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Mixing Writs with Rights: The Implications for Public Law in Sri Lanka
Published online by Cambridge University Press: 28 March 2023
Abstract
Beginning around 1990, judicial interpretation transformed public law in Sri Lanka by blending writs with fundamental rights. On the one hand, the Supreme Court has defined and expanded the constitutional right ‘to equality and equal protection of the law’ by drawing on administrative law concepts of natural justice, reasonableness, legitimate expectation, the duty to provide reasons for decision-making, and proportionality. On the other hand, judges have relied on the Bill of Rights as a standard to assess the decisions of public authorities in writ matters. This relationship between the writs and the rights has had important implications for the growth of public law in Sri Lanka. There has also emerged an incipient ground of review, ‘rights-based review’, as part of the writ jurisdiction, and the ‘public trust doctrine’ in fundamental rights review. Public law has been strengthened by the growth of public interest litigation and the use of new judicial remedies. This article looks at how the writ jurisdiction and rights-based review have evolved in recent times and considers how the two remedies have been used and fused, in a country where the legal and constitutional history has taken a different trajectory to some other post-colonial societies. The article concludes by arguing that this fusion of constitutional and administrative law concepts, together with the expansion in the rules of standing and the emergence of the new concepts of public trust doctrine and fairness, have generated a more robust legal framework that can better protect constitutional rights and democratic freedoms.
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- Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the National University of Singapore
Footnotes
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Executive Director, International Centre for Ethnic Studies, Sri Lanka. My thanks to Melissa Crouch and Ros Dixon for comments on previous versions of this paper, and to the Centre for Asian Legal Studies, Faculty of Law, National University of Singapore, for institutional support.
References
1 Gomez, Mario, ‘Blending Rights with Writs: Sri Lankan Public Law's New Brew’ [2006] Acta Juridica 451Google Scholar; Gomez, Mario, ‘The Modern Benchmarks of Sri Lankan Public Law’ (2001) 118 South African Law Journal 581Google Scholar.
2 In Re Mark Anthony Bracegirdle, Application for a writ of habeas corpus against the Deputy Inspector-General of Police (1937) 39 NLR 193.
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7 Jennings was to later regret his decision on the exclusion of a Bill of Rights. In a talk over the British Broadcasting Corporation's Overseas Service in 1961, he stated that a Bill of Rights would have been desirable for a society like Ceylon. He noted, ‘If I knew then, as much about the problems of Ceylon, as I do now, some of the provisions would have been different’: Cooray, Constitutional and Administrative Law of Sri Lanka (n 5) 509.
8 MJA Cooray, Judicial Role Under the Constitutions of Ceylon/ Sri Lanka: An Historical and Comparative Study, (Lake House Investments 1982).
9 Kodakan Pillai v Mudanayake 54 NLR 433, Mudanayake v Sivagnanasunderam 53 NLR 25, and Sundaralingam v I.P. Kankasanthurai 74 NLR 457 were unsuccessful attempts.
10 Kodakan Pillai v Mudanayake (1954) 54 NLR 433; Mudanayake v Sivagnanasunderam (1951) 53 NLR 25.
11 For a discussion of some of the social and political issues pertaining to the Up-country Tamils, or Tamils of recent Indian origin, see Daniel Bass & B Skanthakumar (eds), ‘Up-country Tamils: Charting a New Future in Sri Lanka’ (ICES 2019).
12 HL de Silva, ‘Pluralism and the Judiciary in Sri Lanka’, in Neelan Tiruchelvam & Radhika Coomaraswamy (eds), The Role of the Judiciary in Plural Societies (Frances Pinter 1987) 86, 87.
13 70 NLR 121.
14 Kodeswaran v Attorney General 72 NLR 337.
15 Nakkuda Ali v Jayaratne [1951] AC 66 (PC).
16 Ridge v Baldwin [1964] AC 322. See Sir William Wade & Christopher Forsyth, Administrative Law (11th edn, Oxford University Press 2014) 414–417.
17 Aseerwathan v Permanent Secretary, Ministry of Defence (case citation unknown); LG Weeramantry, ‘Digest of Judicial Decisions on Aspects of the Rule of Law’ (1965) VI(2) Journal of the International Commission of Jurists 307, 319–320.
18 Hirdramani v Ratnavale 75 NLR 67.
19 Liyanage v The Queen, where the Privy Council held that the constitution recognised a separation of powers and neither the legislature nor executive could usurp the powers that legitimately belonged to the judiciary: 68 NLR 265; 1 All ER 650 (PC).
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21 The Criminal Law (Special Provisions) Act, No 1 of 1962.
22 The Queen v Liyanage (1962) 64 NLR 313 (SC).
23 The PC observed: ‘The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to, or be shared by, the executive or the legislature’: Liyanage v The Queen, (1965) 68 NLR 265, 282; [1966] All ER 250, 658.
24 SA de Smith, ‘The Separation of Powers in a New Dress’ (1966) 12 McGill Law Journal 491, 492.
25 Cooray, Judicial Role (n 8) 157.
26 Sampanthan v Attorney General, SC Minutes (13 Dec 2018).
27 There was a brief reference to the power of the courts to issue writs in the 1972 Constitution's Article 121(3). The power to grant writs was provided for by ordinary law in the Courts Ordinance, No 1 of 1889, and prior to that by the Administration of Justice Ordinance, No 11 of 1868, and the Royal Charters of Justice of 1833 and 1801. See Sunil Coorey, Principles of Administrative Law in Sri Lanka (vol II, 4th edn, self-published 2020) 888–893 for a discussion of this history. See also the Administration of Justice Law, No 44 of 1973.
28 See 1978 Constitution, arts 140, 141, 142 and 154P; Coorey (n 27) 892–896.
29 See 1978 Constitution, art 140 (proviso). Article 140 provides that as a general rule the Court of Appeal will have the power to issue writs. However, Parliament may specify that in some circumstances the Supreme Court shall exercise that jurisdiction and not the Court of Appeal.
30 See Peter Attappattu v People's Bank [1997] 1 Sri LR 208; Sirisena Cooray v Tissa Dias Bandaranayake [1999] 1 Sri LR 1; Wijayapala Mendis v P R P Perera [1999] 2 Sri LR 110; and Moosajees v Arthur, SC Minutes (5 Dec 2002).
31 Heather Therese Mundy v Central Environmental Authority, SC Minutes (20 Jan 2004) (Judgment of Mark Fernando J) and followed by several decisions of the Supreme Court since then.
32 See Article 16 (1) of the Constitution which states that ‘All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency with the preceding provisions of this Chapter’.
33 For a discussion of the three personal laws, Kandyan Law, Muslim Law and the Thesavalamai, see Marasinghe, Lakshman and Scharenguivel, Sharya, (eds), Compilation of Selected Aspects of The Special Laws of Sri Lanka (Vijitha Yapa, 2015)Google Scholar.
34 See Constitution, art 168.
35 See the cases cited in (n 31) and (n 32). For a different view, see Pigera Jayawardena v Pegasus Hotels, Court of Appeal Minutes (23 Sep 2004).
36 Dr Shirani Bandaranayake v Chamal Rajapakse, Speaker of Parliament, CA (Writ) Application No 411/2012, CA Minutes (7 Jan 2013).
37 Attorney General v Shirani Bandaranayake, SC Appeal No 67 of 2013, SC Minutes (21 Feb 2014).
38 Constitution, art 12(1): ‘All persons are equal before the law and are entitled to the equal protection of the law’.
39 Piyadasa v Land Reform Commission, SC Minutes (8 Jul 1998) 23.
40 Perera v Prof Daya Edirisinghe [1995] 1 Sri LR 148, 156.
41 Karunadasa v Unique Gemstones, [1997] 1 Sri LR 256. See also the dissenting judgment of Justice Kodagoda in Jayalath v Karannagoda, SC Minutes of 11 January 2023, 129 – 130.
42 Rajakaruna v University of Ruhuna, CA Minutes (19 Jul 2004).
43 Kumara v Gunathilaka, CA Minutes (1 Jun 2020).
44 ibid 16.
45 ibid 120. However, see Jayalath v Karannagoda, (n 41), where a majority held that a Court Martial is not required to provide reasons. Justice Kodagoda, after a detailed review of Sri Lankan, Indian, and English case law and academic writing, dissented, holding that both the common law and Article 12 of the Constitution imposed a duty on a Court Martial to provide reasons. It is submitted with respect, that Justice Kodagoda's view is the ‘better reasoned’ one. See also s 35 of the Right to Information Act, No 12 of 2016, that requires the disclosure of reasons.
46 Mundy (n 31) 14.
47 Perera (n 40), Karunadasa (n 41), and Piyadasa (n 39).
48 Mundy (n 31) 14.
49 Danwatte Wijepala v The Attorney-General, SC Minutes (5 Dec 2000). Reported in (2001) 161 Law & Society Trust Review 39.
50 Dissanayake v Kaleel [1993] 2 Sri LR 135, 184.
51 ibid.
52 Rohitha Bogallagama v United National Party, SC Minutes (15 Feb 2005).
53 Constitution, Art 99(13). Sarath Amunugama v Karu Jayasuriya [2000] 1 Sri LR 172; Dissanayake v Kaleel [1993] 2 Sri LR 135; Jayatillake v Kaleel [1994] 1 Sri LR 319; Gooneratne v Premachandra [1994] 2 Sri LR 137; Silva v Kaleel [1994] 3 Sri LR 138; Galappaththi v Bulegoda [1997] 1 Sri LR 393; Ramamoorthy v Douglas Devananda [1998] 2 Sri LR 278.
54 Constitution, art 17; Wickramaratne, Jayampathy, Fundamental Rights in Sri Lanka (3rd edn, Stamford Lake 2021)Google Scholar.
55 Constitution, art 163.
56 Gomez, Mario, ‘The Failure of Transformative Constitution-Making in Sri Lanka’, in Bui, Ngoc Son & Malagodi, Mara (eds), Asian Comparative Constitutional Law Volume 1 – Constitution-Making (Hart, forthcoming 2023)Google Scholar.
57 Gomez, Mario, ‘The Supreme Court in the 1990s: Controlling Public Power through the Law’ [2000] Bar Association Law Journal 54Google Scholar; Gomez, Mario, ‘Fundamental Rights and the Sri Lankan Supreme Court’ (1995) 8 Colombo Law Review 73Google Scholar.
58 Gomez, ‘Blending Rights with Writs’ (n 1); Gomez, ‘The Modern Benchmarks’ (n 1).
59 See for example Sirimal v Board of Directors, CWE [2003] 2 Sri LR 23, where the Supreme Court dealt at length with substantive and procedural legitimate expectations in the context of Article 12. See also Sampanthan v Attorney General (n 26) where the court said that the right to equality and equal protection of the law in Article 12(1) provided protection against arbitrary and the mala fide exercise of power while guaranteeing natural justice and legitimate expectations.
60 See for example the cases of Hapuarachchi v Commissioner of Elections and Deepthi Gunaratne v Commissioner of Elections, SC Minutes (19 Mar 2009).
61 Ariyarathne v Inspector-General of Police, SC Minutes (30 Jul 2019) 56 (per Prasanna Jayawardena J). See also Fernando v Associated Newspapers of Ceylon [2006] 3 Sri LR 141, 147, Nimalsri v Fernando, SC FR No 256/2010, SC Minutes of 17 September 2015], and Dayaratne v Minister of Health and Indigenous Medicine, [1999] 1 Sr LR 393.
62 See Gomez, ‘Blending Rights with Writs’ (n 1) and Gomez, ‘The Modern Benchmarks’ (n 1) for an analysis of previous case law.
63 See eg, Premachandra v Montague Jayawickrema [1994] 2 Sri LR 90; de Silva v Atukorale [1993] 1 Sri LR 283; Jayawardene v Wijayatilake [2001] 1 Sri LR 132; Bandara v Premachandra [1994] 1 Sri LR 301; Mundy (n 31); Sugathapala Mendis v Chandrika Kumaratunga [2008] 2 Sri LR 339; and the ‘Chunnakam Case’, ie, Gunawardena v Central Environmental Authority, SC Minutes (4 Apr 2019).
64 Supreme Court Special Determination on the ‘Special Goods and Service Tax’ bill, SC SD 01-9/2022, 22–23.
65 Durayappah v Fernando (1969) 69 NLR 265 and [1967] 2 AC 337. This case must be contrasted with the bolder approach of the Judicial Committee of the Privy Council on the separation powers in Queen v Liyanage, discussed above.
66 Gomez, Mario, Emerging Trends in Public Law (Vijitha Yapa 1998)Google Scholar; Gomez, Mario, In the Public Interest: Essays on Public Interest Litigation and Participatory Justice (University of Colombo 1993)Google Scholar; Gomez, Mario, ‘Litigating to Change: Public Interest Litigation and Sri Lanka’ [2004] Law College Law Review 104Google Scholar. See also Samararatne, Dinesha, ‘Judicial borrowing and creeping influences: Indian jurisprudence in Sri Lankan public law’ [2018] Indian Law Review 205CrossRefGoogle Scholar (for an analysis of the influence of Indian jurisprudence on Sri Lankan public law).
67 Somawathie v Weerasinghe [1990] 2 Sri LR 121. One of the judges dissented in this case.
68 Sriyani Silva v Iddamalgoda [2003] 1 Sri LR 14. On the right to life, see Vidanage v Jayasundara, SC Minutes of 11 January 2023 (the Easter Bombings case).
69 Environmental Foundation v UDA (henceforth the ‘Galle Face’ Case), SC Minutes (28 Nov 2005); Sugathapala Mendis, Azath Salley v Colombo Municipal Council [2009] 1 Sri LR 365; Chunnakam Case (n 63).
70 Gomez, ‘Emerging Trends’ (n 66) 30–34; Gomez, ‘Fundamental Rights’ (n 57).
71 SC Application No 6/89 (Spl), Order of the SC (4 Dec 1989).
72 SC Order (19 Jan 1990).
73 Minute of the Registrar of the SC (1 Mar 1994); see Gomez, ‘Emerging Trends’ (n 66) 31.
74 See SC Order (18 Sep 1990).
75 Constitution, art 136. See [1992] 4 Bar Association Law Journal (Supplement); Gazette of the Democratic Socialist Republic of Sri Lanka (Extraordinary), No 665/32 (7 Jun 1991).
76 Forbes & Walker Tea Brokers v Maligaspe [1998] 2 Sri LR 378, 407 and 409; Merill v Dayananda v Silva [2001] 3 Sri LR 11, 41–42; Dilan Perera v Rajitha Senaratne [2000] 2 Sri LR 79, 100–101, Public Interest Law Foundation v the Attorney General, CA Minutes (17 Dec 2003); Perera, Chairman, Ceylon Association of Ships’ Agents v Central Freight Bureau, CA Minutes (10 Jan 2005); Environmental Foundation v A H M Fowzie, CA Orders (8 Jul and 25 Jul 2005); Dr Piyasena Dissanayake v Nanayakkara, CA Minutes (8 Nov 2004); Jayatilleke v Jeevan Kumaratunge, CA Minutes (29 Jul 2004). On third party intervention see Shell Gas v Consumer Affairs Authority, CA Minutes (23 Aug 2004).
77 Wijesiri v Siriwardene [1982] 1 Sri LR 171. See also Bandaranaike v de Alwis [1982] 2 Sri LR 664; Lalanath de Silva v Ekanayake, SC Minutes (2 Nov 1999); Gunaratne v Kotakadeniya [1990] 2 Sri LR 14; EFL v Land Commissioner (1994) 1 South Asian Environmental Law Reporter 53.
78 Bulankulama v Minister of Industrial Development [2000] 3 Sri LR 243, 258 (per ARB Amerasinghe J).
79 Egodawele v Commissioner of Elections, SC Minutes (3 Apr 2001) 26.
80 See also Wimal Weerawansa v Attorney General, SC Minutes (15 Jul 2005) (Interim Order of the Court); Sobitha Thero v Commissioner of Elections, SC Minutes (26 Aug 2005).
81 Weerawansa (n 80).
82 Sriyani Silva v Iddamalgoda, SC Minutes (10 Dec 2002) and SC Minutes (8 Aug 2003).
83 SC Minutes (10 Dec 2002) 7 (per Bandaranayake J).
84 The right to life is not explicitly recognised as a fundamental right in the Sri Lankan constitution.
85 SC Minutes (8 Aug 2003) (per Fernando J).
86 Hewage v OIC Minor Offences, Seeduwa Police Station, SC Minutes (26 Jul 2004) 17 and 19. See also Kanapathipillai v OIC, Army Camp, Plantain Point, SC Minutes (31 Mar 2005).
87 Ceylon Electricity Board Accountants’ Association v Min of Power and Energy, SC Minutes (3 May 2016).
88 Noble Resources v Min of Power and Energy, SC Minutes (24 Jun 2016).
89 Viyangoda and Thenuwara v Controller of Immigration and Emigration, CA Minutes (15 Oct 2019).
90 Constitution, arts 120–124.
91 See eg, Supreme Court Special Determination on the ‘Special Goods and Service Tax’ bill (n 64).
92 Constitution, art 134(3).
93 In Abeysundera v Abeysundera [1998] 1 Sri LR 185, the court sought the assistance of an amicus curiae.
94 Constitution, art 126(4).
95 Nalika Kumudini v OIC. Hungama Police [1997] 3 Sri LR 331; Mohamed Faiz v Attorney-General [1995] 1 Sri LR 372. In Karunapala v Siriwardhana, SC Minutes (12 Feb 2021), the court made an order against a teacher in a state-run school for assault on a student. See also Manohari v Secretary, Ministry of Education, SC Minutes (28 Sep 2016), which involved a case of sexual harassment at the workplace in a state-run school. In Captain Abeygunewardena v Sri Lanka Ports Authority, SC Minutes (20 Jan 2017), the court took a broad approach to the ‘the public function test’.
96 The ‘Chunnakam Case’ (n 63). In this case, the SC held that citizens have a fundamental right to be free from unlawful, arbitrary, or unreasonable executive or administrative acts or omissions which result in pollution or degradation of the environment, even though the right is not explicitly recognised in the Constitution (p 52). The court also observed that ‘access to clean water is a necessity of life and is inherent in Art 27(2)(c) of the Constitution’. The court reached this conclusion by reading Article 12(1) of the constitution, the right to equality and equal protection, together with Art 27(14), which declares that ‘The State shall protect, preserve and improve the environment for the benefit of the community’ and Art 27(2)(c), which declares that the state must ensure to all citizens ‘an adequate standard of living for themselves and their families including adequate food, clothing and housing, the continuous improvement of living conditions and the full enjoyment of leisure and social and cultural opportunities’ (p 53). Both articles are part of the non-enforceable Directive Principles of State Policy in the constitution. See also Vidanage v Jayasundara, SC Minutes of 11 January 2023, (the Easter Bombings case) where the SC made a broad range of orders, including an order against the former President Sirisena, whom it held was responsible for the security lapses that resulted in the bombings on Easter Sunday, 2019.
97 Weerawansa (n 80).
98 ibid.
99 Mario Gomez, ‘The Courts Respond to Executive Tyranny in Sri Lanka’ (I-CONnect Blog, 24 Jan 2019) <http://www.iconnectblog.com/2019/01/the-courts-respond-to-executive-tyranny-in-sri-lanka> accessed 1 Feb 2023.
100 Bastians, Darisha, ‘The Siege: Inside 52 Days Of Constitutional Crisis In Sri Lanka’, in Welikala, Asanga (ed), Constitutional Reform and Crisis in Sri Lanka (Centre for Policy Alternatives 2019) 24–27Google Scholar.
101 ibid Bastians, op cit.
102 Sampanthan v Attorney General (n 26) 73–75.
103 ibid 74.
104 ibid 75.
105 ibid 69.
106 ibid 86.
107 In 1920, the Courts Ordinance of 1883 was amended by section 2 of the Ordinance No 4 of 1920, that granted the SC to issue the writ of quo warranto. See Coorey (n 27) 890, 1056–1069. See also Chandrasena v De Silva (1961) 63 NLR 308, 310; Geetha Kumarasinghe v Buwaneka Lalitha Keembiela, SC Appeal No 91 of 2017, SC Minutes (2 Nov 2017); Crouch, Melissa, ‘The Prerogative Writs as Constitutional Transfer’ (2018) 38 Oxford Journal of Legal Studies 653CrossRefGoogle Scholar.
108 CA (Writ) Application No 363/2018, CA Minutes (3 Dec 2018).
109 Section 296 of the Penal Code of Sri Lanka which prescribes the sentence for murder. See also Section 54A of the Poisons, Opium and Dangerous Drugs Ordinance, as amended, which states that, any person who ‘manufactures any of the following dangerous drugs, namely heroin or cocaine or morphine or opium shall be guilty of an offence against this Ordinance and shall on conviction by the High Court without a jury be liable to a sentence of death or life imprisonment’.
110 See the statement of the Civil Rights Movement, E 01/09/09 (31 Aug 2009)(on file with the author).
111 ibid. See also Ruki Fernando, ‘Death Penalty: License for Judicial Killings’ (Groundviews, 28 Jun 2019) <https://groundviews.org/2019/06/28/death-penalty-license-for-judicial-killings/> accessed 1 Feb 2023.
112 Mario Gomez, ‘The Death Penalty in Sri Lanka: Hanging by a Thread’ (I-CONnect Blog, 8 Aug 2019) <http://www.iconnectblog.com/2019/08/the-death-penalty-in-sri-lanka:-hanging-by-a-thread> accessed 1 Feb 2023.
113 Malinda Seneviratne v Commissioner General of Prisons CA (Writ) Application No 272 of 2019 (on file with the author).
114 Human Rights Commission of Sri Lanka, ‘Recommendation to Abolish the Death Penalty in Sri Lanka’ (1 Jan 2016) 3 (on file with the author).
115 Ariyarathne (n 61). See also the dissenting judgment of Justice Kodagoda in Jayalath v Karannagoda (n 41).
116 See Mundy (n 31) and the other cases discussed in the first and second sections in the Part ‘A New Phase in Judicial Interpretation’ above.
117 See the cases in the second section in the Part ‘A New Phase in Judicial Interpretation’ above.
118 SC Special Determination on the ‘Special Goods and Service Tax’ bill (n 64).
119 Sampanthan v Attorney General (n 26); Viyangoda v Controller of Immigration and Emigration (n 89); SC Special Determination on the ‘Special Goods and Service Tax’ bill (n 64) 22–23.
120 In its determination on the constitutionality of the 20A, the SC stated that the President's official acts should remain subject to review by the court under its fundamental rights jurisdiction. If this provision was to be amended, it would require a two-thirds Parliamentary majority, and approval at a referendum. As a result, the 20A retained the provision that made the President's official acts subject to judicial review, a provision that was introduced by the 19th Amendment in May 2015. See SC Special Determination Nos 01/2020–39/2020 published in the Hansard, 20 Oct 2020, 1084: The Parliament of Sri Lanka, ‘Home’ <www.parliament.lk> accessed 1 Feb 2023.
121 For the use of international norms see the ‘Chunnakam Case’ (n 63); Weerawansa (n 80) 409; Ceylon Tobacco v Minister of Health, CA Minutes (12 May 2014) 29; Bulankulama (n 78); Sirisena Cooray (n 30); Centre for Policy Alternatives v Commissioner of Elections [2003] 1 Sri LR 277; Sanjeewa v Suraweera, SC Minutes (4 Apr 2003); Centre for Environmental Justice v Satharasinghe, CA Minutes (16 Nov 2020); Karunapala v Siriwardhana, SC Minutes (12 Feb 2021). See also Manohari (n 95), where the Supreme Court held that sexual harassment at the workplace was a violation of the constitutional prohibition on sex-based discrimination. The court observed: ‘Sri Lanka has undertaken international obligations to eliminate all forms of discrimination against women by acceding to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) … and in pursuance of these international obligations, Sri Lanka has also enacted several (laws) to give vent to these global rights in favour of women’ (p 16): see Gomez, Mario, ‘Women, Gender and the Constitution in Sri Lanka’, in Chang, Wen-Chen et al. (eds), Gender, Sexuality and Constitutionalism in Asia (Hart 2023)Google Scholar.