The Public Trust Doctrine

Judicial Service Association of Sri Lanka Law Journal - (2016 Vol -IV) ISSN 2357-2884
THE ‚PUBLIC TRUST‛ DOCTRINE
Rajitha Perera, LL.B, LL.M (Colombo).
Senior State Counsel - Attorney General’s Department of Sri Lanka1
Though the origins of the doctrine are widely attributed to the ancient laws of
the Roman Emperor Justinian and the Justinian Code of 530 A.D.,2 it is
interesting to note the discussions on the development of the doctrine in Sri
Lanka with references to the rich history of this country and not to Justinian.
‚From time immemorial, land has thus being held in ‚trust‛ for the people in
this island‛. Shirani Bandaranayake, J. in the Supreme Court Determination on
‘Land Ownership Bill’ 3 observed.
‚Discussing the ancient history of land tenure, Hayley (Sinhalese law and
Customs. F.A. Haley, chapter II) states that the Kings were the owners of
the soil. Contributing to this view H.W. Codington, (Ancient Land Tenure
and Revenue in Ceylon, 1938) stated that,
1 The views expressed in this paper are those of the author and do not represent that of the
Attorney General’s Department or of any other Authority.
2
Justinian recognized that ‚By the law of nature, these things are common to mankind – the air,
running water, the sea, and consequently the shores of the sea. No one therefore is forbidden to
approach the seashore, provided that he respects habitations, monuments, and buildings which
are not like the sea, subject only to the law of nations.‛
3 Supreme Court Determination No 26-36 of 2003 Decisions of the Supreme Court on
Parliamentary Bills, 1991 – 2003, Vol. VII pg. 455,
Electronic copy available at: https://ssrn.com/abstract=3746332

The king was bhupati or bhupala, ‚lord of the earth‛, ‚protector of the
earth‛ or as the late Niti Nighanduwa (Chapter I, 2) terms Manu the
Vaivasvata, the first king of the men,‛ lord (adhipati) of the fields of all.‛
Amarasinghe, J. in Bulankulama and Six others v. Ministry of Industrial
Development and seven others 4

in analyzing the historical development of the
doctrine referred to the Mahawansa.
‚The organs of State are guardians to whom the people have committed the care
and preservation of the resources of the people. This accords not only with the
scheme of government set out in the constitution but also with the high and
enlightened conceptions of the duties of our rulers, in the efficient management
of resources in the process of development, which the Mahavamsa, 68.8-13 sets
forth in the following words.
‚Having thus reflected, the king thus addressed his officers.
In my Kingdom are many paddy fields cultivated by means of rain water,
but few indeed are those which are cultivated by perennial streams and great
tanks.
By rocks, and by many thick forests, by grate marshes is the land covered.
In such a country, let not even a small quantity of water obtained by rain go to
the sea without benefiting man.
Paddy fields should be formed in every place, excluding those only that produce
gems, gold, and other precious things.
It does not become persons in our situation to live enjoying our own ease, and
unmindful of the people …..5 ‚.
4
([2000] 3 Sri L.R. 243).

Judge C.G. Weeramantry, Vice President International Court of Justice in
Gabcikovo-Nagimoros Project (Hungary v. Slovakia6) – the Danube case)
referred to another passage from the rich history of Sri Lanka in his opinion on
the historical development of the doctrine.
‚Just as development was the aim of this system, it was accompanied by a
systematic philosophy of conservation dating back to at least the third century
B.C. The ancient chronicles record that when the King (Devanampiya Tissa)
247-207 B.C. was on a hunting trip (around 223 B.C.) the Arahat Mahinda, son of
the Emperor Asoka of India, preached to him a sermon which converted the
King. Here are excerpts from that sermon:‛
‚O great King, the birds of the air and the beasts have as equal a right to live and
move about in any part of the land as thou. The land belongs to the people and
all living beings; thou art only the guardian of it…‛
A study of 68.8-13 of the Mahavamsa, the sermon by the Arahat Mahinda to King
Devanampiya Tissa and the Justinian Code would indicate certain common
principles. Yet, a careful analysis of the former would indicate that what is
actually referred to therein is a concept that is much more deep and advanced
than the latter.
Justinian recognized things such as the sea, the shores of the sea, the air and
running water was common to everyone and that they can be enjoyed by all.
The text from the Mahavamsa and the sermon by the Arahat Mahinda identifies
5 Translation by Mudaliyar L. de Zoysa, Journal of the Royal Asiatic Society (C.B), vol. III No IX,
6 GabCikovo-Nagymaros Project (Hungary /-Slovakia), Judgment, I. C. J. Reports 1997, p. 7

the equal right to live and to move about in any part of the land. The Mahavamsa
and the sermon by the Arahat Mahinda proceed to say that ‚The land belongs to
the people and all living beings; thou art only the guardian of it…” The element of the
ruler being placed only as the guardian is not so clear in Justinian’s writings.
What is significant in the Public Trust Doctrine in the Sri Lankan context is the
concept where the king or the ruler is placed as the guardian of the land.
The statement that the land belongs to the people and all living beings thus the
ruler is only the guardian of the same gives rise to the trust which is known as
the public trust doctrine.
Thus the references to Mahavamsa and the sermon by the Arahat Mahinda by
Amerasinghe, J. and Judge C.G. Weeramantry is of great value.
The Doctrine
Though theoretically the doctrine may be founded upon matters with some
nexus to the environment, the application of the doctrine in Sri Lanka has not
necessarily being the same. In Sri Lanka, It has had a wide application from
dismissal of public servants to airwaves and television broadcasting; from land
acquisition to privatisation of state controlled entities and to calling and the
awarding of public tenders.
De Silva v Atukorale 7 is an early instance where the Public Trust Doctrine was
applied by the Supreme Court. Quoting Wade8, it was emphasized at pg. 296
that;
7 ([1993] 1 Sri L.R 283, 296-297).

8 Administrative Law, 5th ed., pp. 353-354).

‚Statutory power conferred for public purposes is conferred as it were
upon trust, not absolutely - that is to say, it can validly be used only in the
right and proper way which Parliament when conferring it is presumed to
have intended‛.
Bandara v Premachandra 9 is yet another application where the Supreme Court
applied the Public Trust Doctrine. Fernando, J. (at page 312) reasoned that;
"The State must, in the public interest, expect high standards of efficiency
and service from public officers in their dealings with the administration
and the public. In the exercise of constitutional and statutory powers and
jurisdictions, the Judiciary must endeavor to ensure that this expectation
is realized."
In Premachanda v. Major Montague Jayawickrema and another 10
G. P. S. De Silva, C.J. held as follows:
"There are no absolute or unfettered discretions in public law; discretions
are conferred on public functionaries in trust for the public, to be used for
the public good, and the propriety of the exercise of such discretions is to
be judged by reference to the purposes for which they were so entrusted."
In Fernando v SLBC 11
at page, 172, Fernando, J. made a reference to Public
Interest in the following manner;
9 ([1994] 1 Sri L.R 301).

10
([1994] 2 Sri L.R 90).
11 ( [1996] 1 Sri. L.R.,pg 157)

"….. it is relevant to note that the Government's Media Policy was intended
to encourage criticism, in the public interest, in order to expose short-
comings. If nothing else, the right to equality requires that the media itself
is not immune from justifiable criticism, internally and externally."
In Bennett Rathnayake vs. the Sri Lanka Rupavahini Corporation and Others 12,
Fernando, J. observed that;
"The statutory powers which the 1st respondent has are not absolute,
unfettered, or unreviewable; they are held in trust for the benefit of the
public, and they cannot be exercised arbitrarily or capriciously or
unreasonably. The airwaves are public property and the State is under an
obligation to ensure that they are used for the benefit of the public."
In Jayawardene v Wijayatilake13, Court observed;
"Respect for the Rule of Law requires the observance of minimum
standards of openness, fairness and accountability in administration and
this means - in relation to appointments to and removal from, offices
involving powers, functions and duties which are public in nature - that
the process of making a decision should not be shrouded in secrecy . . . ."
at page 159 it was further observed that;
12 ( [1999] 2 Sri L.R., pg 93 )

13 ( [2001] 1 Sri L.R., pg 132)

"It is accepted today that powers of appointment and dismissal are
conferred on various authorities in the public interest, and not for private
benefit, that they are held in trust for the public and that the exercise of
these powers must be governed by reason and not caprice…‛
In Re 19th Amendment to the Constitution14
The determination of the Supreme Court In Re 19th Amendment to the
Constitution is a mile stone in the development of the doctrine in Sri Lanka.
The structure of the 1978 Constitution, the Sovereignty and the Power of the
People, the Executive power of the People, the Legislative power of the People,
the Judicial Power of the People and the exercise of those powers all were
discussed in detail by Chief Justice S.N. Silva.
Having made extensive references to Article 3 15

and Article 4 16
of the 1978
Constitution, court proceeded to elaborate on the significance of the words ‚the
power of the People‛ referred to in Article 4 at pg 96 and 97.
14
([2002] 3 Sri. L.R., pg 85 )
15 Article (3) "In the Republic of Sri Lanka sovereignty is in the People and is inalienable.
Sovereignty includes the powers of government, fundamental rights and the franchise."
16 Article (4) ‚The sovereignty of the People shall be exercised and enjoyed in the following
manner
(a) the legislative power of the People shall be exercised by Parliament, consisting of
elected representatives of the People and by the People at a Referendum ;
(b) the executive power of the People, including the defence of Sri Lanka, shall be
exercised by the President of the Republic elected by the People;
(c) the judicial power of the People shall be exercised by Parliament through courts,
tribunals and institutions created and established, or recognized, by the
Constitution, or created and established by law, except in regard to matters
relating to the privileges, immunities and powers of Parliament and of its

‚The powers of government are separated as in most Constitutions, but
unique to our Constitution is the elaboration in Articles 4 (a), (b) and (c)
which specifies that each organ of government shall exercise the power of
the People attributed to that organ. To make this point clearer, it should be
noted that subparagraphs (a), (b) and (c) not only state that the legislative
power is exercised by Parliament; executive power is exercised by the
President and judicial power by Parliament through Courts, but also
specifically state in each sub paragraph that the legislative
power "of the People" shall be exercised by Parliament; the executive
power "of the People" shall be exercised by the President and the judicial
power "of the People" shall be exercised by Parliament through the
Courts. This specific reference to the power of the People in each sub
paragraph which relates to the three organs of government demonstrates
that the power remains and continues to be reposed in the People who are
sovereign, and its exercise by the particular organ of government being its
custodian for the time being, is for the People"
‚Therefore, the statement in Article 3 that sovereignty is in the People and
is ‚inalienable" being an essential element which pertains to the
sovereignty of the People should necessarily be read into each of the sub
paragraphs in Article 4. The relevant sub paragraphs would then read as
follows:
Members, wherein the judicial power of the People may be exercised directly by
Parliament according to law……;‛

(a) the legislative power of the People is inalienable and shall be
exercised by Parliament;
(b) the executive power of the People is inalienable and shall be
exercised by the President; and
(c) The judicial power of the People is inalienable and shall be
exercised by Parliament through Courts.
The power that constitutes a check, attributed to one organ of government
in relation to another, has to be seen at all times and exercised, where
necessary, in trust for the People. This is not a novel concept. The basic
premise of Public Law is that power is held in trust. From the perspective
of Administrative Law in England, the "trust" that is implicit in the
conferment of power has been stated as follows:
Statutory power conferred for public purposes is conferred as it were
upon trust, not absolutely - that is to say, it can validly be used only in the
right and proper way which Parliament when conferring it is presumed to
have intended17."
Court thus concluded that;
"The powers attributed to the respective organs of government include
powers that operate as checks in relation to other organs that have been
put in place to maintain and sustain the balance of power that has been
17 Administrative Law 8th ed. 2000 - H. W. R. Wade and C. F. Forsyth, p. 356

struck in the Constitution, which power should be exercised only in trust
for the People".
As said earlier, the determination in the Re 19th Amendment is significant in
many ways. The Constitutional recognition of the doctrine via Articles 3 and 4 is
remarkable. The Interpretation of the Supreme Court that the power remains and
continues to be reposed in the People who are sovereign and its exercise by the
particular organ of government being its custodian for the time being in trust for
the people crystallizes the concept behind the doctrine in the sri lanka context.
In Mundy v. Central Environmental Authority and 3 others18, whilst referring
to earlier judgments on the Concept of Public Trust, Court reiterated that;
"… this Court itself has long recognized and applied the "public trust"
doctrine: that powers vested in public authorities 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 ‚
‚… Administrative acts and decisions contrary to the "public trust"
doctrine and/or violative of fundamental rights would be in excess or
abuse of power, and therefore void or voidable."
In Environmental Foundation Ltd vs. Urban Development Authority19, the
Supreme Court made a reference to the sovereignty of the people in the light of
fundamental rights in the following manner;
18
SC Appeal 58/2003, SCM 20th , January 2004,
10

‚Article 4 (d) of the Constitution states the manner in which the
sovereignty of the People shall be exercised in relation to the fundamental
rights, as follows
‚ the fundamental rights which are by the Constitution declared and
recognized shall be respected , secured and advanced by all the organs of
government, and shall not be abridged , restricted or denied save in the
manner and to the extent hereinafter provided‛
In Senarath vs. Chandrika Bandaranayake,20 the Chief Justice Sarath N Silva,
citing from the Determination of a Divisional Bench of seven judges in regard to
the 19th Amendment observed;
‚Sovereignty, which ordinarily means power or more specifically power
of the State as proclaimed in Article 1 is given another dimension in
Article 3 from the point of the People, to include –
(1) the powers of Government
(2) the fundamental rights and
(3) the franchise
Fundamental rights and the franchise are exercised and enjoyed directly
by the People and the organs of government are required to recognize,
respect, secure and advance these rights.
19
SC FR Application No 47 - 2004, SCM 23rd November.2005
20 SC FR Application No 503-2005, SCM 03rd of May 2007
11

This specific reference to the power of the People in each sub paragraph
which relates to the three organs of government demonstrates that the
power remains and continues to be reposed in the People who are
sovereign and its exercise by the particular organ of government being its
custodian for the time being is for the people (at page 98):
‚Therefore, executive power should not be identified with the President
and personalized and should be identified at all times as the power of the
People‛
‚…. The 1st respondent and the Cabinet of Ministers were the custodian of
public property and public funds. The property and funds will have to be
dealt with according to law for the benefit of the people; therefore, in my
view the law itself is the instrumentality through which custodians are
guarded…. ‚
‚ The facts that have been clearly established in this case prove that the 1 st
respondent and the Cabinet of ministers of which she was the head
secured for the 1st respondent benefits and advantages in the purported
exercise of executive power in breach of the provisions of the Presidents‛
Entitlement Act No.4 of 1986. Since executive power is exercised in trust
for the People, such wrongful action is an infringement of the
fundamental right to equality before the law guaranteed by article 12 (1)
of the Constitution.‛
12

The important principle formulated in this application is that the custodian of
public property and public funds in dealing with public property and public
finance is necessarily required to deal with such property and funds according to
law for the benefit of the people and the Rule of Law.
The Golden Era
The doctrine reached its peak during the period of 2007- 2009. The Supreme
Court in three Fundamental Rights applications more commonly known and
referred to as the LMS case, the Waters Edge case and the Sri Lanka Insurance
case , delivered judgment after considering inter alia the Public Trust Doctrine.
In Vasudeva Nanayakkara vs. K.N. Choksy and Others 21 the Supreme Court at
pg 64-65 of the judgment placed on record three well established principles of
law that were considered in coming to its conclusion of which the second
principle was the Public Trust Doctrine.
‚… as firmly laid down in the Determination of the Divisional Bench of Seven
Judge of this Court in regard to the constitutionality of the proposed
19th Amendment to the Constitution (2002 3 SLR page 85) the principle
enunciated in Articles 3 and 4 of our Constitution is that the respective organs of
Government, the Legislature, the Executive and the Judiciary are reposed power
as custodians for the time being to be exercised for the people. In Bulankulame
and others vs. Secretary, Ministry of Industrial Development (2000 3 SLR p 243)
this Court has observed that the resources of the State are the ‚resources of the
People‛ and the organs of State are ‚guardians to whom the people have
21
SC FR Application No 209-2007 SCM 21.08.2007 ( LMS Case)
13

committed the care and preservation of these resources (at p.253). That, there is a
‚confident expectation (trust) that the executive will act in accordance with the
law and accountability in the best interests of the people of Sri Lanka (page 258);
In Sugathapala Mendis and another vs. Kankanige Mahinda Perera and 20
others22. Tillekewardane J. elaborated the Public Interest Doctrine in the
following manner;
‚Public Trust Doctrine‛ is based on the concept that the powers held by
the organs of the government are, in fact, powers that originate with the
People, and are entrusted to the Legislature, the Executive and the
Judiciary only as a means of exercising governance and with the sole
objective that such powers will be exercised in good faith for the benefit of
the People of Sri Lanka. Public power is not for personal gain, favor, but
always to be used to optimize the benefit of the People. To do otherwise
would be to betray the trust reposed by the People within whom, in terms
of the Constitution the Sovereignty reposes.
The principle that those charged with the upholding the Constitution- be
it a police officer of the lowest rank or the President- are to do so in a way
that does not ‚violate the Doctrine of Public Trust‛ by state action/inaction
is a basic tenet of the Constitution which upholds the legitimacy of
Government and the Sovereignty of the People23.
22
SC FR Application No 352-2007 SCM 08.10.2008 (Waters Edge Case)
23 at Page 13
14

Power exercised contrary to the Public Trust Doctrine would be an abuse
of such power and in contravention of the Rule of Law. This Court has
long recognized and applied the Public Trust Doctrine, establishing that
the exercise of such powers is subject to judicial review …….
The Supreme Court observed that;
‚The Public Trust Doctrine, taken together with the Constitutional
Directives of Article 27, reveal that all state actors are so principally
obliged to act in furtherance of the trust of the People that they must
follow this duty even when a furtherance of this trust necessarily renders
inadequate an ant or omission that would otherwise legally suffice.
…. In De Silva v. Atukorale (supra) the Court, quoting Wade
(Administrative Law, 5th ed., and pp.353-354) observed that
... the powers of public authorities are therefore essentially different from
those of private persons. A man making his will may, subject to any rights
of his dependents, dispose of his property just as he may wish. He may act
out of malice or a sprit of revenge, but in law this does not affect his
exercise of his power. In the same was a private person has an absolute
power to release a debtor, or, where the law permits, to evict a tenant,
regardless of his motives. This is unfettered discretion. But a public
authority may do neither unless it acts reasonably and in good faith and
upon the lawful and relevant grounds of public interest. Unfettered
discretion is wholly inappropriate to a public authority, which possesses
powers solely in order that it may use them for the public good.‛
15

Tillekewardane J. at page 41 of the Judgment held that that:
‚Public power must only be used strictly for the larger benefit of the
People, the long term sustainable development of the country and in
accordance with the Rule of law‛
The important principle laid down in this judgment is that the ‚Public Trust
Doctrine‛ is based on the concept where the powers held by the organs of the
government originate with the People and are entrusted to the Legislature, the
Executive and the Judiciary only as a means of exercising governance and with
the sole objective. These powers are to be exercised in good faith for the benefit
of the People of Sri Lanka and public power is not for personal gain, favor, but
always to be used to optimize the benefit of the People. Any exercise of Power
contrary to the Public Trust Doctrine would be an abuse of such power and in
contravention of the Rule of Law as Public power must only be used strictly for
the larger benefit of the People.
In Vasudeva Nanayakkara vs. K.N.Chocksy)24 and others. (Sri Lanka Insurance
Corporation case) Amaratunga, J. at pg 56 observed‛
‚Fundamental rights jurisdiction forms a part of the equitable jurisdiction
of the Supreme Court which exercises, at the highest level, the judicial
power of the people according to the Rule of Law and the fundamental
rights provisions enshrined in the Constitution.‛
24
SC FR Application No 158-2007, SCM 04.06.2009 ( Sri Lanka Insurance Corporation Case)
16

Court further observed that,
‚The petitioners have filed this application in public interest alleging that
the executive power of the people, delegated to the Executive by the
Constitution, to exercise to the prejudice of the people. The trust reposed
on the executive to which the peoples’ executive power has been
delegated is ,in the words of Amarasinghe J in Bulankulala case, ‚ the
confident expectation(trust) that the executive will act in accordance with
the law and accountability, in the best interest of the people‛( 2000 3 SLR
243 at 258.) The rule’s trusteeship of the resources of the State which
belong to the people is a part of the legal heritage of Sri Lanka dating back
at least to the third century BC as pointed out by Justice Weeramantry in
his separate opinion in the International Court of Justice in the Danube
Case, by quoting the sermon of Arahath Mahinda to King Devanampiya
Tissa as recorded in the Great Chronicle- Mahawansa‛.
This concept of the public trust which curtailed the absolute power of the
monarch is in perfect harmony with the doctrine of public trust developed
by the Supreme Court on the basis of sovereignty of the people set out in
Articles 3 and 4 of the Constitution, Article 12(1) and the principle of the
Rule of Law, which is the basis of our Constitution. The Rule of Law is the
principle which keeps all organs of the state within the limits of the law
and the public trust doctrine operates as a check to ensure that the powers
delegated to the organs of the government are held in trust and properly
exercised to the benefit of the people and not to their detriment. When the
Executive which is the custodian of the People’s Executive Power ‚act
17

resources of the State, it is in the public interest to implead such action
before Court.‛
The public interest to keep the executive within the power given to it by law is
the ‚positive component‛ in the right to equality.
In Azath Sally Vs Colombo Municipal Council 25

Shirani Bandaranayke, J.
Observed that;
‚ This Court in Bulankulama and others v Secretary, Ministry of Industrial
Development and others (supra) had carefully considered the concept of public
trust and had held that the ‘organs of State are guardians to whom the people
have committed the care and preservation of the resources of the people….‛
‚The concept of public trust had been followed in several judgments of
this Court and now it is an accepted doctrine that the resources of the
country belong to the people; Sri Lanka’s sovereignty is in the people in
terms of Article 3 of the Constitution and is inalienable and includes the
powers of government, fundamental rights and the franchise; and the
people have committed the care and preservation of their resources to the
organs of the State, which are their guardians or trustees.‛
In Adam Bawa Issadeen vs Sudharma Karunaratne, Director General of
Customs and 20 others26, Priyantha Jayawardena, J. made the following
observation in relation to the powers of recruitment and promotion.
25
SC FR Application No 252-2007, SCM 04.03.2009
26
18

‚The wide powers vested in those responsible for recruitment and
promotions have to be exercised in the public interest and for the benefit
of public. The powers granted to the appointing authority are public in
nature, to be held in trust for the public, and to be exercised for the benefit
of public. Failure in the exercise of these powers according to the
stipulated rules warrants the intervention of courts.‛
In Tiran P.P. Alles vs N.K. Illangakoon, Inspector General of Police27
Sripavan, C.J observed;
‚It is now well settled that powers vested in the State, public officers and
public authorities are not absolute or unfettered but are held in trust for
the public to be used for the public benefit and not for improper purposes.
Where a Police Officer has discretion, the exercise of that discretion would
also be subject to Article 12 as well as the general principles governing the
exercise of such discretion. ‚
In Sithambiralage Martin Sebastian Premalal Perera vs Tissa Karalliyadda,
Minister of Indigenous Medicine and others28, Eva Wanasundera, J. whilst
referring to several previous decisions of the Supreme Court observed that;
‚The said authorities have specifically rejected the notion of unfettered discretion
given to those who are empowered to act in such capacity and held that
discretions are conferred on public functionaries in trust for the public, to be
27
28
19

used for the good of the public, and propriety of the exercise of such discretions
is to be judged by reference to the purposes for which they were so entrusted. It
is clear that the Supreme Court has held that the discretion should be exercised
in conformity with the general tenor and policy of the statute and for proper
purposes and that it should never be exercised unreasonably.‛
In Noble Resources International Pte limited, vs Hon. Ranjith
Siyambalapitiya, Minister of Power and Renewable Energy29
K. SRIPAVAN, C.J., observed that the powers of the State conferred on the
Members of the Standing Cabinet Appointed Procurement Committee (SCAPC)
and the Procurement Appeals Board (PAB) is to be held in trust for the benefit of
the public.
Application of the Doctrine under the Sri Lankan Law
The Public Trust Doctrine finds it self a unique place in the Sri Lankan law.
As observed before, the application of the Doctrine in Sri Lanka encapsulates a
wide spectrum and is not confined to the environment. One can safely conclude
that this unique position was heavily influenced by the historical teachings and
the constitutional reference to the ‚power of the People‛ in Article 3 and Article
4 of the Constitution.
Articles 3 and 4 narrates that the legislative power "of the People" shall be
exercised by Parliament; the executive power "of the People" shall be exercised
by the President and the judicial power "of the People" shall be exercised by
Parliament through the Courts.
29
20

The significance of the specific reference to the ‚power of the People‛ in each sub
paragraph is that the power remains and continues to be with the People who
are sovereign, and its exercise by the particular organ of government being its
custodian for the time being, is for the People.
Our courts have repeatedly held that the exercise of powers must be governed by
reason and the powers should at all times used to optimize the benefit of the
People. Further, the powers vested to the three organs of the government are to
be used for the public good and such powers cannot be exercised arbitrarily or
capriciously or unreasonably.
‚The organs of State are guardians to whom the people have committed the care
and preservation of the resources of the people. This accords not only with the
scheme of government set out in the Constitution but also with the high and
enlightened conceptions of the duties of our rulers, in the efficient management
of resources in the process of development 30 ……‛
Thus is settled law in Sri Lanka that powers vested in public authorities are not
absolute or unfettered but are held in trust for the public and the exercise of such
power by the custodian for the time being is for the benefit of the People.
30
Supra note 4
21

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Judicial Service Association of Sri Lanka Law Journal - (2016 Vol -IV) ISSN 2357-2884

THE ‚PUBLIC TRUST‛ DOCTRINE

Rajitha Perera, LL.B, LL.M (Colombo).

Senior State Counsel - Attorney General’s Department of Sri Lanka1

interesting to note the discussions on the development of the doctrine in Sri

this island‛. Shirani Bandaranayake, J. in the Supreme Court Determination on

‘Land Ownership Bill’ 3 observed.

and Revenue in Ceylon, 1938) stated that,

Parliamentary Bills, 1991 – 2003, Vol. VII pg. 455,

Electronic copy available at: https://ssrn.com/abstract=3746332

earth‛ or as the late Niti Nighanduwa (Chapter I, 2) terms Manu the

Amarasinghe, J. in Bulankulama and Six others v. Ministry of Industrial

Development and seven others 4

doctrine referred to the Mahawansa.

enlightened conceptions of the duties of our rulers, in the efficient management

of resources in the process of development, which the Mahavamsa, 68.8-13 sets

forth in the following words.

‚Having thus reflected, the king thus addressed his officers.

In my Kingdom are many paddy fields cultivated by means of rain water,

the sea without benefiting man.

gems, gold, and other precious things.

unmindful of the people …..5 ‚.

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Judge C.G. Weeramantry, Vice President International Court of Justice in

Gabcikovo-Nagimoros Project (Hungary v. Slovakia6) – the Danube case)

the historical development of the doctrine.

‚Just as development was the aim of this system, it was accompanied by a

systematic philosophy of conservation dating back to at least the third century

King. Here are excerpts from that sermon:‛

all living beings; thou art only the guardian of it…‛

than the latter.

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the public trust doctrine.

Amerasinghe, J. and Judge C.G. Weeramantry is of great value.

dismissal of public servants to airwaves and television broadcasting; from land

acquisition to privatisation of state controlled entities and to calling and the

awarding of public tenders.

7 ([1993] 1 Sri L.R 283, 296-297).

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‚Statutory power conferred for public purposes is conferred as it were

right and proper way which Parliament when conferring it is presumed to

Bandara v Premachandra 9 is yet another application where the Supreme Court

jurisdictions, the Judiciary must endeavor to ensure that this expectation

In Premachanda v. Major Montague Jayawickrema and another 10

G. P. S. De Silva, C.J. held as follows:

"There are no absolute or unfettered discretions in public law; discretions

be judged by reference to the purposes for which they were so entrusted."

Interest in the following manner;

9 ([1994] 1 Sri L.R 301).

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to encourage criticism, in the public interest, in order to expose short-

is not immune from justifiable criticism, internally and externally."

Fernando, J. observed that;

public, and they cannot be exercised arbitrarily or capriciously or

In Jayawardene v Wijayatilake13, Court observed;

"Respect for the Rule of Law requires the observance of minimum

standards of openness, fairness and accountability in administration and

this means - in relation to appointments to and removal from, offices

the process of making a decision should not be shrouded in secrecy . . . ."

at page 159 it was further observed that;

12 ( [1999] 2 Sri L.R., pg 93 )

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