Administrative Law 2022 Note ProStudies

Pro|Studies 2022 Intermediate Year
www.prostudies.lk 1
www.prostudies.lk 2
www.prostudies.lk 3
www.prostudies.lk 4
TABLE OF CONTENTS
1. Introduction 07
2. Illegality 14
3. Irrationality 16
4. Procedural Impropriety 19
5. Legitimate Expectations 22
6. Writs 24
7. Right to Information 27
8. Error of Law 31
9. Ouster Clauses 33
10. Habeas Corpus 35
www.prostudies.lk 5
ABBREVIATIONS
1. AG – Attorney General
2. AL – Administrative Law
3. BC – Borough Council
4. HOL – House of Lords
5. JR – Judicial Review
6. PA – Public Authority
7. PO – Public Officer
8. ROL – Rule of Law
9. SOS – Secretary of State
10. UV – Ultra vires
11. RTI – Right to Information
www.prostudies.lk 6
1. INTRODUCTION TO ADMINISTRATIVE LAW
Recommended reading
1. G.L. Pieris - Essays on Administrative law.

2. Neil Parpworth - Administrative Law.
3. JAL Cooray - The Constitution and Administrative Laws of Sri Lanka.
4. Wade and Forsyth’s - Administrative law.
Introduction
Administrative law is the body of law that governs the admin agencies of government i.e. how you
curtail and control the power of government. i.e. “Law relating to control of governmental power”
This is concerned with the executive. All executive – administrative actions are subordinate to the law.
Primary purpose of Administrative Law is to keep government powers within its legal boundaries so
as to prevent abuse and harm to citizens.
Abuse is unavoidable since (in addition to malice) the complex laws they deal with may be
misinterpreted bona fide. This is abuse too. Therefore, courts have constant duty of correcting
misunderstandings. This is the courts “Supervisory role” on the government.
Administrative Law can also be said to be the general principles, which governs the exercise of power
by public authorities. Especially the manner in which public authorities must exercise their functions.
Administrative Law also allow courts to compel authorities to discharge their duties in the correct
manner.
Sources of Administrative Law
The constitution
Statutes
English common law
Contract
Who can bring action? Anyone offered.
Challenges are two types.

I. Appeals: Via Tribunals and courts.
II. Review: Admin court and some tribunal.
The scope of admin law covers all public officials including ministers, department, civil servants etc.
all except president.
Basic principles of AL include ROL, SOP, Natural Justice.
Separation of Powers
Montesquieu: ‘All would be lost if the same body of men made laws, executed them and also
adjudicated crimes and disputes’
www.prostudies.lk 7
Rule of law
Per Joseph Raz, ROL means,

I. All laws are prospective, open and clear.
II. All laws should be relatively stable.
III. Principles of natural justice must be observed.
IV. Courts should be daily accessible.
Natural Justice
There are two principles of natural justice

I. Nemo iudex in sua causa – one must not be the judge in one’s own cause – Rule against bias
II. Audi alteram partem – listen to both sides – Fair hearing
In R v Secretary of State for the Home Department, Ex P Pierson, it was stated laws enacted by
parliament must be in live with principles of ROL unless the parliament enacts explicitly that it
intends for the contrary.
Dicey’s Rule of Law had three limbs,

I. No one will be punished except for breaching a properly enacted law and after appearing before
a proper.
II. No one is above the law.
III. The general principles of ROL are common law judgements.
Criticism of Dicey
Everyone can’t really be equal: children, judges, MPs, diplomat.
In M v Home office – a minister was convicted of contempt of courts, emphasising, their public official’s
even executive aren’t above the law.
Principle of Legality: Public bodies must act according the law; actions must be reasonable and must
be procedurally fair. Public bodies going beyond their lawful competencies is ultra vires, and open for
suit.
Entick V Carrington – SOS had issued warrant for king’s messenger to break in into E’s house 1765
and search for seditious material. E sued messengers. Messenger pleaded usual issue on legality of
warrant. Court held SOS cant issue warrants wantonly. This case established limits of executive
powers. There was no law, which granted executives the legal authority to forcibly enter private
property. This case establish principles of legality i.e. rights of citizen can be infringed only based on
lawful authority.
CCSU v Minister for Civil Service: Judicial review of admins action is 3-step process
I. Search for illegality;
II. Failing which, look for irrationality.
III. Failing which, look for procedural impropriety.
If a citizen has an issue with an administrative action,

I. Firstly, try to fix it internally by speaking/complaining to the relevant official.
II. Secondly, appeal to a tribunal as prescribed in the statute.
III. Thirdly, go for “judicial review”. Courts will take this up only if first 2 have been exhausted.
www.prostudies.lk 8
NB- Judicial Review is different from an appeal. An appeal reassesses the merits of a decision, JR
assesses its legality.
Ex Parte Waldron – 1986
Courts may sometimes judicially review an administrative decision even if the above steps are not
followed.
I. Extent to which the statutory remedy can deal with the matter fully.
II. Comparative speed of the alternative remedy.
III. Requirement of specialized knowledge to resolve matter, and where the tribunal possesses it.
R v IRC, ex p National Federation of Self-Employed
Only parliament is judge of efficiency and suitability of a public officer’s policies/decisions but courts
are the sole judge of the lawfulness of an action of a PO.
Judicial Review
Public bodies are given the power to carry our certain public function. JR checks the lawfulness of
such actions, it does not inquire into its merits.
Padfield V Minister of Agriculture – 1968
If power is exercised within the limits of the stature, no JR.
In this case the minister referred a farmers complaint to a committee, which provided a
recommendation. The minister ignored it. HOL held he had discretion to do so, hence no JR.
The role of the court JR is to supervise the executive use of discretionary power and ensure it was
exercised lawfully. The court does not perform an appellate function. - R v SoS for Environment, ex p
Hammersmith and Fulham London BC
In Reid v SoS, for Scotland it was held the role of JR is to determine the legal validity of a decision.
The court cannot examine the evidence with a view to form its own view about the substancial merits
of the court.
Separation of Powers and Judicial Review
For effective JR there must be clear separation between judiciary and executive.
In Liversidge v Anderson it was observed that judges appointed and dismissed at the whims and
fancies of politicians are ‘more executive minded than the executive’.
In such a scenario, JR would be ineffective and abuse of power would not be remedied.
Three grounds for judicial review

I. Illegality – the decision or action is illegal on the basis that the public body has no power to
make the decision or has exceeded its power in making the decision.
www.prostudies.lk 9
II. Irrational – there is an unfairness in the decision-making process that is so unreasonable as to
be unsuitable.
III. Procedural impropriety – Failed to adhere statutory procedural requirements or violated
common law principles of natural justice.
Common Remedies
I. A quashing order (certiorary) – nullifies decision.
II. A mandatory order (mandamus) – orders defendent public body to carry out a certain duty
obliged by law.
III. A prohibiting order (prohibition) - prevents an authority or tribunal from acting beyond its
scope of power (e.g.-orders tribunal not to hear a matter beyond its jurisdiction).
IV. A declaration – clarifies rights of the parties to the proceeding: no order
V. Injuctions and Damages
Doctrine of ultra vires
Fundamental proposition of AL, a public authority shall not act outside its powers.
Situations where a PA acts outside its power

I. Doing act which it isn’t authorized to
II. Abusing discretion granted by violating guidelines.
III. By disregarding procedure.
IV. Violating rules of natural justice.
PA’s are granted ‘discretion’ by statute i.e. power to decide the appropriate course of action in a given
situation. The validity of a decision rests on whether PA had discretion and whether discretion was
exercised within limits of discretionary power. Exceeding discretion results in ultra vires.
White and Collins v Minister of health; statute empowered to acquire land, for housing that is not
“part of any park, garden or pleasure ground”. The order made by a local authority and confirmed by
minister was quashed since the land was a park. This is a case where the authorities use of discretion
was ultra vires.
3 types of ultra vires

I. Substantive UV – Doing the wrong thing
II. Procedured UV – Doing the right thing in the wrong way
III. Doing the right thing in the right way for a wrong purpose.
Substantive UV-
I. Acting without power.
II. Acting in excess of power.
III. Abuse of power.
Procedural UV – Failing to adhere to mandatory procedures laid down by statute or violating rules of
neutral justice vide Ridge v Baldwin (pg.74) on procedural UV .
Council of Civil Service Unions V Minister of Civil Service (GCHQ Case)
The British government banned employees of government communications headquarter; a branch or

the intelligence, from forming or joining a trade union, by way of a royal prerogative order-in-council
in 1984.
www.prostudies.lk 10
This effectively denied the GCHQ employees labour protections. They couldn’t join a union nor could
they seek help of labour laws. Hence, they sought JR for violating their rights.
The traditional view of the courts till then was that JR could not be done for Royal Prerogative Orders-
in-Council.
This was reversed in this case; the HOL held the royal prerogative too is subject to JR like any PA.
However, in limited subjects such as national security the courts will not review, hence the instant
case was dismissed.
It was held that JR applies to the nature of government powers and not source.
Sufficient Interest
You must have a close enough connection in the matter to seek judicial review
Locus standi – concept to ensure actual affected party receives courts assurance instead of random
person/bystander.
Inland Revenue Commissions v National Federation of Self-Employed and Small Business Line
(Mickey Mouse Case)
In simple cases, absence of interest is manifest and must be rejected to prevent,

I. Public officials from being harassed by irresponsible persons.
II. Courts being flooded with frivolous cases.
In more complex cases, consider,

I. Powers and duties in law of the party against which relief is sought
II. Position of the applicant in relation in those powers and duties and to the breach alleged.
III. i.e. in complex matters sufficient interest cannot be considered in the abstract but must be
considered in the legal and factual context.
Usually it is decided at the ‘permission Stage’ but may be decided later too, causing the action to fail.
The threshold to prove interest is not very high. Particularly negatively affected by decision, is proof
for sufficient interest. Courts have even accepted lesser. The presence of sufficient interest must be
decided on a case-by-case basis.
R v Waft Herm London BC, ex p Baxter; Prescott v Birmingham Corporation
Though the general rule is that an individual who is not affected more than others by a particular
decision has no locus standi, in the above cases the courts allowed the matter since ‘entire
communities were affected’ and because it involved “serious issues of public importance”.
Sufficient interest may also be present in entities that purport to represent group interests.
In R v Liverpool city corporation, Ex P Ferguson, a public sector union was held to have sufficient
interest to challenge a decision of a local authority to not pay employees.
In R v SOS for foreign and Commonwealth affairs, Ex p world development movement Ltd , the courts
held that the applicant pressure group could not be dismissed as trouble makers. They are a non-
partisan pressure group concerned with the misuse of aid money. Further if there is an error or
misuse in such a manner, are there isn't another group that would practically have sufficient interest.
In R (on the application of Edwards) v Environment Agency, the applicant was challenging a decision
to grant an IPCC permit to operate a cement factory which used ‘rubber tire chips’ as a fuel substitute
in Rugby. Now the applicant was not a part of the long campaign against the plant, didn't even
partake in the agency's long consultation process, did not even make known his existence to the
agency. Notwithstanding, the court held he as a resident of Rugby, who would be affected by the
pollution, had sufficient interest by that mere fact even if he was temporarily homeless.
In the Mickey Mouse Case (supra), Lord Diplock state that it would be a ‘grave lacuna' of public law if
‘a pressure group ' or 'even a single public-spirited taxpayer’ was prevented by outdated technicalities
of locus standi from bringing a matter before court to stop an unlawful conduct.
The modern view on standing
If a public law decision personally affects someone, that person has sufficient interest to challenge. If
the applicant is obviously a troublemaker, the court will probably refuse standing. It is difficult to
precisely define standing than to ascertain whether interests exist.
In other (complex) cases, the court will allow the question of standing to be addressed at the full
hearing and the question of sufficient interest to be considered in the context of importance of the case
and the likelihood of unlawful conduct. If these are great, court will find sufficient interest even if
applicants are not personally affected.
The nexus between locus standi, in an AL action, and sufficient interest, is that the latter is the key
qualifier for the former.
Three types of standing,

I. Surrogate
II. Associational
III. Citizen
Associational standing is where a group of affected persons pursue an action collectively or where an
organization purports to represent those directly effected.
In R v inspectorate of pollution, Ex Greenpeace, Greenpeace challenged the decision to authorize the

discharge of nuclear waste in Cambria. Greenpeace had 2500 members living in the area; that
together with their reputation as an activist group was recognized as giving standing.
In R v SoS for the environment, ex p Rose Theatre Trust, the trust was established to preserve ancient
historical monuments. A monument was discovered during a construction and the trust applied to
have it declared protected status. Their application was refused and they sought to challenge it by JR.
The court refused on the basis that the trust doesn't have any standing. The court held that one does
not have sufficient interest merely because one is concerned about a decision or its effects. Even a
group of people without sufficient interest won't acquire by forming a group. if individual members
have no standing, neither does the group.
See alse R v SOS for Commonwealth; Ex p world development movement (supra)
Citizen Standing where the applicant purports to represent the ‘public interest’ as opposed to the
interest of a group of individuals.
In Environmental foundation v minister of public affairs, The petitioner was a public interest
environmental law and advocacy organization. The minister had issued a license for a private person
to operate a zoo, in contravention of the relevant statute. The court held the applicant had locus standi
as a party genuinely interested in the subject to apply for certiorari.
In Wijesiri v Siriwardana, 53 candidates who passed an open exam for a government post were not
given letters of appointment owing multiple allegations of widespread exam irregularities. The
applicant was a MP, and took up the case and went to court. He alleged the letters of appointment
were not issued due to the influence of a trade union, and sought a mandamus writ ordering the issue
of letter. The court held that to apply for a writ of mandamus, one need not have a ‘personal interest’.
It is sufficient to show a genuine interest in the matter, and that he comes before the court as a public-
spirited person.
In R v Greater London council, Ex p Blackburn, The council was illegally showing pornographic films,
and the applicant sought a prohibition order. The defendant challenged the applicant's locus standi
but the court upheld it. Court held that if any public authority transgresses the law in a manner that
offends or injures thousands of subjects, any of them can seek assistance courts in stopping it – Lord
Denning, MR.
2. ILLEGALITY AS A GROUND OF JUDICIAL REVIEW
Public officers must properly understand correctly the law that regulates his decision-making power
and give effect to it. Illegality occurs in 3 main forms,
I. Exceeding power – ultra vires
II. Misunderstanding power
III. Abuse of discretion
a. Relevance
b. Improper purpose
c. Unlawful delegation
d. Fettering of discretion
Ultra Vires – Exceeding Power
In AG v Fulham corporation, the Fulham corporation was to established as a wash house for people to
wash clothes. Fulham introduced a scheme where people could leave clothes in a bag and employees
wash it. This was held to be ultra vires.
In AG v Wilts United Dairies, minister of food gave license for Wilts to distribute milk and asked them
to pay a govt. charge for every gallon. Wilts refused citing Bill of Rights 1689 which said, all taxes
must be approved by parliament, since this “charge” wasn't approved by parliament, minister was
acting ultra vires.
Misunderstanding extent of power
The decision-maker “must understand correctly the law that regulates his decision-making power and
must give effect to it” - Lord Diplock, GCHQ Care
Vide R(shields) v SoS for Justice
Abusing discretion
Padfield v Minister of Agriculture – HoL held that a minister's discretion to refuse an investigation
was subject to judicial review where a refusal would frustrate the policy of an act. An order should be
made to direct the minister to consider the complaint.
Relevant/Irrelevant Consideration
When making decisions, what factors are relevant and which aren't? Generally, the statute usually
gives some indication as to the factors which must be considered. E.g., The town and country planning
act 1990 [UK] requires the authority to consider the provisions of development plan.
In Roberts v Hopwoods (1925), the Poplar BC had the power to pay employees as they thought fit. So,
they paid uniform wages exceeding market rate and also paid men & women equally against the
practice of the era. The HOL held the council took irrelevant considerations: feminist ambition &
socialist philanthropy and ignored relevant considerations; market wages.
Ferreting of discretion
Basically, the PA cannot be said to have fettered (restrained) his discretion by even a relevant
consideration. You can't exercise your discretion in a manner that effectively eliminates discretion i.e.,
discretion does not allow to avoid exercising discretion.
British Oxygen v Min of technology - The general rule is that anyone who has statutory discretion
must never shut his ears to any applicant. There is a difference between a policy and a rule, in that
the former involves greater flexibility while the latter is rigid. But sometimes policies are crafted with
such precision, they practically become a rule. In such situations, there is nothing wrong, as long as
the PA is willing to listen to someone with a new idea.
In R v Waltham Forest London BC, ex p Baxter, the courts held that a councilor blindly voting along
parley lines would amount to a Fetterly of discretion.
Unlawful Delegation/Lawful delegation
In Barnard v National Dock Labour Board, the NDLB was empowered by statute to delegate heavy
disciplinary matters of dock workers to local Dock Labour Boards. Instead, the NLDB had delegated it
to the port manager. This was held to be an unlawful delegation.
In Carltona v Commissioner of works, it was recognized that though a statute may require a minister
to do something, it cannot possibly mean for the minister to personally attend to it given the
magnitude of the workload from multiple quarters. As such it is perfectly lawful for a minister to
delegate performance of those task to public officials under various departments of the civil service.
Nonetheless the minister will ultimately be answerable for any mishaps done by those officials.
Improper Purpose
When a public authority is granted a decision-making power, it done so intending that that power be
used for a particular purpose/s. If the PA exercises his power for an unspecified/improper purpose the
courts will intervene.
Padfield v Minister of Agriculture - Power is conferred with the intent of promoting the policy and
objects of the Act, which are to be determined by construing the act as a whole. If the minister uses his
power and discretion in such a manner to run against the policy and object of the act, the court may
intervene.
R v Inner London Education Authority, ex p Westminster City Council - Power was given to spend
money to educate public of the services offered by local authorities. The local authorities instead used
the money on campaign on how the cutting of funding by the central government negatively affected
the services. This was held to be improper purpose and therefore illegal.
3. IRRATIONALITY AS A GROUND FOR JUDICIAL REVIEW
History of Unreasonableness
Rooke’s case 1598 - The commissioners who were tasked with repairing a riverbank only charged the
land owner adjacent to the repaired part, while many others also benefited from it. The court held it
was ‘inequitable and Contrary to the rule of reason and law’.
Roberts v Hopwood (supra) - In this case too, the court held that the councillors had acted
unreasonably by taking into account irrelevant considerations and ignoring the relevant ones.
Short v Poole corporation 1926 - firing a teacher for colouring her hair red is irrational as it is
irrelevant.
Associated Provincial Picture Houses Ltd 1948 v Wednesbury Corporation
This landmark judgement is the foundation of unreasonableness (irrationality) as a ground for JR.
Held that to merit court interference, the decision must be,

I. “So unreasonable that no reasonable authority would consider imposing it”.
II. Take into account factors that shouldn't have been
III. Not take into account factors that should have been
The facts didn't fall into any of the above in Wednesbury – The decision was unreasonable but not ‘so'
unreasonable to judicial intervention.
Facts- The applicant applied to obtain a licence to run a cinema. The licence was granted with the
condition that no children under 15 with or without patents were to be allowed on Sundays. The action
was on the basis it was unreasonable and therefero UV.
Lord Diplock in the GCHQ case said a decision would be irrational if it is “so outrageous in its defiance
of logic or to accepted moral standards that no sensible person...would have arrived at it”
The Wednesbury principles per lord Greene MR, is that a public body must exercise its authority,
adhering to the following,
I. The exercise of discretion must read and questionable.
II. In exercising discretion must have regarded for recliner manners and disregard intervene
matters.
III. A discretion must not be exercised in bad faith or with dishonesty.
IV. Discretion must be exercised for intended purpose.
If any of above are absent, the decision-making public authority has acted unreasonably.
It is not enough to prove that a reasonable person would not have arrived are the contentious decision
but the applicant must go further and prove that ANY reasonable person would not have arrived at
the said decision. This is the high standard necessary for judicial review.
In the GCHQ case unreasonable was referred to as irrationality, and ever since courts tend to prefer it.
In R v SoS For Home Dept, Ex P Brind (1991), the Wednesbury standard was criticised as being too
high but it was necessary since the court's role is supervisory and not appellate. Lord Ackner noted
that by declaring a decision to be ‘absurd or an outrageous defiance of logic' the court was in effect
performing an appellate function.
In Hall and Co. v Shorehalm – by sea UDC, the legislation permitted local authority to grant planning
permission subject to conditions it thinks fit. The local council ordered the applicant to build a road
with public access as a condition for permission. The court held it to satisfy the Wednesbury standard
for unreasonableness because it transferred whole a public duty / burden on to a private party.
Is Wednesbury too high a standard?
R v Ministry of Defence, Ex P Smith; Smith v UK.
The UK policy was that service men who were openly homosexual were not allowed to serve in the
armed forces and faced discharge.
The applicants in this case were 4 persons, so discharged. They had no other misconduct and had not
engaged in homosexual activity on the base/at work. They challenged this policy on grounds of it being
irrational.
The greater the policy content of a decision, and the more remote the subject matter of a decision from
ordinary judicial experience (national security) the more hesitant a court should be to consider it
irrational, held the CA. It was further noted the policy was supported by both houses of parliament
and wasn't irrational per se at the time.
The European court of human rights, however criticised the excessively high standard. ‘It effectively
excluded any consideration by the domestic court of the question of whether the interference with the
applicants’ rights answered a pressing social need or was proportionate to the national security and
public order claims pursued’
R v SoS for the Home Department ex P Daly - The high standard of Wednesbury was criticised and the
test of proportionality was applied. It has been suggested that in the future, Wednesbury will be
discarded in favour of proportionality.
Proportionality as a ground for Judicial Review
Parpworth: “Taking a sledgehammer to crack a nut.”
Test of proportionality looks to see whether the administrative decision taken to achieve a legislative
objective is proportional and whether it is rationally connected i.e. Could the same result have been
achieved without such an excessive infringement of rights?
The English courts are hesitant to adopt this test because it amounts to a departure from their
supervisory role to a more appellate role where the merits of a decision is considered.
This is however is a well- established principle in many European countries, and Lord Diplock in the
GCHQ case recognised that it may find its way to the English courts.
In R v SoS Home Department, Ex P Brind-1991, Home secretary issued a directive prohibiting the
direct broadcast of statements by terrorists and supporters. Journalists challenged the decision as
disproportionately and therefore ultra vires. The HOL did not consider it disproportionate, and stated
obiter with regard to doctrine of proportionality, that it has no place in UK since it required into the
merits.
After the Human Rights Act of 1998, case of proportionality is applied for actions under it and common
law rights (unofficially)
In Ex P Daly (2001), SoS of Home department had imposed a blanket policy to search prison cells
without the prisoner present. This included checking correspondence with lawyers to check whether it
was that or something else. The right of confidence between the lawyer and the applicant was held to
be greater than the need for security …etc. The courts applied the proportionality test and demanded
the infringement of prisoners’ rights disproportionate for the objective.
4. PROCEDURAL IMPROPRIETY AS A GROUND FOR
JUDICIAL REVIEW
This is the third ground under GCHQ case per Lord Diplock.
Two aspects;
I. Procedural rules laid down by statute.
II. Rules of natural justice.
Procedural Rules laid down by Statute
Generally, a statute requires powers conferred to be exercised in accordance with procedure laid down
in it. (e.g. give notice, opportunity to make representation before decision maker)
Express rule of procedure violated
Section 71(3) of the Town & Country planning Act 1990-UK states that local authorities must be
consulted before approving caravan site.
In R v Brent London BC ex parte Gunning -1985 a local council had failed to hold a statutorily
mamdated consultation with the residents before designating an area as a controlled traffic zone. It
was stated that the consultation must be genuine and effective.
I. Consultation must be at a stage when the proposal is still at a formative stage.
II. Proposal must give sufficient reasons for any proposal, to person intelligent consideration and
responses.
III. Give adequate time for consideration and responses.
IV. Overcome of consultations must be ‘conscientiously' taken into account in the final project .
London and Clysdale Estate LTD v Aberdeen District council – must look at the circumstances at hand
before giving determining the importance of a statutory provision.
In Bradbury v Enfield BC – 1967 a local education authority was had to be procedurally ultra vires
when it failed to give adequate notice and opportunity to object a plan affecting some public schools.
Court must distinguish between (1) mandatory and (2) directory procedures. The breach of the former
renders the decision invalid while the breach of the latter does not necessarily invalidate the decision.
Courts will look at the nature of the subject matter, consequences of violation, language of legislation
etc. when deciding whether it is mandatory or directory.
In Agricultural, Horticultural and Forestry Federal Training Board v Aylesbury Mushrooms-1972, The
SoS had proposed to introduce new regulations on the training of agricultural workers. It sent latter to
a body representing mushroom cultivation, inviting representations. The letter was not received, and
the regulations were passed sans consultation. The respondent argued he was not bound by them
since consultation didn't happen thus making the regulations ultra vires. It was held that consultation
required more than giving notice or letter. The PA must genuinely hold a hearing with an a open
mind; And because that didn’t happen, regulation was ultra vires.
See also R v SOS for Education; Ex P National Union Of Teachers.
Failure to Follow Rules of Natural Justice .
There are two principles of natural justice

I. Nemo iudex in sua causa – one must not be the judge in one’s own cause – Rule against bias
II. Audi alteram partem – listen to both sides – Fair hearing
It is important to ensure both sides get to make a case and decision is made objectively in a fair
manner.
In Cooper v Wandworth, Board of works -1863, natural justice was held to not apply to administrative
actions and until Ridge v Baldwin - 1964 natural justice rules applied only to appeal of judicial and
quasi-judicial decisions. Afterwards it applies to some administrative case too. The distinction was
scotched.
The courts are more likely to require natural justice applied the greater the effect on rights.
Duty to Act Fairly- Modern day version.
Right to a Fair Hearing – Audi Alteram Partem
I. Right to be informed of the case to be met. Accused should be informed of evidence against him
to be give opportunity to contest – Kanda v Federation of Malaya.
II. Right to a reasonable time to prepared summons were issued to appeared on R v Thames
Magistrate Ex P Polemis- 1974 summoned same afternoon; not enough time
III. Right to be heard.
IV. Cross examination-depends on under of procedure.
V. Legal representatives- Discretionary depends on capacity and the complexity of laws involved.
VI. Decision-makers must give reasons for the decision so as to allow and facilitate appeals and
reviews vide R v SoS, Home Department Ex P Dooley. Reasons to give reasons per South Bucks
District Council v Porter and son.
a. Why is the decision what it is
b. What errors were made to allow appeal.
The Rule Against Bias – Nemo Iudex In Sua Causa
“Justice should not only be done but also should manifestly and undoubtedly be seen to be done.” – R v
Sussex Justices, Ex P Mc Carthy
Actual Bias
Where it is established that the decision maker is prejudiced for or against a party, actual bias exists.
This is difficult to prove, hence rarely claimed.
R v Gough - “That is the end of the case.”
Apparent Bias- Pecuniary Interest
R v Rand – However small the pecuniary interest, disqualifies the person.
If a decision maker has a financial interest in the case he is disqualified. His decisions are void. If
pecuniary interest is proved no need to show actual bias.
Vide Dimes v Grand Junction Canal Proprietors-1852 where a decision of the lord chancellor was
quashed because he had a financial holding in the canal company. There was no need to prove actual
bias in him.
Apparent Bias- Some Connection
In R v Bow Street Metropolitan Suspending Magistrate et al, Ex Parte Pinochet Ugorte where ex-
Chilean dictator Augusto Pinochet was facing extradition in the UK. One of the judges, Lord Hoffman
was an ex chair of Amnesty International, who was an intervenient party to the case. The case was
ordered to be heard again without Lord Hoffman sitting.
There are two facets to nemo index in sua causa, firstly the obvious of judge can't be a party to the
proceeding and also judge can neither can be have a pecuniary interest, results in automatic
disqualification. Secondly, where he is neither a party nor has a financial interest but his conduct and
behaviour give rises to a suspension that he is not impartial. Eg: a friendship with a party.
Test for Bias.
In Porter v Magill - 2002 the test for bias was changed as whether a “fair minded and informed
observer would conclude there was a real possibility of bias”. Facts- the conservative majority of
Westminster council adopted a policy that appeared to sell homes at a lower rate in magazines words
in return for votes.
The Porter test is the current standard but before it, there was 3 other tests.
I. Reasonable Suspicions of bias – Petitioner claims decisionmaker was biased because of a
personal, professional or pecuniary interest in the outcome of the case, the bias would show. R
v Sussex Justices, Ex P McCarthy
II. Real likelihood of bias – (I) is not enough, need to also show objectively there was a real
likelihood of bias. Metropolitan Properties v Lannon - objective test; whether right minded
persons thought there was a real likelihood of bias.
III. Real Danger Test – Actual state of the concerned person who is bound.
5. LEGITIMATE EXPECTATIONS
Neil Parpworth defines Legitimate Expectation as ‘an expectation of receiving some benefit or
principle to which the individual has no right’. The term was coined by Lord Denning in Schmidt v
Secretary of State for Home affairs-1964. The Legitimate Expectations doctrine is an offshore of the
natural justice doctrine under which courts have recognised a duty to act fairly.
There are two main forms of Legitimate Expectations

1. Procedural Legitimate Expectations – One can have a legitimate expectation based on a past
practice which can be reasonably expected to continue (see GCHQ case)
2. A Substantive Legitimate Expectations – is a result of an express promise, lawful repetition
that an individual will continue is receive some kind of substantive benefits.
In AG of Hong Kong v Ng Yuen Shiu -1983 the Hong Kong government decided to stop allowing illegal
immigrants from China, whom they had been tolerating till now, and that they are liable to
deportation. A group of such illegals approached the Hong Kong government to clarify its position.
They were told each would be given an interview and may get to stay based on merits. Three days
later the claimant received a deportation order with no interview. He challenged it on the basis that
he had a Legitimate Expectations of being heard before the decision. Privy council held with claimant
and stated when a PA makes a promise, it ought to act fairly and implement the promise it so long as
it does not interfere with the statute.
In R (on the application Nadarajah) v SoS for Home Department. -2005, It was held that Legitimate
Expectations arises when ‘the public authority has issued a promise or adopted a practice which
represents how it proposes to act in a given area, the law will require the promise or practice to be
honoured unless there is a good reason not to do so.’
In R v SoS Home Department, Ex P Khan, the home office published a circular mentioning the criteria
under which children would be admitted for adoption to the UK. The Home office refused to allow the
relative child of the applicant, on a ground that was not mentioned in the circular. The courts held the
applicant had a legitimate expectation to be judged based on the criteria in the circular. (This is an
example of the curtailing abuse of power)
In R v Liverpool Corporation, Ex P Liverpool Taxi Fleet Operators’ Association, the city council was
empowered to license such number of hackney cabs it thought fit. There were 300 licences issued
already. The applicant which represented them, approached the council on possible increase of
licences, which would effect its members adversely. The town clerk assured in writing that they would
be informed of such a move beforehand and be allowed to make representations. The council passed a
resolution without informing. Court ordered a writ of prohibition since it violated Legitimate
Expectations.
Desmond Perera v Karunarathna — Hope is not Legitimate Expectations
Legitimate Expectations in Sri Lanka
In Jayasena v Punchiappuhami, Petitioner was granted gem mining license in an area for 1 year by
the State Gems Corporation. After 7 months the license was cancelled, no reason was given and no
opportunity to make his case was given. Respondent argued it was an administrative act and therefore
no requirement to adhere to natural justice principles. Certiorari issued cancelling revocation since
four months left and no opportunity to make a case. In Sundakaran v Bharathi similar approach was
taken regarding liquor licenses.
In Nagalingam Rameshwaran v University of Jaffna, the UOJ advertised a post for probationary
lecturer in art, music, dance etc. The UOJ council had decided to hold and oral interview and also a
practical test. The UOJ later make an appointment without holding a practical test. The court held
this violated petitioner’s Legitimate Expectations.
In Multinational Property Development V UDA, Land was leased to petitioner for 99 years to develop a
car park complex. After the government change it was revoked with no hearing. Court held hearing is
a must be granted where Legitimate Expectations is violated. And it is no excuse to claim such a
hearing will not change the decision.
6. WRITS
During colonial era we followed English Law and from there writs were introduced to Sri Lanka and
were governed by English Law. The question at hand now is under what law writs are governed today.
Writs must be issued ‘According to Law’
The first appearance of the phrase ‘according to law’ appeared in Section 42 of Courts Ordinance of
1889, and has been repeated in subsequent legislation governing writs. It has been a matter of
contention on what the phrase means.
S. 42 of Courts Ordinance 1889 read as follows: “The Supreme Court or any Judge thereof, at Colombo
or elsewhere, shall have full power and authority to inspect and examine the records of any courts,
and to grant and issue, according to law, mandates in the nature of writs of mandamus, quo warranto,
certiorari, procedendo and prohibition against any District Judge, Commissioner, Magistrate or other
person or tribunal"
In Abdul Thassim v Edmund Rodrigo (1947), a pre-independence case, the Privy Council held
‘According to law’ must be interpreted as ‘according to English common law’, and not ‘according to law
of Ceylon’ as argued by the AG. This view was upheld in the post-independence case of Nakkuda Ali v
Jayaratne (1950).
The Courts Ordinance was repealed by the Administration of Justice Law and was shortly afterwards
replaced by the 1978 Constitution as the law governing writs where ‘according to law’ can be found in
Article 140 & Article 154P
Subsequently, in a series of cases such as State Graphite Corporation v Fernando, Atapattu v People’s
Bank, Sirisena Cooray v Tissa Dias Bandaranayake the Supreme Court interpreted ‘according to law’
as “According to English law insofar as the English law has not been modified by statute in Sri Lanka”
Article 140
“Subject to the provisions of the Constitution, the Court of Appeal shall have full power and authority
to inspect and examine the records of any Court of First Instance or tribunal or other institution and
grant and issue, according to law, orders in the nature of writs of certiorari, prohibition, procedendo,
mandamus and quo warranto against the judge of any Court of First Instance or tribunal or other
institution or any other person”
Types of writs
1. Certiorari - Quashes a decision which is illegal lawful
2. Mandamus - Orders to do something obliged by law.
3. Prohibition - Orders to stop doing an activity which the
4. Quo warranto - Require a property to show
5. Habeas Corpus - Orders production of person have court determine validity of decision.
In English law writs are based on the crown’s prerogative power while in Sri Lanka is based on the
sovereignty of the people.
After Article 140 and Heather Mundy v Central Environmental Authority it was held that the court
issues “orders in the nature of writs” implying a constitutional remedy based on a right in contrast to
the discretionary prerogative writs. The sovereignty is now with the people and not the crown, so this
remedy is not as discretionary but mere based on a right these days. It is a mechanism for the
judiciary to defend sovereignty of the people.
Practical application of article 140
Extension to protect fundamental rights

WRC Perera v Daya Edirisingha- Article 140 and section 12(1) both flow from Article 3
De Silva v Athukorala- Public trust: officials hold power on trust from public so they are
subject to judicial review.
Nestle Lanka v Consumer Affairs Authority- power held by officials on trust shouldn’t be
abused.
Discretionary Bars
The CA has the power to refuse to exercise its writ jurisdiction on the following grounds, even if there
maybe merit to the JR application.
1. Undue Delay
The court will not entertain writ applications made following an undue delay from the date of the
impugned decision.
Gunasekara V Weerakoon - Application was refused where the application for a writ to enhance
compensation was made 7 months after award by Land Acquisition Officer because of undue delay
(and availability of alternative remedy)
Biso Manike V Cyril de Alwis – Court will consider the length of the delay and the acts done in the
interim.
2. Availability to alternative remedy

The court will not entertain writ applications, if the statute which empowered the PA’s decision
provides for a statutory procedure to appeal against decisions or if there is a statutory right of appeal
in that regard, and such alternative remedies have not been exhausted by the applicant.
Notwithstanding, the court will also consider whether the alternative remedy is enough to solve the
problem. In Gunasekara V Weerakoon (supra) Must exhaust all other available remedies before
seeking writ
Exceptions
I. If petitioners case stands distinguished - R V SoS for Home dept, ex p Swati
II. Where natural justice was violated – Chief Constable of North Wales v Evans
III. If appelate body lacks power or resources to hear the matter – Leech v Deputy Governor
Parkhurst Prison
3. Applicant’s unmeritorious conduct i.e. lack of uberrima fides

It is essential that the applicant comes to court in absolute good faith and discloses all material facts
and doesn’t attempt to mislead.
In R v Kensington, General Commissioner of Tax, Ex P Princess Edmund the applicant had withheld
material facts from the court, and court dismissed the application without considering merits. This
was cited approvingly in Appuhamy v Hettiarachchi
4. Futility
The court will not entertain an application if the relief sought would be useless.
In Samsudeen v Minister of Defence & External Affairs the applicant had applied for Ceylonese
citizenship by descent and was refused. Technically, the order of such refusal should be signed by the
Minister himself and in this case it was not. However, the court refused to grant a writ, in spite of the
violation, since it would make no difference given the applicant did not fulfil the criteria necessary to
obtain citizenship.
5. Non compliance which SC rules under A 136

There are certain formalities that need to be adhered when making an application for a writ as
provided in SC rules 46, 47, 3 ...etc. See generally cases of Rasheed Ali v Mohomad Ali, Nicholas v
Macan Makar Ltd
6.Failure to give necessary parties

Gnanasambandan v Rear Admiral Perera and others
The petitioner was a long-time tenant of a property owned by the 2 nd and 3rd respondents. In 1982, by
an agreement the behind portion of the property was transferred to the petitioner’s son and the front
portion to the petitioner on the condition that it maybe re-transferred to 2 nd and 3rd respondent if a
certain specified sum is paid within 5 years.
In 1983 the property was damaged by the ethnic riots and the Rehabilitation of Property and
Industries Authority (REPIA), which was established under emergency regulations to inter alia
compensate for damaged property, acquired the property and divested it to the 2 nd and 3rd respondents.
The letter doing so was signed by the 1st respondent, as chairman of REPIA.
The application for writs of mandamus and certiorari were refused because the petitioner had failed to
implead REPIA. It was held that naming the chairman alone personally was insufficient and fatal
since the decision was from REPIA.
7. RIGHT TO INFORMATION
Mentioned in the 1948 Universal Declaration of Human Rights and the 1966 International Convention
on Civil & Political Rights but widespread use is a recent phenomenon.
Aims
➔ Right of person to demand information from a public body without a reason e.g. disclose
reasons for decisions.
➔ Such a right will enhance transparency of public decision-making and decrease arbitrary and
ad hoc decision making.
➔ Citizen participation in democracy will increase
➔ Reduce corruption and prevent abuse of public power
➔ Public power must be used for the common good. This tool will help to that end.
➔ Ends release of government information being discretionary
➔ RTI laws tells manner in which information can be received, time frame, reasons for denial,
appeal process etc.
RTI and Democracy

➔ Allows people to learn more how policy choices are made and how the balance was struck
between competing interests and concerns.
➔ The public needs this information to challenge public boards so that abuse is prevented.
➔ Public needs to know about budgets, plans, spender, procurement
➔ Public also has right to know about actions of private entities that act in a way which effects
the public e.g. releasing waste into rivers
➔ RTI also strengthens the rule of law.
RTI in Sri Lanka
In Sri Lanka, the RTI is governed by the Right to Information Act no.12 of 2016 and Article 14A of
constitution brought in by the 19th amendment. However before the above, in Env Foundation V UDA,
the Supreme Court recognised the RTI as part of free speech under Article 14.
Key aspects of RTI law in SL
With certain limits (s. 5) a citizen has a right to access information to possession custody or control of
a public authority per s. 3.
Every public authority has to appoint one officer to deal with information requests.
➔ Such officer must provide information within 14 days; if life-threatening within 48 hours.
➔ If refusing to give information,must give reasons.
And if such a request is refused, an appeal maybe first made to a senior figure in the PA and then the
RTI commission.
Definition of PA in s. 43 of RTI Act includes: “(a) a Ministry of the Government; (b) any body or office
created or established by or under the Constitution, any written law, other than the Companies Act
No. 7 of 2007, except to the extent specified in paragraph (e), or a statute of a Provincial Council; (c) a
Government Department; (d) a public corporation; (e) a company incorporated under the Companies
Act, No. 7 of 2007, in which the State, or a public corporation or the State and a public corporation
together hold twenty five per centum or more of the shares or otherwise has a controlling interest; (f) a
local authority; (g) a private entity or organisation which is carrying out a statutory or public function
or service, under a contract, a partnership, an agreement or a license from the government or its
agencies or from a local body, but only to the extent of activities covered by that statutory or public
function or service; (h) any department or other authority or institution established or created by a
Provincial Council; (i) non-governmental organisations that are substantially funded by the
government or any department or other authority established or created by a Provincial Council or by
a foreign government or international organisation, rendering a service to the public in so far as the
information sought relates to the service that is rendered to the public; (j) higher educational
institutions including private universities and professional institutions which are established,
recognised or licensed under any written law or funded, wholly or partly, by the State or a public
corporation or any statutory body established or created by a statute of a Provincial Council; (k)
private educational institutions including institutions offering vocational or technical education which
are established, recognised or licensed under any written law or funded, wholly or partly, by the State
or a public corporation or any statutory body established or created by a statute of a Provincial
Council; (l) all courts, tribunals and institutions created and established for the administration of
justice”
Exceptions – S. 5
➔ To protect personal privacy
➔ National security
➔ Life and safety of person
➔ Commercial contracts or real sectors
➔ Criminal investigation
➔ Etc
Where information is more than 10 years old, the exceptions don’t apply per s. 5(2)
All information and records must be preserved for 10 years, if they were created before the Act per s.
7(3)(a) and if created after the Act they must be preserved for 12 years per s. 7(3)(a).
RTI also imposes a proactive disclosure requirement via 2 reports annually on 30 th June and 31st
December per s. 8(1). The contents of the reports are specified in s. 8(2): “(a) the particulars relating to
the organisation, functions, activities and duties of the Ministry of such Minister and of all the public
authorities falling within the functions so assigned; (b) the following particulars pertaining to the
Ministry and the public authorities referred to in paragraph (a):- (i) the powers, duties and functions
of officers and employees and the respective procedures followed by them in their decision making
process; (ii) the norms set for the discharge of their functions, performance of their duties and exercise
of their powers; (iii) rules, regulations, instructions, manuals and any other categories of records,
which are used by its officers and employees in the discharge of their functions, performance of their
duties and exercise of their powers; (iv) the details of facilities available to citizens for obtaining
information; (v) the budget allocated, indicating the particulars of all plans, proposed expenditures
and reports on disbursements made; (vi) the name, designation and other particulars of the
information officer or officers appointed.”
S. 7(1) requires PAs to duly maintain records with proper cataloguing to facilitate easy access to
information.
RTI Commission – Part IV of RTI Act
The role of the commission is to investigate allegations of non-compliance, recommend disciplinary

actions and prosecute violators of the Act.
Members
Per S. 12(1)
➔ Chair appointed by president on recommendation of constitutional councillors
➔ One nominee of Bar Association
➔ One nominee from media sector
➔ One nominee from civil society
Disqualification per s. 12(2)

➔ Member of Parliament, provincial council or local authorities
➔ Holds public or judicial office or any office of profit
➔ Not connected to political parties
➔ Not carrying out a business or engaged in profession
Members hold office for 5 years per s. 12(6)
The commission must appoint a Director-General, who will act in a capacity similar to a CEO per s. 13
Commission may use funds provided by parliament or donations to run commission per s. 16
Vision
Ensure that the citizens of Sri Lanka are able to effectively exercise their Right to Information.
Mission
Developing and protecting the Right to Information of all Sri Lankan citizens adhering to a culture of
transparency and good governance, through effective adjudication and monitoring of the practices of
all Public Authorities, and promoting proactive disclosure which leads to citizens being more ‘aware’ of
all information that relates to them.
Objectives
➔ Promote Enabling Measures to Process Requests: Formulate Rules in regard to Appeals, the
Inquiry procedure, Fee Schedule for providing information,and Report Formats,develop and
publish Guidelines and Directives for the purpose of giving effect to the provisions of the RTI
Act, advise on Regulations proposed by the Ministry of Mass Media, and publicise the
Commission’s Oversight and Adjudication role.
➔ Provide Effective Adjudication and Enforcement: Effectively adjudicate disputes between
Public Authorities and Information Seekers.
➔ Support the Training of Public Officials: Collaborate in training Public Officials and support
specialised training on the Right to Information for stakeholders
➔ Increase Public Awareness: Increase public understanding of the RTI Act through the
Commission’s website and through media interaction.
➔ Improve Records Management: Provide precise directions on information management by way
of Guidelines.
➔ Increase Proactive Disclosure: Foster proactive disclosure of information by issuing guidelines,
setting minimum standards, initiating revisions to existing law, and periodical assessments.
➔ Establish Effective Monitoring and Evaluation: Effective monitoring and evaluation of RTI
implementation by Public Authorities through utilisation of appropriate online solutions and
assessment tools.
Powers & Functions
Duties and Functions of the Commission
The Commission has the duty to monitor compliance by Public Authorities of their duties under the
Act, make recommendations for general reforms and reforms specific to a Public Authority, issue
Guidelines on the reasonable determination of fees by Public Authorities for release of information,
prescribe instances where information may be given free, prescribe the Fee Schedule, cooperate with /
undertake training programmes for Public Officials, publicise the rights and requirements under the
Act, and issue guidelines for the proper record management by Public Authorities. (Section 14).
Powers of the Commission
The Commission has the power to conduct Appeal Hearings and Inquiries under the Act. This includes
the power to examine a person under oath / affirmation and require the person to produce any
information in his/her possession (exempted information will be examined in confidence). The
Commission has the power to inspect any information held by a Public Authority including those that
are considered to be covered by the exemptions provided in the Act. The Commission can direct a
Public Authority to provide information in a particular form and/ to publish information that was
withheld to the public by a Public Authority (except those subject to exemptions). The Commission can
also direct a Public Authority to reimburse fees charged from a citizen when there has been a delay in
providing the information. (Section 15).
8. ERROR OF LAW
Where a court or administrative authority erroneously interprets the law as providing it with a power
it did not have, or has refered to the wrong legislative provision or misinterprets a statute, it thereby
commits an ‘Error of Law’, which is a ground on which superior courts can review its decision.
3 categories;
➔ Jurisdictional Error
➔ Error of Law within Jurisdiction (Non-jurisdictional error)
➔ Error of Law on the face of records
1. Jurisdictional Error
The decision-maker misinterprets the law as providing him a power which he does not have. Any
decision taken exercising that said non-existing power is illegal since he did not have the authority to
decide on it in the first place.
A court may commit this by addressing the wrong question, violating the principles of natural justice
etc.
2. Error of Law within Jurisdiction (Non-jurisdictional error)
This is not an unauthorized, extraneous or irrelevant use of power but rather an adoption of a wrong
interpretation. This is not automatically illegal. Uses a power that he has, but in a wrong way.
3. Error of Law on the face of record
This is a situation where the administrative authority or tribunal makes an error of law in arriving at
a decision, and that error is evidenced in the record.
On this very basis- error on the face of record- the superior court will quash the decision. This may
even happen in a situation where the decision was intra vires.
In R v Northumberland Compensation Appeal Tribunal, Ex P Shaw, the tribunal misconstrued the

regulations and failed to allow the applicant what he was entitled to (compensation for full years of
service). The divisional bench quashed it and was subsequently upheld in the CA, since it was a
manifest in the record. Court also held this to apply to non-judicial bodies as well. (“Record” will
include every documentary evidence involved in the proceeding). The significance of Ex P Shaw is that
it revived an ancient principle of English administrative law that courts may review, an intra vires
decision that is on the face of the record making an error of law unrelated to jurisdiction, and also for
extending such review to PAs that aren’t courts of record. i.e. it established that the writ of certiorari
is available not only when there’s an excess or no jurisdiction but also when there’s an error of law.
In Baldwin & Francis v Patent Appeal Tribunal, Lord Denning held that ignoring a relevant or
considering an irrelevant consideration was an error of law.
In Sri Lanka, the courts have accepted in South Ceylon Workers Union v Selvadurai that ‘manifest’
errors on the face of the record as a ground for certiorari.
Anisminic Ltd v Foreign Compensation Commission 1968
The result of this case is said to effectively bring the ‘error of law on the face of the record’ under a
species of ultra vires. The House of Lords held that by making such an error of law they dealing with a
matter they had no right to in the first place.
Facts & Judgement

➔ The Anisminic had owned a valuable mine in Egypt. After the Suez crisis, the mine was
eventually acquired by the Egyptian government and sold at a lesser value to one TEDO.
➔ After hostilities settled, the Egyptian government paid a lump sum as compensation to the
British government for damages to its subjects’ property.
➔ Anisminic wished to receive a portion of that, in light of the damages and losses to its
businesses in Egypt.
➔ The Foreign Compensation Commission, which was tasked with assessing claims made to the
British government, rejected Anisminic’s claim on the basis that the “successor in title” was an
Egyptian entity and not British. Anisminic appealed.
➔ Now this determination by the FCC, was also marked by an ouster clause in the Foreign
Compensation Act which prohibited its decisions being questioned in court
➔ The HOL in a 3-2 split decision held with Anisminic. The HOL found that the FCC’s inquiry
into the “successor in title” was not something the relevant order asked it to do.
➔ It was held the tribunal made an eror of law, and based on that error they dealt with and based
their decision on a matter they has no right to deal with.
In O’reilly v Mackman, the Anisminic case was clarified as, if the tribunal or PA mistook the
empowering legislation applicable to the facts, it will ask itself the wrong question. Such a
determination is not tryuly a ‘determination’, rendering it a nullity.
In Sri Lankan Law
Maradana Mosque Trustees v Mahmood

➔ Minister is empowered to take over the administration of schools where he is satisfied that the
administration is in contravention of the Act.
➔ The minister made his order based on a prior fault which had since been corrected.
➔ The court held that the Act required the maladministration to happen at the time of the order,
and as such the minister had failed to ask the right question at the time of the order.
➔ An approach similar to Anisminic was followed.
Moosajee v Arthur
➔ Respondent made an application to purchase a premises from the Housing commissioner, who
dismissed it saying it was a business premise. The Board of view rejected his appeal.
➔ The CA dismissed the writ sating it has no power to review it since it was within the review
board’s jurisdiction.
➔ The SC held the board of review was acting ultra vires and quashed its decision.
9. STATUTORY OUSTER CLAUSES
A statutory ouster clause is a provision inserted into a legislation with the intention and effect of
excluding the actions & decisions of the executive from judicial review.
There are two types of ouster clauses

➔ Partial ouster clauses: Ousts jurisdiction conditionally
➔ Total ouster clauses: Ousts jurisdiction unconditionally
Notwithstanding, courts have not easily accepted such clauses and at any given opportunity will
ignore them. Since yore, courts have recognised that non-jurisdictional errors of law are not precluded
from judicial review even where an ouster clause exists. With the advent of the Anisminic case (supra),
even jurisdictional errors of law have been subject to JR, with exceptions.
The Australian and Indian constitutions have restricted the ability of the legislature to to restricted
JR.
In Sri Lanka
See generally Maradana Mosque Trustees v Mahmood (supra)
S. 22 of the Interpretation Ordinance:
“Where there appears in any enactment, whether passed or made before or after the commencement of
this Ordinance, the expression "shall not be called in question in any court ", or any other expression
of similar import whether or not accompanied by the words " whether by way of writ or otherwise " in
relation to any order, decision, determination, direction or finding which any person, authority or
tribunal is empowered to make or issue under such enactment, no court shall, in any proceedings and
upon any ground whatsoever, have jurisdiction to pronounce upon the validity or legality of such
order, decision, determination, direction or finding, made or issued in the exercise or the apparent
exercise of the power conferred on such person, authority or tribunal:
Provided, however, that the preceding provisions of this section shall not apply to the Supreme Court
or the Court of Appeal, as the case may be, in the exercise of its powers under Article 140 of the
Constitution of the Republic of Sri Lanka in respect of the following matters, and the following
matters only, that is to say-
(a) where such order, decision, determination, direction or finding is ex facie not within the
power conferred on such person, authority or tribunal making or issuing such order, decision,
determination, direction or finding; and
(b) where such person, authority or tribunal upon whom the power to make or issue such order,
decision, determination, direction or finding is conferred, is bound to conform to the rules of
natural justice, or where the compliance with any mandatory provisions of any law is a
condition precedent to the making or issuing of any such order, decision, determination,
direction or finding, and the Supreme Court or the Court of Appeal, as the case may be, is
satisfied that there has been no conformity with such rules of natural justice or no compliance
with such mandatory provisions of such law :
Provided further that the preceding provisions of this section shall not apply to the Court of Appeal in
the exercise of it's powers under Article 141 of the Constitution of the Republic of Sri Lanka to issue
mandates in the nature of writs of habeas corpus.”
Proviso (a) to s. 22 using the terms “ex facie not within the power” seems to create the distinction
between jurisdictional errors and non-jurisdictional errors. It seems to be a work-around from the
Anisminic.
In James v Board of Review (paddy lands), it was held a writ application on grounds other than those
mentioned in s. 22 cannot be maintained.
In Withanaachchi v Gunawardena (1996), the plaintiff wanted to buy her “residing tenement”. Under
Ceiling of Housing Property Law, ‘House2 includes tenement. There was a door in the tenement,
which was shut for 32 years, that connected to a book depot that was not used for accomodation. The
Board of Review held this tenement to be a part of the house within the meaning of the Act. It was
held that the bar to JR from s. 22 of the Interpretation Ordinance does not apply to review of
jurisdictional questions but only yo erroneous decisions made within jurisdiction. Thus, the CA could
not review the decision of the Review Board.
Peter Atapattu v People’s Bank (1991) – SC
Though the specific facts of the case are not too important for administrative law, the Supreme Court’s
ruling on ouster clauses is of great importance.
s. 71(3) of the Finance Act states that a Bank’s decision will not be questioned in court and therefore it
was contended that when read with s. 22 of the Interpretation Ordinance, the CA couldn’t review the
Bank’s decision under article 140.
The court acknowledged the conflict between article 140 and s. 22 of the Interpretation Ordinance,
and it had to address whether s. 22 of the Interpretation Ordinance took precedence over article 140.
The doubt arises due to article 168(1) which provides that ante-constitution laws remain in force
unless the constitution expressly provides otherwise.
The SC then considered whether article 140 amounts to such an ‘express provision’. It referred to the
case of Wickemabandu v Herath, where Articles 17 & 126 were held to be express provisions within
the meaning of article 168(1), and held that the same can be said of article 140 since it too confers
jurisdiction like articles 17 and 126.
However, another problem was the words ‘subject to the provisions of the constitution’ in article 140.
Was it enough to demote article 140 to be subject to ante-constitution written laws per article 168(1)?
The court held that it doesn’t because there is a strong presumption in favour of “jurisdiction which
enhances rule of law” and against an ouster clause that undermines it.
Furthermore, ‘subject to the provisions of the constitution’ was held to refer to articles of the
constitution e.g. 80(3), 120, 124 etc, and not other written laws kept alive by article 168(1).
10. Habeas Corpus
Right To Freedom From Arbitrary Arrest And Detention And To A Fair Trial
Article 13(1) of the constitution provides,: “No person shall be arrested except according to the
procedure established by law. Any person arrested shall be informed of the reasons for his arrest”
Piyasiri V Fernando A.S.P (1998): If the charge or suspicion upon which the man is arrested is then
and there made known to him, he has the opportunity of giving as explanation of any
misunderstanding or of calling attention to other persons for whom he may have been mistaken with
the result that further inquiries may save him from the consequences of false accusations.
Arrest
Arrest here refers not only to a formal or valid arrest in connection with an alleged or suspected
commission of an offence but also a de facto arrest and prohibits the arbitrary deprivation of a person’s
liberty to go where he pleases: Wickramabandu V Herath (1990)
Article 13(2) of the Constitution provides: “Every person held in custody, detained or otherwise
deprived of personal liberty shall be brought before the judge of the nearest competent court according
to procedure established by law, and shall not be further held in custody, detained or deprived of
personal liberty except upon and in terms of the order of such judge made in accordance with the
procedure established by law”
Where a person is not produced before a judge in the time prescribed, the provisions of Article 13(2) of
the constitution are violated.
The phrase “shall be entitled to trial within a reasonable time” which is also found in the European
Convention on Human Rights has been interpreted by the European Court of Human Rights as
relating “to the whole of the proceedings before the court, not just their beginning.” (ECHR & ECtHR)
Article 13(3) provides : “Any person charged with an offence shall be entitled to be heard in person or
by an attorney-at-law, at a fair trial by a competent court”
The right to be defended by an attorney-at-law does not mean merely that an accused person is
entitled in theory to be defended by a pleader but also that he must enjoy all those concomitant
privileges without which the right is reduced to a cipher : Subramaiam’s Case (Supra)
(Legal Aid Commission Sri Lanka – Equality to all – everyone gets a fair trial)
Article 13 (4) provides, No person shall be punished with death or imprisonment except by order of a
competent court, made in accordance with procedure established by law. The arrest, holding in
custody, detention or other deprivation of personal liberty of a person, pending investigation or trial,
shall not constitute punishment.
The arrest, holding in custody, detention or other deprivation of personal liberty of a personal liberty
of a person, pending investigation or trial, shall not constitute punishment.
Article 13 (5) Provides, Every person shall be presumed innocent until he is proved guilty : Provided
that the burden of proving particular facts may, by law, be placed on an accused person.
Article 13 (6) provides, No person shall be held guilty of an offence on account of any act or omission
which did not, at the time of such act or omission, constitute such an offence and no penalty shall be
imposed for any offence more severe than the penalty in force at the time such offence was committed.
(Retrospective Effect)
Deprivation of liberty in accordance with law
There are various types of arrest and detention which are permitted by law and which may deprive a
person of his liberty.
1. Arrest with warrant and Detention : Under the provisions of the code of Criminal Procedure
Act ( S. 53, 54) the person executing a warrant of arrest issued by a Court under the Code most
notify the substance of it to the person arrested and if so required show him the warrant or a
copy of it signed by the person issuing it.
2. Arrest without Warrant and Detention. Any peace officer may under section 32 of the Code
Criminal Procedure without an order from a Magistrate and without a warrant, arrest any
person :
(a) Who on his presence commits any breach of the peace…..
(b) who has been concerned in any cognizable offence or against whom a reasonable complaint
has been made or credible information has been received or a reasonable suspicion exists of
his having been so concerned;
(c) Having in his possession without lawful excuse (the burden of proving which Excuse shall
lie on such person) any implement of house-breaking;
(d) who has been proclaimed as an offender
(e) in whose possession anything is found which may reasonably be suspected to be property
stolen or fraudulently obtained and who may reasonably be suspected of having committed
an offence with reference to such thing
(f) Who obstructs a peace officer while in the execution of his duty or who has Escaped or
attempts to escape from lawful custody
(g) Reasonably suspected of being a deserter from the Sri Lanka Army, Navy Or Air Force;
(h) found taking precautions to conceal his presence under circumstances which afford reason
to believe that he is taking such precautions with a view to committing a cognizable offence
(i) who has been concerned in or against whom a reasonable complaint has been made or
credible information has been received or a reasonable suspicion exists of his having been
concerned in any act committed an any place out of Sri Lanka, which if committed in Sri
Lanka would have been punishable as an offence and for which he is under any law for: the
time being in force relating to extradition or to fugitive persons or otherwise liable to be
apprehended or detained in custody in Sri Lanka.
3. Detention under the public Security Ordinance
The public security Ordinance provides for the enactment of emergency regulations in the
interests of the public security, the preservation of public order, and the suppression of mutiny,
riot or civil commotion or for the maintenance of suppliers and services essential to the life of
the community.
4. Detention under the prevention of Terrorism Act No 48 of 1979 –Any police officer not below
the rank of Superintendent or any other police officer not below the rank of sub inspector
authorized in writing by him in that behalf may, without and with or without assistance and
not withstanding anything in any other law to the contrary
(a) Arrest any person
(b) Enter and search any premises
(c) Stop and search any individual or any vehicle
(d) Seize any document or a thing, connected with or concerned in any unlawful activity (sec
6(1))
Remedies for a wrongful deprivation of freedom
1. A civil action for damages, such as assault, bodily harm, malicious prosecution and false
imprisonment.
2. A criminal prosecution for causing hurt, wrongful restraint, wrongful confinement, criminal
force, assault, kidnapping, abduction and other offences against the person specified in the
penal code and other law
3. A private defense – Every person has a right subject to the restrictions contained in S 92
( penal Code) to defend his own body and the body of any other person against any offence
affecting the human body.
4. The writ of habeas corpus for obtaining his release from custody
Habeas Corpus
The writ of habeas corpus has almost from inception of the Supreme court been regarded as the most
important safeguard if personal freedom. The writ, available against any person (includes a minister
or other member of the executive) detaining without legal justification, is used to secure the detainees
release from unlawful confinement.
The power to use a writ of Habeas Corpus is at present conferred upon the Court of Appeal by Article
141 of the Constitution.
Under the provisions, The Court of Appeal may grant and issue orders in the nature of writs of habeas
corpus to bring up before such Court –
IV. the body of any person to be dealt with according to law ; or
V. the body of any person illegally or improperly detained in public or private custody, and to
discharge or remand and person so brought up or otherwise deal with such person according to
law :
Provided that it shall be lawful for the Court of Appeal to require the body of such person to be
brought up before the most convenient Court of First Instance and to direct the judge of such court to
inquire into and report upon the acts of the alleged imprisonment or detention and to make such
provision for the interim custody of the body produced as to such court shall seem right ; and the Court
of Appeal shall upon the receipt of such report, make order to discharge or remand the person so
alleged to be imprisoned or detained or otherwise deal with such person according to law and the
Court of First Instance shall conform to and carry into immediate effect, the order so pronounced or
made by the Court of Appeal
The court of appeal has power to review by the issue of this writ the legality of arrests and detention
under the ordinary naval and military law
In Juwanis V Latif, Police Inspector, Special Task force (1988) –

➔ Habeas Corpus is not only used exclusively as a method of testing the legality of a detentions
by public authorities. It is frequently used in the domestic sphere as well. Since the Court is
authorized to issue the writ and deal with any person according to law, the Court grants the
writ to determine also the custody of minor children.
➔ Habeas Corpus is not available against an order of committal of a Superior Court or against a
committal by any Court acting within its jurisdiction, even though it has come to a wrong
decision on the facts or upon the law. : Re Thomas Perera alias Banda (1926)
➔ Closely allied to the power of the CA under Article 141 of the Constitution to issue writs of
habeas corpus is its power under Article 142 to direct:
➢ that a prisoner detained in any prison be brought before a court-martial or any
Commissioners acting under the authority of any Commission from the President of the
Republic for trial or to be examined relating to any matters pending before any such court-
martial or Commissioners respectively ; or
➢ that a prisoner detained in prison be removed from one custody to another for purposes of
trial.
➔ Application to the CA for habeas Corpus may be made by the person detained or by another on
his behalf.
➔ The procedure is by way of petition and affidavit setting out the allegations relating to the
unlawful confinement.
➔ Habeas Corpus is a writ of Right and will be issued when the applicant has satisfied the Court
by affidavit that his detention is unlawful.
➔ The Supreme Court, acting on certain dicta in a Privy Council decision, has decided that
successive applications for the writ can properly be made to different judges,
➔ These dicta have not been followed in later English and Irish decisions which have held that
the applicant for the writ has no such right.According to these decision, once the proper court
has decided the application the matter ended and no further application can be made on the
same evidence and same grounds to another judge or Division of the same Court.
Sri Lankan Cases
Leeda Violet And Others V. Vidanapathirana, Oic. Police Station, Dickwella And Others
Held: There was no basis for the arrest and keeping in custody of the corpus. The dental of the arrest
and custody by the 1st respondent was not acceptable. As a measure of redress, the respondent’s were
cast in exemplary costs in respect of each of the disappeared corpora
Per S.N. Silva, J.: Article 141 of the Constitution which invests this Court with jurisdiction to issue
writs of habeas corpus is intended to safeguard the liberty of the citizen. The rule of law, freedom and
the safety of the subject would be completely nullified, if any person in authority can cause the
disappearance of an individual who has been taken into custody and blandly deny to this Court having
jurisdiction to safeguard the liberty of the subject, any knowledge of the whereabouts of such
individual. The process of the historic remedy of the writ of habeas corpus, introduced tp this country
from the law of England, by the Charter of Justice of 1833, cannot be reduced to a cipher by a person
in authority, who yet continues to wield authority by falsely denying the arrest and custody of an
individual whose freedom the writ is intended to secure*. Some affirmative action is necessary from a
Court invested with jurisdiction to issue writs of habeas corpus, when confronted w ith a case of an
obvious disappearance of an individual held in custody and a false denial of such custody by a person
in authority. The measure of awarding exemplary costs to a petitioner seems appropriate.
See also Shanthi Chandrasekeran’s Case and Machchivallam’s Case.
This note was complied by

1. Shenal Wijesinghe
2. Hansith Marasinghe
3. Razka Bary
4. Udani Weerakoon
5. Sajana Abeysiriwardene
6. Chethika Abeygunawardene
7. Thenuda Imbulagoda

Administrative Law 2022 Note ProStudies

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Administrative Law 2022 Note ProStudies

Uploaded by

Copyright:

Available Formats

Pro|Studies 2022 Intermediate Year

10. Habeas Corpus 35

1. G.L. Pieris - Essays on Administrative law.

Sources of Administrative Law

Who can bring action? Anyone offered.

Challenges are two types.

Basic principles of AL include ROL, SOP, Natural Justice.

Per Joseph Raz, ROL means,

There are two principles of natural justice

Dicey’s Rule of Law had three limbs,

If a citizen has an issue with an administrative action,

Ex Parte Waldron – 1986

R v IRC, ex p National Federation of Self-Employed

Padfield V Minister of Agriculture – 1968

If power is exercised within the limits of the stature, no JR.

Separation of Powers and Judicial Review

Three grounds for judicial review

Doctrine of ultra vires

Situations where a PA acts outside its power

3 types of ultra vires

Council of Civil Service Unions V Minister of Civil Service (GCHQ Case)

The British government banned employees of government communications headquarter; a branch or

In simple cases, absence of interest is manifest and must be rejected to prevent,

In more complex cases, consider,

R v Waft Herm London BC, ex p Baxter; Prescott v Birmingham Corporation

The modern view on standing

Three types of standing,

In R v inspectorate of pollution, Ex Greenpeace, Greenpeace challenged the decision to authorize the

See alse R v SOS for Commonwealth; Ex p world development movement (supra)

Ultra Vires – Exceeding Power

Misunderstanding extent of power

Vide R(shields) v SoS for Justice

Unlawful Delegation/Lawful delegation

Associated Provincial Picture Houses Ltd 1948 v Wednesbury Corporation

Held that to merit court interference, the decision must be,

Is Wednesbury too high a standard?

R v Ministry of Defence, Ex P Smith; Smith v UK.

Proportionality as a ground for Judicial Review

Parpworth: “Taking a sledgehammer to crack a nut.”

Procedural Rules laid down by Statute

Express rule of procedure violated

See also R v SOS for Education; Ex P National Union Of Teachers.

There are two principles of natural justice

Duty to Act Fairly- Modern day version.

Right to a Fair Hearing – Audi Alteram Partem

The Rule Against Bias – Nemo Iudex In Sua Causa

Apparent Bias- Pecuniary Interest

R v Rand – However small the pecuniary interest, disqualifies the person.

Apparent Bias- Some Connection

Test for Bias.

There are two main forms of Legitimate Expectations

Desmond Perera v Karunarathna — Hope is not Legitimate Expectations

Legitimate Expectations in Sri Lanka

Writs must be issued ‘According to Law’

Practical application of article 140

Extension to protect fundamental rights

2. Availability to alternative remedy

3. Applicant’s unmeritorious conduct i.e. lack of uberrima fides

5. Non compliance which SC rules under A 136

6.Failure to give necessary parties

RTI and Democracy

RTI in Sri Lanka

Key aspects of RTI law in SL

RTI Commission – Part IV of RTI Act