administration through the development of judicial review in Sri Lanka p-183 para 3

[14] H.W.R Wade and C.F Forsyth ,Administrative Law ,10 Edition (Oxford University Press-2009), p.30

 

[15] Chamila Thalagala, The Doctrine of Ultra Vires and Judicial Review of Administrative Action, Bar Association Journal of Sri Lanka, Vol. XVII, 2011

[16]Kotakadeniya V Kodituwakku 2000(2) SLR 175, Walter Leo v The Land Commissioner (1955) 57 NLR 178

[17] Associated Provincial Picture Houses Ltd. v Wednesbury Corporation[1948] 1 KB 223

[18] H.A Barnett and M. Diamantides, Public Law Study Guide,(London: University Of London Press-2004 ),p.227

[19] R. Thomas, Legitimate Expectation and Proportionality, (Oxford: Hart publishing- 2000), p.77

[20] S.C.F.R. Application No.47/2004

[21] Premarathne V UGC (1993)3 SLR 395, Caldera V University of Peradeniya (C.A Writ No. 572/2004), Niedra Fernado V Ceylon Tourist Board and Others (2002)2 SLR 69

[22] Lord Diplock in R V Goldsimith (1983) 1 WLR 151 at 155

[23] Council of Civil Service Unions v Minister for the Civil Service [1983] UKHL 6

[24] Padfiled V Minister of Agriculture , Fisheries and food (1986) QB 716

[25] Christopher Forsyth, Judicial Review and the constitution , (Hart Publishing-2000), p. 287

[26]per Lord Scarman –in R V Secretary of State for the Environment, ex.p .Nottinghamshire Country   Council-(1986)A.C.240.

[27] UAT Udayanganie, Article on  Ensuring Good Administration through the development of judicial review in Sri Lanka p-185 para 5

[28] Ibid p-183 para 4

[29]  SC Appeal 58/2003, CA Application 688/2002

[30] C.A 336/ 2012 (writ)

[31] Supra note 20

[32] Article 12 (1) of 1978 of constitution- All persons are equal before the law and are entitled to the equal protection of the law

[33] Per Weeramantry j in Hungary V Slovokia-  ICJ GL 92 (1997)

[34] Supra note 3

[35] Supra note 4

[36] Marshal , Natural Justice; Jackson, Natural Justice (2nd edition); Flick Natural Justice(2nd edition)

[37] (1951) AC 66

[38] Supra note 8

[39] Article 17 of the 1978 constitution-  Every person shall be entitled to apply to the Supreme Court, as provided by Article 126, in respect of the infringement or imminent infringement, by executive or administrative action, of a fundamental right to which I such person is entitled under the provisions of this Chapter.

[40] Article 126 (3) of the constitution- Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer such matter for determination by the Supreme Court.

[41] Article 126(4) of the constitution- The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundament right or language right.

[42] Hon. Justice Saleem Marsoof, “The Spanding Canvas of Judicial Review”, The Bar Association Law Journal,(Bar Association of Sri Lanka-2005),Vol.XI,p.18

[43] (1993), 2 SLR 135

[44] Court of Appeal Minutes of 19th July 2004

[45]Article 27 (15) of 1978 constitution- The State shall promote international peace, security and co-operation, and the establishment of a just and equitable international economic and social order, and shall endeavour to foster respect for international law and treaty obligations in dealings among nations.

[46] SC No 471/2000 (FR)

[47] Premadasa V Wijewardana  and Others- (1991)1 SLR 333

[48] Vasudeva Nanayakkara V N.K Choksy and 30 Others-(SC. [FR] 209/2007, Supreme Court Minutes 21st July 2008), Sugathpala Mendis and Others V Kumaratunge and Others –(SC. [FR] 352/2007, Supreme Court Minutes 8th October 2008), Bulankulama V Secretary, Minister of Industrial Devolpment-([2000] 3 SLR 243)

[49] (1995) 2 SLR 88

[50] Gunawardana V Perera – (1997) 2 SLR 222, Mervil V De silva – (2001) 2 SLR 11, Wickkramarathne V Jayrathne- (2001) 3 SLR 161, Danapala V Dissnayake-( 1997) 1 SLR 400 Sannasgala V The University of Kelaniya and Members of The University Senate- (1991) 2 SLR 193, and Naglingam V University of Jaffna and others-(C.A Writ Application No.515 /2008

[51] MarrgetValaKiristjansottir, “Good Administration as a Fundamental Right”, Icelandic Review of Politics and Administration Vol.9 Issue 1, 2013, p.237-255

[52] (2003) ECR I- 2125

[53] 91 of 1975 (Cwth).

[54] 59 of 1977 (cwth).

[55] The Administrative Decisions (Judicial Review) Act 59 of 1977, s 5(1) (e)

[56] Ibid,s 5(2) (b)

[57] Ibid, s 5(2) (c)

[58] Ibid, s 5 (2) (f)

[59] Ibid, s 5 (2) (g)

[60] Ibid, s 5(2) (h)

[61] Ibid, s 5(1) (a)

[62] Ibid, s 5 (1) (h)

[63] Ibid, s 5 (1) (g)

[64] N. Ghosh, comparative Administrative Law (Calcutta,1918) p.641-42(Tagroe Law Lectures)

[65] Radhakant Nayak-Administrative Justice in india,p-30

[66] Supra note 8

[67] Supra note 9

[68] Supra note 39

[69] Supra note 40

[70] Supra note 41

[71] Supra note 1

[72] Supra note 2

[73] http:// groundviews.org/2013/01/10/a-legal-primer-the-impeachment-of-the-chief-justice-in-Sri-Lanka/

[74] Article 35 (1) of 1978 0f constitution-While any person holds office as President, no proceedings shall he instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity.

[75] Senarath V Chandrika Bandarnayake Kumaratunga, SCFR 503/2005.

[76] Supra note 8 and 10

[77] Supra note 40 and First Amendment to the 1978 constitution- Article 140 of the Constitution of the Democratic Socialist of Sri Lanka is hereby amended by the insertion immediately at the end of that Article of the following proviso:-

“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”

[78] Article 32 (2) of the Indian constitution-(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

[79] 69 NLR 265

[80] UAT Udayanganie, Article on  Ensuring Good Administration through the development of judicial review in Sri Lanka p-186 para 5.

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