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‘Expanding judicial review guides, not undermines, public authorities’ 

06 Apr 2021

  • CoA President Justice Arjuna Obeyesekere notes it doesn’t herald the end of deference shown by courts to decisions of public authorities 

  The expanding scope of substantive judicial review does not herald the end of deference shown by courts to decisions of public authorities but provides a more meaningful recognition of the fact that decisions affecting the people must be made within the bounds of the powers entrusted by the people.  This was noted by the President of the Court of Appeal, Justice Arjuna Obeyesekere in an article titled the ‘Expanding the scope of substantial judicial review’, which was published by the Sri Lanka Judges Institute in the Judges Journal Volume VI.  As explained by Justice Obeyesekere, since the inception of judicial review, its primary purpose has been to keep public authorities within the legal bounds of the powers conferred on them and thereby prevent abuses of power, and to uphold the rule of law. When public authorities are granted discretion through statutes, the discretion so granted presupposes that there is no unique legal formula that can be followed to achieve the same result each time, Justice Obeyesekere noted, pointing out that each statute will have different guiding principles which have to be applied in respect of the different facts that are placed before the decision maker. The role of the courts through judicial review, according to Justice Obeyesekere, is to monitor and ensure that the discretion conferred on public authorities is exercised effectively, fairly, and within the confines of the empowering statutes.  However, Justice Obeysekere, pointed out that there is now a change in the culture of judicial review where the guiding principles of administrative law have shifted its focus to upholding the principles of good administration and protecting individual rights.  In Sri Lanka, with the recognition of fundamental rights as an inalienable right of the people as provided for in Article 3 of the Constitution, public authorities are called upon to exercise their discretion conscientiously, and in trust for the people. The expanding scope of judicial review, Justice Obeyesekere noted, illustrates this shift in the attitude of courts, whereby courts now play an active role in ensuring that assertions made by public authorities are properly substantiated and justified.  “This however does not mean that the scope of judicial review has become a merits based review. It is still universally accepted that courts should not substitute its opinion with that of the decision maker who has been entrusted with that power, and who presumably has the competence and skill to make such decisions”.  However far the scope of judicial review is stretched, the courts must not derogate from the cardinal principle, Justice Obeyesekere explained, that was articulated by Henry William Rawson Wade and Christopher F. Forsyth in their ‘Administrative Law’ thus: “The system of judicial review is radically different from the system of appeals…on an appeal the question is ‘right or wrong’? On review the question is ‘lawful or unlawful?”.  The standard for substantive review was adopted in the case of Secretary of State for Education and Science vs. Metropolitan Borough Council of Tameside (per Lord Richard Orme Wilberforce). The test adopted in Tameside is thus: “In public law, ‘unreasonable’ as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression, it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.”  The Court of Appeal (CA) in cases such as Colonel U.R. Abeyratne vs. Lt. Gen. N.U.M.M.W. Senanayake, Commander of the Army, and Others {CA (Writ) Application Number 239/2017}, KIA Motors (Lanka) Limited vs. Consumer Affairs Authority and Others {CA (Writ) Application No. 72/2013} and U.A.A.J. Ukwatte and Another vs. Minister of Education and Others {CA (Writ) Application No. 403/2019} (all cases heard before Justice Obeyesekere), and in the CA Minutes of 7 February 2020, 26 May 2020 and 12 June 2020, have also held that “the standard adopted in Tameside appears to be more realistic, and balanced”.  The principle of proportionality is another standard ground for judicial review. In the case of Premaratne vs. University Grants Commission and Others, the Court of Appeal (Justice Upali De Z. Gunawardana joined by Justice Hector S. Yapa, the latter who later became a Judge of the Supreme Court {SC}) concurred with the view of the Master of the Rolls (MR) of the Court of Appeal of England and Wales, Lord Alfred Thompson Denning in R vs. Barnsley Metropolitan Borough Council, Ex parte Hook “which illustrates that if any action or measure is considered to do more harm than good in reaching a given objective, it is liable to be set aside, for the court has to consider whether the ends justify the means”. MR Lord Denning further held that, “to punish a student as severely as has been done in this case, entails a breach of the principle of proportionality”.  In the subsequent case of Neidra Fernando vs. Ceylon Tourist Board and Others, the Court of Appeal (Justice Gunawardana), while holding that the allegation of bias regarding the recommendation to dismiss the petitioner from service was well founded, added however that the recommended punishment was disproportionate, even though the Court noted that “there has been and remains some uncertainty as to the extent to which the notion of ‘proportionality’ may or should be considered to be a ground of review.” The Court of Appeal has however held that the case of N.V. Gooneratne vs. The Sri Lanka Land Reclamation and Development Corporation and Others (Justice Anil Gooneratne joined by the then President of the Court, President’s Counsel {PC} Sathya Hettige, both of whom later became Judges of the SC) was “a fit and proper case to apply the doctrine of proportionality”. In that case, it was held that the decision of the third respondent to send the petitioner on compulsory leave was highly unwarranted and unreasonable and contrary to the doctrine of proportionality. Justice Gooneratne observed that, “the petitioner’s submission on proportionality is a recognised principle in administrative law. I have no hesitation with the development of the law in this direction, and to apply the doctrine of proportionality to the facts of this case. I am in full agreement with the submission of the learned PC for the petitioner regarding the applicability of the above principle”.  Therefore, Justice Obeyesekere explained, the doctrine of proportionality has still not developed to a stage where it can stand alone as a separate ground for judicial review in the realm of administrative law in Sri Lanka. However, where the appropriate facts and circumstances warrant it, there is no reason as to why the doctrine of proportionality may not be developed further, Justice Obeyesekere emphasised, particularly in light of the considerations that have motivated courts to loosen the rigours of Wednesbury unreasonableness (per MR Lord Wilfrid Arthur Greene’s definition in the Court of Appeal of England and Wales case of Associated Provincial Picture Houses Limited vs. Wednesbury Corporation) and review decisions with varying degrees of intensity, depending on the facts and circumstances of each case {KIA Motors (Lanka) Limited vs. Consumer Affairs Authority and Others}.  Substantive review is most commonly associated with “unreasonableness” in the Wednesbury sense, or “irrationality” as redefined by Lord William John Kenneth Diplock in the House of Lords case of Council of Civil Service Unions vs. Minister for the Civil Service also known as the GCHQ case, where it was held that irrationality “by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review”. These grounds recognised that a decision may be within the so called “four corners of the law”, but may still be unacceptable due to the existence of something overwhelmingly “unreasonable”.  “Where decisions are made to achieve genuine and bona fide purposes, justifying such decisions would presumably not be an overly exhausting task for decision makers. The shift in the culture of judicial review merely places those affected by the decisions of public authorities in a better position to ensure that such decisions are being made conscientiously and in terms of the law, while also guiding the public authorities to have a better understanding of their role in carrying out their functions in trust for the public,” Justice Obeyesekere observed.


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