17.12.2012 power (1)

To the Workshop of US AID

W E L C O M E

WHAT ARE WRITS• The term writ conveys a

form of command issued by a court in the name of the King. The prerogative writs which survived into the modern period are the (1) writ of cetiorari, (2) the writ of prohibition, (3) writ of mandamus, (4) writ of quo warranto and (5) writ of habeas corpus.

Nature of Prerogative RemediesWhy are they termed “Prerogative Remedies”• originally available only to the Crown in England, and

not to the subject.• The Crown could ensure that Public Authorities carried

out their duties, and the inferior tribunals kept within their proper jurisdiction.

• Essentially these remedies are for ensuring efficiency and maintaining order in the hierarchy of Courts, Commissions and authorities of all kinds.

• By the end of the sixteenth century, these remedies had become generally available to ordinary litigants.

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The Development of the Law since 1923 :- a) The requirement of ‘legal authority’ is no longer invariable, since extra-legal bodies are now sometimes subject to remedies; b) The remedies are now not limited only to rights of subjects in the sense of legal rights; c) Nor are the remedies limited to ‘subjects’ since non citizens also may make use of these remedies. d) This formula also refers to a ‘body of persons’ - plural – this is not the case with the principle applying equally to an individual official as well.

The Development of the Law since 1923

In this respect, the Sri Lankan Case of Harjani and Another Vs. Indian Overseas Bank and Other [2005] 1 Sri L. R. 167 is relevant, which sets out several aspects of the development of the law, in the Sri Lankan context.

Harjani and Another V. Indian Overseas Bank and Other

[2005] 1 Sri. L. R. 167READ THE FULL JUDGMENT

LAND MARK CASE

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judicial review is interwoven with the preservation of the rule of law. It demarcates the checks, balances and permissible area of an exercise of control, authority and jurisdiction over administrative actions of the Government and its organs

CertiorariCertiorari is a Latin term meaning to inform. It was a royal demand for information. Certiorari can be described as “one of the most valuable and efficient remedies.” Certiorari is an important prerogative writs in our Courts adopted under Constitution against the decisions of the authorities exercising judicial or quasi judicial powers. Such powers are exercised when the authorities fail to exercise the jurisdiction though vested in it/him or fail to correct the apparent error on the face of record or there is violation of the principle of natural justice.

WRIT OF PROHOHIBTION

The writ of Prohibition is issued

preventing from continuing the proceedings, as basically such

authority has no power or jurisdiction

to decide a case. Prohibition is an extra ordinary prerogative writ of a preventive

nature.

The underlying principle of PROHIBITION ISprevention is better than cure'. 1. Similar to a restraining injunction in Civil

Law. 2. A writ of prohibition is an order directed to an inferior Tribunal or other bodies forbidding it from continuing with a proceeding on the grounds

(i) proceedings are without jurisdiction or (ii) in excess of jurisdiction or (iii) contrary to the laws of the land, statutory or otherwise

Mandamus is an order to any Government agency, court or public authority issued whenever a public authority fails to perform a statutory duty

Quo Warranto

•

• X DON’T FUNCTION

Quo Warranto means “by what warrant or authority”. Writ of Quo Warranto is issued against a person who occupies a public seat without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office.

Types of Writs at a glance

Writ of Certiorari – is a Writ to quash or set aside that which is invalid or illegal and ultra vires. This is now referred to as a “Quashing Order” in England. Writ of Prohibition – as the name denotes, is a Writ to Prohibit acts which would be in excess of jurisdiction. This is now referred to as a “Prohibiting Order” in England. Writ of Mandamus – to compel a public authority to perform a public duty. This is now referred to as a “Mandatory Order” in England.The Other Writs – not as frequently made use of are :- Writ of Procedendo – is a Writ to Order the valid exercise of power. Writ of Quo Warranto – is a Writ to challenge the authority of a person holding public office. Writ of Habeas Corpus – is a Writ to obtain the production of a body of a person for a determination on the legality of his / her custody or detention.

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HA HABEAS CORPUS eas CorpusThe Latin term Habeas Corpus means 'have the body'. It enables the immediate determination of the freedom of the corpus. Habeas Corpus is a process for securing liberty against illegal and unjustifiable detention. Its objects include providing a prompt and effective remedy against illegal restraints. The writ of Habeas Corpus can be filled by any person on behalf of person detained or by the detainee himself

COCNSTITUTION140. Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect 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:

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

MENDIS VS FOUZY 1978-79 2 SLR 322An important decision which lays down the rules as to who are subject to the control of writ jurisdiction.

The Writ Jurisdiction in Sri Lanka

However, there is still a concurrent jurisdiction for the Court of Appeal.

Weragama V. Eksath Lanka Wathu Kamkaru Samithiya (1994) 1 Sri. L. R. 293

Nilwala Vidulibala Company (Pvt.) Ltd V. Kotapola Pradehsiya Sabha

(2005) 1 Sri. L.R. 296Timely Justice

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NILWALAVIDULIBALA COMPANY (PVT) LTD. Vs KOTAPOLA PRADESHIYA SAB 2005 SLR 1V 296.

In terms of the 13th Amendment, any subject not specified in the Provincial List (List 1) or the Concurrent List (List III) is deemed to be included in the Reserved List. In this Instance as there is no reference to hydro power or grid connected power in List 1 or List III, it is clear that these are Reserved Subjects. Writ jurisdiction conferred on the Provincial High Court, is concurrent with. the jurisdiction of the Court of Appeal under Article 140, and the latter has not been diminished by the 13th Amendment."Relief sought is for the exercise of power in relation to hydro power generation which is not a subject in the Provincial List of the 13th Amendment, therefore the Provincial High Court has no jurisdiction to entertain this application under Article 140, of the constitution the Court of Appeal could hear and determine applications of this nature."

The phraseology "according to law" appearing in the enabling Article 154P of the Constitution should be interpreted to mean as according to English law. The writs specified in section 42 of the Courts Ordinance are unknown to Roman-Dutch and Ceylon law and should be issued according to English law.

Abdul Thassim v. Edmund Rodrigo (Controller of Textiles) [1 (1947) 48 N. L. R. 121.]

Amenability to judicial review

• The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function.

• In R v Panel for Takeovers and Mergers Ex p Datafin [1987] 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it is in fact operated as an integral part of a governmental framework for regulating Mergers and Takeover, while those affected had no choice but to submit to its jurisdiction.

Ouster clausesSometimes the legislator may want to exclude the powers of the court to review administrative decision, making them 'final', 'binding' and not appealable. R (Cowl) v Plymouth City Council. However, the courts have consistently held that none but the clearest words can exclude judicial review

Reasons to be givenThey cannot avoid scrutiny by courts by failing to give reasons.

The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme Court are not above law and they are bound by the decisions which are the law of the land declared by them under the writ petitions. Thus, the constitutional remedies provided under the constitution operate as a check and keeps the administration of government within the bounds of law.

The Grounds of Review for Certiorari

1) Want or Excess of Jurisdiction – the doctrine of Ultra Vires

What is outside jurisdiction is liable to be set-aside.Offending acts are condemned simply because they are unauthorized.

Bangamuwa V. S.M.J. Senaratne, Director General of Customs [2000] 1 Sri. L.R. 106

Wijepala Mendis V. P.R.P. Perera and Others [1999] 2 Sri. L.R. 110

Vallibel Lanka (Pvt.) Ltd V. Director General of Customs

[S.C. Minutes of 29/8/2008]

Timely Justice Effecting Change through building the Capacity of the Junior Bar

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2) Contravention of the Principles of Natural Justice The three expressions of Natural Justice a) The right to be heard – Audi Alteram Partem This is an aspect of participatory democracy. Before a person is deprived of certain privileges / liberties / property / livelihood etc., he must be allowed to present his side of the picture. This includes :-

•Notice of the Charge;•Disclosure of all relevant material;•Oral hearing;•Time to prepare;•Right to representation;•Right to summon witnesses;•Availability of an Appeal and time Timely Justice

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The right to be heard – Audi Alteram Partem ……

Latiff V. Land Reform Commission [1984] 1 Sri. L.R. 118

Manawadu V. Attorney General [1987] 2 Sri. L.R. 31

Blanka Diamonds (Pvt.) Ltd. V. Coeme [1996] 1 Sri. L.R. 200

Kegalle Plantations Ltd V. Silva and Others [1996] 2 Sri. L.R. 180

Premaratne V. University Grants Commission and Others [1998] 3 Sri. L.R. 397

Pure Beverages Company Executive Officers Association V. Commissioner of Labour [2001] 2 Sri. L.R.258


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b) The Rule Against Bias – Nemo Judex in Causa sua potest This rule lays down that no man should be a judge of his own cause.

J.B. Textiles Industries V. Minister of Finance and Planning

[1981] 1 Sri. L.R. 156

Geeganage V. Director General of Customs [2001] 3 Sri. L.R. 179

Neidra Fernando V. Ceylon Tourist Board and Others [2002] 2 Sri. L.R. 169

Circumstances which cause biasa) Pecuniary Interest by a decision maker in a matter subject to his discretion b) Professional or family interestc) Intermingling of Functions – where the subordinate body and the appellate body have common membersd) Previous knowledge of the issues or persons concerned

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c) The right to receive reasons. Courts have been of the consistent view that the requirement to provide reasons is an integral part of good administration. The Court have further developed this concept, and now demand that not only should there be reasons provided, but also that the reasons provided must be adequate. M. Deepthi Kumara Gunaratne and Other V. Dayananda Dissanayake, Commissioner of Elections and Another [Supreme Court Minutes of 19/3/2009]

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Sirimasiri Hapuarachchi and Others V. Dayananda Dissanayake, Commissioner of Elections and Another [Supreme Court Minutes of 19/3/2009] “On a consideration of our case law in the light of the attitude taken by Court in other Countries, it is quite clear that giving reasons to an administrative decision is an important feature in today’s context which cannot be lightly disregarded. Moreover, in a situation where giving reasons have been ignored, such a body would run the risk of having acted arbitrarily, in coming to their conclusion.”“In such circumstances to deprive a person of knowing the reasons for a decision which affects him would not only be arbitrary but also a violation of his right to equal protection of the Law”. Central Bank of Sri Lanka and Others V. Lankem Tea and Rubber Plantations (Pvt.) Ltd. [Supreme Court Minutes of 5/6/2009]


3) Error on the face of the record This can be classified as an ancient head of judicial review, and to some extent one could say this is now redundant in view of the wide interpretation given in the Anisminic Case by the House of Lords where it has been held that Error of Law on the face of the Record is a species of Ultra Vires in the wider sense. Brought in the question of ‘right’ or ‘wrong’ as opposed to ‘lawful’ or ‘unlawful’.

Dissanayake V. Kulatillake 59 NLR 310

Kundanmals Industries V. Commissioner of Labour.

[1994] 3 Sri L.R. 20“material other than which appears in the record could not be used by an inferior tribunal”

Jayawardena and anther V. Pegasus Hotel of Ceylon Ltd. [2004] Vol. X Part II BALJR 21


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4) Unreasonableness The Wednesbury Test of UnreasonablenessAssociated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 at 229

Lord Greene:"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey these rules, he may be truly said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v. Poole Corporation (1926) Ch. 66 gave the example of the red haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another,"

Podimahaththaya V. The Land Reform Commission and Another (1990) 2 Sri L.R. 416


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5) Legitimate Expectation First mentioned in the English Case of Schmidt V. Secretary of Home Affairs in 1969

The basic principle behind the doctrine is rather like the idea behind estoppel in private law; that if possible the law ought to require people to keep to their promises or representations, even where the promise does not constitute a contract.

More, specifically where a public body has represented to an individual that it will or will not do something, then [even though the body has not bound itself to follow that representation] it ought not to be allowed to disappoint the representation at least unless it gives the individual a hearing first.

Mowjood V. Pussadeniya and Another 1987 2 Sri. L.R. 287

Sannasgala V. The University of Kelaniya and Members of the University Senate 1991 2 Sri. L.R. 193 at 186

Wickremaratne V. Jayaratne and Other 2001 3 Sri. L.R. 161

Bastian Thirimawithana and Others V. The Urban Development Authority and Others C.A. (Writ) Application No. 3782005 – C.A. Minutes of 26/10/2006


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6) Proportionality Emerging ground of review - and is very relevant in the modern context.

This is a balancing act by Court between the restrictions to the individual right as a result of the administrative action and the corresponding advantage to the State.

Lord Diplock in R v. Goldsmith [1983] 1 WLR 151 at 155

made an indirect reference to a “Steam hammer to crack a nut”

R V. Barnsley, ex p. Hook [1976] 1 WLR 1052 (CA

R V. Secretary of State for the Home Department ex parte Benwell

[1984] 1 CR 723 at p. 736

But in R v. Home Secretary ex p. Brind [1991] 1 AC 696


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Proportionality ….. ‘structured proportionality’ test

a) Whether the legislative objective is sufficiently important to justify limiting a fundamental right.b) Whether the measures designed to meet the legislative objective are rationally connected to it.c) Whether the means used to impair the right or freedom are no more than is necessary to accomplish the objective. [the necessity question].d) Whether a fair balance has been struck between the rights of the individual and the interests of the community which is inherent in the whole of the convention. [Sometimes called narrow proportionality]

Premaratne V. University Grants Commission and Other [1998] 3 Sri. L.R. 395 at 414

Caldera V. University of Peradeniya and Others [C.A. Writ No. 572/2004 C.A. Minutes of 25/4/2005]

Neidra Fernando V. Ceylon Tourist Board and Others [2002] 2 Sri. L.R. 169


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The Grounds of Review for Certiorari Proportionality….

An Article titled “Proportionality : Neither novel nor dangerous” by Jeffrey Jowell and Anthony Lester Q.C., in its concluding paragraph states : “The use of proportionality under so many different labels and in so man different contexts in English law demonstrates its general acceptance as a general principle of law. Like all grounds of judicial review, it cannot be mechanically applied. Its application requires judgment in the light of the circumstances of the particular case. However, its application would affirm an important principle of justice by which all administrative action should be expected to be judged : that the decision maker must exercise a proper sense of proportion in making a decision and that individuals affected by decisions should not be required to bear a burden that is unnecessary or disproportionate to the ends being pursued”


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Defences to Writ Applications

1) Delay – Laches One cannot sleep over one’s rights. The relevance of the matter also could get diluted with the passing of time.

Biso Menika V. Alwis [1982] 1 Sri. L.R. 368

Trustees of the Taiyabbhai Children’s Trust V. Attorney General [1997] 2 Sri. L.R. 341

However, in the case of a patent want of jurisdiction, the issue of delay may be overcome.

Sebastian Fernando V. Katana Multi-Purpose Co-operative Society and Others [1990] 1 Sri. L.R. 342

“Delay by itself will not defeat an application. It is only a discretionary bar to be applied having regard to the conduct of parties, the issues involved and the substantial prejudice which may result in varying the impugned order”.


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Delay – Laches….

Dissanayake V. I.O.K. Fernando and another 71 NLR 356

“Where there has been delay in seeking relief by way of Certiorari, it is essential that the reasons for the delay should be set out in the papers filed …”


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2) Necessary Parties Necessary parties include the parties making the Order, those benefiting from the Order and those aggrieved by the Order.

Gnanasambanthan V. Rear Admiral Perera and Others [1998] 3 Sri L.R.169

Abaydeera and Others V. Dr. Stanley Wijesundera

[1983] 2 Sri L.R. 267

Rawaya Publishers and Other V. Wijedasa Rajapaksha, Chairman Sri Lanka Press Council and Others [2001] 3 Sri L.R. 213

Farook V. Siriwardena and Others

[1997] 1 Sri L.R. 145


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3) Alternative Remedies There is a requirement to exhaust alternative remedies, before invoking the Writ Jurisdiction. But the Alternative Remedy must be an adequate remedy.

Linus Silva V. the University Council of the Vidyodaya University

64 NLR 104

Somasunderam Vanniasingham V. Forbes and Another [1993] 2 Sri. L.R. 362


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4) Futility If the grant of relief will be futile, then the Court will not grant relief.

Sethu Ramasamy V. A.E.G. Moregoda 63 NLR 115

Siddeek V. Jacolyn Seneviratne and Others

[1984] 1 Sri. L.R. 83

Wijesiri V. Siriwardena [1982] 1 Sri. L.R. 171


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5) Preclusive Clauses The Proviso to Article 140 of the Constitution : “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”. For example by Section 24(1) of the Commission to Investigate Allegations of Bribery or Corruption Act No. 19 of 1994 – the Writ Jurisdiction is vested with the Supreme Court. Article 61A of the Constitution, introduced by the 17th Amendment – If challenging an Order of the Public Service Commission, that must be before the Supreme Court. But in the recent decision of Priyadarshini V. the Commissioner General of Inland Revenue and Others [C.A. (Writ) Application No. 540/2011, C.A. Minutes of 29/6/2012], the Court of Appeal, in a Writ Application went as far as to issue a Writ of Mandamus on the Public Service Commission, to antedate the appointment of the Petitioner.


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6) Uberrimae fides You have to come to Court with clean hand and utmost good faith. There can be no Suppression or Misrepresentation of material Facts and Circumstances.

Alphonso Appuhamy V. Hettiarachchi 77 NLR 131

The State Graphite Corporation V. K.S.D.P. Fernando

[1981] 2 Sri L.R. 401

Sumith Kalugala V. Y.P. De Silva [1998] 3 Sri L.R. 141


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7) Acquiescence or Waiver

If there is found to be acquiescence by the Petitioner, in the matter under review, then Writ will not lie. However, Courts will look at this Defense, in conjunction with the other Defenses before denying relief.

Kandy Omnibus Co. Ltd. V. Roberts 56 NLR 293


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8) Lack of Standing – Locus Standi Traditionally Courts looked at the nexus between the Petitioner and the Complaint. However, the Courts of Sri Lanka, like so many other jurisdictions have expanded the boundaries of standing and this has been further fuelled by the popularity of Public Interest Litigation.

Wijesiri V. Siriwardene [1982] 1 Sri L.R. 171

Environmental Foundation V. Minister of Public Administration

[1997] 2 Sri L.R. 306

National Olympic Committee Case [C.A. (Writ) Application No. 1312/2004 reported in the BASL News of August 2004


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Common Mistakes made in a Writ Application


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17.12.2012 power (1)

Law

writ of prohibition

term writ

writ of mandamus

writ of cetiorari

writ of prohohibtion

writ of procedendo

writ of quo warranto

glance writ of certiorari