The Law of Writs: scope and application | Daily News


 

The Law of Writs: scope and application

Citizens’ main legal recourse to administrative injustice is by Writ.:

[Part I]

The actions of administrative bodies, individuals or tribunals are controlled in two ways;

(a) Political control exercised through Parliament.

(b) Legal control exercised through Courts

Judicial review of Administrative Actions fall within the controlling mechanism identified under (b) above Original Courts do not have the power and jurisdiction to review Administrative actions. The remedy that is available to a person who complains of an unlawful administrative action or inaction is to proceed to the appropriate supervisory Court to obtain a ‘Writ'.

Writs as a function tool, has a twofold character, firstly in its operation and effectiveness as a mode of judicial review, as well as being an instrument utilized for the purpose of balancing the competing interests of:

a). the need for the protection of the citizen from administrative excesses on the one hand and

b). from an opposite perspective, the need for the efficient and smooth conduct of administrative functions with minimal impediments.

The role of a court that is competent to review an administrative decision is limited to consider whether the order of the public body or administrative tribunal is legal or not. Unlike in the case of an appeal where an appellate court is expected to consider the merits of the decision, a court which reviews an administrative action and / or a decision will not be concerned on the merits favouring the applicant for Judicial Review. The term ‘Writ’ has been used historically, to refer to any form of order or command issued by a Court in the name of the King. Originally, ‘Prerogative Writs’ were those Writs brought by the king of England against his officers, in order to compel them to exercise their functions properly or to prevent them from abusing their powers. With the passage of succeeding centuries, prerogative powers of the Crown were converted into a detailed machinery for the protection of the subject.

Courts’ jurisdiction and procedural aspects

The Writs were introduced into the then Ceylon, by the Royal Charters of Justice of 1801(Section 82), 1833 (Section 36), the Administration of Justice Ordinance No. 11 of 1868, (Sections 22 and 23), with the exception of the Writ of Quo warranto, which was provided for by the Ordinance No. 4 of 1920, (Section 2). Article 121(3) of the 1972 Constitution also provided for the Supreme Court to issue writs. Until the enactment of the Administration of Justice Law No. 44 of 1973 the jurisdiction of the Supreme Court to grant and issue orders in the nature of these Writs, was derived exclusively from Section 42 of the Courts Ordinance.

Articles 140 and 141 of the Constitution of 1978 vests in the Court of Appeal the power to issue orders in the nature of the writs. Article 154P (4) (a) empowers each Provincial High Court to issue according to law ‘orders in the nature of habeas corpus’ in respect of persons illegally detained within the Province. Article 154P (4) (b) empowers each Provincial High Court to issue according to law, ‘orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo warranto, against any person exercising within the Province any power’ (under any law or under any statute of the Provincial Council of the Province) “ in respect of any matter set out in the Provincial Council List”. The Provincial Council List is List I in the 9th Schedule to the Constitution and it contains 37 subjects. It has been held that, ‘if a law or statute is covered by a matter in the (exclusive) Provincial Council List, but not otherwise the exercise of powers thereunder are subject to the writ jurisdiction of the Provincial High Court”. (M.D.H Fernando J., Weragama v Eksath Lanka Wathu Kamkaru Samithiya. In a few instances it is the Supreme Court that is vested with original jurisdiction to issue orders in the nature of writs. (for example, Section 18A of the Special Presidential Commissions of Inquiry Law, No.7 of 1978, as amended by the Special Presidential Commissions of Inquiry (Special Provisions) Act No.4 of 1978; Section 4 (1) of the Urban Development Projects (Special Provisions) Act No.2 of 1980; Section 43 (2) of the Finance Companies Act No.78 of 1988.

Against any final order or judgment of the Court of Appeal in an application for an order in the nature of a writ, a final appeal lies (as in any other civil or criminal matter) to the Supreme Court on a ‘substantial question of law’ under Article 128(1) provided the Court of Appeal grants leave to appeal to the Supreme Court. In the alternative, where the Court of Appeal has refused leave to appeal or where the Supreme Court is of opinion that the matter is a fit case for review by the Supreme Court, the Supreme Court may in its discretion, grant special leave to appeal to the Supreme Court: but where the Supreme Court is satisfied that the question to be decided is of public or general importance the Supreme Court is obliged to grant special leave to appeal. (Article 128(2)). Against any final order or judgment of a Provincial High Court in an application for an order in the nature of a writ, a first appeal lies as of right to the Court of Appeal. (Article 138(1) and 154P (6) of the 1978 Constitution; High Court of the Provinces (Special Provisions) Act No.19 of 1990, Section 9 (b)) In addition, the Court of Appeal has powers of revision and power to grant restitutio in integrum, in respect of any order or judgment made by a Provincial High Court in any such application. (Article 138(1) of the Constitution of 1978; High Court of the Provinces (Special Provisions) Act No.19 of 1990, Section 11). From a judgment of the Court of Appeal given in its appellate, revisionary or restitutionary jurisdiction, a final appeal lies (as in any civil or criminal matter decided by the Court of Appeal in its original or appellate jurisdiction) to the Supreme Court, either with the special leave of the Court of Appeal, or with the leave of the Supreme Court.

Any application for an order in the nature of a writ, which a Provincial High Court has jurisdiction to hear and determine, is always an application in respect of which the Court of Appeal also has jurisdiction, had it been made to the Court of Appeal. If the jurisdictions of both the High Court as well as the Court of Appeal have been separately invoked in respect of the same subject matter and both applications are pending, and the High Court has not yet commenced hearing the application before it, the Court of Appeal may, either proceed to hear and determine the application (in which case the proceedings in the High Court stand removed to the Court of Appeal for its determination), or direct the High Court to hear and determine such application . (High Court of the Provinces (Special Provisions) Act of 1990, Sections 12(a) and 12(b)). If an application for an order in the nature of a writ is filed in the Court of Appeal and if a Provincial High Court would have had jurisdiction in respect of it had such application been filed before such Provincial High Court, the Court of Appeal may, if it considers expedient to do so, order that such application be transferred to such Provincial High Court and such Provincial High Court will then have jurisdiction to hear and determine such application.

Procedure

By 1973 no specific detailed rules appeared to have been in use unlike as at present with regard to the procedure to be adopted in applications for writs. The practice by that time was by way of application to the Supreme Court by way of petition together with affidavit verifying the statement of facts relied upon in the petition. After the present Supreme Court came into existence under the Constitution of 1978, it has enacted, on different subjects, several sets of rules under Article 136 of the Constitution of 1978. These Rules determine the procedure inter alia, the subject of applications to the Court of Appeal for orders in the nature of writs. The first set of Rules made by the present Supreme Court on this subject is found in the Supreme Court Rules, 1978. The relevant provisions are found in Part IV of those Rules entitled “Writs and Examination of Records'. A second set of Rules made by the present Supreme Court on this subject is found in the Court of Appeal (Appellate Procedure) Rules 1990. The provisions are found in Part II of those Rules, entitled ‘Applications’, but the provisions in all the other Parts, namely Part I, III, IV and V are also relevant. This second set of Rules has not repealed Part IV of the Supreme Court Rules 1978.The procedure applicable to the applications to the Court of Appeal for orders in the nature of writs applies, mutatis mutandis, in respect of applications to Provincial High Courts for orders in the nature of writs.

The Civil Procedure Code which regulates the procedure of Civil Courts is not applicable’ to an application for a writ, although ‘its provisions would be a useful guide to the basis on which’ the Court should decide a matter of procedure not specifically provided for in the Rules (S.N. Silva J., Jayawardene v Dehiattakandiaya Multi-purpose Cooperative Society Ltd., His Lordship applied in an application for certiorari the principle embodied in section 406 of the Civil Procedure Code).Most of the important provisions relating to procedure and evidence are now contained in Rule3 of the Court of Appeal (Appellate Procedure) Rules , 1990, which replaced Rules 46 to 53 of the Supreme Court Rules, 1978. With regard to the failure to comply with Rule 46 of the Supreme Court Rules, 1978 (found now as Rule 3(1)(a) of the Court of Appeal (Appellate Procedure) Rules 1990) it has been held that “the requirements of Rule 46 must be complied with, but that strict or absolute compliance is not essential; it is sufficient if there is compliance which is ‘substantial’ - this being judged in the light of the object and purpose of the Rule. (M.D.H Fernando J., Kiriwanthe v Navaratne)

Rule 47 of the Supreme Court Rules 1978, required (except in an application for habeas corpus) the petition and affidavit of the petitioner to aver that ‘the jurisdiction of the Court of Appeal has not been previously invoked in respect of the same matter’ and it went onto provide that if such averment is false his “application may be dismissed” for that reason alone. Now, under Rule 3 (2) of the Court of Appeal (Appellate Procedure) Rules, 1990, similar provision exists. However, if the jurisdiction of the Court of Appeal had in fact been previously invoked, the averment should be to such effect, ‘disclosing relevant particulars of the previous application'. Thus although the rule of Res Judicata can be said to have been strictly embodied in Rule 47, the position seems to be different now under Rule 3(2), for, where jurisdiction of the Court had in fact been previously invoked, the averment could be to that effect (with disclosure of relevant particulars of the previous application) and if that is done, Rules 3(2) does not seem to bar a second application.

(Prof. Sarath Mathilal de Silva is a regular columnist discussing legal matters that he thinks are useful to readers)

 


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