Part I
The Judges remain the ultimate guardians of the rights of the citizens. As guardians of these sacred rights upon which the edifice of Democratic government is built, the Judges accept their responsibility to expand and contract constitutional provisions, with a commitment to strengthen fundamental principles which underpin democratic government. Unless there is such a commitment by the Judiciary, any solemn declarations of Human Rights in the Constitution may remain in the realm of mere platitudes, rhetoric and solemn political declarations of governments seeking to hoodwink both the international community and their local constituents.
By making the Chapter on fundamental rights and freedoms justiciable in terms of Articles 17 and 126 of the 1978 Constitution, it has opened up new vistas for the Supreme Court to give more meaningful content to the concept of sovereign power of the people by keeping the executive branch of the Government in check. Fundamental rights are one manner of the exercise of sovereignty. All organs of government are enjoined to respect, secure and advance them. There are a large number of Supreme Court's judgements which demonstrate that the scope of human rights, as formulated in Constitutional provisions, is capable of significant expansions through their judicial interpretations.
Accordingly, not only rules of procedure have been relaxed, without doing violence to the spirit of those rules, but also in respect of substance, too, particular constitutional provisions where possible, have been given expansive or creative interpretation. Where the language of a particular provision is capable of more than one interpretation perhaps when considered in the context of other provisions, then the interpretation which is more consistent with the rights and freedom of the citizen appear to have been used. Moreover provisions have been expansively interpreted (a) in the light of fundamental principles underlying the Constitution and / or those provisions, or implicit in those provisions, or (b) having regard to the international obligations of the State. Given below within the limited space provided are only some of Supreme Court's FR related judgements which demonstrate the innovative exercise of their judicial powers.
New Doctrine on Equality
Today equality appears to be the new frontier of judicial activism. One important point to notice at the outset is that equality is not only a right but also an evaluative tool for the courts. Equality principle is found in Article 12 of the Fundamental Rights Chapter of the 1978 Constitution. The new doctrine on equality which find succor in the concept of the Rule of Law was recognized by the Supreme Court of India starting with Royappa v State of Tamil Nadu, decided in 1979. From a positivistic point of view, accordingly equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies: one belongs to the rule of law in a Republic while the other to the whim and caprice of an absolute monarch. - In the final analysis new doctrine mandates administrative justice.
In Sri Lanka, the early cases of Bandara v Premachandra and Jayasinghe v AG decided in 1993 and 1994 respectively, the Supreme Court underscored the principle that where a person is deprived of procedural fairness in administrative matters, that person’s right to equal protection of the law is violated. In Jayasinghe the Supreme Court found the undue delay in charge sheeting (14 years) and concluding disciplinary proceedings against a co-operative employee who was under interdiction without pay for that whole period was clearly violative of the principle of equal protection of the law. Justice Fernando delivering the unanimous judgement of the Court stated: “the aim of the protection of the law is to ensure justice and so when there is no inordinate delay it can equally truly be said: protection delayed is protection denied. Jayasinghe v Attorney General and Perera v Jayawickrema demonstrated the ineffectiveness of the guarantee in Article 12(1) when the doctrine of classification is rigidly applied. 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 amounts to a violation of the Clause, thus giving rise to a constitutional remedies in addition to remedies in administrative law. In Sri Lanka ‘constitutionalization’ of administrative law began less than a year after Jayasinghe.
In contrast to both Bandara and Jayasinghe, Gunaratne v Ceylon Petroleum Corporation, decided in 1996 found the violation of Article 12(1) without reference to the classification of the doctrine: a unanimous three - judge Bench found a violation purely on the basis of administrative discretion.
The Court found that the termination of a petroleum dealership awarded to the petitioners had been without sufficient reasons. There is today a vast body of jurisprudence on equality that upholds the principles stated in Gunaratne. Most of the cases that have come up for adjudication relate to employment. In all those cases the Court has emphasized the need for fair and reasonable administrative procedures and substantive rules, such as schemes of recruitment and promotions. An interesting feature of this development is the extension of the principle of public trust to the air waves as well. In two seminal judgements Athuokorala v AG (The Sri Lanka Broadcasting Authority Bill case), and Ratnayake v Sri Lanka Rupahavahini Corporation, the Supreme Court held that the State holds the air waves on public trust and must therefore exercise its regulatory powers over the airwaves in a fair and reasonable manner; not to do so would result in violation of inter alia Article 12.
The new doctrine is not used in a manner that excludes the traditional reasonable classification doctrine but rather in a complementary manner. It is a re-conceptualization of the guarantee of equality against the arbitrary breaches by the state of the public trust in which state power is reposed. In conclusion it may be stated that the new doctrine is a reiteration of the social contract on which the system of democratic governance is based. Reasonableness in decision making has been incorporated into the concept of equal protection in Sri Lanka (Priyanganie v Nanayakkara). The ‘no evidence’ rule is now a part of the judicial policy of preventing abuse of discretionary power and has been accepted as such in Sri Lanka the Supreme Court of Sri Lanka now recognizes ‘no evidence’ as a violation of Article 12(1) (Chandrasena v Kulathunga). The principle of proportionality has been recognized as a component of equal protection (Gunaratne v Ceylon Petroleum Corporation).
It is hoped that the growing body of constitutional jurisprudence on administrative justice would have the salutary effect of self correction by state authorities. It is also interesting note that a fair number of fundamental right cases filed today relate to denial of equality through ordinary executive or administrative action. In a society such as that in Sri Lanka, with the social and economic diversity, it is also necessary to view equality from the point of view of social justice. Therefore the Supreme Court's views on affirmative action are also encouraging. It also means that not only an individual right but also the rights of social and political groups to equality have to be realized.
Expanding Canvass of Judicial Review - Writs
The role of the Court in judicial review is no longer confined to the way in which an administrative decision was reached but extends to its substance and merits as well. Presently, Article 141 of the 1978 Constitution empowers the Court of Appeal to grant and issue orders in the nature of writs of Habeas Corpus and Article 140 of the Constitution vests the power to issue other writs in the Court of Appeal. The 13th Amendment to the Constitution in 1987 by Article 154P (4) empowers the Provincial High Court to issue writs. Moreover, in terms of First Amendment to the Constitution effected in 1978, writ jurisdiction is also conferred on the Supreme Court too.
The Supreme Court in W. K. C. Perera v Professor Edirisinghe had held that: ‘by entrenching the fundamental rights in the Constitution the scope of the writs has become enlarged and is implicit in Article 126(3). That judicial pronouncement must be regarded as a major jurisprudential advance in that it brought into focus the significance of the phrase ‘orders in the nature of writs’ in Article 140 in the context of a Constitution that vest sovereignty in the people as opposed to ‘prerogative writs’ known to English law. It also signified a welcome departure from the traditional vires based Judicial review of administrative action to a right based system of review.
The premise pursued by the Sri Lankan writs courts prior to and even after the 1978 Constitution of Sri Lanka shutting the review by way of writ in cases involving contractual relationships and commercial nature even where the alleged offending party was a public body. Jayaweera v Wijeratne; de Silva v National Water Filling and Drainage Board; linked as that judicial approach was to the concept of prerogative writs known to English law in turn connected to the concept of crown or its agents is what stood judicially rejected in Heather Mundy v Central Environmental Authority and Others, where Justice M.D.H. Fernando held as follows:
“The Jurisdiction conferred by Article 140 however is not confined to prerogative writs or extraordinary remedies but extends subject to the provisions of the Constitution to orders in the nature of writs. Taking in the context of our Constitutional principles and provisions these orders constitute one of the principal safeguards against excess and abuse of power, mandating the judiciary to defend the sovereignty of the people enshrined in Article 3 against infringement or encroachment by the executive, with no deference due to the crown and its agents”.
The jurisdictional impact of the Supreme Courts approach in that case is reflected in a series of subsequent decisions of the Court of Appeal. There is in these decisions a noticeable shift of emphasis from the nature of the body whose act or decision is sought to be impugned and or the nature of the relationship between the said body and the person seeking the intervention of the Court to the nature of the function performed by the said body when it carried out the act or made the decision sought to be challenged. The test is: was the function of the body in question public in nature? The Constitutional principles and provisions have shrunk the area of administrative discretion and immunity and have correspondingly expanded the nature and scope of the public duties amenable to Mandamus and the categories of wrongful acts and decisions subject to the Certiorari and Prohibition as well as the scope of judicial review and relief.
(Prof. Sarath Mathilal de Silva is a regular columnist discussing legal matters that he thinks are useful to readers)
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