Mapeo

In applying the rules o f standing, in respect o f judicial review applications, the Sri Lankan judiciary has been guided by British p r a c t i c e . H o w e v e r , in view o f the fact that the constitutional structures o f the two jurisdictions are different in character it is relevant to question the prudence o f the Sri Lankan judiciary following British practices, particularly, with reference to the rules o f standing. The Indian experience in this regard, it is submitted, would be o f far greater practical utility as far as Sri Lanka is concerned.

In the United Kingdom the notion o f the sovereignty o f Parliament is well established, albeit, the notion has been considerably whittled down in recent times as a result o f that country becoming a member o f the European U n i o n . I t is also the view of some academics, therefore, that the ultra vires rule should still be the basis o f judicial

Cane, Peter, An Introduction to Administrative Law [Oxford: Clarendon Press, 3"^^ edn., 1996], at p. 51.

See, e.g., Cooray, Joseph A. L., Constitutional and Administrative Law o f Sri Lanka

[Colombo: Sumathi Publishers, 2"^ edn., 1995], pp. 423 - 426.

See, e.g., Barnett, Hilaire, Constitutional and Administrative Law [London: Cavendish Publishing Limited, 1995], pp. 241 - 242 and pp. 550 - 551.

r e v i e w . H o w e v e r , this notion o f Parliamentary sovereignty appears to be difficult to sustain, even in the United Kingdom particularly after the Human Rights Act 1998 comes into operation. In any event, even prior to this Act, it has been contended by many that the ultra vires doctrine is not the basis o f judicial review.^^ In Sri Lanka, on the other hand, sovereignty is in the people. The Constitution is logically prior to the notion o f Parliamentary sovereignty. Article 3 o f the Constitution states as follows:

“5. In the Republic o f Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers o f government, fundam ental rights and the franchise. ”

Article 4 o f the Constitution refers to the manner in which sovereignty is to be exercised. It is to the following effect:

“4. The Sovereignty o f the People shall be exercised and enjoyed in the follow ing manner

(a) the legislative power o f the People shall be exercised by Parliament, consisting o f elected representatives o f the People and by the People at a Referendum;

(b) the executive power o f the People, including the defence o f Sri Lanka, shall be exercised by the President o f the Republic elected by the People;

(c) the judicial power o f the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognized, by the Constitution, or created and established by law, except in regard to matters relating to privileges, immunities and powers o f Parliament and o f its members, wherein the judicial pow er o f the People may be exercised directly by Parliament according to law;

See, e.g., Forsyth, Christopher, 'O f Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty o f Parliament and Judicial Review’ [1996] C. L. J. 122;

Elliott, Mark, ‘The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle o f Administrative Law.’ [1999] C. L. J. 129, and ‘The Demise o f Parliamentary Sovereignty? The Implications for Justifying Judicial Review’ (1999) 115 L. Q. R. 119.

See, e.g., Oliver, Dawn, Is the Ultra Vires Rule the Basis o f Judicial Review? ’

[1987] P. L. 543’, Galligan, D. J., 'Judicial Review and the Textbook W riters’ (1982) 2 O. J. L. S. 257’, Laws, Sir John, Law and Democracy

’/"/PPiy

P. L. 72 and ‘Illegality: The problem o f jurisdiction’m Judicial Review [London: Butterworths, 2"^ edn., 1997] edited by Supperstone, Michael and Goudie, James, chapter 4; Craig, Paul, Competing Models o f Judicial Review’ [1999] P. L. 428’, Jowell, Jeffrey, O f Vires and Vacuums: The Constitutional Context o f Judicial Review’ [1999] P. L. 44%.

(d) the fundam ental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs o f government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided for; and

(e) the franchise shall be exercisable at the election o f the President o f the Republic and the Members o f Parliament, and at every Referendum by every citizen who has attained the age o f eighteen years, and who, being a qualified elector as hereinafter provided, has

his name entered in the register o f electors. ”

It is, therefore, submitted that the constitutional structure o f Sri Lanka is different in character from that o f the United Kingdom. As the Sri Lankan Parliament does not possess a monopoly o f power,^^ the Constitution provides for a delicate balance o f power between the legislature,^^ the executive^* and the j u d i c i a r y . I t is in these circumstances that it is imperative that the judiciary should perform its function so as to safeguard the rights o f the citizen vis a vis the state.

This is in contrast to the position in the United Kingdom where, according to Forsyth, under their Constitution, “judicial review does not challenge but fulfils the intention o f Parliament. By their ready acceptance of ultra vires the judges show they are

See, e.g., Zafrullah, H. M., Sri L a n ka’s Hybrid Presidential and Parliamentary System & the Separation o f Powers Doctrine [Kular Lumpur: University o f Malaya Press, 1981]. See, e.g., Corea, Harindra, 'The Role o f Parliament in the Constitution o f the Second Republic (1978)’ in Ideas fo r Constitutional Reform edited by Amaratunga, Chanaka [Colombo: The Council for Liberal Democracy, 1989], pp. 37 - 44; de Silva, Colvin R.,

The Effectiveness o f Parliament as an Instrument o f Pluralist Democracy’ in Ideas fo r Constitutional Reform, pp. 45 - 66.

See, e.g., Dissanayake, Gamini, The Executive Presidency Under the Constitution o f the Second Republic (1978)’ in Ideas fo r Constitutional Reform edited by Amaratunga, Chanaka [Colombo: The Council for Liberal Democracy, 1989], pp. 281 - 288; Cooray, Joseph A. L., Constitutional and Administrative Law o f Sri Lanka [Colombo: Sumathi Publishers, 2"^ edn., 1995], pp. 163 -2 3 2 .

See, e.g., Cooray, M. J. A., Judicial Role Under the Constitution o f Ceylon/ Sri Lanka

[Colombo: Lake House Investments Ltd., 1982]; Cooray, Joseph A. L., Constitutional and Administrative Law o f Sri Lanka, [Colombo: Sumathi Publishers, 2"^ edn.,1995], pp. 515 -5 2 6 .

the guardians, not the subverters, o f this existing constitutional order.”^^ It is our view, however, as discussed in chapter 2, that the ultra vires doctrine is not the basis o f judicial review even in the United Kingdom.

The rules o f standing, therefore, constitute an important means by which the judiciary is afforded an opportunity to articulate rights consciousness in Sri Lanka. Unfortunately, however, it appears that the Sri Lankan judiciary was strongly influenced by the application o f British practices,^' in relation to the application o f the rules o f standing, inevitably resulting in detrimental consequences as far as advancing individual and community rights were concerned. This has been in marked contrast to the attitude demonstrated by the Indian judiciary in flexing the rules o f standing and the articulation o f a greater degree o f rights consciousness.^^

However, in recent years there has been a discernible trend where a more flexible attitude appears to be adopted by the Sri Lankan courts in relation to the requirement o f standing. The expansion o f fundamental rights jurisprudence may have, perhaps, had some influence on these developments.^^ It is relevant, therefore, to examine the Sri Lankan case law relating to the rules o f standing.

“ Forsyth, Christopher, 'O f Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty o f Parliament and Judicial Review’ [1996] C. L. J. 122, at pp. 136 - 137.

See, e.g., Kandy Omnibus Co. Ltd. v. Roberts, (1954) 56 N. L. R. 293, where a test similar to that adopted in Britain was used for the purpose o f determining standing.

See discussion at VII, infra.; see also, Wade, Sir William, Public Law in Britain and India [Bombay: N. M. Tripathi Private Ltd., 1992], pp. 45 - 51.

See chapter 9 for an analysis o f developments as a result o f the expansion o f fundamental rights litigation.

In Durayappah v. Fernando, ^ The Minister o f Local Government purported to dissolve the Jaffna Municipal Council exercising the powers granted to him by the Municipal Councils O r d i n a n c e . T h e petitioner who was the Mayor o f Jaffna sought to challenge the dissolution o f the council on the ground that the Minister had failed to grant the council a right to be heard in its own defence. It was the petitioner’s contention that this was a necessary precondition that should have been fulfilled prior to the dissolution o f the council. Lord Upjohn, delivering the opinion o f the Privy Council, was o f the view that “in the circumstances o f this case the Minister should have observed the principle

audi alteram partemF^^

Drawing a distinction between a decision which was void and one which was merely voidable and, therefore, not a nullity. Lord Upjohn expressed the opinion that the M inister’s decision, in the instant case, was one which fell into the latter category. His Lordship was o f the view that the decision was one which could stand unless successfully impeached:

“Being voidable it was voidable only at the instance o f the person against whom the order was made, that is the council. But the council have not complained. The appellant was no doubt mayor at the time o f its dissolution but that does not give him any right to complain independently o f the council. He must show that he is representing the council or suing on its behalf or that by reason o f certain circumstances, ... the council cannot be the p la in tiff .... That, however, is not suggested in this case. The appellant sets up the case that as mayor he is entitled to complain but as such he is plainly not. I f the council is dissolved, the office o f mayor is dissolved with it and he has no independent right o f complaint, because he holds no office that is independent o f the council.

C. (?. C.;,' d P # . L.

Section 277 o f the Municipal Councils Ordinance, No 29 o f 1947, as amended by Act N o l 2 o f 1959.

atp.352. zdzW., at p. 355.

Commenting upon the decision o f Durayappah v. Fernando, Craig^^ states:

"The Privy Council clearly does not wish the mayor to be able to challenge the dissolution o f the City Council. To arrive at this end the Privy Council draw a dichotomy between defects which any person having a legitimate interest can take advantage o f which were nullities, and those defects which only the person affected could raise. The term voidable was used to describe errors o f the latter type, and the court held that the case fe ll within this category. ”

Thus, Craig states that the distinction between a decision which was void and one which was voidable “manifested itself in the class o f claimant who could raise the invalidity, in the rules o f standing.”^^

Cooray^^ is also critical o f the decision o f the Privy Council in Durayappah v.

Fernando. He states that “the Privy Council adopted too strict a test with regard to legal standing in determining that the applicant was not an aggrieved person.” It has also been pointed out by de Smith^' that the decision in Durayappah v. Fernando was a ‘curious’ one. It has been observed that ‘[t]he case may be criticised for taking too restrictive a view o f the interests deserving o f procedural safeguards.

In Premadasa v. Wijewardena^^ the Supreme Court was called upon, inter alia,

to determine whether the rules o f standing precluded the applicant from seeking a writ o f

certiorari. Referring to the rules o f standing Tambiah, C. J., said:

Craig, P. P., Administrative Law [London: Sweet & Maxwell, 4**^ edn., 1999], at p. 664.

Cooray, Joseph A. L., Constitutional and Administrative Law o f Sri Lanka [Colombo: Sumathi Publishers, 2"^ edn., 1995], at p. 423.

de Smith, S. A., Woolf, The Rt. Hon. The Lord, and Jowell, Jeffrey, Judicial Review o f Administrative Action [London: Sweet & Maxwell, 5^^ edn., 1995], at p.630.

"The Law as to locus standi to apply fo r certiorari may be stated as follow s: The writ may be applied fo r by an aggrieved person who has a grievance or by a member o f the public, he must have a sufficient interest to make the application.

In Premadasa v. Wijewardena, the petitioner sought to apply for the purchase o f a house under the Ceiling on Housing Property Law /^ in terms o f which a tenant was entitled to purchase such a house. However, since a prior consent decree had been entered into by the petitioner, he ceased to be a tenant o f the premises and was merely enjoying the status o f an occupier o f the premises with the sanction o f the court. Thus, Tambiah, C. J., was o f the view that the petitioner was not a tenant at the time he applied to purchase the house, i.e., he was not a tenant at the relevant time. Therefore, he did not have a sufficient interest to seek a writ of certiorari against the Commissioner o f National Housing. This was because, in view o f the changed circumstances, the petitioner could only apply for a house in his capacity as a member o f the public; he could purchase a house only if the Commissioner o f National Housing had a surplus house to sell.

It was the view o f Tambiah, C. J., that the petitioner could not come within the class o f a person aggrieved. Thus, to be able to seek a writ of certiorari the petitioner should be able to demonstrate that he had a sufficient interest in the matter to which the application relates. In the instant case the petitioner had failed to demonstrate that his interest was greater than that possessed by a member o f the public. The petitioner, therefore, lacked a sufficient interest necessary to institute an application for a writ o f

certiorari.

at p. 343.

Ceiling on Housing Property Law, No 1 o f 1973. 80

The reasoning adopted by Tambiah, C. J., in relation to the application o f the rules o f standing is not free from criticism. What the petitioner sought was a writ o f certiorari

and not a writ o f mandamus. What was sought from the court was an order quashing the determination o f the Commissioner o f National Housing; an order directing the Commissioner to sell the house to the petitioner was never sought. R elief o f the latter type would be within the province o f a writ o f mandamus. It would be reasonable, therefore, to argue that the rules o f standing should be less rigid in the case o f a writ of

certiorari in comparison to the rules applicable for a writ o f m a n d a m u sAdditionally, the claimant was not seeking to vindicate his own rights but was, in fact, challenging the validity of government action. The parallel here is the distinction between a declaration as to rights and a declaration as to validity.

It is submitted that Tambiah, C. J., erred when his Lordship came to the conclusion that the petitioner lacked standing in this case. What was being challenged by the petitioner was the action o f the Commissioner o f National Housing, who purported to make a fresh determination, divesting certain houses, which were previously vested in him, consequent to a prior determination made by him. What the court was called upon to determine was the propriety of the Commissioner’s action; if the Commissioner’s action was illegal, then, a writ o f certiorari should have been granted. The issue o f

See, e.g., Harding, A. J., Public Duties and Public Law [Oxford: Clarendon Press, 1989], pp. 195 - 197, for an overview o f the requirements o f the rules o f standing in the common law in respect o f a writ o f mandamus.

See, e.g., Gregory v. Camden London Borough Council, [1966] I W. L. R. 899, where the plaintiff was denied standing to challenge a grant o f planning permission on the basis that he could not succeed unless he was able to demonstrate that the statute had been passed so as to benefit a class of persons encompassing him self or, in the alternative, that other private law rights had been infringed.

whether the petitioner should have been sold a house is not, it is submitted, relevant to the issue (in view o f the nature o f the relief sought).

Assuming, without deciding, that the petitioner had the same rights as a member o f the public in respect o f the right to purchase a house from the Commissioner it is our view that he would still have standing to seek a writ o f certiorari. It has not been denied that a member o f the public would be entitled to apply for the purchase o f a house and the Commissioner of National Housing could sell such a house - if it was so available. If the Commissioner made an illegal order, which in effect depleted his stock o f houses, then it stands to reason that the number o f houses available to be offered to the public would be reduced. In the circumstances if a member o f the public, entitled to apply for the purchase o f such a house, has no standing, then, no one would have a ‘sufficient interest’ for the purpose.

Assuming that the decision of the Commissioner was illegal, then, the court should have granted the petitioner a writ o f certiorari. The decision would not have had the consequence o f the petitioner being sold the house but would have been significant in advancing a rights culture in Sri Lanka. It is submitted that the Supreme Court erred when it dismissed the petitioners application for a writ o f certiorari on the basis o f the

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