WRIT JURISDICTION UNDER ARTICLES 140 AND 154P OF

WRIT JURISDICTION UNDER ARTICLES 140 AND 154(P) OF THE CONSTITUTION BEFORE THE COURT OF APPEAL AND THE PROVINCIAL HIGH COURT Rajeev Amarasuriya LL. B (Hons), FCMA (UK), CGMA Alumnus, Harvard Kennedy School (Ex. Edu. ) Attorney-at-Law e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 1

Contents • Nature of Prerogative Remedies • The Writ Jurisdiction in Sri Lanka • Types of Writs • The Writ of Certiorari • The Grounds of Review for Certiorari • Defences to Writ Applications • Common Mistakes made in a Writ Application • Illustrative example of drafting a Writ Application e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 2

Nature of Prerogative Remedies Why are these termed “Prerogative Remedies” • They were 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. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 3

The Writ Jurisdiction in Sri Lanka In Sri Lanka these remedies emanate from our own Constitution • Article 140 of the Constitution “Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority to inspect and 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 : e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 4

The Writ Jurisdiction in Sri Lanka • With the 13 th Amendment to the Constitution • Article 154 P of the Constitution (a)154 P (4) Every such High' Court shall have jurisdiction to issue, according to law – (a)order 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 • any statutes made by the Provincial Council established for that Province e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 5

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. 296 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 6

Types of Writs 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. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 7

The Writ of Certiorari Atkin LJ in 1923, in the famous Case of R v. Electricity Commissioners ex p. London Electricity Joint Committee C. (1920) Ltd. [1924] 1 KB 171. “Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs” e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 8

The Development of the Law since 1923 However, the law has developed significantly 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. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 9

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. 167 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 10

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 [2008] 1 Sri. L. R. 223 Dr. K. M. L. Rathnakumara and Others V. PGIM S. C. Appeal 16/2014 (S. C. Minutes 30/03/2016) e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 11

The Grounds of Review for Certiorari 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 12

The Grounds of Review for Certiorari 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 Lalith Deshapriya V. Capt. Weerakoon and Others [2004] 2 Sri L. R. 314 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 13

The Grounds of Review for Certiorari 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 Lalith Deshapriya V. Capt. Weerakoon and Others [2004] 2 Sri L. R. 314 Circumstances which cause bias a) Pecuniary Interest by a decision maker in a matter subject to his discretion b) Professional or family interest c) Intermingling of Functions – where the subordinate body and the appellate body have common members d) Previous knowledge of the issues or persons concerned e-JNLC 1. 0 14 “Towards a Digital Era in the Legal Profession”

The Grounds of Review for Certiorari 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] 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] e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 15

The Grounds of Review for Certiorari 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 16

The Grounds of Review for Certiorari 4) Unreasonableness The Wednesbury Test of Unreasonableness Associated 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 Dona Marian Sandya Kumari Kodduruarachchi V. W. Dharmadasa and Others C. A. (Writ) Application No. 343/2009 (C. A. Minutes 30/05/2013) e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 17

The Grounds of Review for Certiorari 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. 378/2005 – C. A. Minutes of 26/10/2006 M. R. C. C. Ariyarathne and Others V. N. K. Illangakoon, IGP and Others SCFR Application No. 444/2012 (S. C. Minutes of 30/07/2019) e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 18

The Grounds of Review for Certiorari 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 19

The Grounds of Review for Certiorari 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 20

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” e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 21

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”. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 22

Defences to Writ Applications 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 …” e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 23

Defences to Writ Applications 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 Municipal Council of Moratuwa V. W. S. H. Fernando S. C. Appeal No. 128/2013 (S. C. Minutes 25/07/2016) e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 24

Defences to Writ Applications 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 M. A. Moosajee and Others V. W. R. M. D. T. Balalle C. A. (Writ) No. 767/2010 (C. A. Minutes 13/03/2017) e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 25

Defences to Writ Applications 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 26

Defences to Writ Applications 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 61 A of the Constitution – If challenging an Order of the Public Service Commission, that must be before the Supreme Court through a FR Application. But in the case 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. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 27

Defences to Writ Applications 6) Uberrimae fides You have to come to Court with clean hand 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 28

Defences to Writ Applications 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 29

Defences to Writ Applications 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 e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 30

Common Mistakes made in a Writ Application e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 31

Illustrative Example in Drafting a Writ Application In this respect, we will be looking at certain provisions of the Sri Lanka Bureau of Foreign Employment Act No. 21 of 1985. This is an Act to provide for the establishment of the Sri Lanka Bureau of Foreign Employment and for matters connected therewith. Section 54 of this Act, establishes a body corporate, by the name of the “Association of Licensed Foreign Employment Agencies”. The relevant Section we are going to look at, for the purposes of this presentation, is Section 54(3) of this Act, which provides thus : “Every Licensee shall become a member of the Association”. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 32

Illustrative Example in Drafting a Writ Application THE ISSUE AT HAND There was a new Chairman appointed to the SLBFE, and there was new thinking in this matter, and the Bureau issued a Circular to all Licensed Operators, informing that it was not mandatory to obtain membership in this Association, and that irrespective of having obtained Membership, licenses would be renewed. • So how do we deal with this problem? • Can we do so under the Writ Jurisdiction? • What does the section say ? “Every Licensee shall become a member of the Association”. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 33

Illustrative Example in Drafting a Writ Application Therefore, it may be argued that this Circular is in contravention and ultra vires Section 54(3) of the Act. Is this the only ground of review? Is it not in violation with the principles of natural justice? Was there a hearing before this Order was issued? Could we not say there has also been a violation of the principles of legitimate expectation? That the impugned act goes against the Legitimate Expectation of these stakeholders. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 34

Illustrative Example in Drafting a Writ Application Now lets look at some stages of the process, in seeking to challenge this Circular and Decision. Who is affected by this Circular and the Decision ? a) The Association of Licensed Foreign Employment Agents • Affects their revenues, status etc. b) The Operators who are members of the Association. c) May be it could argued that even the public are affected - public interest case. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 35

Illustrative Example in Drafting a Writ Application What would be the cause of action? In the totality of the aforesaid circumstances, and as will be demonstrated to Your Lordships’ Court at the hearing of this Application, the Petitioner states that the decision by the 2 nd respondent and / or any one or more of the respondents to the effect that the “submission of the membership certificate issued by ALFEA [i. e. the Petitioner] is not considered as mandatory for the renewal / issuance of licenses” and / or to treat as not being mandatory the requirement that all Licensed Foreign Employment Agencies are members of the Petitioner, as inter-alia, evidenced by the 2 nd respondent’s Circular bearing No. 4/2009 produced marked P-19, is inter-alia patently ex-facie illegal, ultra vires, unlawful, and has no legal mandate, and arbitrary, capricious and also offends importantly the principles of natural justice, legitimate expectation, reasonableness, fairness, and improper motives. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 36

Illustrative Example in Drafting a Writ Application This cause of action, contains several components : Then the Cause of Action has identified the grounds of review upon which this Application has been filed : Begins with “inter-alia” is better not to limit the grounds of review in the Petition. e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 37

Illustrative Example in Drafting a Writ Application Now who are the parties? Necessary parties Then you will have the narration of facts Setout the narration. Be as comprehensive as possible. Otherwise, you will get into difficulty when supporting the matter, when the judge poses questions, and you don’t have the answers in the Petition. Then the prayer. • the preliminary relief – the issuance of notice • the substantive relief • interim relief Structure the Prayer and cover all the dimensions e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 38

Illustrative Example in Drafting a Writ Application John V. Rees (1970) Ch 345 at 405 : “As everybody who has anything to do with the law well knows. the path of the Law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. ” e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 39

Thank you e-JNLC 1. 0 “Towards a Digital Era in the Legal Profession” 40