Week 1

Wednesday, January 12, 2022 10:14 PM

What is administrative law?

The law relating to the control of governmental power
Administrative law includes a set of rules which are designed to ensure that the administration

Purpose of administrative law

The role of judiciary in administrative law

Development of administrative law under english law

• Dicey contrasted the disadvantages involved in a system of administrative courts in France and the advantages enjoyed by British due to the absence of such a system
• In England the executive actions were also controlled by the same courts according to the same principles which governed the relationship between private citizens
• However many did not agree with dicey and later a system of administrative law evolved in England
• Lord Diplock described the rapid development of a rational and comprehensive system of administrative law as having been the greatest achievement of the english courts in his
judicial life time - Re Racal communication ltd (1961)AC 374
• The UK government has accepted the European convention of human rights and stated that all laws must be consistent with it.
• With the advent of human rights act 1998, extensive implications of administrative law came in to effect and required public authorities to act consistently with convention
rights and thereby created new grounds of judicial review.
• Impact of BREXIT?
------------------------------------------------------------- Discussion---------------------------------------------
• Human rights can also be affected under administrative law
• In Sri Lankan situation there is a FR chapter in the constitution and if there is a violation of FR it must only become a FR petition only and not writs.
• Art.126(3) about court of appeal identifying a breach of FR, at that situation the case must be referred to the supreme court.
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Development of administrative law in France

The French system is founded on the use of separate administrative courts

French administrative law

Both in the French system and in the British system principles of judicial control are judge made and do not derive from either codes of statues
France has an inquisitorial system and therefore they have a separate court system for administrative law

- French conseil d'état

- Administrative courts of appeal
- Administrative tribunals

Of the 27 member states of the European union, 15 have set up an administrative justice system which is wholly separate from their civil, commercial and criminal justice systems
Administrative tribunals
- 42 administrative tribunals
- Jurisdiction over matters arising in the respective geographical area
Administrative courts of appeal
- 8 appeal courts
- Borde?????

How does the development of administrative law in France affect english law?

• Britain was the only common law country in the European union
• Due to Europeanization, England introduced the human rights act of 1998
• Britain has adopted many civil law principles with the time (proportionality, legitimate expectation)

Constitutional foundations of administrative law/ judicial review of administrative actions

Sovereignty of parliament
- Identify the principles
- Scholarly approach to prove or a general idea
- Constitution is based on this principle discuss
- Connection between constitution and administration

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Week 2
Saturday, January 15, 2022 10:47 AM

1. Separation of Power
2. .
3. .
4. Parliamentary supremacy

Constitutional foundations of administrative law

Sovereignty of parliament

Dicey states,
The principle of parliamentary sovereignty means neither more nor less than this, namely that parliament… has the
right to make or unmake any law whatsoever, and further, that to person or body is recognized by the law as having
the right to override or set aside the legislation of parliament

- On this basis the court can question the power of the public authority within the limits of the statute by which
the administrative power is granted
- If the public authority has acted beyond its powers, it is ultra-virus (beyond power)
- According Sovereignty of parliament, the court can act within this limit only
- The negative aspect of sovereignty of parliament is that when there is an ouster clause, according to sovereignty
of parliament, the court cannot intervene, since it is against the principle.

Public authority receive power from the statutes and it is enacted by the parliament. If public authority goes beyond
their power it is known as going beyond the intention statute and parliament. The sovereignty of the parliament is
challenged by it. As long as parliamentary sovereignty is recognize they are stuck under four corners of the statue.
But If they go beyond there is no mechanism to impose upon them.

Ouster clauses are also a part of statutes.

Ultra-virus and the foundation of judicial review by Paul Creg (hein online)

-------------------------------------------------------21/01/2022--------------------------------------------------------------------

Reading an article

Read the topics/sub headings

Then start reading,
1 reading- go through.
2 reading- makes more sense.
3 reading- fully understand.

Rule of Law

The primary meaning of rule of law is that everything should be done according to law

This requires that every government authority which does some act must be able to justify its action as authorized by
the law
Therefore an essential part of rule of law is that a system of rules for preventing the abuse of discretionary power.

The rule of law requires the court should prevent its abuse

Thus the courts must attempt to strike a balance between the needs of fair and efficient administration and the need to
protect the citizen against oppressive government.
Sugathapala Mendis and Another v Chandrika Bandaranaike Kumarathunga and others (SCFR 352/2007)
(Water's Edge case)

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(Water's Edge case)

When governmental authority use their power they must justify their power under the law because the law is the
highest power in the country.

Water's edge case is not a writ case but it is a Fundamental right case under the supreme court of sri lanka. In this
case rule of law was extensively discussed.
Ex- in land acquisition if a minister acquire a land for personal benefit then it is against/beyond rule of law.

Elements of rule of law : Everybody is equal before the law (Art 112(1))

Rule of law is an underline principle of our constitution.

When there isn't any FR are violated writes are used to question the administrative authority. In some instances there
will be situations were FR violated even if the parties didn’t knew about the violation.

If the 30 days' time period is passed to act to a FR case, then the option of writs can be used.

Separation of powers

The doctrine means that to avoid oppressive government, three governmental functions should be kept separate. ( the
executive, judicial and legislative)
Hence, no individual should be involved in more than one branch.

A rigid reliance on "separation of power" means the court cannot intervene when the administrative authority acts
beyond its authority.
However when the constitution of USA was created a system of 'checks and balances' was devised.

Since independence of judiciary is protected in this system, the courts express concern at their need to avoid abuse of
power by administrative authority.

We can link separation power and administrative law specially because of checks and balance system. With this
ultimately the independence of judiciary is expected.

If one organ of the government is acting oppressive manner/ beyond power other branches can intervene. The
administrative authorities comes under executive branch and the judiciary can intervene when the administrative
authority act beyond power to get it back under the four corners of the constitution.

Justice shirani bandaranayake, Z score case, Mandi case is important

Democracy

Relating democracy and administrative law- if the law is breached by an administrative action then the democracy of
that country. Democracy is rule by the people
There are two types of democracy:
1. Direct democracy
2. Representative democracy - a representative makes decisions for others.

Statutes are made by parliament. The members of the parliament are elected by an election by the people. Which
means the peoples will is represented, but when an administrative authority go beyond statute it means the
administrative authority going beyond the will of people, in other words going beyond democracy.

When more opportunity is given to the people to question the administrative action - it is participatory justice.
Ultimately people are taking part in justice making.

Ex- 30 days for FR cases, writs will have reasonable time. We can argue that more lenient approach have taken which
means giving people the opportunity to question the authoritative action.

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Week 3
Saturday, January 15, 2022 10:47 AM

Article - Ultra vires and the foundations of judicial review

- Paul Craig

The role of Ultra vires doctrine and its place in administrative law.
1. The central principle of administrative law
2. A harmless fiction which is incapable of explaining all instances of judicial intervention.

Article is divided into 4 sections

Section 1: the criticisms of the ultra vires principle

Section 2 & 3: arguments of those who believe that ultra vires is the central of administrative law
(arguments of Christopher Forsyth)
Section 4: Analysis in two aspects
i. Historical perspective
ii. Conceptual perspective

1. The criticisms of the ultra vires doctrine.

The ultra vires principle is based on the assumption that the judicial review is legitimate and the
courts are applying the intent of the parliament.

The courts function is to guard the boundaries which derives from the parliament. The ultra vires
principle affected the limits of Judicial review.

Therefore if the agency was within the prescribed area it showed that it was performing the task
which was entrusted by the parliament.

This principle is regarded as both necessary and sufficient basis for judicial intervention.

Some criticisms of Ultra vires doctrine can be identified as follows;

a) The indeterminacy of the ultra vires principle.

This can be exemplified by its application to judicial review of jurisdictional issues

- R v Bolton (1841)
- Brittain v Kinnaird (1819)
- Anisminic Ltd. V Foreign Commission (1969)
- R v Lord President of the Privy Council ex. p. Page. (1993)

Ex- statute stating, if an employee is injured at work then an agency may or shall grant
compensation.

In this instance we can identify 3 main conditions which need to be satisfied.

- Existence of an employee
- An injury
- Fact that injury occurred while at work

In determining these factors courts have used different approaches.

- Limited review
- The collateral fact doctrine

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 - The collateral fact doctrine
- Modern test of extensive review.

However, the ultra vires doctrine provides no guidance of which standard of review must be used
or apply.
As Sir John Laws has remarked, "the ultra vires principle in this area is simply a fig leaf which
enables the courts to intervene to the degree to which they think Is appropriate without too nakedly
confronting the authority of the executive"

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Sources of administrative law in Sri Lanka

Administrative law can be found from,

- The constitution
- Statutes
- Judicial decisions

Article 140 of the constitution talks about the power to issue writs, other than writs of and habeas
corpus (writs of certiorari, prohibition, procedendo. mandamus and quo warranto) by the court of
appeal. It has the full power and authority of it.

With the 13th amendment set of powers which was allocated originally to the court of appeal was
also given to the high court Article 154 B4 states about it.

Other courts cannot issue writs and it is only granted by the constitution. Other than that in judicial
review there are other judicial provisions which could be used creatively (12(1), 3, 4, ) in giving
judgment in administrative matters.
Some scholars argue administrative law is a part of constitutional law.

In the development Public trust doctrine constitutional provisions were used specially art 12(1).
Therefore it is purely a judge-made law. The Sri Lankan public trust doctrine was developed with
reference to the constitutional provisions therefore it has a constitutional basis.

The court of appeal has the power to issue writes only because of the constitution.

Administrative law is recognized as the law that control governmental power and this is not the law
on other question occurs under administration. This looks at the scope of administration law

Apart from the constitution there are other legislations that talks about administrative authority

Administrative Appeal Tribunal act no 4 of 2002

- Under this act the tribunal has the power to hear and determine any appeal referred to it from
any order or decision made by public service commission or national police commission.

Judicial decisions
This plays a significant role in AL. the ultra vires doctrine and many other doctrines were
developed by courts.
For the development of sri lankan al the courts have supplemented in an enormous way.

Appeal and review

The difference between appeal and review

under appeal show us the given decision is right or wrong and under review it is concern about the

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 under appeal show us the given decision is right or wrong and under review it is concern about the
legality of the decision. By it, it seeks the power and authority to give the action lawfully and if it
is not it is known as ultra vires.

The right of appeal is always statutory

Ex- section174 of intellectual property act, any aggrieve party by any decision made by the
director general under the act can appeal to the commercial high court.

Judicial review - the court exercises the inherent power to determine whether the action is lawful or
not and to award suitable review. For this no statutory authority is necessary. Judicial review is
keeping public authorities within due bounds/limits and upholding the rule of law.

Ex- if the administrative action of acquiring private lands for public purpose is in nexus of power
the court has only to quash it and declare it unlawful. This could be done under writ of certiorari.

Origin of administrative law in Sri Lanka.

In the present constitution grant power to court of appeal and high court.

The historical origin of the public law remedy(writs) in Sri Lanka goes beyond British period. The
first charter was issued in 1801 section 82, granting power to courts. The Ceylon charter of justice
in 1833, this charter empower the supreme court to issue mandate in the nature of mandamus,
procedento and prohibition against district court in the field of civil law.

The administration of justice order no 11 of 1868. this ordinance grant full power to the supreme
court to grant and issue according to law mandates in the nature of writs on mandamus, certiorari,
procedento and prohibition against any district court judge, commissioner, magistrate justice, other
person or tribunal.

Courts ordinance section 46, this granted wide power to the supreme court to issue mandate in the
nature of writes.

Administration of justice law no 44 of 1973 section 12 (read), the 1978 constitution of sri lanka
article 140, 154B4.

Red light theory and Green light theory

Red colour means to stop and green means to go.

How do you relate these two theories?

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Week 4
Saturday, January 15, 2022 10:47 AM

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Week 5
Wednesday, February 9, 2022 9:57 AM

Ultra Vires Cont…

The courts was under the sovereignty of parliament. In English courts, they are influenced by
judicial reviews of other countries as well.
These several grounds that helped in development in English law.
Therefore now judicial review is not limited to ultra vires doctrine.

There are scholars that argue, other ground also comes under ultra vires doctrine ultimately.

Theory question on ultra vires- do not discuss the categories of ultra vires****

If a person is given the power but he didn’t use it, this also becomes an ultra vires

Kotakadeniya v kodithuwakku and others (2000) 2 Sri LR 105

Transferring ??? Deligated his power to all officers of and below the rank of D.I.G to inspector
general of police.(IGP)
Senior inspector Kotakadeniya was transferred by inspector general of police. His rank did not
fall within the rank to transfer by IGP because his rank is above DIG.
The court decided that IGP had no authority to transfer senior DIG and the decision was Ultra
vires.

2. Question of jurisdiction.

When power is given by statute under administrative authority that administrative authority said
to have jurisdiction on the relevant subject matter. But based on the error of jurisdiction, public
authority may act outside the jurisdiction. So this could may due to an error of law or fact.
---------------------
Ex- a student of a school who is psychologically unfit and the school authority recognizing as a
student taking medication, is an error of fact.

Walter Leo v land commissioner 57 NLR 178

Under the 1948 land redemption Ordinance the land commissioner had power to acquire
agricultural land. Acting under his power a land with,
- Well made out of bricks.
- Lavatories
- 180 coconut trees
- Planter trees
Which were not within the meaning of agricultural land under the Ordinance. The court decided
near existence of these things does not automatically convert a residential property to an
agricultural land within the meaning of the Ordinance. (Error of fact)

Bangamuva v Senarathne (2001) Sri LR 106

A private company imported a duty free vehicle however the company did not use the vehicle
and later they sold it to a third party. There was a condition in the license that vehicle cannot be
transferred for 3 years. Since this condition has been breached the government ceased the
vehicle. The custom made an order to release the vehicle ceased by the government. Under
Section 163 of the customs Ordinance director general had power to mitigate the forfeiture but
he had no jurisdiction to release the vehicle.

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he had no jurisdiction to release the vehicle.
(Made the jurisdiction under error of law)

Anisminic v Foreign Compensation Commission (1969) 2 AC 147

Some property of Anisminic company of UK located in Egypt was ceased by the Egyptian
government in 1956. In 1957 anisminic company sold the property to an organization called
"Tedo". It is an egyptian organization and anisminic company sold it with the authorization
received from the egyptian government. Egyptian government paid compensation to the British
government based on an agreement between the two states. A subordinate legislation was
passed under the foreign compensation act to distribute compensation. According to the
provisions of the legislation the tribunal decided the appellant anisminic company was not
eligible for compensation. Since there successor did not have british nationality. British
nationality of the owner or successor was a requirement under the subordinate legislation.

The question before the house of lords was whether tribunal has made an error of law. In
interpreting Section 4 (1) of the legislation. The court held that tribunal had made an error of
law since the tribunal had dismissed the anisminic claim and considered the nationality of the
successor. The court held, the nationality of the successor should be considered only if the
claimant has died. Therefore the anisminic company was able to claim compensation.

Pearlman v Harison school governor

Re r??? V comm???
R v Hull University Visitor 1993 AC 684

Procedural Ultra vires

The procedure of Ultra vires can be specified by some statutes.

In governmental construction, highway building there are some procedures that needed to be
followed/adhered by the administrative authorities.
Ex
- If a university is being built, there is a procedure in building it.

- The KDU act is an good example. If the authorities did not act according to the powers
given it is ultra vires, therefore every action must be done under following the act.

Specially the environmental impact must be assessed. The harm and limiting the harm must be
discussed and the assessment is carried out by the administrative authorities.

By this we can identify two ways of procedural ultra vires.

1. If the procedure is not followed by the administrative authority it is procedural ultra vires
2. Other way is not adhering to natural justice principles

Under natural justice there are 2 essentials

Audi alteram partam
Memo jurex causa sua

The administrative authority is bound to give reasons for their decisions. There are also cases
about it.
Mario Gomez- blending rights with writs. Public law new rules****, Modern Friends in
Public law book.

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Public law book.

The procedure is mainly not written anywhere, even though the statute didn’t mention, they are
bound to the principles of natural justice. All administrative authorities are bound by it.

Heather Therese Mundy v Central Environmental Authority and others.

The Government of Sri Lanka had decided to construct the Southern Expressway in order to
link Colombo and Matara. The parties to the appeals in this case agreed that the project itself
was of national importance, but the appellants complained in regard to the proposed route of the
Expressway, which adversely affected their lands. The Court of Appeals had dismissed all
applications. The petitioners appealed to this Court.

The Central Environmental Authority had approved the trace subject to numerous conditions,
including that the project proponent should obtain fresh approval in respect of any alterations
that were intended to be made to the project. Thereafter, the project proponent prepared what
was described as the "Final Trace". The Appellants complained that they were denied an
opportunity of being heard before the adoption of the final trace, that there was no
supplementary Environmental Impact Assessment, and that approval by the Central
Environmental Authority was not obtained for the final trace.

The Supreme Court considered the relevant legislation, the authority’s power to grant
approval, the rights of the appellants to notice and to be heard in regard to "deviations" that
were made to the original proposal, and the power and the discretion of this Court in regard to
the grant of relief.
The court was of the view that the purposes of an Environmental Impact Assessment would not
be achieved if changes to the proposal were treated as not being alterations. The Appellants
were entitled to notice and to be heard before the final trace was approved. It emphasized that
the Court of Appeal seemed to agree that the rights of the Appellants had been infringed. While
the circumstances were such that the Court could reasonably have concluded that, on balance,
the final trace should be left undisturbed, one of the major considerations was cost. If a judicial
discretion was exercised in favour of the State, inter alia, to save costs, it was only equitable that
the appellants should have been compensated for the injury to their rights.

If it was permissible in the exercise of a judicial discretion to require a humble villager to forego
his right to a fair procedure before he was compelled to sacrifice a modest plot of land and a
little hut because they were of "extremely negligible" value in relation to a multi-billion rupee
national project, it was nevertheless not equitable to disregard totally the infringement of his
rights: the smaller the value of his property, the greater his right to compensation.

The court concluded that the deviations proposed by the project proponent were alterations
requiring approval by the Central Environmental Authority; that despite the lack of such
approval, the refusal of relief by way of writ, in the exercise of the Court’s discretion was
justified; but that the Appellants ought to have been compensated for the infringement of their
rights. To that extent, the appeals were allowed, and the court granted an order directing to pay
compensation to the appellants.

This started as a writ case but ended up as a fundamental rights case. Public trust doctrine is also
important. The also creates a link between FR and Writs.

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Week 6
Monday, February 14, 2022 12:08 PM

Doing things for the wrong purpose.

Public authority and Administrative authorities must not act subjectively and must act
objectively, they must take decision to archive objectives of the enabling legislations. Therefore
their decisions should not be affected by emotions and other external factors. But there may be
situations where the Administrative authorities taking decisions based on unreasonably or
irrationally, ulterior motive, bias, irrelevant consideration, not take relevant consideration.
Likewise if the admin authority may act subjectively without the purpose of granting power to
such authority.

Because of this reason PA would exercise power to the wrong purpose.

R v Ealing london BC
Due to political hostility the boroe council band buying newspapers to libraries. This was against
the statutory duty of the BC to provide a comprehensive and efficient library service.

This is also Ex parte times newspaper case

Error on the face on the record (bashawa mathupita doshaya)

When the AA acting under the statute, they rely on certain documents. At this time if they have
interpreted incorrectly then it is known as error on the face on the record. This include all
document which make the basis of the decision.
This is stated in boldwin francis ltd v Patents appeals tribunal 1952 2 All england report 433 in
answering the question what is a record the court held, all document which appear to be the basis
of the decision.
If there is an interpretation in a small recipte it could also be taken as an error on the face on the
record. When AA take decisions there cant be erroneous decision on record

Hailes Ltd v crossettet Tambia 63 NLR 248.

Weerakasory v Fernando.

Assignment : Principles of natural justice. If the Administrative authority is bound to act

judicially.

______________________________18/02/2022
____________________________________________

**Theory- explain what are the other grounds also developed by courts.

Modern ultra vires doctrine

Tring to take later developed theories also taken under ultra vires doctrine.

Some scholars who says that ultra vires doctrine must not be expanded.

Lesson

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Lesson
Discretionary Power

Admin authorities powers are given by statutes. And these powers are largely discretion.

Other than that there are duty.

1. discretionary power
2. Duty

e.g. the land approval must be taken from Administrative authority and it is given by the
discretion.
Acquisition land under land acquisition act, minister can acquire land for public purposes and it
can be see that is based on discretionary power

This power is given to,

- Take decision efficiently
- To implement policies
- State cant implement all in a statute
- There can be unforeseeable situations and for this Administrative authority must have
power

Paul Craig states,

"Discretionary power is the power to make choices between a cause of actions."

Because we are living in a well fare states we must work with Administrative authorities day to
day

Advantages and Disadvantages

Admin auth must act objectively because subjective approach make unfair decisions.

The admin auth must select the best option when exercising discretionary power.

Rule of law and discretionary power

Dicey states,
By discretionary power is incompatible with rule of law. But now a days still the discretionary
power is given to admin auth and they have a huge role in the state. Therefore it is inevitable not
to give discretionary power.

Wade and Forsyth does not agree with the statement of Dicey, They state that it is false as to the
modern context.

Discretionary power should not be abolished rather it must be controlled by law.

In upholding rule of law courts have a duty to keep admin auth in their legal bounds. In
exercising the power given by the Constitution courts can apply limitations to discretionary
power.

Eg- Ouster clause

Now a days the primary clauses can be applicable only when the acted in intra vires and if not at
that point the courts have to take them back to the legal bounds.

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Administrative Law Page 14
Week 7
Saturday, January 15, 2022 10:47 AM

Courts have developed certain rules to control discretionary power.

There are 2 types

1. Failure to exercise discretion or Retain discretion
2. Abuse of discretion.

Failure to exercise discretion or Retain discretion

Admin authority sometimes fail to exercise discretionary power. But there may be times where
the discretionary power is delegated.

- Delegation
- Surrendering and abdication.
- Acting under dictation.
- Fettering by contract or over rigid policies.

Delegation
Discretionary power is giving the admin authority power to choose the best option. The admin
authority is given this power is that they have the expertise and knowledge on that particular
field.
If the law expressly or impliedly recognize delegate discretionary power then the admin
authority could delegate discretionary power

Delegatus non potest delegare - ones a power is delegated to a admin A by statute, it cannot be
delegated anymore.
But there are many instances where the power is delegated.

The rationale behind this maxim is, the law assume that particular person has knowledge and
experience but now it is not practical anymore.

There may be time where delegation is not authorised.

Bernard v National Doc Labour Board (1953) 2 QB 18

Here national doc labour board had power to suspend workers. But there was an unauthorized
delegating power to the ports manager. This was considered as ultra vires

Aringham v minister of agriculture and fishery (1948) 1 All England report 750.

Here the local committees are empowered have power to direct farmers to grow specified crops
on specified fields. A committee decided to order sugar beed to??? …. But delegated the power
to decide the field to the executive officer. This was considered ultra vires.

Surrendering and abdication.

Here the admin A give another person to use the discretionary power.

Lavender and sons Ltd v Minister of housing and local government. (1970) 1 WLR 1231.

Here the minister of H and L made a rule that planning permission to be refused planning
permission on agricultural land if the application was opposed by the minister of agriculture.

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permission on agricultural land if the application was opposed by the minister of agriculture.
The court considered this as an Act of discretionary power by the wrong person.

Look whether the AA used their discretionary power and if not it is ultra vires

Acting under dictation.

If the AA exercising power under somebody/institution.

Roncarelli v du plessis 1959 16 DR(dominion law report) 689

in this Quebec licensing commission had power to issue and revoke liquor permit. It cancel the
liquor permit of roncarelli on the orders of the prime minister of canada and AG of Quebec.
The court held the commission has exercise dictation without exercising its discretion

R v Mayor Maldermen and counselors of Steffeny.

Fettering discretion by over rigid policy.

The AA are not expected to limit their powers by over rigid policies and AA do not have
precedents and not bound by any precedents generally. By this they must look into each case
separately without blindly following already existing policies.

Bromlee LBC v Greater london council (1983) 1 AC 768

Here the council relied on a promise given at an election campaign when exercising the
discretion. Court consider this as fettering discretion by over rigid policies.

Fettering discretion by contract

certain authories would say because of particular contracts they cannot use or limit their
discretionary power.

Stringer v Minister of housing and local government 1971 1 all england 65.

Here the Manchester university and ??? Entered into a contract restricting development work
within 4 miles of the telescope To prevent any interference, with the operation of the telescope.
The court held that this agreement amounted to an improper fetter on the discretionary power
of the local authority in granting permission for development projects in the city.

Abuse of Discretionary power

This may occur when the AA are acting subjectly.

1. Acting unreasonably.
2. Bad behaviour
3. Ulterior motive
4. Improper purpose
5. Irrelevant consideration
6. Acting arbitrarily
7. Acting against the spirit of the enabling legislation.

1. Acting unreasonably
This has grown to be a separate round of judicial review. This principle was developed in
Associated provincial picture house v wedsbury corporation 1947 2 all england 680

Wedsbury acting under the power given by Sunday entertainment Act could allow cinema to
open on Sunday's subject to conditions as the authority thinks fit. The corporation impose a
condition that no children under 15 yrs of age should be allowed in.

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condition that no children under 15 yrs of age should be allowed in.
The court decided no AA can take decisions unreasonably.

kruse v Johnson 1898 1 QB 91

A local authority made a bylaw prohibiting any person from playing music or singing in public
places withing 5 yard in residential place, if any constable or any resident require to desist. This
decision was considered ultra vires.

2. Bad behaviour- Mala fide

It the AA not acting objectively it is considered as mala fide. This is mostly seen with rival
parties. Any persional matter cannot interfer

David v Abdul Carder 1963 3 all england report 139

Here a cinema license was refused in malice. This was considered ultra vires

JB textiles v minister of finance and planning 1981 1 Sri lr 156

Here a vesting order was issued by the minister of finance to take over 2 private companies.
Decision was taken in mala fide therefore it is ultra vires.

3. Ulterior motives
Taking decisions with hidden intentions. They do not exercise power for the purpose which it
was granted but to fulfill such hidden intentions they take decision. Therefore this is
consider ???

Courts have power to make the decision null and void if there is an ulterior motives.

_________________________25/02/2022_____________________________

Municipal council of Sydney v Campbell (1925) AC 338.

The council had power to acquire land to carry out improvement in the city. The council
decided to acquire a land for the purpose of benefitting from an anticipated increase in the
value of the land. The court decided that discretionary power had been exercised to archive an
ulterior motive.

Ex parte Royco homes ltd 1974 2 All ER 643 * Read

4. Improper purpose.
The power of AA is given by a purpose but sometimes they may use discretionary power for
improper purpose where it may amount to an abuse of discretion.

Wheeler v Leicester city council 1985 AC 1054.

Here the local authority prohibited the use of the local authorities play ground by the Leicester
rugby football club. Reason was, 3 members of Leicester team had connection with South
Africa. This time South Africa had apartheid policy and the local authority was in an anti-
apartheid policy. The court held that the local authority had used discretionary power for an
improper purpose.

Roberts v Hopwood 1925 AC 578

In this case the council had power to pay its employees' wages as they think fit. Based on this
the council gave a minimum wage of 4 pounds per week. This was quite more than the national
average wage for similar workers. The court held that the council payed the wages for an
improper purpose. Further stated, 'as they think fit' means fitting for the proper services they
render.

5. Irrelevant Consideration.

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 5. Irrelevant Consideration.

When the AA on a particular matter. They must only consider the relevant considerations and
disregard irrelevant considerations.
Ex.- in a government institution if a person committed a wrong. It is irrelevant to consider
about that persons personal factors.

R v earling london council ex parte timesnews paper ltd. 1986 85 (Local Government Report)
LGR 316
Purchase of news papers published by the timesnews paper for their libraries. This decision was
taken to support a trade union struggle. The trade union struggle was handled by the employees
of the times news papers against their employers. The court held that the borough council had
taken into account an irrelevant consideration when they have to maintain efficient library
service.

6. Acting arbitrarily
When the AA Act arbitrarily court can quash the decision which is for the benefit of the public
and the statute.

Walter leo v Land commissioner 1955 57 NLR 178

Here the land commissioner had power to interpret what agricultural land is, under the
agricultural land ????. The court decided that in exercising the power the commissioner cannot
decide arbitrarily the agricultural land.

7. Acting against the spirit of the enabling legislation.

When AA acting they must Act to archive the objectives of the statute. These objectives could
be understood from preambles, provisions, hansards. If the public authority are not exercising
the power to archive the objectives of the statute, such decisions are not valid under the law

AG v Crayforduds 1962 1 Chancey 575

Principles of Natural Justice

• First applied only to judicial decisions. And later on we find these principles to the AA as well.
In sinhala it is "swabawika yukthi muladarma."

• Natual justice in its narrow sense could be understood as merely a breach of ultra vies

• Courts can control the substance of what pubic authorities do by the rules relating to
reasonableness, improper purpose and etc..
• By principles of NJ the courts can control the procedure by which they do it.

• "As governmental power grow more drastic, it is only by procedural fairness that they are
rendered tolerable?"
Wade and Forsythe
• There is no decision within the meaning of the statute if there were anything of that sort done
contrary to the essence of justice.
• An Administrative official or tribunal is bound to comply with the rules of NJ.
• The violation of NJ makes the decision void.
1. Audi alteram partem
○ Listen to both side
2. Nemo judex causa sua

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 2. Nemo judex causa sua
○ No man shall be the judge in his own case. (rule against bias)
•

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Week 8
Thursday, March 3, 2022 8:11 AM

What we normally see is principles of NJ is not mentioned anywhere but AA follow

it and it flexibly apply when looking at the practicality of NJ

Loyd v Mc Mahon [1987] AC 625

'…rules of natural justice are not engraved on tablets of stones […but the requirement
fairness demand…] depends on the character of the decision making body, the kind
of decision that it has to make and the statutory or other framework in which it
operate.'

There are situations that the court would decide that the decision must strictly adhere
to NJ and some instance it may not.

- Decision made by parliamentary selective committee

There are situation in SL were the courts does not adhere to NJ principles
Ex. White flag case.
In this there is a question whether the courts have followed NJ principles.

Application of Principles of NJ

In the past principles of NJ where only applied to acts that would be classified as
judicial or quasi- judicial.
That is to say, the acts of public authorities could be classified as such.

Nakkuda Ali v Jayaratne [1951] AC 66.

Here the controller of textiles in Ceylon had power to cancel the license of textile
dealers. When the controller canceled the license of a dealer the decision was
challenged for not following principles of NJ.
The privy council held since the controller of textiles is an Administrative body the
controller is not bound to follow principles of NJ. The controller when withdrawing
the license was not acting judicially.
The court has stated, 'in truth when he cancels the license he is not determing a
question: he is taking executive action.'

Ridge v Baldwin [1968] 2 All ER 66

In this case the decision of the Nakkuda Ali case changed and the court held
principles of NJ applies to Administrative decisions as well.

Lord Reid was among the judges who gave the decision, it was said that he was very
proud of giving that judgment.
Even though we say AA taking decision and it is purely an Administrative matter we
have to identify the pragmatic scenario in this matter.

Audi alteram partem

To say or to decide there must be rules that must be satisfied. One is listening t both
parties. This rule is developed by courts by way of court decisions. So to say that AA
had listen to both the party is,

- Right to have notice of the charges properly to the parties.

- Right to cross examine the witnesses
- Right to legal representation

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 - Right to legal representation
- Right to an oral hearing

So to say that the AA has followed NJ, in an example of inquiry board, did they given
rights to the above mentioned facts to satisfy.

1. Right to have notice of the charges

What is this?
Most of cases relating to NJ are related to inquiry boards held in universities. The
charger should be informed to the relevant parties properly. If the case is against you,
he must know the chargers in order to properly answer to them.

Ex- fight occurred between Uni students, the inquiry board must notice about the
chargers and it is a right.

University of Ceylon v Fernando [1960] 61 NLR 505

This case is regarding a final year student of final year student in faculty of science of
university of Ceylon.
The charge against him was having prior knowledge on a question paper before the
examination.
Based on the commission's report to look into the allegation against the student, the
student was suspended indefinitely.
The decision of the commission was challenged for depriving the right to cross
examine and to have the proper notice of the charges.
The privy council accepted that accused person knows the nature of accusation.
It was held that the student has been adequately informed about the charges on two
occasions.
Therefore, there Is no violation of NJ.

Sarath Nanayakkara v University of Peradeniya [1988] 1 Sri LR 174

The petitioner is a final year student of the arts faculty of university of Peradeniya.
His studentship and the privileges attached to the studentship was suspended by a
committee of inquiry of student disturbances and for being guilty in participating in
student attacks and committing mischief.
The decision of the committee was challenged for not giving him a fair hearing.
The student was taken before the inquiry board without prior notice of the charges
and was given time till 2.00pm
The court held that it cannot be said that he was given a fair hearing because he was
not given a fair opportunity of making his defence properly.

Rajakaruna v University of Ruhuna [2004] Vol. x Part II BALJR 45

The petitioners claimed that even though they requested further time to get ready for
the disciplinary inquiry which was to be held against the petitioners - students of the
medical faculty, they were not given.
But they were issued letters informing them that they were found guilty of the
charges formed against them. [for assaulting certain female nurses who followed a
course in the university]
The court held that the petitioners failed to produce to the court the requests they
made in writing requesting further time from the authorities
Further the court held that the inquiry has been held according to the university
bylaws.

Also court refers to the case Loyd v Mc Mahon [1987) ac 625 and decides the case
against the petitioners.
"considering the seriousness of the allegations leveled against the petitioners which

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"considering the seriousness of the allegations leveled against the petitioners which
badly reflect on their future in the medical profession, and in considering the
competing interests of the university authorities and the students in the case, one
cannot be unmindful of the noble profession to which the petitioners seek entry."

Principles of natural J cannot be in bylaws because they are not written laws. Because
of this loophole in the law the students was not punished.

2. Right to cross examine witnesses

Bushell v secretary of state for environment [1980] 2 all er 608

Cross examining witnesses in not mandatory
It depends on the circumstances
If it harms the final result this does not apply

University of Ceylon v Fernando

Audi alteram patem does not require that the witnesses who had given evidence
against the plaintiff should be tendered to him for cross examination unless he
requests.
____________________________04/03/2022________________________

3. Right to legal representation

The courts have held that this right to legal representation is available in
Administrative inquiries.
R v Secretary of State for the Home Department, Ex Parte Tarrant [1985] QB 251
The court held that legal representation is not available in Administrative
proceedings.
Administrative tribunals have discretion in this regard.

Chulasubadra v University of Colombo and others [1986] 2 SLR 288

• The petitioner was found guilty by the examination committee for attaching
loose sheets of paper containing chemistry notes.
• The petitioner was debarred from sitting for examinations for a period of three
years.
• She appealed to the vice chancellor and he referred the matter to a
subcommittee appointed by him.
• The subcommittee affirmed the decision and the punishment imposed
• She sought a writ of certiorari and mandamus.
• She alleged that she had been denied legal representation and there had been
breach of natural justice.

Sharvananda CJ,
A tribunal like the examination committee exercising quasi-judicial functions is not a
court and therefore not bound to follow the procedure prescribed for actions
in courts.
There is no requirement of cross examination when no demand is made for it
There is no right to legal representation though it may be allowed at the discretion of
the tribunal.
There is no failure to observe the principles of natural justice.
Dr Mario Gomez considers this judgment as a black mark in the legal history.

4. Absence of some members of a tribunal or committee ant material parts of the

inquiry
This means the members of the tribunal who had not heard all the evidence and

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This means the members of the tribunal who had not heard all the evidence and
arguments should not participate in the decision.

Wijerama v Paul [1973] 76 NLR 241

The petitioner in this application was a medical practitioner.
The medical council was sitting as a disciplinary committee.
The council found the petitioner guilty on the charges.
The supreme court in this case held that the members of the council constituted
themselves judges at the inquiry.
The absence of some of them at material parts of the inquiry resulted in prejudice to
the practitioner and a failure to follow the principles of NJ.
Accordingly the decision of the disciplinary committee was rendered null and void.

5. The right to an oral hearing

It is against the rules of NJ that a person should be condemned unheard.

But there is no absolute right to an oral hearing.
Whether an oral hearing is necessary depends on the circumstances of the case.

Herat v Nugawela [1968] 70 NLR 529

Oral hearing is not mandatory under rules of NJ. It is an essential requirement if the
enabling statute has made it a mandatory requirement.
In this situation, not giving oral hearing is considered as breach of audi alteram
patem.

Thabrew v Yatawara [1952] 54 NLR 117

The petitioner was a president of a co-operative society.
He was asked by the registrar of co-operative societies to pay a large sum of money
due from him to the society.
This power was exercised under the co-operative societies [amendment] Act no 21 of
1949.
A subsection stipulated that, before making any such order against any person, the
registrar shall give that person an opportunity of being heard and of showing cause
why such order should not be made.
The petitioner made an application to the court for not giving an opportunity to be
heard before the order was made

Pulle J,
"In my opinion when the petitioner made the request to be heard, he was entitled to a
hearing before the order was made against him. In the context under discussion
hearing means in my opinion must be an oral hearing by the registrar."

Even though right to hearing is guaranteed by the principles of NJ, the question
whether an oral hearing is essential or not should be answered with reference to such
circumstantial considerations as the nature of the right infringed, the occasion for the
exercise of authority by the tribunal and the character and gravity of the sanction
imposed in the applicant for relief. [Prof. GL Peiris, Essays on Administrative Law]

Wasi saha awasi dekama pennanna to go for a good mark

Amarasinghe v Daluwatte and Others [2001] 3 Sri LR 258

Here the petitioner sort to quash the proceedings of the army courts and prayed that
the order withdrawing the commission from the petitioner was a temporary major to
be quashed.
The army court of inquiry had found the petitioner guilty of indulging in homosexual

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The army court of inquiry had found the petitioner guilty of indulging in homosexual
acts and practicing sedomy with some of army officers.[non commission officers]
The decision was challenged in violation of audi alteram partem. This inquiry had
begun when he was out of the country. The petitioner even did not have the
information that the inquiry would begin on that day.

Out of the 8 witnesses at the inquiry, only one witness had given witness in the
presence of the petitioner and the service of notice/summons did not exist before the
inquiry commence.
The court decided that the court of inquiry had failed to observe the principles of NJ.
Therefore the decision of court of inquiry was quashed.

The rule against bias [Nemo judex causa sua]

No man should be a judge of his own case

Therefore, any officer or tribunal exercising quasi-judicial powers must be free of
bias.

Dimmes v Grand Junction Canal [1852] 3 HL Cas 759

Lord Cottenhgam sat on an appeal of a company in which he had a substantial
amount of shares.
It was decided even though Lord Cottengham was not influenced by his interest in the
company, he cannot be the judge of his own case.

The test applicable

In the decided case two test have been adopted to decide on this
1. Real likelihood test
2. Reasonable suspicion test

Apart from the above two tests Porter v Magill [2002] 2 AC 357 has introduced a
new test called 'fair minded and informed observer'.

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Week 9
Thursday, March 10, 2022 12:38 PM

1. Real likelihood test

Wade and Forsyth describe this test as forcing the question

whether the facts as seen from the perspective of the court would
give rise to a real likelihood of bias.
In this the court will examine the situation rather than from a
public's perspective. [adhikaranaya me pilibada dakina widiha]

R v Camborne justices, Ex parte pears [1954] 2 All ER 1850

Here a member of the county council sat as a clerk to the justices
in cases were the prosecution was conducted on behalf of the
council of which he was a member.
The court held that there is no real likelihood of bias. It should be
more important that justice should be done than justice should
appear to be done.

R v Barnsley Licensing justices [1960] 2 QB 167

Here a spirit license was granted to a corporative society by 7
licensing justices and 6 of them were members of the corporative
society, and order was sought to quash the decisions of the
justices.
Lord justice Devline stated, ''I cannot imagine anything more
unsatisfactory from the pubic point of view than application of
this sort being delt with by a bench which was so composed. But
in my judgment it is not the test, we have not to inquire but
impression might be left in the minds of the present applicants or
in the minds of the public generally. We have to satisfy our selves
that there was a real likelihood of bias… real likelihood depends
on the impression which the courts get from the circumstances in
which the justices were sitting, do they give rise to a real
likelihood that the justices were bias.

In analyzing, the court have to see from the courts perspective,

but both these 2 have been interchangeably used and many
recommend this test.[real likelihood test]

Inre Ratnagopal [1968] 70 NLR 409

In this case a commission was appointed to look into a matter

with regard to a government contractor. The contractor was
summoned to give evidence before the commission of inquiry but
he refused to give evidence. The contractor stated that he had a
reasonable apprehension/ knowledge based on some previous acts
that the commissioner would likely to be bias against him in
consideration of evidence. Based on this the commission
convicted him for disrespecting the authority of the commission.
The court held in the decision,
T.S Fernando J''the proper test to be applied is, in my opinion and
objective 1…would a reasonable man in all circumstances of the
case believe that there was a real likelihood of the commissioner
being bias against him.

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being bias against him.
[the previous acts] is the acts by the commissioner was all
consistent with an anxiety on the part of the commissioner to get
on with the work that was entrusted to him and to investigate
quickly any elite abuses connected with government contracts
than with the existence of any real bias towards the respondent.

Even though the court mention the thing should be decided as to

the view of a reasonable man, court gives its own opinion.

Simon v commissioner of housing [1972] 75 NLR 471

A tenet file a case against the ejectment of the tenet by the land
owner. The commissioner was conducting an inquiry with regard
to the ejectment by the land lord. The land lord stated, that he has
seen the tenet and the counsel discussing with the assistant
commissioner in his room on the day before the date of the
inquiry.
The court held that a mere reasonable suspicion of bias of the
party aggrieved is not adequate unless it was proved that the
inquiring officer was bias against the aggrieved party.

Reasonable suspicion test is more easier than the real likelihood

test. But there is a very little difference between these 2

Mohideen Hasan v peris [1982] 1 Sri LR 195.

A decision given by the rent board was questioned. The
petitioners were the trustees of a Jumma mosque. The houses
belong to the mosque were given on rent. The rent board decided
the rent of per house as Rs 12.50 per month. The petitioners
alleged that the rent board gave the decision hastily and the
chairman of the rent board had a personal interest in the matter
since he was living next to the house on dispute. Therefore the
decision was bias and pre-determined.
The court held, that there is a real likelihood of bias of the
chairman of the rent board. In the citing the words of lord
Denning's, Seneviratne J stated the following,
''in considering whether there was a real likelihood of bias, the
court does not look at the minds of the justice himself or the mind
of the chairman or the tribunal or whoever it may be who sits in a
judicial capacity it does not look to see if there was a likelihood
that he would or did in fact favour one side at the expense of the
other. The court looks at the impression which would be given to
other people. Even if he was impartial as could be, nevertheless, if
right minded person could think that in the circumstances there
was a real likelihood of bias in his part then he should not sit. And
if he does sit, his decision cannot stand… nevertheless, there must
appear to be real likelihood of bias.

2. Reasonable suspicion test

This test derive from the case R v Sussex justices ex parte

McCarthy
A solicitor was appeared on a motor accident case. Unknown to
the solicitor and the defendant the clerk of the justices was
member of the firm of solicitor acting for the other party in a civil

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member of the firm of solicitor acting for the other party in a civil
claim against the defendant arising out of the accident that has
given rights to the prosecution.
____________________11/03/2022___________________

Since the clerks firm was acting against the interest of the
convicted motorist the conviction was invalidated even though
justices had not consulted the clerks.
"The answer to the question depends not upon what actually was
done but upon what might appear to be done…nothing is to be
done which creates even a suspicion that there has been an
improper interference with the course of justice."

Prof. GL peris in his book Essays on Administrative Law says, ''in

practice the difference between the attitudes presented by the two
tests are indeed minimal. The decided cases reveal no unanimity
approach to this problem.''

Captain Navaratne v Major General Sarath Fonseca and 6 others

[2009] 1 Sri LR 190.
This case arose with a decision taken by MG Sarath.

**** find facts on this case ****

The right to receive reasons

There need to be reason for every decision. This could be seen as

a protection of law. The Art 12 [1] of the Constitution mention
about equal protection before law and this could be similarise
with this.
When taken into custody right to know the reason is also a part of
this.
Blending rights with writs- Article

Unique gemstones v karunadasa [1995] 2 Sri LR 357. [CA case]

Karunadasa v Unique gemstones [1997] 1 Sri LR 256.
Ceylon printers v weerakoon [1998] 2 Sri LR 29.
Samalanka v Weerakoon [1994] 1 Sri LR 407.
Kagalle plantation v Silva [1996] 2 Sri LR 180
States distilleries corporation v Rupasinghe [1994] 2 Sri LR 395
Kusumawathi v aitan spence [1996] 2 Sri LR 18
Samarasinghe v De Mel [1982] 1 Sri LR 183
Karawita v abeyrathne [1983] 2 Sri LR 306
Wijerama v Paul 76 NLR 441.
Amarasinghe v Board of Directors [1998] 1 Sri lr 307
New portman v jayawardene [1989] 1 Sri lr 307

Has the rights have been discussed?

Karunadasa v Unique gemstones [1997] 1 Sri LR 256.

This is also a writ case. In this case the court held as demanded
under the art 12[1] of the Constitution, equal protection of law
must be granted to all citizens.
"in the context of the machinery appeals, revisions, judicial

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"in the context of the machinery appeals, revisions, judicial
review and the enforcement of FR, giving reasons is becoming
increasingly an important protection of the law for if a party is not
told the reasons for an adverse decision his ability to seek review
will be impaired."
Accordingly the court consider the art 12 in holding that natural
justice required that reasons be provided for public decisions.

Lanka multi molds v RD wimala, commissioner of labour, SC

minutes 29/Jan/2003.
In this case the reasoning of Unique gem case was followed.

Nestle Lanka ltd v consumer affairs authority. CA minutes

18/Jul/2005
In this case it was held that it was a general principle of law that
when were a right to appeal or review exist the duty to give
reasons is implied. The court also held unless the petitioner is
unable to discover the reasoning behind the decision it may be
unable to decide whether such decision is reviewable or not and
be deprived of the protection of the law.

M deepthi Kumara gunaratne and others v dayananda dissanayake

commissioner of election and other. SC decision 19/ mar/2009
Here the court held that not only bound to give reasons for the
decision and they must also provide adequate reasons for the
decision.
The court was also on the view that right to know the reasons of
the decision was not only arbitrary but also a violation of the
equal protection of law guaranteed under art 12 [1] of the
Constitution.

Central bank of Sri Lanka and others v Lankem tea and rubber
plantation PVT Ltd SC minutes 5th june 2009.
The control of exchange directed the petitioner company to
furnish an exclamation for violating Section 10[1] of exchange
control Act. The explanation given was not accepted and the
petitioner imposed a penalty on appeal to the minister the penalty
was reduced. The court held that the petitioner does not know
how the ministers decision was arrived at in the absence of
reasons. It is impossible to determine whether or not there has
been an error of law.
It was also held the failure to give reason amounts to a lineal of
justice and itself an error of law

In here we can see how right to receive reasons are utilized in FR

cases also.

In a writ case there is a reference to FR case and in FR case there

is a connection on Administrative Law.

Can somebody use FR as a judicial review? And can one rely on

FR and seek a writ.

Start a question with a balanced answer, not with a yes or no

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Start a question with a balanced answer, not with a yes or no
statement.

For -
Mundy case and Unique gem case- the basis was a FR case
Dr. Kunanthan v University of Jaffna

Against-
One cannot file a case in CA with regard to FR
Art 26[3]- when a case is heard in CA and if there is a violation of
FR it must be referred to the SC.
Dr. mario gomez article

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Week 10
Saturday, January 15, 2022 10:47 AM

Unreasonableness [Wednesbury unreasonableness][asadaranathwaya]

There is a scholarly debate going on whether unreasonableness and

proportionality is separate or unreasonableness has replaced
proportionality. In-between these two concept unreasonableness has
another ground called irrationalness.

In Sri Lanka mainly in FR this concept of Un has been referred. How did
WU originated?
Ultra vires was mainly followed by the parliament of the uk which is based
on parliamentary sovereignty. But now there are other ground of judiciary
as well.

Associated provincial picture house v wednesbury corporation [1948] 1

QB 223
The corporation was acting under the power given by Sunday
entertainment Act that had allowed cinemas to open on sundays subject to
conditions as the authority may think fit. The corporation imposed a
condition that 'no children under 15 yrs should be allowed in.' now this
was challenged before the court. This is the case that 1st introduced the
concept of unreasonableness.

The court held the review of a decision is possible only if ''within the four
corners of the matter which they ought to consider they have nevertheless
have come to a conclusion so unreasonableness that no reasonable
authority could ever have come to it.''
The court did not quash the decision but stated that when this UN must
apply.

CCSU case council of Civil service union v minister for the civil service 3
all ER 935.

This is a case relating to labour and constitutional law. In this case court
refers to irrationality rather than unreasonableness. 'it applied to a decision
that is outrageous in its defiance of logic or accepted moral standards that
no sensible person who had applied his mind to the question to be decided
would have arrived at it.' [Lord Diplock] and his Lordship further stated
irrationality by now can stand at its own feet as an accepted ground on
which a decision may be attacked by judicial review.

It must be look through the court decisions how these rules apply.

Engaging unreasonableness and proportionality as standards of review in

England, India and Sri Lanka. By- Shivaji Felix.

Paul craig by analyzing 200 cases states, ''the courts site Wednesbury
principle but in fact apply more lenient text. In some cases it deploy terms
such as 'higher scrutiny' or 'anxious scrutiny' without precisely elaborating
on these terms.

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on these terms.
And also courts merely conclude decision is or is not reasonableness, does
or does not by logic, was or was not a decision that a reasonable man could
have made without reasoning their conclusion.

P Daly states describing a decision as unreasonable tells us nothing of why

the decision is unreasonable.
Likewise there are certain disadvantages using unreasonableness because
the courts have not given the reasoning in many instances.

Is Wednesbury principle replaced by proportionality?

The decisions taken by public authority can be questioned and be quashed

due to unreasonability.

Nottingham ss v secretary environment 19 AC 240

"judicial review is a great weapon in the hands of the judges but the judges
must observe the constitutional limits set by our parliamentary system
upon their exercise of this beneficial power."

Negative aspects of Wednesbury principle

- It can be subjective
- High burden of proof
○ when there is infringement in the rights the decision would
become ???
- It rely on reasonable man's test which suppress

To overcome such difficulty the proportionality [samanupathikabawaya]

expects public authority to impose obligation on citizens only to the extent
which they are strictly necessary.
If some obligation is not necessary the PA should not impose an obligation
with that regard.
We can discuss this concept mainly relating to individual rights.

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Week 11
Thursday, March 24, 2022 8:23 AM

Ex parte Dale case [2001] UKSK 26.

The house of lord was required to review a new policy

introduced by the secretary of state with regarding to cells. This
policy stated, that prison officers are allowed to examine a
prisoners legal correspondence in the absence of the prisoner
concern.
The house of lord ruled that excluding prisoners was not
proportionate with the rights of the prisoners. Because the
plaintiff argued that the police infringed a prisoners common
law rights to confidentiality in legal correspondence and respect
for correspondence under ECHR [European Convention of
Human Rights]

Referring to Wednesbury standards, Lord cook held, "I think

that the day will come when it will be more widely recognize
that the Wednesbury case was an unfortunately retrogressive
decision in English Administrative law.

In this case the court has recognized the principle of

proportionality.

Prolife Alliance case [2003] UKHL 23.

"Wednesbury test for all its defects had the advantage of

simplicity and it might be taught unsatisfactory that it must now
be replaced by a much more complex and contextually sensitive
approach." [Lord Walker]

By stating this lord walker suggested that there is still hope for
Wednesbury principles when HR are not engaged.

When a Convention right is not in question the court can rely

on Wednesbury principles.

A v secretary of state for the Home department [2004] UKHL

56.
The applicants were foreign nationals who had not been
subjected to any criminal wrong. They challenged the
lawfulness of their detention on the basis that it was
incompatible with the obligation imposed by ECHR. House of
lords allowed the appellants appeal and quash the decision and
stated that it was disproportionated. House of lords commenting
on the inadequacy stated, "the traditional Wednesbury approach
was held to oppose inadequate protection is now recognize that
domestic courts must themselves form a judgment whether a
Convention right has been breached."
The courts used the proportionality principle in this instance.

By looking at all these cases, it could be concluded as courts

favour mainly proportionality under recent trends.

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favour mainly proportionality under recent trends.

The Sri Lankan Context.

We need to see that unreasonableness is in the writ cases.

Gooneratne v Commissioner of Election [1987] 2 Sri LR 165.

In this case the commissioner of election made a decision to

exclude eksath Lanka janatha pakshaya as a political party. The
claimant argued that his right to equality under article 12 was
violated and the decision is unreasonable. The commissioner on
the other hand argued that ELJP did not meet the criteria
necessary for recognition in view of the period of time
involved, the need for demonstrating wrote and the
crystallization of political consciousness, chief justice
Sharvananda held that commissioner misdirected himself on
law and had unreasonably refused ELJP. This case cause
ground for unreasonableness.

Karunathilaka v De Silva [2003] 1 Sri LR 35

The petitioner held that his right to equality guaranteed by

article 12 [1] was violated. That is because his child was
refused in admission to a school although he met the relevant
criteria for admission. The SC held the decision was not
founded on a reasonable basis.

Piranagama v Commissioner of Labour.

The claimant was not selected as a labour officer while some of

the other candidates for the position has been selected. The
claimant establish that this has violated the rights in article 12
[1] the court held that the claimants right to equality has been
infringed and the criteria adopted for making appointment was
neither rational nor lawful.

There were some cases that used the term proportionality as

well.
Premavathi v fowzoie [1998] 2 Sri LR 373.

Here a telephone operator was dismissed on the chargers that

were not established and subsequently reinstated in a lower
position. She argued that her right to equality is infringed. The
SC held that this right to equality had been infringed by reason
of an arbitrary unreasonable and grossly disproportionate
punishment being imposed on the claimant by the public
service commission.

Abeysekara v competent authority [2000] 1 Sri LR 314.

The claimant challenge the legality of certain regulations which

sought to impose censorship on the transmission of sensitive
military information. The claimant argued that her freedom of
expression protected by article 14 [1][a] has been violated by

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expression protected by article 14 [1][a] has been violated by
this regulation. The supreme court held that the regulations
were not disproportionate.

These cases are mainly FR cases but in taking decision the

courts have referred to these principles. Which can also been
known as a blend of FR and writs.
In proportionality the courts mainly balance the decision and
rights of the people, these rights do not has to be FR. When
there is a violation of rights which are not recognize under FR
can use proportionality and question the Administrative
decision. In our Constitution limited rights have been
recognized under FR and there can be seen more rights have
been seen as HR under the international law.

____________________25/03/2022__________________

Lesson
Legitimate Expectation

This is an extension of Natural Justice, this is said because the

legitimate expectation is giving a fair hearing to the affected
person before taking adverse decision. Therefore it is related to
Natural Justice. Now a days there are 2 Legitimate Expectation

1. Procedural Legitimate Expectation

2. Substantive Legitimate Expectation

Substantive Legitimate Expectation was newly recognized but

earlier it was mostly related to Procedural Legitimate
Expectation.

1. Procedural Legitimate Expectation

Procedural Legitimate Expectation is defined as, where there is

an expectation that a certain states of affairs continue and no
adverse decisions affecting an individual will be taken without
first affording that person the opportunity to make
representations about it.

This talks about fair hearing. A government cannot change their

policy decision suddenly.

Ex- If new circular has come with new qualification

requirements and if it says that it will effect previous employees
as well, by this new qualifications specified a person could not
be able to apply for that position. This person could have a
Legitimate Expectation.

The duty of the government have to give a fair hearing to

produce his representation and show that the new requirements
did not apply to him. This is the Procedural Legitimate
Expectation.

The main focus on this is giving a fair hearing to a

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The main focus on this is giving a fair hearing to a
representation.

2. Substantive Legitimate Expectation.

An expectation that a substantial benefit privileged or other

advantage will be conferred or continued. This goes beyond
giving a mere hearing and it is more serious that procedural
Legitimate Expectation. The benefit or privilege will also
continue and guaranteed under it.

This is more related with the red light theory.

Council of Civil Service Union v Minister for the civil service

[1984] UKHL 9.

In this case lord Diplock stated referring Legitimate

Expectation, "that to qualify as a subject for judicial review the
decision must have consequences which affect some person or
body of persons. He said that decision of the other person "by
depriving him of some benefit or advantage which,

1. He had in the past being permitted by the decision maker

to enjoy and which he can legitimately expect to be
permitted to continue to do until some rational grounds
have been communicated to his for withdrawing and on
which he has been given an opportunity to comment or,

2. He had received assurance from the decision maker that

the benefit or advantage will not be withdrawn without
giving his an opportunity of advancing reasons.

Schmidt v secretary of state for home affairs [1969] 2 WLR

337.

This is one of the earliest cases that Legitimate Expectation was

used. To scientologist students applied to remain in UK, but it
was refused. The students complained that the extension of
right to stay had been denied to them without a hearing being
granted. Lord denning expressed that they had no right to
remain in the country and he also observed that the visa had
already been expired and therefore students have no rights to
stay in the country. A hearing should be given only where a
person had some rights or interest.

Sri Lankan context.

Laub v AG [1995] 2 Sri LR 88.

A German national holding a German passport arrived in Sri

Lanka on one month visa. The visa was subsequently extended.
The application for a further extension was refused by the
controller for immigration and emigration [agamana vigamana]
Justice Ismail referred to Schmidt case and stated foreign alien
has no right to legitimate expectation of being allowed to stay

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has no right to legitimate expectation of being allowed to stay
and he can be refused without giving reason or hearing ones his
time has being expired he has to go. There where criticism on
both these cases.

Procedural Legitimate Expectation

where there is an expectation that a certain states of affairs

continue and no adverse decisions affecting an individual will
be taken without first affording that person the opportunity to
make representations about it. The benefit and privileges will
be uncertain under this.

Before taking an adverse decision they have to give a fair

hearing to the affected persons [council of civil service union
case]

Sirimal and others v board of directors of CWE [2003] 2 Sri LR

23.
This case was based on article 12[1] and it shows the blend of
FR and Writs. When there is a violation of Procedural
Legitimate Expectation courts has stated that it could lead to
Article 12[1] of the Constitution.

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Week 12
Saturday, January 15, 2022 10:47 AM

Sirimal and others v board of directors of CWE [2003] 2 Sri LR 23.

- Granting the retirement from 55 and not extending it to age 60.

- This decision taken by the CWE was mala fide, arbitrary and
discriminatory and violate FR guaranteed under Article 12[1] as to the
petitioner.
- The petitioner argued that the extension of service must be granted
except in the grounds of medical or disciplinary.
- Further claimed that the petitioners had a legitimate expectation of
continuity of employment under 3 grounds.
○ The circular bearing
○ Excepting 2 other petitioners with extension
○ The previous practice of extension followed by CWE.
- Under procedural Legitimate Expectation the petitioners has submitted
the application of extension at the stipulated time and had a good record
with good health conditions.
The court propose five categories of extension in terms of their age for
granting relief and ordered to pay compensation to the petitioners.

This case started as a FR case but ended as a writ case.

Visakuntharan Kunanthan v University of Jaffna CA minutes 23rd Aug 2004.

Kuna join the University of J as a visiting lecturer. As per the circular which
prevail when he join the university after working for some time he can apply to
work as a permanent lecturer. But when he applied as a permanent lecturer the
circular changed.
The court recognize Legitimate Expectation in this case and held that the
Administrative decisions must comply both with article 12 of the Constitution
as well as with other more general standards of review.
This was not initiated as a writ case at the CA and not as a FR case but when it
got before the SC it held that there is a violation of FR and granted a writ.

This case can be argued that the court recognizing FR as a judicial review.

Can FR take as a ground of judicial review? And seek a writ. This is

something that must be considered. There is a barrier to this,

- FR case lies in SC
- Article 126[3]

What happens if substantive Legitimate Expectation is recognized by the

courts?
In a procedural Legitimate Expectation a court can give only a proper hearing
and in substantive Legitimate Expectation courts are not confine on hearing the
court can require the relevant public authority to give the right back to the
aggrieve party.

Legitimate Expectation could be related with red light & green light theory.

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Legitimate Expectation could be related with red light & green light theory.

The courts are also intervening with Administrative matters.

R v North and east Devon health authority Ex parte Coughlan [2003] all er
850.
The claimant was a women with severe physical disability. She was given
assurance by the national health services that she would be provided nursing
care for life at mardon house. 5 yrs later the health authority decided to close
down the mardon house and transfer responsibility for the claimants health
care to a local authority social services department. The claimant sought
judicial review of the decision to close mardon house.
The CA held that the assurance given to the claimant had induced Legitimate
Expectation of substantive benefits whose frustration would be so unfair as to
amount to an abuse of power. The court further stated, "once the legitimacy of
the expectation is established the court will have the task of being the
requirement of fairness against any overriding interest relied upon for the
change of policy.

The development of the concept in Sri Lanka.

In Sri Lanka firstly the procedural Legitimate Expectation is recognized. Then

the substantive Legitimate Expectation was recognized

Mawjude v Pussadeniya [1987] 2 Sri LR 287.

As per the national housing Act of Sri Lanka, the commissioner of national
housing had power to make notifications to the district court that he is able to
provide alternative accommodations to the petitioner in an ejectment of the
tenets on the ground that the premises are reasonably require for the land lord.

The alternative accommodation should have some relevant to the need and
circumstances of the tenets so as not to render offer of alternative
accommodation instituting an unreasonable thing.

Sharvananda CJ while granting the writ of certiorari express the view that the
petitioners had a Legitimate Expectation that they would not be evicted from
their present premises except upon a writ of execution issued by the courts
after an issue by a commissioner after a proper notification in terms of the Act.

Here the court refer to legitimate expectation not as a procedural right but as a
substantive right. This is because the complaint was that the Legitimate
Expectation was breached by the failure to offer them proper alternative
accommodation.

______________________01/04/2022_________________________

Sundarkaran v Bharathi [1989] 1 Sri LR 46.

Here the petitioner was a liquor applicant in the year 1987. He was granted the
license to the two proceeding years. Then the petitioner was asked to pay
license fee in 1987 but when he procced to the office of the government agent
he was informed that a license could not be issued since he had failed to obtain
all the members of the parliament in his area as required by the circular.
Due to the refusal of the liquor license he was also to be loose a property right.

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Due to the refusal of the liquor license he was also to be loose a property right.
Amerasinghe J stated, this gave the petitioner a Legitimate Expectation of a
hearing before the renewal of the license was refused. Further state that is he
was deprived by a property right concealed to the refusal. The expectation
generated was one which was substantial in character and not one engaging
process rights. In such a case right to hearing is irrelevant. If the expectation is
that of created of a hearing of a particular outcome then the expectation created
lose in substantive character and become instar a corollary of natural justice.

Wickramarathne v Jayaratne
The court of appeal explicitly held that substantive Legitimate Expectation are
protected in Sri Lankan public law.

Samarakoon and others v University grants commission and others.

9 petitioners who got requisite marks was not selected to the medical faculty
from the Kandyan district because the UGC reduce the number of candidates
admitting.
The petitioners had a legitimate expectation to be admitted to the medical
faculty and the failure to admit the P is arbitrary and infringement of their
rights under the Constitution.

Wisalbhashita kawirathne and others v UGC and others.

Legitimate Expectation was challenged as a FR case in 2012 and was decided

by Shirani Bandaranayake CJ.

The court refer Article 12[1] of the Constitution.

_______________________________________________________________

Public Trust Doctrine

We must see whether this is a valid judicial review in Sri Lanka.
Simple meaning of public trust doctrine public authority must hold power for
the benefit of the people.
There are two possible origin with regard to the Sri Lankan context
1. Roman law.
2. Equitable jurisdiction of the chancery court.

Under roman law this was mainly regarded with natural resources. In roman
law idea is that natural resources must be protected by the state for the
sustainable use of the present and the future generation. Justinian's codification
under institution is important.

Under equitable jurisdiction of the chancery court the trust emerged. This was
used to mitigate the harshness of the black letter law. This concept of trust
talks about the connection under author of the trust, trustee and beneficiary.
This is complete judicial innovation. When a court relies on PTD the court rely
on article 3, 4 and 12[1] of the Constitution.

Book Dinesha samararathne, public trust doctrine the Sri Lankan version.

She explain, SC has utilized PTD in 3 situations,

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She explain, SC has utilized PTD in 3 situations,
1. Abuse of discretionary power.
2. Exploitation of natural and national resources
3. As a doctrine that promotes rule of law

De silva v Athukorala [1993] 1 Sri LR 283.

This case delt with an acquisition of land under land acquisition Act. It was
challenged as the acquisition was not for the public purpose because under the
Act the lands could be only acquire for public purpose.
Fernando J, relied on a statement of Prof. Wade which means that the statutory
power confer for public purpose is considered as given in trust, not absolutely.
Further looking at the power given to land acquisition fernando J stated, "it
was a power conferred solely to be used for the public good and not for his
personal benefits. It was held in trust for the public."

Bandara v premachandra [1994] 1 Sri LR 301.

This is an FR case challenged in the termination of service on the ground of
discrimination. The court stated that powers for appointment and dismissal are
not absolute and can be exercised only for the public benefit.

Premachandra v Montague jayaratne [1994] 2 Sri LR 90.

Jayawardana v wijayatilaka [2001] 1 Sri LR 132.

The power given is not absolute and it must be used to the public use.

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Week 13
Monday, April 4, 2022 12:30 PM

Bulankulama v secretary of ministry of industrial development

[eppawala case]

The public trust doctrine was referred in this case.

This case was about a phosphate deposit in Eppawala. By an
agreement by the government with American company, it was
given the authority to mine the deposit. This is important because
the public trust doctrine was used with regard natural resources.
This was the 1st case that talk about the link between article 3 of
the Constitution and the public trust doctrine.

Amerasinghe J held, people are the ultimate sovereigns and the

holders of the governmental powers are temporary bearers of
those powers. Such powers can be exercised only for the interest
of the people.
The case referred to ICJ dissenting judgment of Hungry v
Slovakia given by C.J. Weeramantry J was used. It was
mentioned under the story of arrival of Mihindu thero. The
conversation between Mihindu thero and King
Devanampiyathisse. Under it the natural resources are not only
belong to the king but it is owned by all.

Fernando v Sri Lanka Broadcasting Corporation [1996] 1 Sri LR

157.
In this case arbitrary termination of a radio program was
questioned. The petitioner alleged that his right to freedom of
expression was violated since he was a regular listener of the
program. Fernando J stated, "air waves are a limited resource and
state operating on them must do so for the rights and the interest
of the public."

Galle-face green case (environmental foundation ltd v Urban

development authority) [2005]
The subject of this case is between the urban development
authority and a private company about the beach. EV filed a FR
petition alleging that their right to information and equality had
been violated since the UDA rejected providing some
information. The court held that the Galle face green should be
maintained for the purpose which it was granted as the successor
to the colonial government. In this case the court pointed out that
the entire area was dedicated for the use of ladies and children in
Colombo. The importance of this case is that the court does not
refer the exact term public trust doctrine rather it states galle face
green area is dedicated to the public benefit. But the court also
stated that the GG must be maintained to the purpose it was
granted

In re 19th amendment to the Constitution [2002] 3 Sri LR 85.

In this case Sarath N silva CJ, proposed that the sovereignty must
be reposed in the people and organs of the government are only

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be reposed in the people and organs of the government are only
custodians for the time being. That exercised the power for the
people…this is not a novel concept, basic remines the public law
is that the power is held in trust.

The court also states how sovereignty has to be exercised is set

out in article 4 and the exercise of powers of the government and
the check by one organ of the government on the other organs
can only be carried out in trust for the people. Further the court
affirms that rule of law requires organs of state to be accountable
to each other. This case states when power is being exercised by
the authority it must be held in trust.

This case also refers to Rule of law also in the accountability of

the organs.
What is the relationship between Art 3, 4, public trust doctrine
and rule of law? All powers derives from people.

Elmo perera v montegu Jayawikrama [1985] 1 Sri LR 285.

In this case rule of law as a basis for public trust doctrine was
elaborated. "the principle equality before the law embodied in art
12 is a necessary quarrellery to the English concept of Rule of
law underlined the Constitution by virtue of the provision, the SC
is enable to review and strike down any exercise of discretion by
the executive which exhibits discrimination."

Mundy and others v central environment and others

This is a writ case which challenged the proposed route of the

southern express way.
Mark Fernando J, "powers vested in public authority are not
absolute or unfettered but are held in trust for the public to be
exercised for the purposes for which they have been conferred
and that their exercise is subject to judicial review by reference
to those purposes." the court also held that executive power is
also subjected to the FR in general Art 12 [1].

Wasudewa Nanayakkara v KN Choksy and others [LMSM Case]

The court relied upon article 3 and 4 of the Constitution in

referring to public trust doctrine. In organs of the government Le,
Ex Ju are reposed as custodians with power and siting
Bulankulama case the court held all resources of the case should
be managed for the best interest of the people.

Sugathapala mendies v chandrica kumarathunge and others

[water's edge case]
Shirani thilekawardene J stated the power is not absolute and
must be exercised only for the benefit for the people. The court
also stated that public trust doctrine is applicable to management
of land and other assets and also other economic opportunity.

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Week 14
Saturday, January 15, 2022 10:47 AM

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Week 15
Saturday, January 15, 2022 10:47 AM

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