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 2

The person applying for an order in the nature of a writ must be a person entitled to do so, or else the application will be dismissed on that ground alone. The question posed is whether the petitioner has sufficient locus standi to make the application. Locus standi means the statues of a litigating party. In other words every applicant for certiorari should satisfy that (a) he has an interest in the matter. (b) he will suffer if the writ is not issued. (c) his rights are being affected by the decision made by the tribunal or the administrative body. Certiorari, on the ground of ultra vires (and probably on the ground of error of law on the face of the record also), is granted only at the instance of a person ‘aggrieved’ by the order sought to be quashed. But ‘aggrieved person’ has received a wide interpretation. He need not necessarily be a person who was entitled to be heard or was a necessary party in the proceeding which culminated in the impugned order. However, where failure of natural justice is the ground on which the application is made, ordinarily only the party in respect of whom such failure took place is entitled to certiorari (Durayappah v Fernando).

Locus standi for an order in the nature of a writ of prohibition will probably be the same as for certiorari. Similarly mandamus is issued on the application of a petitioner who has a sufficient locus standi in the matter. Sufficient locus standi in this context seems to be present only if the respondent owed a duty in law to the particular petitioner to exercise the power in question or to do the physical act in question. If no duty was owed to the particular person who applies for mandamus the remedy does not lie. (Weerasinghe v Samarasinghe -1966). A petitioner seeking mandamus should have a bona fide personal interest in the performance of the duty by the respondent. Quo warranto can be applied for only by a person having locus standi, namely by a person having personal interest in the matter. It is usually sought by a person who competed along with the respondent for the office in question, or by a person who is entitled to vote where the office was filled by an election. Habeas corpus is usually sought by a relative or friend of the corpus in respect of whom the application is made or even by the corpus himself.

Certiorari will be granted only if two types of persons have been joined as respondents to the application. Firstly, the person or authority whose exercise of power is sought to be quashed should have been made respondent to the application. Secondly, for certiorari to lie, it is imperative that all those persons who have been benefitted by the impugned order should have been made respondents to the application. Every person whose rights and status could be adversely affected by the granting of the writ is a necessary party to the application therefor. The failure to make a necessary party a respondent is fatal. If the omission is discovered during the pendency of the application for the writ the petitioner is well advised to apply to Court to add such party as a respondent. Such an application for addition will be allowed only if the application is not yet ready for final disposal by the Court. Where a party to an application for a writ dies pending the application, his successors in interest namely, his heirs are substituted to enable the Court of Appeal (or Provincial High Court) to thereafter hear and determine the said application for the writ. Whether it is a party petitioner or a party respondent who dies, substitution if necessary must be effected.

Under the Supreme Court Rules, 1978 and under Rule 3 of the Court of Appeal (Appellate Procedure) Rules 1990, the pleadings by the petitioner and the respondent are respectively the petition and objections. Additional objections, counter affidavits, further papers and amendment of pleadings already filed is permissible with the leave of the Court. An application made prematurely for relief in the nature of a writ will be dismissed for that reason alone. Since an order in the nature of a writ is a ‘discretionary remedy’. A petitioner seeking a writ is not entitled to relief as a matter of course, as a matter of right or as a matter of routine. Even if he is entitled to relief still the court has discretion to deny him relief having regard to his conduct: delay, laches, waiver, all are all valid impediments which stand against the grant of relief. An order in the nature of a writ can be refused by court on any one or more of the following grounds which are not quite clear cut and in that sense the court has discretion to allow or refuse such an order as a matter of legal policy: unexplained delay, suppression / misrepresentation of material facts, acquiescence, bad motive of petitioner, public inconvenience, futility and non-availability of alternative remedy.

Judicial Review of Administrative Action

In general administrative action involves the exercise of discretion. Administrative discretion, although it may be wide, is not unlimited. In the case of R V Electricity Commissioner the basis of the issue of a writ of certiorari was identified as follows:

“Any body of persons, having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially……” (A dictum of Adkin L.J.) However, later judgements gave varying interpretations of elements of the aforesaid dictum. Lord Reid in Ridge v Baldwin forcefully suggested that the duty to act judicially was not an independent element, but had to be inferred from the nature of the power conferred. This point is also effectively made by Professor H.W.R. Wade and endorsed by Professor S.A.de Smith.

In Council of Civil Service Unions v Minister of Civil Services, Lord Diplock laid down the broad contours of grounds for judicial review of administrative action as:

(a) Illegality (b) Irrationality (unreasonableness) (c) Procedural impropriety

However this classification is not exhaustive.

Illegality arises where the decision maker has not understood correctly the law that regulates his power. Illegality may arise for a number of reasons. The concept of Wednesbury Unreasonableness was developed in the case of Associated Picture House v Wednesbury Corporation, and stipulates that administrative discretion should be exercised reasonably and thus a person entrusted with discretion must direct himself properly in law. While defining irrationality the Lord Diplock equated it with wednesbury unreasonableness.

In addition to the above classification, Lord Diplock identified proportionality ‘as a concept that would become a ground for judicial review in future. Professor H.W.R. Wade in his Administrative Law (8th Edition) referring to its application in a number of European countries states that administrative measures must not be more drastic than is necessary for attaining the desired result. This principle has been adopted by the European Court of Justice and European Court Human Rights too.

The Judgement of Heather Mundy Case

Mark Fernando J who pronounced the judgement of Heather Mundy case reviewing the jurisdiction of the Court of Appeal under Article 140 of the Constitution stated as follows:

‘The jurisdiction conferred by the Article 140 however, is not confined to ‘prerogative’ writs or’ ‘extraordinary remedies’, but extends - ‘subjective to the provisions of the Constitution’ - to orders in the nature of certiorari etc. Taken in the context of our constitutional principles and provisions, these ‘orders’ constitute one of the principal safeguards against excess and abuse of executive power: mandating the judiciary to defend the Sovereignty of the People enshrined in Article 3 of the Constitution against infringement or encroachment by the Executive, with no trace of any deference due to the Crown and its agents”.

His Lordship further added in that judgement as follows:

“Further, this Court has long recognized and applied the Public Trust Doctrine; that powers vested in public authorities are not absolute or unfettered but are held in trust for the public to be exercised for the purposes for which they have been conferred, and that their exercise is subject to judicial review by reference to those purposes”.

As stated by Fernando J “in addition, executive power is also necessarily subject to the fundamental rights in general and to Article 12(1) in particular which guarantees equality before the law and the equal protection of the law. For the purposes of the appeals now under consideration, the ‘protection of the law’ would include the right to notice and to be heard. The link between the writ jurisdiction and fundamental rights is also apparent from Article 126(3)”

His Lordship added “These constitutional principles have shrunk the area of administrative discretion and immunity and have correspondingly expanded the nature and scope of the public duties amenable to mandamus, the categories of wrongful acts and decisions subject to certiorari and prohibition as well as the scope of judicial review and relief.”

At this stage it is useful refer to one recent judgement which captured the public attention widely. The case is SAITAM Judgement. This is an application to the Supreme Court by the Sri Lanka Medical Council (SLMC) from the order of the Court of Appeal. Upon the application made by the Petitioner to the Court of Appeal, the Court of Appeal had issued after hearing several writs namely, a writ of certiorari, quashing the decision of the SLMC refusing to provisionally register the petitioner, a writ of mandamus compelling the SLMC to provisionally register the petitioner as a medical practitioner and a writ of prohibition preventing the SLMC from refusing to provisionally register the petitioner as a medical practitioner. After hearing this appeal, the Supreme Court dismissed the appeal of the SLMC and affirmed the Court of Appeal judgement.

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


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