ADMINISTRATIVE

LAW
Notes Compiled by Aznee Marzook

DEPARTMENT OF LAW
UNIVERSITY OF JAFFNA
 Administrative Law | Aznee Marzook

ADMINISTRATIVE LAW
1. Theoretical foundation of judicial review.
• Ultra vires doctrine
• Intra vires doctrine
• Constitutional foundation
• Deferent between Sri Lankan and UK

2. Ground of Judicial Review

• Illegality
a) Absence of jurisdiction
b) Error of jurisdiction fact
c) Relevant and irrelevant consider
d) Proper improper purpose
e) Fettering of discretion
f) Lawful and unlawful delegation
g) Mala fide
• Wednesbury unreasonableness
• Natural Justice
a) Audi alteram partem (the right to the fair hearing)
b) Nime judex in causa sua (the rule against basis)
• Proportionately
• Right base review
• Legitimate expectation
a) Procedural legitimate expectation
b) Substantive legitimate expectation
c) Legitimate expectation and article 12 of constitution
• Public trust doctrine

3. Error of fact and error of law

4. The principal of defence

5. Standing and remedies

• The writs
• Locus standi
• Ouster clause
• Fundamental rights

6. The constitutionalizing of administrative law.

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INTRODUCTION
Administrative law can be defined as an area of law concern with the control of state power and
government. Thus, the administrative law play role over the decision-making process of each organ
of government especially in administrative and executive functions. This is the courts “Supervisory
role” on the government.
✓ Prof. Wade – “The law which concerns administrative authorities as opposed to the others" Or
“the law relating to the control of government power.”
✓ Forsyth – “Administrative Law as the body of principles which govern the exercise of power and
duties by public authority/ Administrative authority.”
✓ Ivor Jennings - "administrative law is the law relating to the administrative authorities"
Administrative Law originated during 16th century in UK. King Charles I introduced the writ of Habeas
Corpus. Later in 20th century it underwent a rapid growth due to the increase in the number of
administrative bodies. Earlier Administrative Law was considered a part of Constitutional Law and
now, it has evolved and expanded as distinct law. Constitutional Law deals the matters between
individual and state. Administrative Law deals with the matters between individual and public
institutions. Public institutions can be ministries, departments, local governments, corporations,
commissions, statutory bodies, tribunals, etc.
Legality is where an act is done according to the law or not. Legitimacy is where the manner the act
was done is reasonable or not. Administrative law looks for legality & legitimacy.
Often administrative law is referred,
• When a public officer fails to act reasonably, fairly or judicially
• When a disagreement arise related to appointment, transfer, dismissal or disciplinary action
• When there is a disruption of public service without proper reasons
PURPOSES OF ADMINISTRATIVE LAW
1. Ensuring the rule of law - The rule of law means supremacy of law. The concept of Ultra vires
and Intra vires comes to play in the ground of administrative law to ensure the rule of law in
process of decision making by public authority.
2. Ensure accountability and transparency.
3. Uploading the public trust – Public authority must act for the benefit of public at large. As per
Public Trust doctrine, decision makers are the trustees and public re the beneficiaries of the trust
4. Ensuring the efficiency of decision making by public authority.
FUNCTION OF ADMINISTRATIVE LAW.
1. Control function – Control the actions of administrative or executive body [Writ of Certiorari,
prohibition]
2. Command function – Compel to perform specific actions [Writ of Mandamus]
3. Facilitate good administrative practice.
4. Provide remedies – Fundamental Rights, Natural Justice.

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SOURCES OF ADL
1. The Constitution 4. Contracts between the Public Authorities
2. English Common Law and Ordinary Citizens
3. Prerogative Powers of the Monarch 5. Sri Lankan Judge-made Law
6. Statutory Provisions
DUTY & DISCRETION
Administrative power is provided by statute or common law. It grants duty or discretion on
administrative actors. Discretion can be defined as freedom of choice on the part of decision maker.
He can choose what he thought as best to do from several things in accordance with his/her choice.
Discretion is based on Authority and Options. Discretionary power can be either narrow or wide but
not absolute/unfettered. The discretionary power should be exercising the judicially, reasonably,
fairly, intra vires and in accordance with the purpose that the power was granted. Duty is where the
public authority is forced by the statute to act in one particular way. No choice or freedom but
obliged by it. By looking at the wording used in the act we can distinguish between duty and
discretion.
• Duty -Shall, should, duty, bound to etc.
• Discretion - May, as he thinks fit, as they consider appropriate, in his opinion, etc.
During monarchy King was given absolute/unfettered discretion. Under democracy wide discretion
should be given to the government officials for proper functioning, but the powers should be limited
and observed through check and balance.

REMEDIES AVAILABLE UNDER ADMINISTRATIVE LAW

1. Certiorari: A quashing order nullifies a decision, which has been made by a public body. The
effect is to make the decision invalid. Such an order is usually made where an authority has acted
outside the scope of its powers (‘ultra vires’).
2. Mandamus: A writ issued by a superior court and directed to some inferior tribunal, or to some
corporation or person exercising authority, commanding performance of some specified duty.
3. Prohibition: An order of restraining a person or body from illegal action.
4. Declaration: Judgment by the Administrative Court, which clarifies the respective rights and
obligations of the parties to the proceedings, without actually making any order.
5. Injunction: Order made by the court to stop a public body from acting in an unlawful way. Less
commonly, an injunction can be mandatory, that is, it compels a public body to do something.
6. Damages: Damages are available as a remedy in judicial review in limited circumstances.
Compensation is not available merely because a public authority has acted unlawfully. For
damages to be available there must be either:
• A recognized ‘private’ law cause of action such as negligence or breach of statutory duty or;
• A claim under European law or the Human Rights Act 1998.

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CASES
Nakkuda Ali v Jayaratne [1951]
Fact: Ali was a textile dealer in Ceylon. His license was cancelled by the Controller of Textiles, under
Regulations which empowered the Controller to do so where he ‘has reasonable grounds to believe
that any dealer is unfit’ to continue. Ali applied for certiorari of the decision.
Held the application would fail. The grounds” (these being a precedent fact, which the court could
investigate), (b) Compliance with natural justice. When, deciding whether the rules of natural justice
were applicable, it would look to the Controller was “taking executive action” and not acting
“judicially or quasi judicially” and so was not “amenable to review”. In any case, there were the
necessary (a) “reasonable legislation under consideration for some indication expressed or implied
such as that the Controller of Textiles was required to give notice of his intention to revoke the
applicant’s license, or to hold an inquiry before revoking it, or that the applicant had a right of appeal
from his decision. The test of whether the rules of natural justice must be complied with, is that the
duty to act judicially in this sense is essentially synonymous with the duty of observe the rules of
natural justice. The rules of natural justice embody two main principles:

• The rules against bias which require that a person must not be a judge in his/her, own cause
(nemo iudex in sua causa)

• That a person must be given a fair hearing (audi alteram partem)

Decision: makers exercising in public functions are subject to a set of common law procedures of
rules, which are known collectively as the ‘rules of natural justice’. The task of the courts to consider
whether a decision is legal or illegal and the scope of the instrument conferring the duty or power
upon the decision-maker. The instrument will normally be a statute or statutory instrument. Courts
are acting, as guardians of Parliament’s will, seeking to ensure that the exercise of power is in
accordance with the scope and purpose of Parliament’s enactment, exercise statutory
interpretation. It is for them to determine whether an authority has made an error of law ex:
whether regulations are within the statutory power.
The rule against bias is designed to foster and maintain confidence in the decision-making process.
It means to treat individuals fairly when decisions are made which affect them.
The right to a hearing or investigation before an adverse decision was taken was denied in Nakkuda
Ali v Jayaratne but this case is probably no longer good law.
In 1960s, those remedies available for judicial review were very expensive. Consequently, the
concept of Ombudsman came into force as a free service. The legislature has designed the scope of
jurisdiction of the office of Ombudsman. It is not a prerogative instrument. Friedman case was trying
to restrict the Ombudsman’s power. However, court did not restrict the jurisdiction of Ombudsman
and supported to enhance the concept of Ombudsman

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Ridge v Baldwin (1964) AC 40 [Natural justice and ultra vires]

Facts: Mr. Ridge, the plaintiff, and two other police officers were charged with the conspiracy to
obstruct the course of justice. Mr. Ridge was acquitted and the other two officers were convicted.
The trial judge sentenced the other two officers and made some adverse comments as to the
character and the suitability to the position of Mr. Ridge. Consequently, the Watch Committee
dismissed him from the position of chief constable. The Committee gave him no notice of any
complaints against him; no opportunity to make representations on his behalf and no advance
warning of the meeting of which this decision was made. The plaintiff sought to obtain the
declaration that the dismissal was void, ultra vires and illegal.
Issue: Above all, did the committee breach the rules of fairness/natural justice?
Held: HOL decided that they were appropriate as the rules of natural justice had been breached.
Lord Reid: Was concerned with the wrong decision made by the Court of Appeal. He stated that the
notion had crept around that natural justice/fairness was too broad to be accurately defined. He
argued that “whenever a body can affect the rights of subjects, there is a duty to act judicially, you
do not distinguish what is administrative and judicial”.
Lord Hodson: Persons acting in a capacity which is not on the face of it judicial but rather executive
or administrative can be subject to the principles of natural justice: 3 features of natural justice.
• Right to be heard by an unbiased tribunal
• Right to have notice of charges of misconduct
• Right to be heard in answer to those charges
The first does not arise in the case before your Lordships, but the two last most certainly do, and
the proceedings before the Watch Committee, therefore, in my opinion, cannot be allowed to stand.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 [Discretion,
Ultra Vires]
Facts: Under Sunday Entertainments Act 1932, the Wednesbury Corporation had authority to open
cinemas ‘subject to such conditions as the authority think fit to impose’. The Corporation imposed
a condition that on Sundays no child under the age of 15 was to be admitted in cinemas whether
accompanied by an adult or not. The Associated Provincial Picture Houses challenged the decision
through judicial review arguing that the decision was ultra vires and unreasonable.
Issues: Did the Corporation exercise its discretion reasonably?
Held: The Court of Appeal dismissed the appeal by Associated Provincial Picture Houses. The Court
held that the condition was not unreasonable. The courts would only interfere with the local
authority’s discretion, if the authority reached a decision so unreasonable, that no other reasonable
authority would reach.
Lord Greene MR: “When discretion of this kind is granted the law recognizes certain principles upon
which that discretion has been exercised, but within the four corners of those principles the
discretion is an absolute one and cannot be questioned in any court of law.

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Padfield v Ministry of Agriculture [1968] AC 997 [Discretionary Powers]

Facts: The case concerned the organization of the milk marketing scheme under which farmers had
to sell their milk to the Milk Marketing Board for a fixed fee, which varied according to the region of
the country that the farmer lived. Farmers in the South-East argued that the fee they received was
too low. The scheme was regulated under the Agricultural Marketing Act 1958, which established a
complaints committee. The Minister for Agriculture had the discretion to refer complaints to this
committee. The Minister dismissed the complaint by the farmers in the South-East on the basis that
the committee were to find in the farmer's favor, political embarrassment would be caused to the
Minister. The Minister held that he had an unfettered discretion in the matter and that he owed no
duty to the farmers in any region.
Issues: Does the minister obligation to hear the complaint?
Held: The House of Lords issued the order of mandamus so that the Minister would reconsider the
complaint. The House held that although the Minister did have an unfettered discretion, however,
that discretion was given to him to enforce the purpose intended by the Parliament. As per Lord
Reid: “If the minister, by reason of his having misconstrued the Act or for any other reason, so uses
his discretion as to thwart or run counter to the policy and objects of the Act, then our law would
be very deficient if persons aggrieved were not entitled to the protection of the Court’.

Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621
Facts: The petitioner (Maneka Gandhi) was a journalist whose passport was issued on June 1, 1976,
under the Passport Act, 1967. Later on July 2nd, 1977, the Regional Passport Officer, New Delhi, had
ordered the petitioner to surrender her passport by a letter posted. On being asked about the
reasons for her passport confiscation, The Ministry of External Affairs declined to produce any
reasons “in the interest of the general public.” Therefore, the petitioner had filed a writ petition
under Article 32 of the Constitution of India stating the seize of her passport as the violation of her
fundamental rights; specifically Article 14 (Right to Equality), Article 19 (Right to Freedom of Speech
and Expression) and Article 21 (Right to Life and Liberty) guaranteed by the Constitution of India.
The respondent counterfeited stating that the petitioner was required to be present in connection
with the proceedings which was going on, before a Commission of Inquiry.
Issues:
1. Whether the Fundamental Rights are absolute or conditional and what is the extent of the
territory of such Fundamental Rights provided to the citizens by the Constitution of India?
2. Whether ‘Right to Travel Abroad’ is protected under the umbrella of Article 21.
3. What is the connection between the rights guaranteed under Articles 14, 19 and 21 of the
Constitution of India?
4. Determining the scope of “Procedure established by Law”.
5. Whether the provision laid down in Section 10(3) (c) of the Passport Act, 1967 is violate of
Fundamental Rights and if it is, whether such legislation is a concrete Law?
6. Whether the Impugned order of Regional Passport Officer is in contravention of principles of
natural justice?

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Held:
1. Before the enactment of the Passport Act 1967, there was no law regulating the passport
whenever any person wanted to leave his native place and settle abroad. Also, the executives
were entirely discretionary while issuing the passports in an unguided and unchallenged
manner. In Satwant Singh Sawhney v. D Ramarathnam, the SC stated that – “personal liberty” in
its ambit, also includes the right of locomotion and travel abroad. Hence, no person can be
deprived of such rights, except through procedures established by law. Since the State had not
made any law regarding the regulation or prohibiting the rights of a person in such a case, the
confiscation of the petitioner’s passport is in violation of Article 21 and its grounds being
unchallenged and arbitrary, it is also violative of Article 14.
2. Further, clause (c) of section 10(3) of the Passports Act, 1967 provides that when the state finds
it necessary to seize the passport or do any such action in the interests of sovereignty and
integrity of the nation, its security, its friendly relations with foreign countries, or for the
interests of the general public, the authority is required to record in writing the reason of such
act and on-demand furnish a copy of that record to the holder of the passport.
3. The Central Government never did disclose any reasons for impounding the petitioner’s
passport rather she was told that the act was done in “the interests of the general public”
whereas it was found out that her presence was felt required by the respondents for the
proceedings before a commission of inquiry. The reason was given explicit that it was not really
necessarily done in the public interests and no ordinary person would understand the reasons
for not disclosing this information or the grounds of her passport confiscation.
4. “The fundamental rights conferred in Part III of the Constitution are not distinctive nor mutually
exclusive.” Any law depriving a person of his personal liberty has to stand a test of one or more
of the fundamental rights conferred under Article 19. When referring to Article 14, “ex-
hypothesis” must be tested. The concept of reasonableness must be projected in the procedure.
5. The phrase used in Article 21 is “procedure established by law” instead of “due process of law”
which is said to have procedures that are free from arbitrariness and irrationality.
6. There is a clear infringement of the basic ingredient of principles of natural justice i.e., audi
alteram partem and hence, it cannot be condemned as unfair and unjust even when a statute is
silent on it.
7. Section 10(3) (c) of the Passports Act 1967, is not violative of any fundamental rights, especially
Article 14. In the present case, the petitioner is not discriminated in any manner under Article
14 because the statute provided
8. Unrestricted powers to the authorities. The ground of “in the interests of the general public” is
not vague and undefined, rather it is protected by certain guidelines which can be borrowed
from Article 19.
9. It is true that fundamental rights are sought in case of violation of any rights of an individual and
when the State had violated it. But that does not mean, Right to Freedom of Speech and
Expression is exercisable only in India and not outside. Merely because the state’s action is

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restricted to its territory, it does not mean that Fundamental Rights are also restricted in a
similar manner.
10. It is possible that certain rights related to human values are protected by fundamental rights
even if it is not explicitly written in our Constitution. For example, Freedom of the press is
covered under Article 19(1) (a) even though it is not specifically mentioned there.
11. The right to go abroad is not a part of the Right to Free Speech and Expression as both have
different natures and characters.
12. A.K Gopalan was overruled stating that there is a unique relationship between the provisions of
Article 14, 19 & 21 and every law must pass the tests of the said provisions. Earlier in Gopalan,
the majority held that these provisions in itself are mutually exclusive. Therefore, to correct its
earlier mistake the court held that these provisions are not mutually exclusive and are
dependent on each other

Overruling A.K Gopalan’s decision was appreciated nationwide and this case had become a landmark
case in history since it broadened the scope of fundamental rights. The respondent’s contention
that any law is valid and legit until it is repealed was highly criticized by judges. Also, by providing a
liberal interpretation to Maneka Gandhi, the courts had set a benchmark for coming generations to
seek their basic rights whether or not explicitly mentioned under part III of the constitution. Today,
the courts have successfully interpreted different cases in order to establish socio-economic and
cultural right under the umbrella of Article 21 such as – Right to Clean Air, Right to Clean Water,
Right to freedom from Noise Pollution, Speedy Trial, Legal Aid, Right to Livelihood, Right to Food,
Right to Medical Care, Right to Clean Environment, [Link] a part of Right to Life & Personal liberty.
The judgment opened new dimensions in the judicial activism and PIL’s were appreciated and judges
took interests in liberal interpretation wherever it was needed in the prevailing justice

✓ Premachandra V. Major Mentry Jayawickrame (1994) 2 SLR 90

✓ Edward Francis V. Shirani (1997) 1 SLR 92
✓ Wickramasinghe V. UDA (2002) 3 SLR 253
✓ JB Textile Industries Ltd. V. Minister of Finance & Planning (1981) 1 SLR 156
✓ David V. Abdul Cader (1979) 77 NLR 18

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THE RULE OF LAW [NOMOCRACY]

It is the legal principle that law should govern a nation, Rule of Law implies that every citizen is
subject to the law, including law makers themselves. In this sense, it stands in contrary to
an autocracy, collective leadership, dictatorship, oligarchy where the rulers are held above the law.
Administrative Law upholds ROL as it limits the authority/power of the government officers
DICEY attributed the following three meanings to the said doctrine;
1. Supremacy of the law
2. Equality before the law - “no man is punishable or can lawfully be made to suffer in body or
goods except for a distinct breach of law established in the ordinary legal manner before the
ordinary courts of the land.”
3. The general principles of ROL are common law judgments.
As per Joseph Raz, ROL means,
1. All laws are prospective, open and clear.
2. All laws should be relatively stable.
3. Principles of natural justice must be observed.
4. Courts should be daily accessible.
R v Secretary of State for the Home Department, Ex P Pierson - it was stated laws enacted by
parliament must be in live with principles of ROL unless the parliament enacts explicitly that it
intends for the contrary.
M v Home office – a minister was convicted of contempt of courts, emphasizing, their public official’s
even executive aren’t above the law.
Wilkes v. Wood (1763) 19 - It was held that an action for damages of trespass was maintainable
even if the action complained of was taken in pursuance of the order of the minister.
Entick V Carrington – Secretary of State had issued warrant for king’s messenger to break in into E’s
house 1765 and search for seditious material. E sued messengers. Messenger pleaded usual issue
on legality of warrant. Court held Secretary can’t issue warrants wantonly. This case established
limits of executive powers. There was no law, which granted executives the legal authority to
forcibly enter private property. This case establish principles of legality i.e. rights of citizen can be
infringed only based on lawful authority.
CCSU v Minister for Civil Service - Judicial review of admins action is 3-step process
1. Search for illegality;
2. Failing which, look for irrationality.
3. Failing which, look for procedural impropriety.
If a citizen has an issue with an administrative action,
1. Firstly, try to fix it internally by speaking/complaining to the relevant official.
2. Secondly, appeal to a tribunal as prescribed in the statute.
3. Thirdly, go for “judicial review”. Courts will take this up only if first 2 have been exhausted.

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JUDICIAL REVIEW
Public bodies are given the power to carry our certain public function. JR checks the lawfulness of
such actions, it does not inquire into its merits. In SL legislation cannot be reviewed as per Article
80(3), but acts done under legislation or bi-laws created under legislation can be reviewed
Padfield V Minister of Agriculture, 1968 - If power is exercised within the limits of the stature, no
JR. In this case the minister referred a farmers complaint to a committee, which provided a
recommendation. The minister ignored it. HOL held he had discretion to do so, hence no JR.
R v SoS for Environment, ex p Hammersmith and Fulham London BC - The role of the court JR is to
supervise the executive use of discretionary power and ensure it was exercised lawfully. The court
does not perform an appellate function. -
Reid v SoS, for Scotland - it was held the role of JR is to determine the legal validity of a decision.
The court cannot examine the evidence with a view to form its own view about the substancial
merits of the court.

SEPARATION OF POWERS AND JUDICIAL REVIEW

For effective JR there must be clear separation between judiciary and executive.
Liversidge v Anderson - It was observed that judges appointed and dismissed at the whims and
fancies of politicians are ‘more executive minded than the executive’. In such a scenario, JR would
be ineffective and abuse of power would not be remedied.

SUFFICIENT INTEREST
You must have a close enough connection in the matter to seek judicial review
Locus standi – concept to ensure actual affected party receives courts assurance instead of random
person/bystander.
Inland Revenue Commissions v National Federation of Self-Employed and Small Business Line
(Mickey Mouse Case)
In simple cases, absence of interest is manifest and must be rejected to prevent,
1. Public officials from being harassed by irresponsible persons.
2. Courts being flooded with frivolous cases.
In more complex cases, consider,
1. Powers and duties in law of the party against which relief is sought
2. Position of the applicant in relation in those powers and duties and to the breach alleged.
3. In complex matters sufficient interest cannot be considered in the abstract but must be
considered in the legal and factual context.
Lord Diplock - It would be a ‘grave lacuna' of public law if ‘a pressure group ' or 'even a single public-
spirited taxpayer’ was prevented by outdated technicalities of locus standi from bringing a matter
before court to stop an unlawful conduct.

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• The threshold to prove interest is not very high. Particularly negatively affected by decision, is
proof for sufficient interest. The presence of sufficient interest must be decided on a case-by-
case basis.
R v Waft Herm London BC, ex p Baxter; Prescott v Birmingham Corporation - Though the general
rule is that an individual who is not affected more than others by a particular decision has no locus
standi, in the above cases the courts allowed the matter since ‘entire communities were affected’
and because it involved “serious issues of public importance”.

• Sufficient interest may also be present in entities that purport to represent group interests.
R v Liverpool city corporation, Ex P Ferguson - a public sector union was held to have sufficient
interest to challenge a decision of a local authority to not pay employees.
In the modern law, there are three types of standing,
1. Surrogate
2. Associational
3. Citizen
Associational standing is where a group of affected persons pursue an action collectively or where
an organization purports to represent those directly affected.
R v inspectorate of pollution, Ex Greenpeace - Greenpeace challenged the decision to authorize the
discharge of nuclear waste in Cambria. Greenpeace had 2500 members living in the area; that
together with their reputation as an activist group was recognized as giving standing.
Citizen Standing is where the applicant purports to represent the ‘public interest’ as opposed to the
interest of a group of individuals.
Environmental foundation v minister of public affairs - The petitioner was a public interest
environmental law and advocacy organization. The minister had issued a license for a private person
to operate a zoo, in contravention of the relevant statute. The court held the applicant had locus
standi as a party genuinely interested in the subject to apply for certiorari.
Wijesiri v Siriwardana - 53 candidates who passed an open exam for a government post were not
given letters of appointment owing multiple allegations of widespread exam irregularities. The
applicant was a MP, and took up the case and went to court. He alleged the letters of appointment
were not issued due to the influence of a trade union, and sought a mandamus writ ordering the
issue of letter. The court held that to apply for a writ of mandamus, one need not have a ‘personal
interest’. It is sufficient to show a genuine interest in the matter, and that he comes before the court
as a publics pirited person.
R v Greater London council, Ex p Blackburn - The council was illegally showing pornographic films,
and the applicant sought a prohibition order. The defendant challenged the applicant's locus standi
but the court upheld it. Court held that if any public authority transgresses the law in a manner that
offends or injures thousands of subjects, any of them can seek assistance courts in stopping it – Lord
Denning, MR.

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DOCTRINE OF ULTRA VIRES/GROUNDS FOR JUDICIAL REVIEW

Law set out the boundaries or provide the option, within what, the actors has to make their decision.
Judiciary has the power to review the legality and legitimacy of such actions. In other words, judicial
reviews are a challenge to the way in which a decision has been made, rather than the rights and
wrongs of the conclusion reached. Judiciary can review the rules, regulations, orders and bi laws.
The juristic basis, on which courts exercise judicial review whenever there is an allegation of
administrative authorities acting outside their conferred powers, is commonly referred to as the
Doctrine of Ultra Vires. It is a Latin phrase which simply means beyond powers or without powers.
The doctrine of ultra vires as used in Administrative Law implies that discretionary powers must be
exercised for the purpose for which they were granted. At the inception, the application of the
doctrine was designed exclusively to ensure that administrative authorities do not exceed or abuse
their legal powers. If they did so, the courts declared such acts ultra vires and therefore, invalid.
The manner in which as action of a public authority becomes ultra vires for excess of jurisdiction
falls under three main categories.
1. Doing the wrong thing (Substantive Ultra Vires)
a. Illegality
b. Irrationality
2. Doing the right thing in the wrong way (Procedural Ultra Vires)
a. Procedural impropriety
b. Proportionality
3. Doing the right thing in the right way for a wrong purpose.
White and Collins v Minister of health - Statute empowered to acquire land, for housing that is not
“part of any park, garden or pleasure ground”. The order made by a local authority and confirmed
by minister was quashed since the land was a park. Held, use of discretion was ultra vires.
Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (GCHQ Case) - The
British government banned employees of government communications headquarter; a branch or
the intelligence, from forming or joining a trade union, by way of a royal prerogative order-in-council
in 1984. This effectively denied the GCHQ employees labor protections. They couldn’t join a union
nor could they seek help of labour laws. The traditional view of the courts till then was that JR could
not be done for Royal Prerogative Ordersin- Council. This was reversed in this case; the HOL held
the royal prerogative too is subject to JR like any PA. However, in limited subjects such as national
security the courts will not review, hence the instant case was dismissed. It was held that JR applies
to the nature of government powers and not source.
AG v Fulham corporation - the Fulham corporation was to established as a wash house for people
to wash clothes. Fulham introduced a scheme where people could leave clothes in a bag and
employees wash it. This was held to be ultra vires.
AG v Wilts United Dairies - Minister of food gave license for Wilts to distribute milk and asked them
to pay a govt. charge for every gallon. Wilts refused citing Bill of Rights 1689 which said, all taxes
must be approved by parliament, since this “charge” wasn't approved by parliament, minister was
acting ultra vires.

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ILLEGALITY (ULTRA VIRES)

Where a statute gives a public authority power to perform an action and the public authority acts
outside his jurisdiction his action becomes illegal.
Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 (GCHQ Case)
Lord Diplock: “By ‘illegality’ as a ground for judicial review I mean that the decision-maker must
understand correctly the law that regulates his decision-making power and must give effect to it.
Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute,
by those persons, the judges, by whom the judicial power of the state is exercisable.”
Accordingly, if an act is ultra vires, in other terms, out of the boundary of authority given by law,
such act is illegal.
Illegality can be categorized into two:
1. Narrow illegality
2. Wide illegality

Illegality in Narrow / Traditional / Orthodox / Illegality in Wider

Excess of power Introduced after Wednusbury and Pedfield case
• Exceeding power • Fettering discretion
• Misunderstanding the power • Improper purpose
• Acting contrary to statute • Unlawful delegation of power
• Relevancy
• Dictation

1. EXCESS OF POWER
Taking an action beyond the ordinary power. Three questions to be asked,
1. What was the power?
2. What did the body do?
3. Does it fall under/covered by the power given?
Attorney General v Fulham Corporation [1921] 1 Ch 440 - The Corporation was given the power by
an Act of Parliament to provide facilities for people to wash their clothes. The Corporation used this
power to set up a laundry service. Held, there was no legal authority to establish a laundry service
and so the Corporation exceeded its powers.
Robert v. Municipal Council, Kandy - The Council had power to grant permission to applicants to
run an omnibus service in Kandy. In granting such licenses, the Council imposed a condition that
passenger servicemen should not drop passengers at certain specified places. This condition was
held to be ultra vires by the Supreme Court.
Regina v. Secretary of State for the Home Department, Ex Parte Leech [1994] QB 198 - The case
concerned a prisoner’s right of confidentiality of mail from his/her solicitor. Prison rules gave power
to the prison authorities to read and circumvent (if necessary) letters to and from prisoner, to check
whether they were bona fide. The court held that this did not extend to checking communications
that did not breach security and hence did not extend to letters to and from solicitors.

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Mixnams Properties Ltd v. Chertsey Urban District Council [1965] AC 735 - The council was given
power under a statute to run a caravan site. The council gave on rent various parts of the site to
several persons. After letting various parts of the site to several people it issued regulations in regard
to the site as between them. The court held that the power to run a caravan site did not extend to
the imposition of regulations regarding contractual lettings between caravan tenants.

2. FAILURE TO PERFORM A STATUTORY DUTY

May be due to complete failure or failure to meet the required standard.
Three questions to be asked,
1. What did the body do?
2. Is the duty sufficient?
3. Did it satisfy the minimum threshold?
R v Camden London Borough Council, ex parte Gillan [1988] 21 HLR 114 - The Council had a duty in
the Housing Act 1985 to hear and decide whether persons were homeless intentionally or
unintentionally and to secure the provision of accommodation as appropriate. Due to a lack of
resources the authority’s homeless persons unit was open between 9.30 am and 12.30 pm on
weekdays only, during which time its staff were available to deal with applications and enquiries
made by telephone but not in person. Held, the discharge was less than the acceptable minimum in
terms of fulfilment of the duty.

3. EXERCISE OF POWER ON WRONG SUBJECT MATTER

A. Absence of Jurisdictional Fact - If the jurisdiction of a body depends on the existence of certain
objectively ascertainable facts, that body cannot exercise its power in the absence of such facts.
Leo v The Land Commissioner [1955] 57 NLR 78 - Land Commissioner was empowered by Land
Redemption Ordinance to expropriate ‘agricultural land’. But, he acquired a land that was not
used for such purpose. Held, since the property in question was not an ‘agricultural land’, the
decision was illegal.
B. Exercise in Respect of Different Subject Matter - The power must be exercised only in respect of
the subject matter it is granted.
Maersk (Lanka) Pvt. Ltd. V Minister of Port and Aviation [2012] 1 Sri LR 9 - Power was conferred
upon the minister to make regulations regarding ‘standard to be observed by shipping’. He,
however, used it levy tariffs. Held, ‘Standard’ refers to practices of code of conduct. Levying
tariffs does not fall under the same subject matter.

4. ERROR OF LAW AND ERROR OF FACT

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5. RELEVANCY
A decision-maker must take into account all relevant considerations & discount all irrelevant
considerations. Statute usually gives some indication as to factors which must be considered.
Short v Poole Corporation [1926] Ch. 66 - A teacher was dismissed for having a red hair. Held, the
consideration was irrelevant.
R v Somerset County Council ex p Fewings [1995] 1 All ER 513 – The act in question enables local
authorities to acquire and manage land for the benefit improvement or development of their area.
The statutory council banned deer hunting on the land acquired under the act. In order to protect
deer population. Council justified their action based on morality. Question before the court was
whether the morality argument relevant or not. Court held that the argument or consideration was
not necessarily irrelevant consideration and at the same time, it was not mandatory consideration
but was a permissible consideration. It was legitimate for the council to take in to account the
morality argument in coming to a decision. But finally the court set aside the decision to ban the
deer hunting, not because of irrelevant consideration but because that authority did not direct their
mind whether this banning of deer hunting best way to manage the land.
According to the case considerations are categorized into three:
1. Mandatory Considerations
2. Permissible/Discretionary Considerations
3. Irrelevant Considerations

• Points to consider:
i. What is relevant or irrelevant is a matter of statutory construction.
ii. Should decide on the weightage to be given to competing relevant factors
Tesco Stores Ltd v Secretary of State for the Environment [1995] - The decision maker
primarily decides on the weightage to be given to competing relevant considerations. Court
will intervene only if the weightage given is unreasonable.
1. What happens if the decision has been reached based on both relevant and irrelevant
considerations?
R v Broadcasting Complaints Commission ex p Owen [1985] - The dominant consideration
has to be ascertained. If the irrelevant consideration was the dominant consideration that
led to the decision, then that decision would be illegal. If the irrelevant consideration only
had a minimal effect – the decision would have been the same even if the irrelevant
considerations had not been considered – then the decision would likely to stand.
iv. What happens if the decision maker failed to consider one amongst the various relevant
considerations?
R v Parliamentary Commissioner for Administration ex p Balchin [1997] - If the omitted
consideration would have led to a different outcome/decision had it been considered, then
the court may intervene. If it would not have changed the outcome, then the decision would
stand.

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6. IMPROPER PURPOSE
Power must be exercised for the purpose for which it is granted. Exercising it for any other purpose
is illegal. When an Act of Parliament grants a discretionary public power, the courts assume that
Parliament intends the power to be exercised in accordance with the overall policy and objects of
the Act.
Padfield v Minister of Agriculture [1968] 2 WLR 92 - Under the Agricultural Marketing Act 1958, a
Committee of Investigation was established to make inquiries, if the minister ‘so directed’, into
complaints made to the minister concerning the operation of the milk marketing scheme. Farmers
from a region complained that the Milk Marketing Board had fixed prices in a manner prejudicial to
farmers in their region. The minister refused to refer the matter to the Committee of Investigation,
stating that this issue need not be referred to the Committee and he has unfettered discretion to
decide if the complaint should be referred at all. He was also of the opinion that the referral would
be politically inconvenient. Held, that the complaints procedure had been included in the Act as a
means of dealing with all reasonable and relevant concerns raised by producers and, absent good
reasons, it was not open to the Minister to use his power of referral in a way which thwarted this
objective. Lord Reid: ‘Parliament must have conferred the discretion with the intention that it should
be used to promote the policy and objects of the Act’.
The ‘policy and objects of the Act’ can be ascertained by examining both its entire text and the
historical circumstances surrounding its enactment. Political inconveniency was not a purpose that
included in the act. In so far as he was motivated by that purpose, he had acted illegally. There is no
concept called ‘unfettered discretion’ in Administrative Law. The powers must be exercised for the
purpose for which it was granted.
R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd [1995] 1 All ER
611 - The Overseas Development and Co- operation Act 1980 Section 1 provided that the Foreign
Secretary: “. . . shall have power, for the purpose of promoting the development or maintaining the
economy of a country . . . outside the UK, or the welfare of its people, to furnish any person or body
with assistance, whether financial, technical or any other nature.”
In the late - 1980s, several British firms became involved in a bid to build a dam in Pergau, Malaysia,
with the UK government providing a portion of the cost as an aid. But it was informed by the
economic analysts that the project would be economically bad. The Secretary of State for Foreign
Affairs nevertheless decided to grant the aid. He took the view that not to do so would ‘affect the
UK’s credibility as a reliable friend and trading partner and have adverse consequences for our
political and commercial relations with Malaysia’ The Foreign Secretary maintained that s 1 did not
limit aid to projects that were sound economic terms, but also permitted aid which served ‘wider
political and economic considerations…’ It was also found that, before agreeing to provide aid, the
UK government signed an agreement with them for the sale of arms valued at £1.3 billion. In
exchange, the UK would fund the project. Held, that the Foreign Secretary had acted unlawfully, in
part because the project was ‘economically unsound’, and also because the aid did not promote the
development of a country’s economy as required by law. The action was illegal as it was not done
for any of the purpose of the Act, but instead as a political negotiation tool. The courts are the final
arbiters of what proper purpose of a statute is.

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• What will be the position if the decision maker had two purposes in mind?
R v Inner London Education Authority ex p Westminster City Council [1986] 1 WLR 28 - Gidewell J.,
citing Wade: “The general rule is that the action will be lawful provided the permitted purpose is
the true and dominant purpose behind the act, even though some secondary or incidental
advantage may be gained for some purpose which is outside the authority’s power”.
Evans:
1. Were any of the purpose pursued an unauthorized purpose?
2. If yes, did the unauthorized purpose materially influence the decision maker’s conduct?

7. BAD FAITH
Official decisions should be done in ‘good faith’ and reasonably. They must not be infected with bad
motives.
Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 - Lord Greene
noted that a decision could be quashed on the basis of having been made in bad faith or dishonestly.
Castello v Dacorum District Council (1980) 79 LGR 133 - The council acquired the land for its benefit,
which was a proper purpose under the statute. The land was, before the acquisition, occupied by
the ‘gypsies’. It was found that the council members hated the gypsies and the land was acquired
so that they could be removed from the area. Held that the council was motived by bad faith towards
the gypsies even though the acquisition was done form proper purpose.
Regina v. Derbyshire County Council, Ex Parte the Times Supplements Limited and Others - A
newspaper published a number of articles criticizing the activities of the Council Leader and the
controlling party. The Council decided not to place any advertisements in that newspaper
publications, including the Times Education Supplement. Granting certiorari to quash the decision,
the judge said the Council by taking a decision not to advertise in Sunday Times paper which greatest
number of potential applicants are reading was induced by bad faith and motivated by
vindictiveness towards the paper.

8. FETTERING OF DISCRETION BY POLICY

A body may adopt a general policy to guide and give consistency to the exercise of its decision-
making powers. It is still bound, however, to apply its mind to each case or application which comes
before it and must be prepared to make exceptions where this would appear to be deserved or
appropriate. When, however, an authority adopts a policy and applies that policy so rigidly that the
merits of individual cases are not considered, then that authority may be said to have fettered its
discretion by its own policy. Such decision, and possibly the policy, may be held illegal. Discretion
does not allow to avoid exercising discretion.
British Oxygen Co Ltd v Minister of Technology [1971] AC 610 - The Act in question had given the
Minister discretion to give grants to companies investing in new plant and machinery. The Minister’s
policy was not to award such grants for items costing less than £25. BO applied for a grant to assist

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in the purchase of new gas cylinders each costing about £20. Minister had, despite his policy,
considered the applicant’s petition in light of its circumstances and still saw fit to refuse the
application. Applicant argued that the policy and decision were illegal. Held, Lord Reid: “General rule
is that anyone who has to exercise a statutory discretion must not ‘shut his ears to an application”.
Policies can be adopted. There can be no objection to such policies “providing the authority is always
willing to listen to anyone with something new to say.” The policy, in this case, did not prevent the
minister from looking at the relative merits of the case, therefore, the refusal was not illegal.
R v Waltham Forest London BC, ex p Baxter - The courts held that a councilor blindly voting along
parley lines would amount to a Fetterly of discretion.
R v Secretary of State for the Home Department, ex p Venables (1998) - Lord Brown Wilkinson:
1. When Parliament confers a discretionary power such power must be exercised on each occasion
in the light of the circumstances at that time.
2. The decision maker cannot fetter the future exercise of his discretion by committing himself now
as to the way in which he will exercise his power in the future.
3. The decision maker cannot exercise discretion by ruling out consideration which may be relevant
in the future.
4. The decision maker must be ready to depart from his policy if the circumstances requires such
departure.
5. If the decision maker adopts rigid policy that prevents him from looking at the individual merits
of each case, and takes a decision according to that policy, then both the policy and decision
may be held unlawful.
9. UNAUTHORISED DELEGATION OF POWER
Where powers are conferred by statute, the general rule is that they may not be delegated unless
that delegation is authorised by law.
Barnard Vince v National Dock Labour Board [1957] A.C. 488 - Dock Workers Order 1947 gave
National Dock Labour Board the power to discipline and terminate the employment of dock workers.
The board, however, established a committee to carry out his function and this committee dismissed
the applicant. Held, the board had no statutory authority to delegate its disciplinary powers,
therefore, the delegation was unlawful.

• Exception: When a power is conferred upon the minister, it is permissible for him to delegate his
powers to a civil servant of the relevant ministry.
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 - The Minister was given powers, under
wartime regulations, to requisition property. Carltona’s property was requisitioned. The order for
requisition being signed on behalf of the Minister by a civil servant with the rank of assistant
secretary. Held, delegation was pragmatic and not unlawful. Parliament could not possibly intend
that ministers personally exercise all the powers they are given.
10. ACTING UNDER DICTATION - The decision maker acts ultra vires if he exercises his discretion on
the basis of instructions of some unauthorized body or person.

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PROCEDURAL IMPROPRIETY
GCHQ - Lord Diplock defined procedural Impropriety as, ‘failure to observe basic rules of natural
justice or failure to act with procedural fairness’ and also ‘failure to observe procedural rule
expressly laid down in …legislative instruments’

PROCEDURE REQUIRED BY STATUTE

An act of parliament giving a body a public power may specify certain procedural requirement that
should be met in the exercise of that power. For instance, it may require that, before a decision is
made, the body should:
(a) Consult with certain parties
(b) Give notice of a decision in a particular or,
(c) Notify those effected party of right to appeal.
There are two types of requirements. Court must distinguish between them
1. Mandatory requirements: The decision will be void, because the decision maker has clearly
violated the express provision of the act. In this decision maker had no choice.
2. Directory rule: Not always fatal. Court may still allow the decision to stand. In this case decision
maker had some choice.

• How to determine if a rule is directory or mandatory?

1. Word used: Word ‘must’ or ‘shall’ - mandatory; Word ‘may’ or ‘can’ - directory
2. Hardship: Whether any substantial hardship is likely to follow if the requirement is not followed.
London and Clysdale Estate LTD v Aberdeen District council - Must look at the circumstances at
hand before giving determining the importance of a statutory provision.
Bradbury v Enfield BC 1967 - A local education authority was held to be procedurally ultra vires as
it failed to give adequate notice and opportunity to object a plan affecting some public schools.

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R v Brent London BC ex parte Gunning - Section 71(3) of the Town & Country planning Act 1990 UK
states that local authorities must be consulted before approving caravan site. A local council had
failed to hold a statutorily mandated consultation with the residents before designating an area as
a controlled traffic zone. It was stated that the consultation must be genuine and effective.
1. Consultation must be at a stage when the proposal is still at a formative stage.
2. Proposal must give sufficient reasons for any proposal, to person intelligent consideration
and responses.
3. Give adequate time for consideration and responses.
4. Overcome of consultations must be ‘conscientiously' taken into account in the final project.
Agricultural, Horticultural and Forestry Federal Training Board v Aylesbury Mushrooms 1972 - The
Secretary of State had proposed to introduce new regulations on the training of agricultural workers.
It sent latter to a body representing mushroom cultivation, inviting representations. The letter was
not received, and the regulations were passed sans consultation. The respondent argued he was not
bound by them since consultation didn't happen thus making the regulations ultra vires. It was held
that consultation required more than giving notice or letter. The PA must genuinely hold a hearing
with an open mind; and because that didn’t happen, regulation was ultra vires.

PROCEDURE REQUIREMENT BY COMMON LAW

Even when the statute does not expressly provide what are the procedure that need to be followed
by the decision maker, or the procedures provided are not adequate, court will presume that the
legislature had the intended to confer procedural fairness and interpreted the statute accordingly:
R v home secretary ex p doody (1994) 1 AC 531 - “Where an act confer administrative power there
is a presumption that it will be exercised in a manner which is fair in all the circumstances”
R v Environment secretary, ex p Hammersmith LBC (1991) AC 521 - Even if a statute prescribes the
procedures, if a court opined that such procedure is inadequate to satisfied the requirement of
fairness in given circumstances, it may choose to add additional procedures not prescribe in the
statute.

THE CONCEPT OF NATURAL JUSTICE

Natural justice at central is concerned with fairness in decision making. It means the proceeding
must be conducted in a way which is fair, in the sense that, it should be fair in all the circumstances.
‘Justice should not only be done, but also appear to be done.’
Fairness can be of substantive or procedural. Substantive fairness requires the decision and its
merits must be reasonable whereas procedural fairness requires that the procedures that led to the
decision must be reasonable. It is the latter with natural justice is concern.
In Cooper v Wandworth Board of works (1863) natural justice was held to not apply to administrative
actions and until Ridge v Baldwin (1964) natural justice rules applied only to appeal of judicial and
quasi-judicial decisions. Afterwards it applies to some administrative case too. The courts are more
likely to require natural justice applied the greater the effect on rights.

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• What is fairness in Procedure?

R v Parole Board [2005] UKHL 45 - A procedure that involves significant injustice is unlawful
Procedure is only fair when it gives due regards to the interests of the affected parties. Something
is procedurally unfair if it wrongly neglects a person’s interest in participating in the process.
Ex 1. You are expelled from the University suddenly without any notice and for no reason.
Ex 2. You are suddenly required to evict your homes as the government going to build a high way.
Lloyd v McMahon [1987] 1 AC 625 - What the requirement of fairness demand when anybody,
domestic, administrative, or judicial, has to make a decision which will affect the rights of individuals
depends on the;
1. character of the decision-making body,
2. the kind of decision it has to make (nature of the decision), and,
3. Statutory or other framework within which it operates.
Hence, “the so-called rules of natural justice are not engraved on tablets of stone”.

• Fairness to whom?
Courts will require a public authority to act fairly not just towards the parties to a dispute, or those
affected by the outcome of a decision but also towards the affected by the process (Eg. Witness)
R v Lord Saville of Newdigate [2002] 1 WLR 1249 - To witnesses at a public inquiry, who might be
endangered by disclosure of their identity and/or testimony.

RIGHT TO FAIR HEARING - AUDI ALTERAM PARTEM

It simply means a right to a fair hearing: hearing both sides. Those affected by the decision should
be given a chance to influence the decision-making process, to put their side of the case. Eg: Two
similar assignments: Decided it after hearing one student’s arguments. Questions that, in the
interest of natural justice to be asked when an administrative decision making is involved;
1. Does the situation require a right to fair hearing?
2. If yes, is there anything excludes such a right in this particular situation?
3. If there is nothing excludes such a right, what are the contents of a right to fair hearing? what
procedural protections this situation require

• Situation that demands Audi Alteram Partem

Nakkuda Ali v Jeyaratna [1951] AC 66 [Orthodox View] - To warrant a fair hearing,
a) The decision to made must be judicial or quasi-judicial in nature, and not administrative, and,
b) The purported decision must affect the right of a party and not merely privileges.
The Ceylon Controller of Textiles had power to revoke a dealer’s license to deal in textiles if there
were reasonable ground to believe that the dealer was unfit. Since cancelling of license involves
revocation of privilege and an action of administrative in nature, no fair hearing is required. It is not
quasi or judiciary proceeding.

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Ridge v Baldwin [Current View] - Ridge was the chief police of Brighton and had served 23 years on
the police office. He was prosecuted on conspiracy and corruption charges. Though the judge had
acquitted him, nevertheless made the following remark in his character: that he was bad example
because of his association with men suspected of bribing police, and his evidence will not be trusted
in future prosecution. After he was acquitted by the judge, the police authority of Brighton told ridge
that he was sacked from office. This was done without any notice or hearing was given, it did not
change the dismissal. Ridge appealed to home security but security held that the dismissal was
lawful. Police authority had the power to dismiss any constable ‘’whom they think negligent or
otherwise unfit for duty. According the dismissal to be lawful the authorities must be convicted him
of negligent or unfit duty. Ridge petitioned the court saying that without hearing his side authority
court not have property decided he was negligent or unfit. The police argued that dismissal is the
matter of police of the police authority therefore in acting they need not play he apply the principal
of natural justice.
Issue: Did the police prevent the application of natural justice? Was Mr Ridge entitled to right to fair
hearing in this situation?
Held: Though policy is a factor in administrative decision making, their existence does not affect the
rules of natural justice. Because, rules of natural justice are concerned with fair form of procedure,
not controlling policy. Accordingly, even though whether the ridge was negligent or unfit was a
matter for the authority to decide, it was not possible or fair for the authority to hold him unfit
without hearing his defence.
Court, here, did not decide whether he was fit to be a police officer. It was a police decision that
falls under the purview of administrator. It only interfered to make sure the correct procedure was
followed when coming to the decision that adversary affected the interest of Ridge.
Since Ridge v Baldwin, when it comes to natural justice, the differentiation between judicial and
administrative acts have been dispensed with. Wade: “character of the authority is not what
mattered: what mattered was character of the power exercise. If that adversely affected legal right
or interest it must be exercised fairly.” However, the content of fair hearing might be higher in
judicial than in administrative decision-making process.
Accordingly,

• When the power that is to be exercised by the authority adversely affects some person’s
right or interests, such authority must give such person a fair hearing. [Ridge v Baldwin - Loss
of livelihood, Loss of job, Loss of reputation]
• In addition, right to fair hearing also depends on whether the person has something to say
on the issues that are relevant to the decision.
According to Ridge v Baldwin, a person will always have something to say on the issues relevant to
the decision that will deprive his right or otherwise affect his interest protected by law.
Schmidt v Secretary of State for Home Affairs [1969] All ER 904 - “Where a public officer has power
to deprive a person of his liberty or property, the general principle is that it is not to be done without
him being given an opportunity of being heard and of making representations on his own behalf.”

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McInnes v Onslow- Fane [1978] 1 WLR 1520 - McInnes applied to the British Boxing Board of Control
for a boxers’ manager’s license. When making his application, he asked for an oral hearing and prior
notification of anything that might prevent the license being given. License was refused & he sought
a declaration that the Board had acted in breach of natural justice. Held, as this was merely an
application for a license, Board were simply under a duty to consider it honestly and without bias.
The judge distinguished among three categories of case:
a) Forfeiture cases - This case would be one where the holder’s license was being revoked by
Administration. In such cases there was a right to an unbiased tribunal, notice of the reasons for
the proposed revocation and the right to be heard.
b) Mere applicant cases - In a case such as McInnes’s, there was rarely a right to be heard because
one was seeking a new privilege rather than defending a one. Here nothing is taken away.
c) Renewal cases - This case was closer to the forfeiture case than the applicant case. Here he has
a legitimate expectation that since he has already been granted one, this time too it will be
granted.
Hence, there is no clear-cut rule that prescribes situations where a right to fair hearing should be
given. Nevertheless, often, if a person is going to be adversely affected by the decision, fairness
demands that he be heard.

• Situations that Vitiate the Requirements

Here too there is no concrete list of circumstances where the court would say that a right to fair
hearing need not be exercised by an administrative body. However, some obvious situations where
the courts show reluctance to intervene (though not always) can be identified:
1. Where the statute expressly gives authority to the decision maker to decide without fair hearing
(Commissioner of Business Franchises v Borestein)
2. Where the situation of emergency demands an urgent decision (though not always) (Grech v
Minister of Immigration)
3. When a real situation involves real question of national security. (Recent trends indicates more
willingness on the part of the courts to intervene and require fair hearings)
4. Matters of public health at large are at risk (R v Davey)
5. Matters of macro public policy (GCHQ)
6. Administrative Impracticability (R v Secretary of State for Social Services ex parte Association of
Metropolitan Authorities – Circular – Confusion)
Whenever the grant of a fair hearing is consistent with the exercise of legal power, the law leans
strongly in favor of right to a fair hearing.

• Can administrative inconveniency be a ground to dispense with the right to a fair hearing?
R v Hull Prison Visitors ex parte [Link] (No.2) [1979] 3 All ER 545 - Administrative
inconveniency is not a valid ground or reason for not giving a right to fair hearing. Mere difficulty is
not enough to deny the right to fair hearing.

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General Medical Council v Speakman - Lord Atkin: “Convenience and justice are often not on
speaking terms”
Nanayakkara v University of Peradeniya et al - “Any need for haste or expediency cannot be a
reason to override these principles of natural justice – right to a fair hearing.”

• Is Availability of a Right to Appeal an Exceptional Circumstance?

Lloyd v McMahon [1987] AC 625 - As a general rule, the availability of a right to appeal cannot be
taken as an exceptional circumstance. Even when there is an appeal procedure, courts will require
the initial decision must also be made following a fair procedure.
Calvin v Carr [1980] AC 574 - However, if the appeal cures the defects of the initial procedure, i.e. if
the person affected will be given a fair hearing in the appeal procedure as anew, then availability of
such appeal can be taken as an exception.

• What if failure to give fair hearing will make no difference?

1. Intrinsic justifications: fair procedures ought to be followed regardless of whether they increase
the chances of reaching better or correct outcomes.
2. Instrumental Justification: fair procedures are required so long as they add something to the
hearing. Further procedures are not required where they would (probably) not change the
outcome.
The idea that ‘justice must not only be done, but also seen to be done’ favors the former.

• Contents of Fair Hearing

Depending on the circumstances and issue at hand, the right to fair hearing may involve one or more
of the followings;
1. Right to notice Right to adequate notice
2. Right to be informed of the case against
3. Sufficient time to prepare a defence
4. Opportunity to respond to evidence
5. Right to an oral hearing Adequate opportunity for
1. answering
6. Right to legal representation
7. Reason for decision
8. Right to cross examination

I. Right to Adequate Notice

Since the person affected cannot make worthwhile representations without knowing what factors
may weigh against his interests, fairness will often require that he is informed of the ‘gist of the
case’ which he has to answer. The term ‘notice’ originates from the Latin word of ‘notitia’ which
means ‘being known’. An affected person can only make a useful contribution to the process if he
knows the issues and information on which the public authority may proceed to act.

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Mere Notice or Adequate Notice?

University of Ceylon v Fernando [1960] UKPC 6 - Mr. Fernando, a science student, had scored eight
out of 10 in the zoology paper theory question that consisted of translation into English some
German or French words. Accordingly, he was poised to get a first class. He kept a personal diary
with himself, contents of which were not allowed to be known by others. One day he left the diary
in his laboratory, which was then read by one of his classmates Miss. Balasingham. She found in his
notebook ten German words and their meanings in English in the same chronological order as they
had appeared in the Zoology paper. Suspecting that he had got prior information about exam
questions, she brought the matter to the authority. Sir Ivor Jennings, who was the Vice-Chancellor
at the time, took the matter seriously and set up a Commission of Inquiry consisting of Dean of the
Faculty of Science, a member of the university council and himself.
The General Act, Clause 8 gave the Vice Chancellor power to suspend or remove from the pass list
any student if he was satisfied that such student had acquired prior knowledge of contents of any
exam paper, and to refer the matter to the Board of Residence and Discipline for any further action.
However, the Act failed to stipulate how or what procedure the VC has to adopt in coming to a
determination.
VC gave Mr. Fernando a formal notice through a letter dated 16th of May 1956 which stated, inter
alia, that a serious allegation of acquiring prior knowledge of contents of Zoology paper was made
against him, the VC has called for a formal inquiry and Mr. Fernando was required to attend a
meeting on 21st of May at 5 P.M. [Notice: Time, Place, Date of hearing and nature of allegations
were mentioned] The Commission of Inquiry convened on three occasions. At the first meeting held
on 21st of May, Mr. Fernando was informed and questioned in detail about the allegation made
against him. At the second meeting various witnesses and the complainer [Miss Balasingham] were
questioned in the absence of Mr. Fernando. At the third [the last] meeting, Mr. Fernando was given
another opportunity to defend himself. After the meeting, the Commission came to the
determination that Mr. Fernando was guilty. Accordingly, the matter was referred to Board of
Residence and Discipline, which then decided to suspend him from university indefinitely.
Issue: In the absence of any statutory stipulation, did the procedure adopted by the Vice-Chancellor
contravened the principle of natural justice? [a. Was he given adequate notice? b. was not giving
opportunity to cross examine the witnesses a violation?]
Held: In the absence of stipulation of required procedure, the VC can adopt any proper procedure
so long as they conform to the principles of natural justice.
As regards to right to notice: Before making any decision, natural justice require that a fair
opportunity must be given to the person who is going to be adversely affected to correct or
contradict any relevant evidence to his/her prejudice. This requirement has two sub-sets:
1. The affected person must be adequately informed of the case he has to meet; and,
2. He/she be given an adequate opportunity of meeting it.
Since timely notice explaining the allegations was given, the requirement of adequate notice was
satisfied.

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What does an adequate notice consist of?

1. Time, place, and nature of the hearing
2. Statements of specific charges the person has to meet
3. Legal authority under which the hearing is to be held
4. Indian Supreme Court has gone further by adding additional requirements for adequate notice:
Particular penalty or action which is proposed to be awarded/taken.
✓ Gorkha Security Services v Govt. (NCT of Delhi) [2014] 9 SCC 105
Nanayakkara v University of Peradeniya [1985] 1 SLR 174 - The Test of adequacy of notice will be
whether it gives sufficient information and materials so as to enable the person concerned to put
up an effective defence.
In Re K (Infants) [1963] Ch 381 - Upjohn L.J, “It seems to be fundamental to any judicial inquiry that
a person…must have the right,
a) to see all the relevant information,
b) To comment on it.
c) To challenge it, and,
d) Tries to establish contrary evidence.
These cannot be withheld from him in whole or in part.”
R v Home Secretary, ex p Doody [1994] 1 AC 531 - Principles of judicial inquiry as propounded in Re
K (Infants) has been extended to administrative decision making in which a person has a right to a
hearing, and the decision must be based on the information disclosed to the affected party, provided
that the disclosure is not prohibited by law.
Board of Trustees of Maradana Mosque v Minister of Education [1966] UKPC 2 - Where there are
more than one allegation, all such allegations must be disclosed in the notice. It is not a defence that
some or part of the ground have been disclosed.

II. Sufficient Time to Prepare a Defence

Once the notice is given, adequate time should be given to prepare an effective defence.
Nanayakkara v University of Peradeniya [1985] 1 SLR 174 - Mr. Nanayakkara was alleged to have
involved in vandalism that ensued after the University Union Election. Committee of Inquiry was set
up and it decided to hold an inquiry against him. Mr. Nanayakkara was not given a prior notice of
the inquiry. In fact, on the day in which the purported inquiry was to be held, when he was returning
from a lecture, he was informed by Assistant Registrar that he is required to meet Mr. Ranasinghe
in the Senate Hall around10.30 A.M. When he met Mr. Ranasinghe at 10.30 A.M. he learnt that
Ranasignhe was a member of a Commission of Inquiry set to investigate the allegations of
misconduct made against him. Nanayakkara informed the Committee that he is unprepared and
that he needs additional time, to which the Committee responded by requiring him to be present at
2 P.M. on the same day. Issue was should adequate time be given to mount a defence? If so, was
Mr Nanayakkara given adequate time to prepare a defence? Held, it is against the principles of
natural justice to provide inadequate time to prepare a defence. Considering the seriousness of the
situation, the amount of time given was inadequate.

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III. Right to Know the Adverse Evidence

Every person before an administrative tribunal has the right to know the evidence to be used against
him.
Why is disclosure of evidence necessary?
University of Ceylon v Fernando - It is only when the adverse evidence is known can you put forward
an adequate defence by responding to such evidence. Nothing should be used against the person
which has not been brought to his notice. Hence, only when the notice of evidence is brought to the
attention of the affected party, can it be used against him.
Limitation: It is not always required that the person be shown the exact documents or reports that
contain the evidence. So long as sufficient information is given to inform him of what is in the
evidence, the requirement is satisfied.
R v Home Secretary ex parte Mughal [1974] QB 313 - Minister responsible for immigration gave a
suspected illegal immigrant a full opportunity to understand and contradict the case made against
him. However, the minister did not reveal/show the person the report he had obtained when
making inquiries.
Issue: Is there a duty on the minister to show the precise contents of the evidence down its minute
details?
Held: The right to know the adverse evidence can be realized by informing the affected person the
substance of the case he has to meet. There is no need to show the precise details of the evidence
or the source of information. Hence, by providing an adequate opportunity to understand and
contradict the case the minister has acted fairly.

IV. Right to Representation and Oral Hearing

Generally, everyone has a right to representation when the matter adversely affects their legal
interests. The representation can be done in two ways:
1. In writing
2. Orally
Ganeshanantham v Vivienne Gunawardena [1984] 1 SLR 319 - “Right to be heard and defend
oneself will be illusory and meaningless without the knowledge of the case to be met, of the charge
or the subject matter of dispute to be decided by the court or tribunal, and without an adequate
opportunity of placing that which has to be put forward in defence either in person or through
counsel of one’s own choice.”
Generally, the requirement of giving adequate opportunity will be satisfied through giving
opportunity to make representation in writing. There is no general requirement that an oral hearing
be given. Oral hearings are exceptional.
When will an oral hearing be required?
Timothy: “It depends on whether an oral hearing would make a difference on the issue at stake.”

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When Will Oral Hearings Make a Difference?

1. Legally protected rights are going to be deprived [Ridge v Baldwin, Amarasinghe v Cooperative
Employees Commission]
2. Serious disciplinary actions [Nanayakkara v University of Peradeniya, University of Ceylon v
Fernando]
3. When there is a disputed fact in issue that is crucial to decision making [R (Thompson) v Law
Society]
4. If oral hearing would better explain the facts or throw different light on it [R (West and Smith) v
Parole Board]
R (Thompson) v The Law Society [2004] EWCA Civ 167 - A former client made a complaint against a
solicitor for having rendered inadequate professional services. The Law Society is vested with the
power to hear those kinds of allegations. The determination involved the question of whether his
performance was adequate or not.
Issue: Is oral hearing required to determine the proper fact?
Decision: “An oral hearing should be ordered where there is a disputed issue of fact which is central
to the board’s assessment and which cannot fairly be resolved without hearing oral evidence.”
Deciding the adequacy of performance, in this case, needs no oral hearing.
Endicott: “The question is not whether the decision affects the claimant, but whether the
participation of the claimant through oral hearing is needed to resolve the issue.”

V. Right to Legal Representation

When it comes to normal administrative tribunals, natural justice does not usually imply the right
to be represented by an attorney. As the law stands, right to legal representation is not a firm right
in administrative decision making.
Wade: Circumstances where legal representation ‘may’ be usually required in administrative
decision making;
a) Formal tribunals established by statute
b) Investigations (where tribunal carries out formal investigations)
c) Where the charge made against a person is so grave or complicated
Culasubadhra v University of Colombo [1985] 1 SLR 244 - Culasubadra was alleged to have brought
three papers containing answers to Chemistry exam she sat in her second year. The Examination
Committee found her guilty, so she appealed to the Vice-Chancellor who then appointed a Board of
Appeal to hear the appeal. During the appeal hearings, she was given an opportunity to state her
case, her answer script was shown, and she was asked whether she had any evidence to support
her denials. No evidence was produce by her. But when she asked to be represented by a lawyer,
the Board told that a legal representation was not necessary at that stage. The Board found her
guilty, and the decision was communicated to her. She petitioned the court alleging that since she
was not granted an opportunity to be represented by a lawyer, the principle of natural justice was
violated.

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Held: As a general principle, natural justice does not include right to legal representation before
administrative tribunals. Because the issues usually involved in those tribunals are often
straightforward. An administrative tribunal may allow legal representation, but it is generally
discretionary, and providing none will not necessarily render the procedure ultra vires.
However, following factors will determine whether a right to legal representation exists in a given
case: [See also, R v Secretary of State for the Home Department, ex parte Tarrant (1985)]
1. Seriousness of the charge and potential penalty
2. Whether any point of law is likely to arise
3. The capacity of the particular party to present his own case
4. The need for reasonable speed in making decision

VI. Right to Cross-Examine the Witness

When it comes to administrative decision making, providing right to cross examination is not a
general rule. The decision maker, in general, need not to voluntarily offer the affected party an
opportunity to cross examine the witnesses.
University of Ceylon v Fernando - During the second meeting, the witnesses made their testimony,
but Mr. Fernando was not present when this happened. In the third meeting he was informed of
this, and was given the chance to contradict the statements made by witnesses. He claimed he was
not given an adequate opportunity to question and cross-examine the witness.
Issue: Is right to cross-examination a general rule in administrative proceedings?
Decision: Unless requested by the person affected, there is no general rule that requires an
opportunity to cross-examination be given. This applies even when the witnesses were heard in the
absence of the person against whom the allegations were made.
This stance was affirmed in Culasubadra v University of Colombo - So long as the person is given an
adequate notice and opportunity to rebut the evidence and statements made by witness, the
requirement is satisfied. There is no rule that requires the decision maker to offer an opportunity to
cross-examine the witness.
Nanayakkara v University of Peradeniya - Certain circumstances where the decision maker might
have to offer an opportunity for cross-examination:
1. There are grounds to believe that the witnesses might be biased. - Main witnesses that
testified against Nanayyakara belonged to the opposition group.
2. If the person had no sufficient opportunity to think over on his own. - Nanayakkara was
suddenly brought before the tribunal and informed of the allegation. This nature of his
sudden appearance did not allow him to think over on his own and ask for cross-examination.
Hence, the committee should have volunteered to offer him an opportunity to do so.

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VI. Reason for Decision

English courts and Sri Lankan courts differ in this regard. In England, there is no legal rule that reason
for decision be given initially. But in Sri Lanka, providing a reason is a matter of legal duty.
England
R v Home Secretary ex parte Doody [1994] 1 AC 531 - The principle of natural justice does not
include any general rule that reasons should be given for decision. However, in circumstances where
giving no reasons would be unfair, reason should be given.
Even when the authority gives no reason, it must still show that procedure it adopted is not unfair.
The decision maker must have made the decision based on sound reason even if he does not disclose
it. Otherwise, the decision would be irrational. Situation where giving no reasons would be unfair:
1. Decisions that need explanations to be properly understood [R v Civil Service Appeal Board ex
parte Cunningham [1994] 4 AER 310]
2. Deviation from a pre-existing policy [R v. North Derbyshire Health Authority Ex parte Fisher
[1997] 8 Med LR]
3. Highly regarded legal interest was involved [R v Home Secretary ex parte Fayed [1998] 1 WLR
763]
4. When appeal procedure is involved
Sri Lanka
Bandara v Premachandra [1994] I SLR 302 - The petitioner was a public officer who held his office
at the pleasure of the minister under article 55. He was dismissed without giving any reason for the
dismissal. Held, even though public officer who hold office at pleasure may be dismissed without
reasons being provided, it does not mean that no reason needs to exist. When the court ask for
reason, it should be provided. Failure amounts to an arbitrary exercise of power, therefore, violates
article 12 of the Constitution.
Gunaratne v Petroleum Corporation [1996] 1 SLR 315 - Whilst reasons need not be provided at the
initial stage, proper reasons for administrative decision making must exist.
Ashoka Serath Amarasinge v R. Wijeratne et al SC Appeal No. 40/2013 - Unless the reasoning
behind the decision is given, a person is unable to know whether it is lawful or not, and thus he is
deprived of the protection of the law. A right to know the reason is therefore an indispensable part
of the system of judicial review.
Section 35 of Right to Information Act - Every officer in any public authority giving a decision which
affects any person in any way, shall be required on request made in that behalf by the person
concerned, to disclose to that person in writing the reasons for arriving at such decision.
Peduru Arachchige Janaka Pushpakumara S.C. (F.R.) Application No: 452/2011 [decided in 2021] -
Janak De Silva J, “…While I reserve my position on whether there is a general duty on an
administrative body to provide reasons for its decision, I have no hesitation in holding that once the
fundamental rights jurisdiction of this Court is invoked, the decision-maker owes a duty to the Court
to disclose the reasons for his decision.”

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Hapuarachci et al v Commissioner of Elections et al [2009] 1 Sri LR - Shirani Bandaranayake J, “…It

is therefore apparent that as pointed out by Professor Wade (Administrative Law, supra pg. 527),
the time has now come for the Court to acknowledge that there is a general rule that reasons should
be given for decisions based on the principle of fairness.”
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 under article 12. Providing
reason for decision is a matter of legal duty of an administrator.

THE RULE AGAINS BIAS - NIMO JUDEX IN CAUSA SUA

This maxim means, no man can be a judge in his own affairs. A decision-maker is actually biased if
motivated by a desire to favour one side or disfavor the other for reasons unconnected with merits
of the issue.
✓ What is the Difference and Connection between Fair Hearing and Rule Against Bias?
Whereas fair hearing concerns with the person affected, and whether he has been given a fair
opportunity in the proceedings or not, the rule against bias concerns itself with the person who
makes a decision, and whether he is impartial or not. A hearing will not be fair at all if the decision
maker is going to decide against a party regardless of what he hears.
✓ Types of Bias
1. Actual Bias - Where there is an evidence to prove that the person has acted partially. When a
decision make is openly predisposed towards one party or has an open hostility attitude towards
another, actual bias could be proved.
R v Gough – If proved, that is the end of the case.
2. Presumed Bias - Where a decision maker has a direct pecuniary interest or any other
relationship with a party to a dispute, a bias will be presumed, which would automatically
disqualify the decision made. [Judge is obliged to recuse from the case]
A. Pecuniary Interest
Dimes v Grand Junction Canal Proprietors [1852] 3 HL Cas 759 - The Lord Chancellor, Lord
Cottenham decided a case that involved Grand Junction Canal Proprietors. The decision was in
favour of them. It was later found out that he had held some shares in the company when he was
deciding the case. He had also acted as a trustee. Issue was, should the decision be set aside for bias
even though it is not actually proved? Held, Lord Chancellor’s decision should set aside because of
his pecuniary interest in the company.
Lord Campbell: “No one can suppose that Lord Cottenham could be, in the remotest degree,
influenced by the interest that he had in this concern, but, My Lords, it is of the last importance that
the maxim that no man is to be a judge in his own cause should be held sacred.”
R v Rand – However small the pecuniary interest, disqualifies the person.

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B. Party to the case or has a relationship with a party to the case

If a decision maker is directly involved as a party, or has a relationship or close connection with one
of the party, be it personal or professional, such decision maker is required to recuse himself.
Otherwise, decision will be set aside for presumed bias. Eg: Friendship, Mother, Brother-in-Law
R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 - McCarthy was involved in reckless driving.
Two cases were filed on the same matter. A civil case for compensation was filed against McCarthy
in which ‘S’, a solicitor, represented the victim. ‘S’ was also a judges’ clerk. Later, a criminal charge
for reckless driving was filed against Mr. McCarthy. When the judges went to discuss the case in
private, ‘S’ also went with them. Subsequently, McCarthy was convicted. Issue was, can a biased be
presumed based on the professional relationship of ‘S’ towards a party? Held, when there is a
relationship, be it personal or professional, a bias could be presumed.
Lord Heward: “It is of the fundamental importance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done.”
R v Bow Street Metropolitan Stipendiary Magistrate et al ex parte Pinochet Ugarte (No.2) [2000]
1 AC 199 - A case against Pinochet was filed in House of Lords (ex parte Pinochet Ugarte No.1). The
issue was whether Pinochet should be extradited to face trial for acts committed when he was the
President of Chile. Amnesty International had been allowed to participate in the case and had
argued in favour of extradition. Lord Hoffman, one of the judges who heard the case, was a director
of Amnesty International Charity, a subsidiary body under Amnesty International. Despite the
connection, he did not recuse himself from the case. It was decided that Pinochet ought to be
extradited. When Lord Hoffman’s interests came to light, a separate petition was filed. Issue was, is
the involvement in an organization that is party to a dispute an instance where a bias could be
presumed? Held, even when a judge is not a party to the suit and does not have a pecuniary interest,
still, bias could be presumed if in some other ways his conduct or behavior may give rise to a
suspicion that he is not impartial. Lord Hoffman’s association with a party that gave rise to a
presumed bias even though there is nothing to indicate that he had acted partially in coming to the
decision.
3. Apparent Bias - When it is not clear whether decision maker is biased or not, there is no
automatic disqualification. Context will be evaluated to ascertain whether the decision maker
appears to be biased so that principles of rule against bias would apply. Central question is not
whether justice was done, but whether it was seen to be done. The question is ‘does the decision
maker has a sufficient interest in the outcome of the decision that he would be disqualified from
making the decision.’ To ascertain whether decision maker has a ‘sufficient interest’, two tests
have been put forward:
a) Real likelihood test
b) Reasonable suspicion test

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A. Real Likelihood test - A decision maker will be disqualified if there is a real likelihood/probability
of bias. [In Court Perspective]
R v Inner West London Coroner ex parte Dellaglio [1994] 4 AER 139 - There was a boating incident
where many have drowned. To investigate the cause of the incident, a coroner was appointed. The
coroner at an initial press conference remarked that the families of the victims are ‘unhinged’. Issue,
given his statement, whether was there a real danger of bias? Held, his statement, in the context,
shows a hostility against the victims’ families, therefore it appears as if there is a real danger of bias
against the victims’ families.
What does real danger of bias mean? “…If despite the initial appearance of bias, the court is able to
examine all the relevant material and satisfy itself that there was no danger of the alleged bias
having in fact caused injustice, the impugned decision will be allowed to stand.”
Is there a real probability that the decision maker appear to be biased? Whose perspective that
counts? From the court’s perspective, whether there is a probability of bias. “Courts’ task is to
ascertain the relevant circumstances and ask itself whether, having regard to these circumstances,
there was a real danger of bias on the part of decision maker.”
B. Reasonable Suspicion of Bias - Whether would a reasonable person suspect that there is a
possibility of bias? This test looks at the outward appearance. [In Reasonable Person Perspective]
Whose perspective that counts? That of a reasonable, informed observer - Public perception. If a
reasonable member of the public saw the situation, how would he/she perceive this? Would he/she
believe that there was a possibility of bias?
Gillie v Secretary of State for Works and Pensions [2006] UKHC 2 - When it comes to reasonable
suspicion test, it is the appearance that these facts give rise to that matters, not what is in the mind
of the particular judge.
Dr. Karunaratne v Attorney General et al [1995] 2 SLR 298 - “Regarding the application of the test
of reasonable suspicion it must be shown that suspicion is based on reasonable ground which would
appear reasonable to a right thinking man.”
Real Likelihood Test v Reasonable Suspicion Test: Real likelihood Test has the higher standard
i. Reasonable suspicion test only requires possibility of bias, whereas real likelihood requires
probability of bias. Standard of possibility is lesser than probability.
ii. Reasonable suspicion test takes the perspective of a reasonable observer, whereas real
likelihood emphasizes on court’s assessment. Courts have a higher standard when it comes
to being convinced. For, courts know the background, procedure, context and reasoning
behind the statutes and laws, but the same cannot be expected of a reasonable person.
Court is more informed than a reasonable public.
Porter v Magil [2001] UKHL 67 - House of Lords propounded a modified version of reasonable
suspicion test. Accordingly, the question is: “Whether the fair-minded and informed observer,
having considered the facts, would conclude that there was a real possibility that the tribunal
was biased.”

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Helow v Home Secretary [2008] UKHL 62 - Who is the fair-minded and informed observer? Lord
Hope: “She is the sort of person who takes the trouble to read the text of an article as well as the
headlines. She is able to put whatever she has read or seen into its overall social, political, or
geographical context. She is fair minded, so she will appreciate that the context forms an important
part of the material which she must consider before passing judgment.”

Application in Sri Lanka

Sri Lankan judiciary has not favored one test in detriment to another. However, combination of both
tests could be seen in several judicial decisions. No clear position has been established.
De Mel v De Silva [1949] 51 NLR 282 - “Real danger of bias form the perspective of a reasonable
person.”
➢ Real danger of bias – Real likelihood test;
➢ Perspective of a reasonable person – Reasonable suspicion test
Kumarasena v Data Management Systems Ltd. [1987] 2 SLR 190 - The only question was whether
there was “such a likelihood of bias that entitled the court to interfere.” This meant asking if “there
are circumstances from which a reasonable man would think it likely or probable that the
judge…favour one side unfairly at the expense of the other.”
➢ Both tests were treated as same.
Geeganage v Director General of Customs [2001] 3 SLR 179 - There is a difference between both
tests, but currently, in the case at hand, the distinction is unnecessary because both leads to the
same conclusion.
➢ Real likelihood: “Whether in the given circumstances, there was a real chance that the alleged
bias might have had some effect on the decision-making process that, in fact, took place.”
Nawarathne v Fonseaka [2009] 1 SLR 190 - Discussion on both tests took place, but no concrete
determination on which test would apply was not reached. However, court stated that the test that
should be applied is whether a reasonable man having regard to all the circumstances would agree
that there was a bias on the part of the Colonel.
Herath Mudianselage v Land Commissioner General et al CA 293/2009 - Both tests were discussed.
But it is unclear which test the court actually applied.

• Pre-Determination and Bias

Deciding the matter before the trial has finished. If the decision maker ‘closes his mind’ to the task
at hand, and has settled his position in advance, he is said to have acted unfairly.
R v Romeny Justices ex parte Gale [1992] COD 323 - While the trail was ongoing, half way through
the trial the decision maker had typed his judgment to be used in sentencing. Issue was, does it
amount to pre-determination? Held, a decision maker must not have ‘closed his mind’ during the
trial. He must be open to any convincing arguments or evidence. He must maintain impartially
throughout the proceeding and must not come to a conclusion prior to the end of the trial.

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• Policies, Political Views and Pre-determination

Decision makers, especially ministers, often decide based on the government policies. Often, they
will also act based on their political views. Does taking into consideration their policies and political
view amount to pre-determination?
R (Island Farm Development Ltd.) v Bridgend County Borough Council [2006] EWHC 2189 - Land
owned by local council was to be developed into a ruby training school. The relevant local council
started a negotiation with Rugby Union about alienating the land for the said purpose. Planning
permission was also approved. Whilst the negotiations were going on, there was a local election
that was won by an opposing party. The opposing party was against this development project. When
it came to power, it cancelled the project. The union challenged the decision on the ground that it
was taken considering party political views, and therefore predetermined.
Issue: Is taking into account the views of the political party a pre-determination?
Held: “Unless there is a positive evidence to show that there was indeed a closed mind,…prior
observation or apparent favoring of a particular decision will not suffice to persuade the courts to
quash the decision.”
Decision maker may lean towards one outcome over other, he can also consider the political views
or policies, but they should not prevent him from approaching their decision with an open mind.

• Vitiating Factors of Rule Against Bias

1. Necessity - If there is no substitute possible, because no one else other than the decision maker
in question is empowered to act, the rule will not disqualify such decision maker.
The Judges v A.G. for Saskatchewan [1937] 53 TLR 464 - Case concerned the interpretation of
Income Tax Act and the question of whether judges were also subject to the taxation under the act.
The court had to decide the matter, but the judges, naturally, had a personal interest in the matter
in the form of tax. Held, function of interpretation cannot be taken away from the judges, because
no authority, other than the judiciary, is competent to do determinate the matter. Therefore,
necessity demands that judges should be allowed to decide the case.
2. Statutory Dispensation - If the statute expressly allows a decision maker to adjudicate regardless
of his/her personal interest, the rule will not apply.

3. Waiver - The affected party can choose to not exercise the right to object to a biased decision
maker provided if the followings are satisfied:
o The party must act freely in full knowledge of the facts, and,
o Has been adequately advised of the right to object.

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LEGITIMATE EXPECTATIONS
If a body exercising public power gives rise to a belief/expectation that it will be exercised in a
particular way, then the courts may prevent that body from exercising its power in a different way,
unless there are strong countervailing reasons to do so.
It can arise in two ways:
1. Through clear promise, or
2. Through past practices.
Question here is, has the decision maker promised to do something, or has he/she indicated,
through their conduct, that they would act in a certain way?

REQUIREMENTS OF A LEGITIMATE EXPECTATIONS

1. There must be a clear promise or consistent past practice by the public authority that it would
fulfill the expectation.
a) Clear promise/consistent past practice
b) By a decision maker who has the authority to carry it out
2. Promise must be intra vires
3. Knowledge of the promise/ practice

1. PROMISE OR CONSISTENT PRACTICE

a. Promise or Representation
R v Inland Revenue Commissioners ex parte MFK Underwriting Agents [1990] 1 WLR 1545 - If the
alleged legitimate expectation was generated by a promise, it must have been ‘clear, unambiguous
and devoid of relevant qualification’.
R (Bibi) v Newham LBC [2001] EWCA Civ 607 - The local authority informed Bibi and his family that
they would be given a housing within 18 months. The local authority believed that Bibi’s family had
a legal right to housing. Shortly after the promise, House of Lords in R v Brent LBC ex parte Awua
decided that homeless persons per se do not have a right to permanent accommodation. Relying on
the decision, the local authority went back on the promise. Issue: Is there any legitimate expectation
in the absence of enforceable right? Court held, there is a clear promise, therefore, the authority is
under a duty to consider Bibi’s application for suitable housing on the basis that they have a
legitimate expectation, even in the absence of a legal right.
Samarakoon et al v University Grants Commission et al [2005] 1 SLR 119 - Even if there is no express
promise, if such promise could be clearly constructed from the surrounding circumstances, it may
give rise to legitimate expectation, if it was made clear, unambiguous and certainly.
b. Previous pattern of conduct - A legitimate expectation may arise from the existence of an
established practice which the claimant can reasonably expect to continue. Established practice
refers to a regular, consistent, predictable and certain conduct. Any expectation which is based on
sporadic, casual or random acts cannot create a legitimate expectation.
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R v Inland Revenue Commissioners, ex parte Uniliver [1996] STC 681 - In order to generate a
legitimate expectation, a practice, like promise, must have given the claimant a clear, unambiguous,
and unqualified reason to expect an outcome.
Council of Civil Services Unions v Minister for Civil Services [1984] 3 AER 935 - An Order in Council
gave the minister the power to prohibit workers at GCHQ from membership of a union. The minister
prevented membership without consultation with the unions. However, there had been a consistent
past practice wherein unions were consulted before making such decisions. CCSU claimed this past
practice had given a legitimate expectation that they would be consulted before the Minister takes
his decision. Issue: Can a legitimate expectation arise based on past practice? Held: The past practice
by the government had given rise to a legitimate expectation that the union would be consulted
before changes to policy were made.
c. Clear, unambiguous promise or conduct
R v Environment Secretary, ex p Hammersmith and Fulham LBC [1991] 1 AC 521 - Environment
Secretary promised that he would not cap the spending of local authorities that set ‘sensible’
budgets (secretary limited the budget to certain local council). The local authorities argued that they
had set sensible budgets, and that it was therefore a breach of their legitimate expectation for the
government to cap their spending. Issue: Is the promise clear and unambiguous? Held: By promising
not to interfere with ‘sensible’ budgets, the government was not pinning itself down to any
particular view of what counted as sensible. What is meant by ‘sensible’ was not clarified. Therefore,
the promise cannot be taken as clear and unambiguous
2. PROMISE MUST BE INTRA VIRES
A public authority’s conduct or representation may lead a claimant to expect the authority to do
something that is against the law. Even if the claimant’s expectation is perfectly reasonable, it
cannot count as a legitimate expectation.
R v Home Secretary, ex parte Ruddock [1987] 1 WLR 1482 - In order to generate a legitimate
expectation, a public official’s promise or undertaking ‘must not conflict with his statutory duty or
his duty’.
3. KNOWLEDGE
A person who did not know of an undertaking made by a public officer cannot expect compliance
with that undertaking. For, such person would not have placed his trust on the promise of the
decision maker.

✓ To whom should the promise be made?

The promise does not need to be personally made to the individual. It is enough that the promise is
directed at a ‘class of people’ of whom the applicant is one.
✓ Objective inference of knowledge?
Generally, knowledge cannot be objectively presumed. But there is one possible exception:
Ratification of treaties

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R v Home Secretary, ex parte Ahmed and Patel [1998] INLR 570 - The applicants claimed that,
because the United Kingdom had ratified an international convention on the rights of the child and
the European Convention on Human Rights, they had a legitimate expectation that the government
would act in accord with the two conventions. Issue: Can a knowledge be presumed based on the
ratification of a treaty? Decision: The ratification of a convention is a ‘positive statement’ that the
government will act in accordance with the convention. That ‘in the absence of statutory or
executive indications to the contrary, the administrators will act in conformity with the Convention’.
Court adopted the Australia High Court’s decision in Minister for Immigration v Teoh [1995]
✓ Is Detrimental Reliance a Prerequisite?
Detrimental reliance is not an indispensable requirement for a legitimate expectation.
R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Bancoult (No 2) [2008]
UKHL 61 - Lord Hoffman: “It is not essential that the applicant should have relied upon the promise
to his detriment, although this is a relevant consideration in deciding whether the adoption of a
policy in conflict with the promise would be an abuse of power.”
R (Bibi) v Newham LBC [2001] EWCA Civ 607 - After the borough had made the promise, Bibi and
his family had stayed in the town of Newham relying on this promise expecting a house in 18
months, so they were acting according to this expectation and were acting to their detriment where
this expectation was to be frustrated by the public body. Issue: Is detrimental reliance a relevant
consideration when assessing whether a legitimate expectation ought to be upheld or not? Decision:
Reliance on a promise to the claimant’s detriment would be relevant in assessing the fairness one
might attach to enforcing or not a legitimate expectation.

JUSTIFICATIONS FOR UPHOLDING LEGITIMATE EXPECTATIONS

1. Fairness
2. Public trust in government and the concept of good administration
3. Preventing abuse of power
4. Reliance and legal certainty
Nadarajah Abdi v Secretary of the State for Home Department [2005] EWCA Civ 1363 - Laws L.J.,
“What is the principle behind this proposition? It is not far to seek. It is said to be grounded in
fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly
as a requirement of good administration, by which public bodies ought to deal straightforwardly
and consistently with the public.”

TYPES OF LEGITIMATE EXPECATIONS

Legitimate expectation can be classified under two types
1. Procedural legitimate expectation
2. Substantive legitimate expectation

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MANNER OF PROTECTION OF SUBSTANTIVE LEGITIMATE EXPECTATION

R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213 - Legitimate expectation
generated by conduct of a public administrator may be protected in one of three ways:
1. By giving the expectation due weight as a relevant consideration in making its decision.
2. By consulting the beneficiary of the expectation before reaching a decision. [Procedural
Protection]
3. By making a decision consistent with the substance of the promise. [Substantive Protection]
a. Procedural Protection of Procedural Expectations
When a decision maker promises that he/she will follow certain procedure before adopting any
decision, he/she is required to follow such procedure, unless there are strong justifications for not
following it. It only protects the procedures that leads to a decision.
A. G. for Hong Kong v Ng Yuen Shiu [1983] 2 AC 629 - A senior immigration officer made an
announcement of government policy that in future, before illegal immigrants were repatriated
(send back to one’s own country), they would be interviewed regarding why they should not be
repatriated. Furthermore, each case would be treated on its merits. Applicant in this case was an
illegal immigrant. He was questioned by an immigrant officer. Thereafter, he was detained and the
officer then made a removal order against him without giving him an opportunity of making any
representations as to why he should not be removed. Issue: Is the immigrant officer bound to follow
the promised procedure? Held: Where a public authority promised to follow a certain procedure
before reaching that decision, good administration required that it should act by implementing the
promise provided the implementation did not conflict with the authority's statutory duty. The
implementation of the promise to interview each illegal immigrant and decide each case on the
merits required the applicant to be given an opportunity to state his case. The failure to ask him
whether he wished to make representations as to why he should not be removed was a sufficient
ground for setting aside the decision.
b. Procedural Protection of Substantive Legitimate Expectation
R v Secretary of State for Home Department ex parte Khan [1985] 1 All ER 40 - A circular was issued
by foreign minister that stated that the minister, in exercising his discretion to allow parents to bring
a foreign child to the UK for adoption, would look into four conditions. The circular specified four
conditions which the adopting parents have to satisfy and if such criteria are fulfilled, the minister
would allow the adoption. Mr Khan wanted to adopt a foreign child and fulfilled the four required
criteria. Despite this, he was refused permission to bring a child to the UK for adoption. The minister
turned down the adoption for a reason that was not contained in the circular. Mr Khan filed a
petition, and in court argued that he was entitled to a substantive remedy: that the minister should
not be allowed to refuse the application for a reason not contained in the circular. Issue: Can there
be any legitimate expectation when a promise was about substance of the decision, and not about
procedure? Held: A public authority who makes a promise relating to policy - substance of a decision,
before deviating from such policy, must afford interested persons a hearing so that they could state
why the policy should not be changed. Therefore, Mr. Khan must have been given an opportunity
to say why the minister should apply the policy and not deviate from it.

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c. Substantive Protection of Substantive Legitimate Expectation

Substantive protection requires the courts to scrutinize the actual merits of the decision, that
whether the substantive promise should be enforced or not.
R v Secretary of State for the Home Department, ex parte Hargreaves [1996] - Courts cannot
perform substantive review outside the scope of Wednesbury unreasonableness. Legitimate
expectation is limited to procedural protections.
R v North and East Devon Health Authority ex parte Coughlan [2000] WLR 622 - The claimant was
severely injured in a road traffic accident in 1971, and required care on an on-going basis. After
twenty years in hospital, in 1993, she was asked to move to a new NHS facility, Mardon House, with
a promise that Mardon House would be her home for life [promise as to the substance, that she
would be allowed to stay at the care care for life]. In 1998 [after five years], the health authority
decided to close Mardon House on financial grounds. The consultation about the closure by the
health authority with Ms. Coughlan took place over a short period and important expert opinions
were not shared with the residents. The health authority failed to identify an alternative placement
for Ms. Coughlan before deciding to close Mardon House and there had only been medical and
nursing assessment of her needs. Issue: Can a substantive benefit be enforced as a legitimate
expectation?
Decision: When a promise is given, even if it is relating to a substantive benefit, such promise can
only be broken if there is a strong overriding reason of public interest. Lord Woolf MR: “…. where
the court considers that a lawful promise or practice has induced a legitimate expectation of a
benefit which is substantive, not simply procedural, Court will in proper case decide whether to
frustrate the expectation is so unfair that to take a new and different course will amount to an abuse
of power. Here, … court will have the task of weighing the requirements of fairness against any
overriding interest relied upon for the change of policy.”
In this case three factors were analyzed:
1. Importance of the promise to the affected person
2. Number of persons to whom the promised were made
3. Overriding public concerns.
To the petitioner the promise was very important, and since the promise was only made to a few
numbers of people, financial argument cannot be taken as an overriding public concern. After
weighing the importance of the promise to the petitioner and the argument of financial
inconveniency put forward by the authority, court held that frustrating the promise would be unfair
amounting to an abuse of power.

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APPLICATION IN SRI LANKA

✓ Dayaratnha et al v Minister of Health et al [1999] 1 SLR 393
Facts: Ministry of Health, by a gazette on 10.05.1996, called for application from those who willing
to follow a course of training that would lead to a certificate as Assistant Medical Officers. Paragraph
10 of the scheme published in the gazette stipulated that after the examination the method of
selection for training includes an interview to check the qualifications, meaning the checking of (1)
the birth certificate; (2) evidence of citizenship; and (3) certificates relating to educational
qualifications. Fifteen eligible applicants submitted their application, sat for the examination on
December 1996 and thereafter their names were placed under candidates qualified to follow the
course. However, no interview for selection was held, even after several inquiries were made by the
applicants. Instead of a call for Assistant Medical Officer, in 1998 the petitioners were invited to
apply for training as Pharmacists, Medical Laboratory Technologists and Public Health Inspectors.
AMO course differed considerably from those latter courses, both in substance as well as in the
training that would lead to a certificate. AMO also required a superior qualification. The ministry
argued, inter alia, that they have unemployed Graduate Medical Officers who could do the job of
AMOs, hence, training for new AMOs were not necessary.
Issues:
1. Is there any arbitrary exercise of power amounting to a violation of article 12(1)?
2. Is there any violation of legitimate expectation? If so, is it justified?
Decision: Both procedural and substantive protections have a bearing on article 12(1).
Procedural in the sense that person who relied on the promise must be given a hearing to state why
the change should not affect them. These rules of natural justice help to ensure objectivity and
impartiality, and facilitate the treating of like cases alike.
Substantial in the sense that there must be an overriding public interest if a change of policy were
to break an individual’s prior expectations. It is a matter of weighing the private interest
[expectation] against the public interest. When there is no overriding public interest, acting unfairly
or unjustly against a person who has a legitimate expectation would amount to a misuse of power.
It is article 12(1) that protects from such arbitrary and unjust exercise of power.
The petitioners were not given an opportunity to say why the change in policy should not affect
them. Nor was the justification provided – giving more opportunity to GMOs – of sufficient gravity
so as to override their substantive legitimate expectation. therefore, the breach of substantial legal
expectation is unlawful.
✓ Samarakoon et al v University Grants Commission et al [2005] 1 SLR 119
Facts: The handbook published by UGC for the year 2001/2002 stated that intake of students for
medicine would be 900, out of which 360 (40%) would be selected on all island merit, 495 (55%)
based on district quota adjusted to populations of each district, and 45 (5%) based on
underprivileged district criteria. Accordingly, after calculating merits and district quota, a total of 54
out of 900 should have been allocated to Kandy District. All of the petitioners had got the necessary
cutout marks that placed them within 54 ranks in their district – Kandy – and should have been

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selected to medicine ordinarily. However, the UGC decided to admit only 865 candidates, resulting
in all the nine petitioners losing their expected place. UGC tried to justify the reduction on basis that
900 was just a hypothetical figure and not a fixed one and that the actual figure was to be decided
based on total vacancies available and prevailing situation at the time. [One of the reasons for the
reduction was, UGC argued, that prevailing situation in North had impeded the number of students
that could be admitted to University of Jaffna.]
Issue:
1. Has the allocation in the handbook given rise to legitimate expectation to the students that the
specified number of students would be admitted to medicine?
2. Is there any violation of article 12(1) of the Constitution?
Held: Even though there is no express promise by the UGC, given the circumstances, it is apparent
that the information given in the Hand Book prepared and distributed by the UGC has given rise to
a legitimate expectation that 900 students would be taken in for Faculties of Medicine and the
selections would be finalized on that basis.
No reference to the conditions argued by the UGC was stated in the handbook itself. Even after
knowing that there would be difficulties in calculating the figures, UGC, in concrete figures, stated
the amount of intake and how it would be calculated. Since UGC had not based its selection on the
criteria stated in the handbook, and adopted an alternative hypothetical number, it had acted
irrationally and arbitrarily in violation of article 12(1).
✓ Vasana v Incorporated Council of Legal Education et al [2004] 1 SLR 154
Facts: Incorporated Council of Legal Education had made a rule which required a person to pass the
entrance exam with a required marks in order to be admitted to Law College. In 2001, 2167
individuals sat for the entrance exam, out of which those who got 70 or above would be selected.
Miss Vasana who sat for the exam received a letter indicating that she got 70 and was provisionally
selected. The letter read as follows:
‘1. This is to inform you that your application for admission to Sri Lanka Law College has been
provisionally approved for registration subject to confirmation by the Incorporated Council of Legal
Education and subject to verification of the educational certificates and other documents etc.
furnished by you.
2. Please note if it is discovered that you do not possess the requisite qualifications for admission to
Sri Lanka Law College, your student registration will be cancelled.’
Relying on the letter, she had deposition a sum of Rs 4575 as registration fee. Shortly after, it was
found that her actual mark was 56, far below the cut-off mark, but was marked as 70 due to an
entering error. Accordingly, the ICLE sent her a letter rectifying the mistake and informing her that
she did not qualify for the admission. An investigation was carried out, in the course of which the
petitioner had been given an opportunity to peruse her answer script and satisfy herself about the
correct marks she had obtained at the Entrance Examination. However, Vasana argued that, in the
past, all who got the letter had been admitted to the Law College, therefore, based on the past
practice she had, when she got the letter, a legitimate expectation that she would also be admitted.

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Issue: Can there be a legitimate expectation based on an erroneous belief?

Held: The letter initially sent had clearly stated that the results were provisional and para.2 clearly
indicated that even after registration, admission is liable to be cancelled if it is found that she had
no qualification to be admitted to the Law College. Thus, the letter is neither conclusive nor
irrevocable.
Candidates who sit for the entrance exam can only expect that they will be admitted if they get the
cut-off marks. Accordingly, earning the necessary minimum marks is the foundation on which the
legitimate expectation of a candidate rests. If a person fails to get the necessary minimum marks at
the Entrance Examination, the legitimate expectation cannot exist any longer. When the basic
ingredient necessary for the formation of a legitimate expectation (in this case the minimum marks
of 70) is lacking, law will not consider legal any expectation that is founded on the erroneous or
absent ingredient.
✓ M.R.C.C. Ariyaratne v [Link], Inspector General of Police SC FR Application No.
444/2012
The doctrine of substantive legitimate expectation applies in our jurisdiction in much the same
manner as it now applies in England. Whenever a question of substantive legitimate expectation
arises, courts ought to adopt a rigorous, two-step approach:
1. The claimed substantive legitimate expectation must have the usual characteristics of a
substantive legitimate expectation that a court may be willing to protect, and,
2. The court should weigh the prejudice caused by the breaking of such expectation against the
alleged overriding public interest.
Having weighed those two concerns [expectation v public interest], if the result is so
disproportionate [alleged public interest is of an insufficient gravity to override the expectation] that
it amounts to an abuse of power, then, the decision would be quashed. However, if the change of
policy/promise is proportionate, just and fair, public interest demands the acceptance of such
change and the purported decision will be allowed to stand.
Prasanna Jajawardena J., “In my view, a ‘test’ of this nature satisfies…that a rigorous standard should
be applied in cases where the doctrine of substantive legitimate expectation is invoked so as to
avoid unnecessarily fettering administrative discretion to change policies or decisions where the
public interest requires doing so.”
Characteristic a substantive expectation must have in order to fall within the category of protectable
substantive legitimate expectations,
1. Promise relied on must be specific, unambiguous and unqualified,
2. Promise must have been given to an “individual” or to an “identified group” and not to
innominate or undetermined persons or to the “public at large”,
3. Substance of the promise must be definable and limited in scope and applicable to the individual
or identified group relying on the assurance and not to the public at large,
4. Court is able to reliably assess the consequences of giving effect to the claimed expectation, and
5. Promise must not be about general policy affecting public at large or a macro political matter.

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IRRATINALITY
WEDNESBURY UNREASONABLENESS
There is no concept called ‘unfettered discretion’ in administrative law. A discretion must be
exercised within the boundaries of ‘law and reason’.
Sharp v Wakefield [1981] AC 173 - Lord Halsbury: “Discretion means when…something is to be done
within the discretion of the authorities…that is to be done according to the rules of reasons and
justice, not according to private opinions…. It is to be not arbitrary, vague and fanciful, but legal and
regular. And it must be exercised within the limit, to which an honest man competent to discharge
of his office ought to confine himself.”
Wednesbury unreasonableness is the test that make sure that decision maker acts within the rules
of reasons.
What is ‘Unreasonableness’?
The heading can be understood simply as ‘a general description of the things that must not be done’.
[Lord Green in Wednesbury Case] To ascertain whether this ground can be successfully invoked, two
questions need to be asked:
1. What ‘degree of unreasonableness’ must be shown before the court will quash a decision?
The fact that court might have come to a different conclusion is insufficient to hold a decision
unreasonable. Something more is necessary.
Associated Provincial Picture Houses Ltd. v Wendesbury Corporations [1948] 1 KB 223 - Lord Green:
“…If a decision on a competent matter is so unreasonable that no reasonable authority could ever
have come to it, then the court can interfere.”
Wednesbury unreasonableness allows the judiciary to intervene when the decision maker, although
acting within the four corners of the discretion conferred, has arrived at a decision that is repugnant
to all reason. It is not enough to show that the decision in merely unreasonable, instead, it must be
shown that the decision is so unreasonable that no reasonable decision maker could have ever come
to it. It is often possible for two reasonable persons to come to a completely different decisions
regarding same matter. Therefore, what might be unreasonable for one person might be reasonable
for another. Hence, very few decisions will fall beyond all reasons.
2. What should be unreasonable?
In Wednesbury, Lord Green speaks of two matters that could fall under the test:
1. The decision itself - When the merits of the decision are beyond reasonableness, in that, it
contains some quality of perversity, arbitrariness, caprice or absurdity, then that decision is
unreasonable.
2. Process that led to the decision - Even if the merits of the decision are rational, if the process
that led to the decision is so unreasonable, then that decision can also be quashed. Eg: i. An
absurd procedure - Taking into consideration a matter that is so irrelevant that no reasonable
decision maker would have taken it into consideration.

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Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 GCHC - Lord Diplock:
By irrationality I mean what can by now be succinctly referred to as “Wednesbury
unreasonableness” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1
KB 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the question to be decided could
have arrived at it. Whether a decision falls within this category is a question that judges by their
training and experience should be well equipped to answer, or else there would be something badly
wrong with our judicial system... “Irrationality” by now can stand upon its own feet as an accepted
ground on which a decision may be attacked by judicial review.

TYPES OF DECISIONS THAT ARE USUALLY HELD UNREASONABLE [NON-EXHAUSTIVE]

1. Unreasonable Process - When there is no connection between the process [evidence and hearing]
and the actual decision itself. Or, an absurd procedure.
Lee v Department of Education and Science [1967] 66 LGR 211 - Minister proposed comprehensive
schools to be established in a particular area. He gave a period of four days to raise objections to his
scheme. Issue: Was the minister’s allocation of time reasonable? Held: Establishing or changing the
nature of school is not a simple matter it is policy. The relevant stakeholders [public, existing school
teachers, council representatives etc.] must have a discussion about the benefits of establishing
comprehensive schools in their area. Only after that can they come to a decision whether to accept
the scheme or raise an objection against it. Four days are an inadequate period to decide it.
Therefore, the time given by the minister is unreasonable.
2. Contradiction between decision and the reason given for it.
Premachandra v Jeyawickrama [1994] 2 SLR 90

Article 154F (4) of the Constitution gave the Governor discretion to appoint as chief minister the
member of the Provincial Council, who, in Governor’s opinion, is best able to command the support
of the majority members, except when more than ½ members are from a political party. In both
Provincial Councils, although no party had won more than ½ seats, PA and DNF came together to
form coalitions. Accordingly, members of both parties gave a written assurance that a person
selected by them have the majority support in their respective councils. Despite this, the respective
Governors appointed UNP members as chief ministers on the basis that they had made certain
secret inquiries as to who really had the majority support.

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Issue: In these instances, did the Governor have any discretion to appoint Chief Minister. If so, did
he exercise it reasonably?
Held: No one has unlimited discretion. Accordingly, Governor must have made his decision based
on credible information. Here, the credible information is the written assurance given by the
members of PA and DNF they collectively support one candidate amongst themselves. But the
Governors have disregarded this evidence. Instead, they argued that their decisions were made
based on secret inquiries. But there is no evidence to prove that this secret inquiry produced any
verifiable truth. Hence, disregarding the sole relevant evidence and basing their decisions on some
unverifiable secret procedure had made their decisions unreasonable. Majority opinion, stated
thorough written assurance, clearly pointed at one direction. Disregarding it and deciding based on
something else is so unreasonable that no reasonable decision maker would have done it.
However, unreasonable reason is not the same as a bad reason. The Queen v Bishop of London
[1980] 24 QBD 227
03. Violations of Constitutional Principles - Mostly relevant to England. In Sri Lanka breach of
constitutional principles can often attract the fundamental rights jurisdiction of the Supreme Court.
For, when constitution is violated, automatically, it amounts to a violation of Art.12(1)
R (Middlebrook Mushroom Ltd.) v Agricultural wages Board of England and Wales [2004] EWHC
1447 - Agricultural wages board imposed minimum wages reduction for harvesters. However, an
exception was granted for mushroom pickers. Issue: Is the infringement of principle of equality
reasonable? Held: There is no rational basis for granting exception to mushroom pickers. Therefore,
the scheme has violated the principle of equality that all persons in a similar situation should be
treated similarly.
04. Long delays
Re Federal Commissioner of Taxation; ex parte Australena Investment Pty Ltd. [1983] 50 ALR 577
- When the statute does not prescribe a time period, a decision must be made within reasonable
period. What constitutes a reasonable time depends on the circumstances.

UNREASONABLENESS AND POLICY MAKING

Courts will, often, defer to the judgment of the policy maker when that matter involves
determinations of the merits of policy. Court will say that it is not their constitutional role to
determine the merits. separation of power speaks about what are the deferent role of main three
organs of government. thus, the policy making function is not the job of judiciary.
It is a question of political judgment and a matter for the relevant administrative body to decide,
and the court, considering their lack of expertise in determining the merits of the policy, is not a
proper forum to question it.
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC
1014 - A council had a comprehensive education policy. After an election, the new council reversed
this and planned to create a grammar school education policy. The secretary of state had the power

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under s.68 Education Act to direct a local authority as to the exercise of its powers “if he was
satisfied” that it was behaving “unreasonably”. Here the secretary believed this because the local
authority would not have time to organize a selection policy in time. Issue: Was the local authority’s
decision unreasonable? Decision: The local authority knows what sort of school is best for its
constituency. It is in the better position to evaluate the question of which school is the best. Given
that the council had a political mandate to pursue the grammar school’s policy and massively
supported by parents, it would be impossible for the secretary of state to conclude that the decision
was Wednesbury unreasonable.
R v Secretary of State for the Environment exparte Nottinghamshire County Council [1985]UKHL 8
- Secretary of state drafted a scheme that had the effect of limiting the spending of local authorities.
The scheme also changed the tax policy. It was approved by the House of Commons through a
resolution. A petition was filed challenging the scheme as unreasonable. Issue: Can the court
determine the merits of policy and political judgment? Held: In cases of these types the intensity of
the judicial review is low. Court can only review whether the minister who proposed the scheme
had acted within the framework of the Act that had empowered him, and nothing more. The levels
of public expenditure and the question of taxation are matters depending essentially on political
judgment. Hence, it is not for this judge to say that the scheme would have unreasonable
consequences.
R v Ministry of Defence ex parte Smith [1996] 1 AER 256 - The Ministry of Defence made a policy
that homosexuality is incompatible with services in the armed forces. Service personnel who are
known to be homosexuals or who engage in homosexual activity are administratively discharged
from the armed forces. This scheme was made despite the fact that section 1(1) of the Sexual
Offences Act 1967 decriminalized homosexual acts between consenting adults in private. Petitioners
were discharged from the duty based on their sexual orientation, even though they had not
committed any other breach of military discipline. They argued that this policy unreasonably
discriminates based on sexual orientation and private life. The ministry, on the other hand, argued
that to permit homosexual acts by or between members of the armed service, would be subversive
to discipline, efficiency and good morale of the troops. Issue: Is the policy irrational in so far as it
discriminates based on private life? Decision: Major policy changes should be the product of mature
reflection, not instant reaction. The threshold of irrationality is a high one, and it was not crossed in
this case. Even though the rights are involved, they are not so fundamental to warrant an anxious
scrutiny. Of course, the petitioners’ rights as human beings are very much in issue. It is now accepted
that this issue is justiciable. This does not of course mean that the court is thrust into the position
of the primary decision-maker. For, it is a matter of defence policy to say what would be better for
the discipline, efficiency and good morale of the armed forces. It is not the constitutional role of the
court to regulate the conditions of service in the armed forces nor has it the expertise to do so.
[Judgement Paraphrased] held that the decision is not unreasonable and it is reasonable.

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Conclusion with Regard to Policies

Policies and political judgments are reviewable under Wednesbury reasonableness, but courts will
rarely do so, unless there is a manifest unreasonableness, because:
1. Court cannot substitute itself for decisionmaker - Separation of Power
2. No any constitutional duty
3. No Expertise

ANXIOUS SCRUTINY AND THE ROAD TO PROPORTIONALITY

Wednesbury standard was a rigid and inflexible criterion. When rights are involved and the
consequences would be devastating to the individuals involved, applying the exact standard of
Wednesbury would not provide a just and fair result. Wednesbury ‘one test fits all’ should go and
give way to a lesser standard that approached the issue case-by-case based on the facts, nature and
context of the case in issue. Where important interest or fundamental rights were involved a test
that would look into the decision rigorously and intensely would be adopted. In ordinary cases,
orthodox Wednesbury would apply.
A. R v Secretary of State for Home Affairs ex parte Budgacay [1987] AC 514 - Claimant immigrant
to UK from Kenya. The Home Secretary decided to deport an illegal immigrant from UK to his/her in
this case claimant’s country Kenya. such person despite the protest that there his life might be in
danger as a result he can’t go back to Kenya. But secretary didn’t consider about such fact and
ordered to deport him to his home country. Action was filed to review arguing that the minister’s
decision was unreasonable, for he has not directed his mind properly to the question of petitioner’s
right. Issue: Was the decision unreasonable? Does the traditional standard of Wednesbury apply
even when the consequences of the decision are devastating to the individual? Decision: Under
traditional Wednesbury, only when a means of undertaken action is extremely disproportionate will
a decision be held unreasonable. However, where fundamental rights are at issue, a more flexible
form of Wednesbury test has to be applied. Such matters must be carefully evaluated. “The most
fundamental of all human rights is the individual’s right to life and when an administrative decision
under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision
must surely call for the most anxious scrutiny.” The body must, at least, have investigated the claim
that his life might be in danger in Kenya.
B. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256 - Courts can only interfere, on
substantial grounds, when the administrative body has taken a decision that is beyond the range of
responses open to a reasonable decision-maker. In judging whether the decision-maker has gone
beyond the reasonable measure available the human rights context is important. The more
substantial the interference with human rights, the more the court will require by way of
justification before it is satisfied that the decision is reasonable. [Judgment Paraphrased]
C. R v Secretary of State for Home Affairs ex parte Simms [1999] UKHL 33 - Under the Prison Act
1952, s.47(1) the Home Secretary had passed Prison Service Standing which restricted oral
interviews with journalists. Two prisoners whose appeal for overturning of conviction was rejected,
continued to plead innocence. They planned to bring their pleas to public attention through the

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media. So, they intended to have oral interviews with journalists without undertakings from the
journalists not to publish any element of the interview. They argued that only if they were allowed
to have oral interviews with the journalists would they be able to have their convictions further
investigated and to put forward a case in the media for the reconsideration of their convictions.
However, the ban effected by the Prison Service Standing, restricted not only the applicants, but
also any inmates from having interview with the journalists. Issue: Is the ban imposed is necessary
and reasonable? Held: The right under attack was freedom of expression. There must be a valid
justification for restricting the said right. In the past, there had been several convictions overturned
owing to the discovery of new facts and disclosure of suppressed facts to the journalists. And those
investigations have included oral interviews with the prisoners in prison. Hence, the reason to
restrict the inmates from talking to journalists must be something great so as to justify such
restriction. No such valid justification was present in this case. A simple ban which prevented any
prisoner speaking to journalists professionally and without discrimination was unlawful. The
strength of scrutiny varies according to the type/nature of the case.

PRINCIPLE OF PROPORTIONALITY
The doctrine of proportionality requires that the means employed by the decision maker to achieve
his legitimate aim must be no more than is reasonably necessary – no more than is proportionate –
to achieve its intended objective. “One must not use a sledgehammer to crack a nut.” Actions taken
must be proportionate to the end envisaged. They must not be extreme than necessary.
Proportionality works on the assumption that administrative action ought not go beyond the scope
necessary to achieve its desired result. Simple meaning of proportionality is that, the result of
measures taken by administrative body would be rendered harm than good of the decision it will be
led to disproportionate. There are two types of tests
1. Simple proportionality test – Court will review the balance with objective of decision.
2. Structured proportionality test

Proportionality in the United Kingdom

European Court of Human Rights had recognized the principle as ‘a principle of judicial governance’
in Continental Europe. United Kingdom came into contact with the principle once it had entered the
European Union in 1973. However, judicial decision that had actually applied this principle were
rare, and it was only in matters directly relating to European Law and European Convention on
Human Rights that the principle was applied. Even then, regarding ECHR it was only referred for gap
filling because prior to 1998, the convention had not been transformed into municipal law. Human
Rights Act of 1998 gave constitutional legitimacy for the court to adopt the principle whenever the
issue of ECHR was involved. Nevertheless, Wednesbury unreasonableness remained as the standard
ground for reviewing non-conventional matters.
Wednesbury Unreasonableness → Anxious Scrutiny → Principle of Proportionality

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R v Secretary of State for the Home Department ex parte Daly [2001] 2 WLR 1622 - Any breach of
conventional rights must be justified by countervailing necessity in a democratic society. This
involved a case-by-case weighting of rights involved against the public interest. To do this,
proportionality test will be applied. However, application of proportionality to all domestic
reasonableness review should be avoided.
Thus, proportionality applies only to conventional rights and EU laws. the ration allowed to court to
adopt the proportionality in case of respective conventional issues.

Structured Proportionality Test

Bank Mellat v HM Treasury (N0.2) [2013] UKSC 39 - Proportionality test, in its most structured
version, contains the following four-stage process:
1. Did the action purse a legitimate objective? This step involved finding of a legitimate objective.
The objective should be something that can justify imposing limits on rights, and should be
something that the administrative body is authorized to pursue.
2. Is the measure rationally connected to the objective? Whether interfering with a protected right
(method/means) can achieve the intended objective? There must be a rationale connection
between the measure and the end it tries to achieve.
3. Whether a less intrusive measure could have been used? This stage involves the necessity test.
Here the administrative body is required to prove that the measure that was applied was necessary
to achieve the intended objective, and it must be the least restrictive to achieve the objective.
4. Is the derogation justified overall in the interest of a democratic society? Whether, having regard
to these measures and to the severity of the consequences, a fair balance has been struck between
the right of the individual and the interest of the community.
Example: Minister of Transportation issues regulations banning most heavy goods trucks from
highways during daytime weekday hours. Is it proportionate?

• First the court will ask whether the purpose Legitimate. If there is no legitimate aim, the action
can be struck down - Reducing road congestion(traffic) and improving public safety.
• Next, the court asks whether the challenged measure is “suitable” to achieve the intended
purpose. There must be a rational connection between the measure and purpose. If not, the
decision will be struck down - If the Ministry can establish that the ban reduces congesting and
improves safety, it will pass this test.
• Third, the court will ask; could the government’s purpose also be achieved by an alternative less
intrusive measure? If yes, the government’s action is a disproportionate measure. In this case,
this measure is the least intrusive.
• Finally, court weighs the benefits of the challenged measure against the infringement of rights -
Here, public benefits of reducing the traffic will be assessed against the right of heavy vehicle
drivers.

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What is the current position in England?

Kennedy v The Charity Commission [2014] UKSC 20 - As with the redefined meaning of
reasonableness, proportionality should not be regarded as imposing an inflexible test. Intensity of
the proportionality test should be determined by the context in which it is being applied. It varies
based on;
(a) Types and importance of right at stake, and,
(b) Nature of the administrative action being challenged.
If the right involved is fundamental, such as right to life or freedom of speech, a more rigorous and
scrutinizing form of proportionality will be applied. Suppose if it involved public policy, national
security or finance, then the test will be more deferring.
Lord Mance: “The advantage of the terminology of proportionality is that it introduces an element
of structure into the exercise, by directing attention to factors such as suitability or appropriateness,
and the balance or imbalance of benefits and disadvantages. There seems no reason why such
factors should not be relevant to judicial review even outside the scope of Convention and EU law.”
Bank Mellat v HM Treasury (N0.2) [2013] UKSC 39 - Issue of whether the proportionality should, in
all circumstances, supersede Wednesbury unreasonableness was raised before the Supreme Court.
However, the court left the question unanswered. Hence, insofar as the application of
proportionality in England is concerned, the reasoning in ex parte Daly still stands. For conventional
rights and EU laws proportionality applies. Cases that do not fall under either category will be
determined by Wednesbury unreasonableness.

PROPORTIONALITY IN SRI LANKA

A common problem in Sri Lanka is that, although proportionality test has been applied, there has
not been a substantial and deep conceptual discussion or reasoning on its applicability as a ground
for judicial review. Courts have merely iterated that proportionality has grown into a ground of
review. Constitutional basis, and merits and demerits of adopting it into our legal system have not
been addressed much by the judiciary.
Shivaji Felix has tried to justify the adoption of the principle by saying that, since Art.140 gives power
to grant prerogative writs ‘according to law’, Court of Appeal needs not be strictly bound by the
English principles. Rather, it has the power to expand the scope of judicial review and adopt relevant
principles for the purpose of preventing abuse of power and upholding rule of law.
Gooneratne et al v Commissioner of Elections S.C. Application No. 49/87 - Case involved a
registration of political party. Section 7(4) of the Parliamentary Elections Act No. 1 of 1981 allowed
a political organization to make application to be registered as a political party. Section 7(5)
empowered the Commissioner of Elections to register such organization as a political party if he is
satisfied that it is sufficiently ‘organized’ for the purpose of recognition as a political party. Eksath
Lanka Janatha Pakshaya (ELJP) had been functioning a political organization for two years prior to
the application was made. It had nearly 7000 members throughout the island, had its own
constitution and executive committee, and had established several branches. Accordingly, it filed an

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application for registration under s.7(4) However, the Commissioner refused registration on the
ground that the organization had been in existence only for two years, a period that, according to
the Commissioner, was insufficient to achieve the level of organization required for the purpose of
recognition as a political party.
Issue: Did the Commissioner act unreasonably?
Held: It is possible for a well-funded group of people to create an organizational structure capable
of being recognized as a political party within a limited period of time. Hence, although the age of
the organization is relevant, it should not be the decisive factor. Here, the Commissioner has given
disproportionate weightage to the age as a factor of the party, hence, the decision is unreasonable.
commissioner didn’t close his mind to other factors which is members, constitution, of such party.
Even though proportionality was not discussed, court applied a general proportionality test to
ascertain the weightage given to a relevant consideration. It was applied as part of manifest
unreasonableness.
Premaratne v University Grants Commission [1993] 3 Sri LR 395 - Premaratne had been admitted
to study Science at University of Sri Jayewardenepura based on her 1978 A/L examinations, and she
had followed the course for a period of time. However, she also sat for A/L exam in 1979,
consequent to which, she was selected to study Medicine at University of Ruhuna. In her application
to Ruhuna University, she had stated that she had not been previously registered to follow a course
of study in any other university. This fact came to light only after she had taken the final year
examination. An inquiry was held, based on which it was decided that she shall be expelled. The
Senate of the Ruhuna University refused to authorize her final year results that was necessary to an
awarding of degree. This expulsion was justified on the basis that the UGC mere taking away what
was not Premaratne in the first place. She filed a petition claiming that the punishment imposed
was irrational.
Issue: Is the punishment meted out on Premaratne irrational?
Held: The only misconduct committed by Premaratne, in this case, was that of misrepresenting her
previous admission to University of Sri Jayewardenepura. This must be met by a proportionate
punishment. In this case, however, no one gains from expelling her indefinitely at this juncture. On
the other hand, the hardship caused to Premaratne was heavy. “Consequences of deprivation ought
to be considered for a penalty to be proportionate and a penalty which is disproportionately
draconian must be quashed as being an excessively severe penalty.” “…The principle of
proportionality has emerged as a ground of review.” Since she had read for the degree for five years
and sat for the final exam, indefinite expulsion only achieves mere retribution that is insufficient to
justify the degree of hardship being inflicted upon her. context is very important in proportionality.
Wickremasinghe v Chandrananda de Silva [2001] 2 Sri LR 333 - X ragged two trainee cadets.
Petitioner and four others, trainees in Kotelawala Defence Academy, were involved in the incident.
Complaint was made against Petitioner for ‘aiding and abetting’ X in carrying out the ragging, and
against the other four for ‘supporting’ the ragging. After the inquiry, petitioner was expelled from
the academy, whereas the other four were only given a one-year relegation. Petitioner argued, inter
alia, that the punishment was disproportionate, therefore unreasonable.

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Issue: Does proportionality applies in Sri Lanka? If yes, was the punishment actually
disproportionate?
Held: There is not much difference between ‘aiding and abetting’ and ‘supporting’ the ragging.
Hence, there is no justification for the discrepancy in punishments. Moreover, the petitioner’s future
career prospects were destroyed by this punishment. Considering these, it is apparent that the
punishment ordered was disproportionate. [General proportionality]
Sunila Abeysekera v Ariya Rubasingha, Competent Authority [2000] 1 Sri LR 314 - President
proclamed emergency regulation that had the effect of limiting freedom of expression. The
regulation prohibited “any publication pertaining to official conduct, morale, the performance of
the Head or any member of the Armed Forces or the Police Force or of any person authorized by
the Commander - in - Chief of the Armed Forces for the purpose of rendering assistant in the
preservation of national security”. The petitioner argued that it had violated freedom of expression
under Art.14(1)(a). However, the government tried to justify the restriction on the ground of
national security that was permitted under art.15(7).
Issue: Is the limitation rational?
Held: Court applied a test somewhat similar to structured proportionality test. Though, the court
did not express whether it was applying such test.
1. Legitimate objective - The objective pursued was national security which was permitted under
art.15(7) of the Constitution.
2. Rational connection - The restriction (measure) prevents materials that might be dangerous to
national security (objective) being published.
3. Necessity - Court found that measure imposed was clearly demarcated, and narrowed down.
Therefore, it was least restrictive.
4. Justification - Importance of freedom of expression was measured against national security in
the context of war (the decision was made when the civil war was ongoing). Accordingly, court
found, in this case, that national security overrides the freedom of expression, and, therefore,
the measure adopted was held as proportionate.

Ultimate verdict of proportionality as a ground of review in Sri Lanka?

Principle of proportionality is part of Sri Lankan law, but there is no clear rule as to when the principle
applies. Nor is it recognized as a separate ground of judicial review independent of the standard for
reasonableness. Perused pronouncements show that courts are most willing to apply
proportionality test in assessing the necessity of restrictions placed on fundamental rights and in
assessing severity of the punishment imposed. Proportionality is also applied as part of manifest
unreasonableness.
Ceylon Tobacco Company PLC v Maithripala Sirisena, Minister of Health [C.A 336/2012 (Writ)]
hints at the possibility of applying the test to policy decisions. However, in this case, court’s brief
analysis on proportionality can only be considered as obiter at best.

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There is no indication that proportionality has superseded Wednesbury unreasonableness as a

common standard of reasonableness review.
 Dona Marian Sandya Kumari Kodduruarachchi v W. Dharmadasa C.A. Writ Application No.
343/2009
Shivaji Felix ‘Engaging Unreasonableness and Proportionality as Standards of Review in England,
India and Sri Lanka’ 2006 Acta Juridica 95 [2006] 95
Sri Lankan court does not use the doctrine of proportionality as a separate ground for judicial review.
Due to fundamental rights jurisdiction and well-established ground of unreasonableness,
proportionality inquiry has been used to decide whether the decision was unreasonable or not.
Thus, applicability of proportionality in Sri Lanka, although apparent, has not been based on a clear
and hard fast rule. A clarification on this regard is necessary.

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RIGHT BASED REVIEW

Article 140 confers original writ jurisdiction to the Court of Appeal. Article 154P allows Provincial
High Court to exercise writ jurisdiction over matters that fall under Provincial Council List. However,
writ is not the sole remedy available to question an unlawful exercise of public power. Article 17
read with article 126 confer powers to the Supreme Court to hear petitions of violations of
fundamental rights by an executive or administrative act. Hence, exercise of public power is subject
to traditional common law principles of administrative law and the Fundamental Rights.
Articles 27(2)(a), 28(a) and (e) read together with article 4(d) requires that all organs of the
government must discharge their functions consistently with Fundamental Rights. Though
legislative non- compliance is not questionable due to the absence of post-enactment judicial
review, the executive non-compliance can be reviewed by the Supreme Court. Nevertheless, despite
both Fundamental Rights jurisdiction and Writ jurisdiction having the same goal vis prevention of
arbitrary exercise of public power, these two jurisdictions are generally kept separate by the
constitution.
An exception can be found in article 126(3) of the Constitution
Article 126 (3) - Where in the course of hearing in the Court of Appeal into an application for orders
in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo
warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent
infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court
shall forthwith refer such matter for determination by the Supreme Court.
Article 126 (4) - The Supreme Court shall have power to grant such relief or make such directions as
it may deem just and equitable in the circumstance in respect of any petition or reference referred
to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its
opinion there is no infringement of a fundamental right or language right.
W.K.C. Perera v Prof. Daya Edirisinghe [1995] 1 Sri LR 148 - Rules and Examination Criteria of
University of Kelaniya provided that to be eligible for an award of degree, a student must get ‘C’ in
all the main subjects, and a pass in all the common subjects. A ‘D’ would be considered as a pass.
The Appellant started his degree at University of Kelaniya in 1984 and finished all of his exams in
1990. He got a ‘D’ for ‘Advanced Drawing’. The regulations categorized this subject as a common
subject, whereas the University said it was a main subject and since the student did not get a ‘C’ for
this main subject as required, he would not be awarded the degree. Relevant university bi-laws
indicated that separately what are the main subject and common subjects of the syllabus. but
advance design was not in this main two category. at the final decision making the senate of
university decided that content of the advance design fall under the subject which is design. design
was a subject that fell under the main subject category and it was essential to obtain at least C for
to get degree.
Issue: Has the petitioner’s right to equality been violated? Is a failure to follow the University rules
violated the petitioner’s right to equality?

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Decision: The University of Kelaniya is a public body set up by statute and performing public
functions, using public funds. Under the Rules and Examination Criteria, read with Article 12, there
was a public duty, cast upon its officers to take the necessary steps to award the Appellant the
Degree. In narrow interpretation, what law is that, the enactment of parliament. this can be derived
from the constitution. but it should be interpreted in wider sense. as a result we can be able to
ascertain the wider interpretation for law that what is regulations, bi-laws and any decision-making
process enacted by any public authority also must be treated as law and comply with the article
12(1) of the constitution.
“Article 12 ensures equality and equal treatment even where a right is not granted by common law,
statute or regulation, and this is confirmed by the provisions of Articles 3 and 4(d). Thus, whether
the Rules and Examination Criteria have statutory force or not, the Rules and Examination Criteria,
read with Article 12, confer a right on a duly qualified candidate to the award of the Degree, and a
duty on the University to award such Degree without discrimination…”
Heather Theresa Mundy and Others v Central Environmental Authority SC Appeal No.58/2003 -
Establishment of Southern Expressway was in question. There were two plans for which
Environmental Impact Assessment Report had been taken. One plan was chosen. Later, however,
there was a change made to the selected plan. Section 22EE of the National Environmental Act (as
amended) read with Regulation 17(i)(a) made thereunder, required a new EIAR be made if there
was any ‘alteration’ in the plan. No new EIAR was taken, and the authority tried to carry out the
modified plan. Petition was filed in the Court of Appeal for a writ of certiorari to quash the modified
plan on the grounds that it did not follow the mandatory procedure, and there was procedural
impropriety in formulating the plan.
However, the Court of Appeal held that the modification cannot be considered as an ‘alteration’
that would require a new EIAR, and that denial of the petitioners’ rights were justified on the overall
public interest of development. An appeal was made to the Supreme Court. Whilst the Supreme
Court found that the expressway should continue undisturbed, it held that the question of possible
violation of Fundamental Rights was not considered by the Court of Appeal.
There was question of infringement of fundamental rights enshrined in articles 12(1), 14(1)(g) and
(h). Because, the prescribed project went through the areas and places where the petitioners had
set up their trade and [Link] the Court of Appeal had encountered these questions, it
should have referred the matter to the Supreme Court for determination of Fundamental Rights in
terms of Article 126(3). Even though the Court of Appeal had failed to refer the matter, the equitable
maxim that “equity regards as done that which ought to have been done” allowed the Supreme
Court presume that the matter was duly referred for a determination. even the appeal court failed
to refer the matter to supreme court, base on the equitable principle, supreme court presumed that
appeal court was refer the matter.
Supreme Court held that the modification amounted to an ‘alteration’ that required a new EIAR.
However, considering the importance of the project to the country, it would be allowed to continue.
Nevertheless, for the irregularities, beach of natural justice and article 12(1), a just compensation
should be awarded to the petitioners under article 126(4).

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PUBLIC TRUST DOCTRINE

“The powers vested in public authorities are not absolute or unfettered, but are held in trust for the
public, to be exercised for the purpose for which they have been conferred.”
In Re 19th Amendment to the Constitution [2002] 3 Sri LR 85 - The constitutional basis of the public
trust doctrine can be summarized as follows:
Article 3 - Sovereignty is in the people and is inalienable.
Article 4 - Prescribes the medium through which the sovereignty of the people shall be exercised.
Article 3 and 4 should be read together, and the joint reading would be as follows:
(a) The legislative power of the people is inalienable and shall be exercised by Parliament;
(b) The executive power of the people is inalienable and shall be exercised by the President; and,
(c) The judicial power of the people is inalienable and shall be exercised by Parliament through
courts.
The wording ‘of the people’ is significant. It denotes that people are the repository of the
sovereignty.
“The specific reference to the power of the people in each sub-paragraphs of article 4 which relates
to the three organs of the government demonstrates that the power remains and continues to be
reposed in the people who are sovereign, and it is the exercise by the particular organ of the
government being its custodian, for the time being, is for the people.”
The gist of the public trust doctrine is as follows
1. Trust Property – the public power entrusted
2. Trustee – the organs of the government, under which comes the ‘administrative and executive’
functions
3. Beneficiary – the people of the Republic
Hence, whenever the power given to a public authority is not exercised for the benefit of the public
and for the purpose for which it is given, the public trust doctrine will be violated.
Vasudeva Nanayakkara v Chosky SC FR Application No. 209/2007 - Lanka Marine Services [LMSL]
used to be a subsidiary body of Ceylon Petroleum Corporation - a nonprofit organization that paid
the taxes. LMSL had a monopoly in the Colombo port in providing bunkering services. Public
Enterprise Reform Commission [PERC] had the power to, inter alia, advise the government regarding
privatization of public sectors. It functioned under Cabinet supervision. However, the Chairman of
PERC, without any cabinet approval or supervision had carried out the negotiations that led to the
privatization of LMSL. Without any proper valuation, the shares of LMSL were sold to John Keels
Holding Ltd. This meant that John Keels - a private organization – has a monopoly over bunkering.
Thereafter, the President sold eight acres of land adjacent to Colombo Port at a price lower than the
market price. Then the Board of Investment gave tax free status to John Keels. A public interest
litigation was filed challenging this privatization and subsequent decisions.
Held: The sale of land, agreement providing monopoly and grating of tax exemptions were illegal
and void. The principles enshrined in Articles 3 and 4 mean that the organs of the government are
the custodians of the people’s power, and they must exercise that power for the benefit of the

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people. All these acts were done improperly and in a biased manner favoring John Keels Holding
Ltd. All were done to secure an illegal advantage to the John Keels. Hence, the exercise of power
was arbitrary, and breached public trust doctrine. Since, arbitrary exercise of power amounts to a
breach of rule of law guaranteed under article 12(1), equal protection before the law was also
violated.
Sugathapala Mendis v Chandrika Kumaratunga [2008] 2 Sri LR 339 - The land in question was
acquired for the purpose of ‘developing Parliamentary Administrative Complex and for providing
water retention as a low-lying area’. The land was then vested with Urban Development Authority
(UDA). Nine years after the acquisition, Asian Pacific Gold Course Ltd. proposed to build a golf course
and other sporting and recreational utilities. It argued that once developed, it would be available to
the general public. A memorandum recommending this was approved by the Cabinet, and based on
this recommendation, UDA hastily leased the land to Asian Pacific for a period of 99 years at a price
below the actual value, so that it may build a golf course thereon.
Issue: Was the land allocated for a public purpose? In so far as the allocation of land concerned, was
the public trust doctrine breached?
Held: Shiranee Tilakawardane, J.: “The Public Trust Doctrine is based on the concept that the powers
held by organs of government are, in fact, powers that originate with the People, and are entrusted
to the Legislature, the Executive and the Judiciary only as a means of exercising governance and with
the sole objective that such powers will be exercised in good faith for the benefit of the People of
Sri Lanka. Public power is not for personal gain or favour, but always to be used to optimize the
benefit of the People. To do otherwise would be to betray the trust reposed by the People within
whom, in terms of the Constitution, the Sovereignty reposes. Power exercised contrary to the Public
Trust Doctrine would be an abuse of such power and in contravention of the Rule of Law.”
Hence, merely showing that the act was legal is insufficient, when such act breaches public trust. As
regards to public purpose, an individual may be benefitted but such benefit must only be indirect.
The objective to be aimed must be the general interest of the community. The land was not used
for the purpose for which it was initially acquired by the government. Even the development of goal
course was not going to primarily benefit the general public. Any benefit the public may gain would
be marginal. Therefore, the lease granted does not satisfy the requirements of public purpose. By
not exercising the public power for a proper purpose, the government has breached the public trust
doctrine. Since a breach of public trust is an arbitrary exercise of public power, the rule of law
protected under article 12(1) is violated.
The questions that want to ask,
• Is public trust doctrine a novel concept?
• Does it add anything new that are not already covered by the traditional grounds of review?
• How does public trust doctrine protect rule of law?
• Should the application of public trust doctrine have limited to cases that involves state
resources?

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THE OUSTER CLAUSE

Ouster clause, also known as privative, preclusive or exclusionary clauses, simply means the
outer/exclusion of court’s jurisdiction. They are statutory provisions that exclude certain actions and
decisions from the jurisdiction of competent courts of law. In administrative law prevented the
judiciary review regarding some action of administrator. All the ouster clauses are linked to one
objective that prevent the judiciary interfering to decision of administrator.
✓ Rationale behind ouster clauses
Jones and de Villars, referring to the rationale for privative clauses in Canada, state: "Even with its
inherent common law limitations, judicial review has sometimes been seen by the legislators as
being too interventionist, which has resulted in statutory limitations being imposed on the power
of the superior courts to review administrative action, usually by means of privative clauses. This
legislative action has not occurred because the legislators do not support the rule of law, or because
they want statutory delegates to act unlawfully and beyond their jurisdiction. Rather it results from
a perception that the strict adjudicative approach of the courts is inappropriate for decisions that
may involve partly policy making and partly adjudication, or may be based on other considerations
that would not appear on a court record. Too high a level of judicial review can defeat the whole
point of creating an administrative tribunal: to have speedy and informal resolution of issues
perhaps by a specialized and expert body that can inject elements of custom and public policy into
its decisions.”
✓ Disadvantages of ouster clauses
Article 8 of UDHR - “Everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted him by the constitution or by law.”
Thus, when executive or administrative actions violate fundamental rights, ouster clauses take away
the means to vindicate such rights. It takes away one of the central organs of the government –
judiciary – its interpretative and adjudicatory roles. If government becomes over-powerful, without
adequate checks on the exercise of power, then, there is a real danger that individual rights are
threatened.
THE JUDICIAL ATTITUDE
Anisminic v Foreign Compensation Commission [1969] 2 AC 147 - Anisminic’s mining properties
were nationalized in Egypt and sold to an Egyptian government-owned company. An Order in
Council was made under the Foreign Compensation Act 1950 for the distribution of compensation
paid by the Egyptian government to the British government in relation to British properties that had
been nationalized. Its claim was denied by the tribunal (the defendant) on the basis that the
legislation required that successors in title of Anisminic’s properties be of British nationality.
Anisminic sought judicial review of the decision on the basis that there had been an error of law in
interpreting the meaning of ‘successors in title’ The Court of Appeal held that any question of judicial
review was barred, in accordance to the ouster clause at s4(4) of the 1950 Act, which states ‘the
determination by the commission of any application made to them under this Act shall not be called
into question in any court of law’.

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Issue: Did the ouster clause exclude judicial review?

Held: Lord Reid: ‘If the draftsman or Parliament had intended to introduce a new kind of ouster
clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would
have expected to find something much more specific than the bald statement that a determination
shall not be called in question in any court of law.’ ‘Undoubtedly such a provision protects every
determination which is not a nullity. But I do not think that it is necessary or even reasonable to
construe the word “determination” as including everything which purports to be a determination
but which is in fact no determination at all.’ ‘It is a well-established principle that a provision ousting
the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a
provision is reasonably capable of having two meanings, that meaning shall be taken which
preserves the ordinary jurisdiction of the court.’
Ouster clauses only protect real decisions. Ultra vires decisions are treated as no decisions and
cannot be considered as ‘real decisions’ protected by ouster clause. In order to be protected by an
ouster clause, a decision has to be free from illegality.
Hence, according to the judgment:
a) An ouster clause did not protect a determination which was outside an administrator’s
jurisdiction; and,
b) the misconstruction of the Order in Council which the Commission had to apply involved an
excess of jurisdiction, since they based their decision on a ground which they had no right to
take in to account and sort to impose another condition not warranted by the order.
THE SRI LANKAN POSITION
Board of Trustees of Maradana Mosque the PC followed the same approach adopted in Anisminic.
The legislative response was bringing an amendment to the Interpretation Ordinance in 1972.
Section 22 of the Ordinance - “Where there appears in any enactment, …., the expression "shall not
be called in question in any court" or any other expression of similar import ….in relation to any
administrative decision, no court shall, in any proceedings and upon any ground whatsoever, have
jurisdiction to pronounce upon the validity or legality of such decision, made or issued in the exercise
or the apparent exercise of the power conferred on authority.” Provided, however, that the
proceeding provisions of this section shall not apply to the Supreme Court or Court of Appeal in the
exercise of its powers under Article 140 of the Constitution in respect of the following matters, and
the following matters only, that is to say-
(a) Where such order, decision, determination, direction or finding is ex facie not within the power
conferred on such person, authority or tribunal making or issuing such order, decision,
determination, direction or finding; and,
(b) Where such person, authority or tribunal upon whom the power to make or issue such order,
decision, determination, direction or finding is conferred, is bound to conform to the rules of
natural justice, or where the compliance with any mandatory provisions of any law is a condition
precedent to the making or issuing of any such order, decision, determination, direction or
finding, and the Court of Appeal is satisfied that there has been no conformity with such rules
of natural justice or no compliance with such mandatory provisions of such law:

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Gooneratne v Commissioner of Elections - Section 7 (7) of the Parliamentary Elections Act provides
that an order made by the Commissioner on an application to register a political party shall be final
and conclusive and shall not be called in question in any court.
Sharvananda C.J.., : “If the order made by the [Commissioner of Elections] was invalid in law it was
really 'no order' at all and so the court is not acting contrary to the statutory requirement that the
order shall not be questioned. The exclusionary clause in section 7 (7) has no effect in excluding
judicial review on the basis of ultra vires. Through an error of law, he has stepped outside his
jurisdiction.” Even the statute made exclusionary rule to exclude judiciary review, if such action
taken by administrator ultra-virus such action can be review through judiciary and such exclusionary
clause cannot be prevented the court.
Atapattu v People’s Bank [1997] 1 Sri LR 208 - Section 71 (3) of the Finance Act provided that every
determination of the Bank shall be final and conclusive and shall not be called in question in any
court. It was contended, in this case, that, by virtue of section 22 of the Interpretation Ordinance, a
decision made by the People’s Bank refusing substitution was beyond judicial review. Both the
Finance Act and the Interpretation Ordinance were enacted prior to the adoption of the 1978
Constitution.
Article 168 (1) of the Constitution read: “Unless Parliament otherwise provides, all laws, written
laws and unwritten laws, in force immediately before the commencement of the Constitution, shall,
mutatis mutandis, and except as otherwise expressly provided in the Constitution, continue in
force.”
Article 140 is “subject to the provisions of the Constitution”. The issue was whether article 140 that
confer upon the COA the power to issue writs should be read subject to section 22 of the
Interpretation Ordinance that was enacted before the Constitution came into force.
If this argument were accepted, then the court’s jurisdiction would be ousted.
Held: Fernando J. - “Apart from any other consideration, if it became necessary to decide which was
to prevail - an ouster clause in an ordinary law or a Constitutional provision conferring writ
jurisdiction on a Superior Court ‘subject to the provisions of the Constitution’ I would unhesitatingly
hold that the latter prevails, because the presumption must always be in favor of a jurisdiction which
enhances the protection of the Rule of Law, and against an ouster clause which tends to undermine
it (see also Jailabdeen v. Danina Umma). But no such presumption is needed, because it is clear that
the phrase ‘subject to the provisions of the Constitution’ was necessary to avoid conflicts between
Article 140 and other Constitutional provisions - such as Article 80(3), 120, 124 and 126(3). That
phrase refers only to contrary provisions of other written laws, which are kept alive by Article
168(1).”
 Weeraratne v Colin-Thome [1988] 2 Sri LR 151
 Siriwardena and Othes v Liyanage and Others [1983] 2 Sri LR 164
Ouster clause will not protect from review a decision of an administrative body that is tainted by
ultra vires. Only the intra vires decisions are protected by ouster clauses. But it has also been argued
that a well and clearly drafted ouster clause could exclude court’s review jurisdiction.

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CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW

What is Constitutional Foundation?
Mark Elliot: “Judicial review in any given area is constitutionally justifiable when it enjoys
constitutional legitimacy (which, in turn, requires a satisfactory constitutional warrant and legal
basis for review).”

THE GROWTH OF JUDICIAL REVIEW IN ENGLAND

The United Kingdom has an unwritten constitution. It is a is a democracy based on parliamentary
supremacy, constitutional separation of powers and on the rule of law. Supervision of executive had
been one of the traditional roles of the Parliament. But with the growth of administrative tribunals
and party-politics, Parliament is unable to supervise all such bodies. Courts, hence, step-in to fulfill
the gap by growing judicial review of administrative action.

1. TRADITIONNEL ULTRA VIRES THEORY

Professor Crag of the Oxford: “The ultra vires principle is based on the assumption that judicial
review is legitimated on the ground that the courts are applying the intent of the legislature.
Parliament has found it necessary to accord power to ministers, administrative agencies, local
authorities and the like. Such power will always be subject to certain conditions contained in the
enabling legislation. The courts' function is to police the boundaries stipulated by Parliament.”
The grounds of judicial review utilized by judges to review executive and administrative action,
hence, are simply expressions of Parliament’s direct intention - Parliament could not have intended
the executive to contravene the rules of natural justice, or act irrationally, and so on. When court
reviews an administrative action under any of the grounds, it is merely enforcing the legislative will
that the administrators exercise their power subject to such principles.
Sir William Wade - The foremost proponent of ultra vires theory: “The simple proposition that a
public authority may not act outside its powers (ultra vires) might fitly be called the central principle
of administrative law.”
The Advantage of Traditional ultra vires Theory
The great strength of ultra vires is its capacity to reconcile judicial review with the doctrine of
parliamentary sovereignty.
Wade: “Having no written constitution on which he can fall back, the [English] judge must in every
case be able to demonstrate that he is carrying out the will of Parliament as expressed in the statute
conferring the power. He is on safe ground only where he can show that the offending act is outside
the power. The only way in which he can do this, in the absence of an express provision, is by finding
an implied term or condition in the Act, violation of which then entails the condemnation of ultra
vires.”

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The Shortcomings of the Traditional ultra vires Theory

a. Artificial Explanation
Traditional ultra vires theory does not adequately explain how judicial review doctrine has been
developed, over time, by judges in England. The explanation provided for the grounds of judicial
review as well as their growth overtime is ‘artificial’. Mark Elliott further says that the same
‘artificiality’ criticism can be extended even to the traditional grounds of JR. For, in the absence of
statutory stipulation itself, there will be nothing to indicate that the parliament has intended that
the executive exercise its powers according to the principles of natural justice and rationality.
Professor Mark Elliott: “This doctrine [of Legitimate Expectation] can be seen as an expression of
Parliament’s will only if one is willing to take a very broad and permissive interpretation of what
Parliament has intended—it is indeed difficult to see the judicial power to give effect to a plaintiff’s
substantive legitimate expectations over a decision otherwise legitimately made by an
administrative body as an extension of Parliament’s will, whether implicit or explicit.”
b. Justifying ‘Ouster Clauses’
Professor Craig: “If the rationale for judicial review is that the courts are thereby implementing
legislative intent this leads to difficulty where the legislature has stated in clear terms that it does
not wish the courts to intervene with the decisions made by the agency.”
The potent question is that whenever an ouster clause is inserted in a statute, it is the parliament
that has expressly inserted them.
Anisminic Ltd. v Foreign Compensation Commission [1969] 2 AC 147 - Material Facts: Foreign
Compensation Act 1950, which established the Foreign Compensation Commission, provided in
section 4(4) that, “The determination by the Commission of any application made to them under
this Act shall not be called in question in any court of law”. Held: According to the majority lordships,
the ouster clause prevented review only of valid determinations, which meant determinations
reached within jurisdiction. By misconstruing its powers, the Commission had acted outside its
jurisdiction, so that no valid determination had been made. Section 4(4) therefore presented no bar
to review.
c. ‘Indeterminacy’ of the doctrine
Craig thus points out that the doctrine is so ‘flexible’ that it can used to justify any sort of judicial
intervention by reference to presumptions of legislative intention, but cannot “provide any
independent prior guidance” on the grounds on which the courts should intervene. Thus, on this
view, ultra vires is a purely formalistic concept which is normatively sterile or barren.

2. THE COMMON LAW THEORY

This theory justifies judicial review by reference to the traditional role of the English judiciary in
developing the body of judge made law known as ‘the common law’ which the Administrative Law
principles are part of.

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Professor Mark Elliott: “This theory of judicial review holds that, in requiring discretionary powers
to be exercised consistently with principles of good administration, the courts are applying rules of
the common law which bear no relation whatever to the legislative intention of Parliament.”
The Advantage of the Common Law Theory
This theory is attractive in its simplicity and openness with which it explains the root of judicial
review and how it has expanded over the years, and is complimentary to modern understanding of
constitutionalism.
Professor Trever Allan of Cambridge: “The nature and degree of judicial scrutiny of administrative
action that these grounds [of judicial review] permit or enjoin are inherently variable: they reflect
the judges’ current perception of what political morality requires rather than developing insight into
legislative intention.”
The Downside of the Common Law Theory
The major criticism of the common law model is that it inevitably challenges the parliamentary
supremacy.
C.F. Forsyth: “Those who abandon the doctrine of ultra vires inevitably founder on the principle of
Parliamentary supremacy. If, for instance, the maker of an administrative decision complies with all
the requirements of validity, express or implied, laid down in the relevant statute, the common law
cannot add any additional requirement (or remove or amend an existing requirement) without
challenging the power of Parliament to specify the requirements of validity.”

3. THE MODIFIED ULTRA VIRES THEORY

Instead of postulating a direct connection between judicial review and legislative intention, the
modified theory tries to find a more logical and workable solution by making an indirect connection
between parliament’s intention and the judicial review.
Professor Elliott: “This justification for judicial review holds that the courts, in requiring
discretionary powers to be exercised in accordance with principles of good administration, are giving
effect to Parliament’s general intention that, when it creates decision-making powers, it only
intends to grant such power as is consistent with the rule of law.”
The key difference between the modified ultra vires theory and the traditional ultra vires theory is
the degree of reference to Parliament’s intention. Traditional UV theory proposes that judicial
review is justified by Parliament’s express or implied will in each specific grant of power to the
executive, while the modified UV theory proposes that JR is justified by Parliament’s general intent
that the executive must abide by the rule of law in exercising the powers granted to it.
Christopher Forsyth remarks that the development of the principles of modern administrative law
“took place against the background of a sovereign legislature that could have intervened at any
moment” but which generally chose not to. Parliament must therefore be taken tacitly to have
approved the fashioning of broad grounds of review.”

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4. HUMAN RIGHTS ACT OF 1998

The Act’s stated purpose is to give greater effect in domestic law to the human rights set out in the
ECHR. The effects of the Act are two-fold:
1. Section 3 (1): “So far as it is possible to do so, primary legislation and subordinate legislation
must be read and given effect in a way which is compatible with the Convention rights.”
2. Section 6(1): “It is unlawful for a public authority to act in a way which is incompatible with a
Convention [European Convention on Human Rights] right.”

THE GROWTH OF JUDICIAL REVIEW IN SRI LANKA

Dr. Shivaji Felix: “In Sri Lanka the foundation of judicial review is constitutional and it is not referable
to an incremental development of the Common Law.”
The judicial review in Ceylon was established by the Royal Charter of 1802, and was expanded to
include the issuance of writs of Certiorari, Prohibition, Procedendo, Mandamus, and Quo-warranto
by the Courts Ordinance of 1889.
Section 42 of the Court Ordinance: “The Supreme Court or any Judge thereof, at Colombo or
elsewhere, shall have full power and authority to inspect and examine the records of any court, and
to grant and issue, according to law, mandates in the nature of writs of mandamus, quo warranto,
certiorari procedendo, and prohibition, against any District Judge, Commissioner, Magistrate, or
other person or tribunal.”
The current foundation of judicial review in Sri Lanka is founded on the constitution. Article 140 of
the Second Republican Constitution of 1978 confers upon the Court of Appeal the power to issue
orders in the nature of writs.
Article 140 of the Second Republican Constitution of 1978 - “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:
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.”

“ACCORDING TO LAW”?
Ceylon judges were under no compulsion to identify a foundation other than the Courts Ordinance.
What they had to grapple with was the wording “according to law” in section 42 of the said
Ordinance. In other words, they had to conclusive decide which ‘law’ the section 42 referred to.
Abdul Thasim v Edmond Rodrigo (1947); Nakkuda Ali v Jayarathna (1950) - In the passage
"according to the Law", the word “Law” signifies the English Law. Accordingly, the court was under
the responsibility to issue writs according to English Law.

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Are the judges bound by the English Law? - Considering the sameness of the wording used in section
42 of the Courts Ordinance and article 140 of the Constitution, is the ‘law’ referred to in article 140
is confined to English Law?
Sirisena Cooray v Tissa Dias Bandaranayake [1999] 1 Sri LR 1 - “The phrase “according to law” in
Article 140 was also used in section 42 of the Courts Ordinance and was judicially interpreted to
mean that writs should be issued in the circumstances known to English Law……. We must assume
that the phrase was used in Article 140 in the same sense and that proposition admits of no
controversy.”
Saleem MasrooJ J - “[O]ur courts may no longer be able to be guided by modern English law in
regard to the grant of writs, although as pointed out by the Supreme Court in the Sirisena Cooray
case, they would continue to issue writs “in the circumstances known to English law”, that is the law
of England prior to the aforesaid reforms [Human Rights Act 1998]. Such an approach can be justified
on the basis that the old law is part of the Common Law of Sri Lanka, which our courts are free to
develop to suit changing conditions of society.” [Emphasis Added]
Atapattu v Peoples Bank [1997] 1 Sri LR 208 - Fernando J - “Apart from any other consideration, if
it became necessary to decide which was to prevail - an ouster clause in an ordinary law or a
Constitutional provision conferring writ jurisdiction on a Superior Court ‘subject to the provisions of
the Constitution’ I would unhesitatingly hold that the latter prevails, because the presumption must
always be in favor of a jurisdiction which enhances the protection of the Rule of Law, and against an
ouster clause which tends to undermine it (see also Jailabdeen v. Danina Umma). But no such
presumption is needed, because it is clear that the phrase ‘subject to the provisions of the
Constitution’ was necessary to avoid conflicts between Article 140 and other Constitutional
provisions - such as Article 80(3), 120, 124 and 126(3). That phrase refers only to contrary provisions
of other written laws, which are kept alive by Article 168(1).”
CONCLUSION
Although English Administrative Law guides the courts, it is merely a persuasive authority. Our
judiciary can deviate, alter, modify or even develop as it seems fit to the Sri Lankan context. There
examples are taken to illustrate this point:
1. Premaratne v UGC [1998] 3 Sri LR 395 – Incorporation of proportionality.
2. Dayaratne v Minister of Health [1999] 1 Sri LR 393 – Incorporation of Substantive Legitimate
Expectation.
3. Hether Theresa Mundy SC Appeal 58/2003 – Incorporation of Public Trust Doctrine
FUNDAMENTAL RIGHTS JURISDICTION AND PROVINCIAL HIGH COURT
Article 17 read together with article 126 of the Constitution confers upon the Supreme Court power
to exercise right based review of executive and administrative actions.
Article 154P (4) confer writs jurisdiction to Provincial High Courts. This power, however, is limited to
the subjects that have been devolved to the provinces in terms of the Provincial Council List of the
Ninth Schedule to the Constitution.

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REMEDIES: WRITS
1. Certiorari: An order that annuals/ quashes an illegal decision of an authority exercising public
power. [‘We Quash’]
2. Prohibition: An order that prevents a body from acting outside its jurisdiction in the future. [‘We
Prohibit’]
3. Mandamus: An order that compels a public authority to perform a duty it is legally bound to
perform, but refuses/fails to perform. [‘We Command’]
4. Habeas corpus: An order that commands a person who has unlawfully detained someone else
to produce that person before court. [‘Bring the corpus/body’]
5. Quo Warranto: An order that questions the validity of an appointment/election of a public
office. [By what warrant?]
6. Procedendo: An order from superior court to an inferior court to proceed to judgment. [proceed
to or execute a judgment]
Note: Currently quo warranto is issued often instead of certiorari and procedendo

WRIT OF CERTIORARI AND PROHIBITION

Certiorari is available to quash/strike down a past wrongful exercise of power, whereas prohibition
always acts as a remedy for the future by preventing an authority from exercising its power
wrongfully. Despite this, the requirements for both writs are the same.
The deference between certiorari and prohibition is that the certiorari can be plead when public
authority exercised the power unlawfully and the prohibition can be plead when the public authority
is about to exercises the power unlawfully.
R v Electricity Commissioner ex p London Electricity Joint Commission [1924] 1 KB 171 - Lord Atkin:
there is main 4 element to determined writ of certiorari,
1. Whenever anybody of person having legal authority,
2. To determine questions affecting the rights of subjects
3. Having the duty to act judicially
4. Act in excess of their legal authority
they are subject to the controlling jurisdiction exercised….”

1. Who can be subjected to Certiorari and Prohibition?

‘Whenever anybody of person having legal authority…’
Mendis, Fawzie v Goonewardena [1978-79] 2 Sri LR 322 - The body in question must derive its
power from a statute. Accordingly, powers derived from contract cannot be subjected to writs.
Harjani v Indian Overseas Bank [2005] 1 Sri LR 167 - It is the nature of the power exercised, and not
the nature of the body that matters. Accordingly, writ lies when the function in question is public in
nature.

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2. What sort of public functions can be subjected to writ?

‘To determine questions affecting the rights of subjects’
Mendis, Fawzie v Goonewardena [1978-79] 2 Sri LR 322 - If the decision affects the character of
someone, or their reputation or their career or benefits that they have received or their livelihood,
against such decisions writs can be issued. These are by no means exhaustive [no exhaustive]. What
matters is the purported decision must affect some legal interest of the public. The term ‘right’
connotes that certiorari cannot lie against pure fact-finding authorities. However, if such authority
involves making a substantial decision rather than a mere recommendation.
Right v Privilege - Distinction has no application when it comes to writ jurisdiction.

3. Can certiorari be issued only against a body that is bound to act ‘judicially’ or ‘quasi-judicially’?
‘Having the duty to act judicially’
Mendis, Fawzie v Goonewardena [1978-79] 2 Sri LR 322 - Vythialingam J.: “Duty to act judicially
means nothing more than the duty to act fairly, that is to say by observing the rules of natural
justice.” “…duty to act judicially is not a characteristic which is superseded but simply a corollary,
the automatic consequence, of the authority to determine questions seriously affecting subjects in
some right, interest, status, standing in society or some legitimate expectation. Where there is any
power there must be the duty to act judicially.”
Judicial v administrative distinction is no more [See Ridge v Baldwin]. When the requirement [2] is
satisfied, [3] too will be satisfied.

4. When can certiorari be issued?

‘Act in excess of their authority’
The body must have acted in excess of its jurisdiction/legal authority. It may either be by ultra vires
exercise or by an error of law on the face of record.

WRIT OF MANDAMUS
Whereas certiorari and Prohibition’s concern with wrongful action, mandamus concerns with
wrongful inaction, in that, if a public authority fails to do its duty, then a mandatory order can be
issued to compel the authority to perform its function.
Pathirana v Goonesekera 66 NLR 464, 467 - Weerasooriya, S.P.J.: “Where officials having a public
duty to perform, refuse to perform it, or otherwise fail to perform, mandamus will lie on the
application of a person interested to compel them to do so. The rule would also apply where a public
body fails to perform a public duty with which it is charged.”

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1. Does the authority have the power?

Chandra de Silva v Ambawatte [1968] 71 NLR 348 - Authority against whom mandamus requested
should have the power/authority to perform the duty.

2. What is the duty?

Type of duty against which a mandatory order can be issued must be of a legal duty and of a public
nature. The duty must be statutory. [See De Alvis v De Silva [1967] 71 NLR 108]
Perera v Proff. Daya Edirisinghe [1995] 1 Sri LR 148 - The duty must be derived from statute in
public nature. this case also examined by court as FR. contract which are private will not be
subjected to mandamus.
Exception: Constitutional Basis
[Link] Industries Ltd. v Minister of Finance and Planning [1981] 2 Sri LR 238 - If there is only a
privilege either to exercise it or not, mandamus does not lie to compel its exercise.
De Alvis v Sri Lanka Telecom [1995] 2 Sri LR 38 - Mandamus is not available to enforce the
performance of a contract, even if it was between a public authority and private person.

3. To whom the duty should be owed?

Where a duty of a public nature is owed, but it is owed not to the petitioner, but to some other person
or authority, the petitioner is not entitled to mandamus to compel its performance.
Exception: Public Interest Litigation

4. Should there be a refusal to act?

a. The body must have refused or neglected to perform the duty - If there has not been even an
attempt to exercise the power although an exercise was sufficiently requested, there has clearly been
a refusal.
b. Where power has been exercised, but exercised invalidly, mandamus lies to compel its valid
exercise.
LOCUS STANDI/STANDING
The standing is given to an individual or group of individuals that are affected by an [Link],
when an exercise of power affects the right of a community or a right of the citizens of the country
as whole, then public interest litigation will be entertained. Refer:
1. Bulankulama et al v Secretary, Ministry of Industrial Development [2000] LKSC 18
2. Vasudeva Nanayakkara v Chosky SC FR Application No. 209/2007
3. Ravindra Gunawardena Kariawasam v Central Environment Authority SC FR No. 141/2015
4. Rajiv Goonetilleke ‘Public Interest Litigation: A Species of Direct Democracy and Good
Governance’ Public Interest Litigation 83

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GROUNDS FOR REFUSING WRITS

Writ is said to be a discretionary remedy. No one has a right to writ remedy.
1. Laches (delays)
Sebastian Fernando v Katana Multi-Purpose Co-operative Society et al [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”.
2. Alternative Remedies
M.A. Moosajee et al v W.R.M.D.T. Balalle C.A. (Writ) No. 767/2010 - A writ application will be
entertained only when all other possible alternative remedies are exhausted or such remedies are
inadequate.
3. Futility
Wijesiri v Siriwardena [1982] 1 Sri LR 171 - If the grant of relief will be futile, then the Court will not
grant relief.
4. Estopple
Where petitioner is estopped from brining an action.
5. Waiver
Kandy Omnibus Co. Ltd. v Roberts 56 NLR 293 - If the petitioner has previously forgone his right,
the he cannot bring a writ application.
6. Administrative Inconveniency
R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities [1986] 1
All ER 164
7. Uberrimae fides
Alphonso Appuhamy v Hettiarachchi 77 NLR 131 - Petitioner must come with a clean hand, with a
good faith, and not for an ulterior motive.
8. Suppression of Material Facts
Hulangamuwa v Principal of Visaka Vidyalaya [1986] 1 SLR 275

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[Link]