The Law of Writs: scope and application
Monday, February 17, 2020Part 3
It is pertinent to consider the Writs of Certiorari and prohibition in conjunction, as the principles governing their issue are in many respects similar. The main point of divergence is that Prohibition is sought at an earlier stage than Certiorari. Certiorari looks to the past whereas prohibition looks to the future.
Traditionally at least, the fundamental and broad grounds upon which the Writs of Certiorari and Prohibition lies were as follows:
(1) Want or excess of jurisdiction
(2) Denial of natural justice, and
(3) Error on the face of the record.
The role of Certiorari is to ensure that the decision maker does not exceed his legislative bounds. He has to confine himself to/within the four corners of the foundation of his strictly delineated jurisdiction. The statutory authority in the first place, cannot assume the jurisdiction unless certain factual conditions pre-exist as provided by the statute that creates it. It is the duty of the Authority to ensure the existence of such preconditions. An administrative official or tribunal is also bound to comply with the rules of natural justice, the two basic rules of which are:
(a). Audi AlteramPartem - each party to the dispute has a right to be heard and should be given a hearing and
(b). NemoJudex in re sua - no person can be a judge in his own cause.
Requirement of Reasoned Order
Another aspect or more appropriately, a variant of the rules of natural justice, if not a new and independent ground of review in itself, per se, is the requirement that administrative decision making and the power to do so, carries with it the corresponding duty to make a reasoned or speaking order, which ex facie manifests the reasons for making that decision. The requirement for giving reasons has been continuously emphasized by a series of judicial dicta, with one of the later cases being, Lanka Multi Moulds (Pvt) Ltd v Wimalasena, Commissioner of Labour, where the Court reconciled the existing schools of thought and laid down the firm principle, that reasons must be given for any decision.
In this case, His Lordship Justice Mark Fernando observed as follows:
‘Although the Commissioner has a discretion in respect of both limbs of Section 6, that is not an unfettered or unreviewable discretion. As the Court of Appeal observed, he must give reasons for his decision. Although in Samalanka Ltd v Weerakoon [1994] 1 Sri LR 405, it was held by Kulatunge J, (with G.P.S de Silva CJ and Ramanathan J agreeing) that the Commissioner was not under a duty to give reasons, I took the contrary view in Karaundasa v Unique Gem Stones Ltd (1997) 1 Sri LR 256, (with Wadugodapitiya J and Anadacoomaraswamy J agreeing). That decision was considered and followed by Gunasekera J in Ceylon Printers v Commissioner of Labour (1998) 2 Sri LR 29. Since G.P.S. De Silva CJ agreed with Gunasekera J on that occasion, it is clear that he no longer agreed with Samalanka. In Mendis v Perera (1992) 2 Sri: R 110, 148, I observed that the audialterampartem rule does not merely entitle a party to a purely formal opportunity of placing his case before a tribunal, and that natural justice would be devalued if the tribunal does not consider the evidence and the submissions, evaluate it properly and not in haste, and give reasons for its conclusions.
As the decisions cited show, if a citizen is not made aware of the reason for a decision, he cannot tell whether it is reviewable and he will thereby be deprived of one of the protections of the common law- which Article 12(1) now guarantees. Today therefore, the conjoint effect of the machinery for appeals, revision and judicial review and the fundamental rights jurisdiction is that as a general rule, tribunals must give reasons for their decisions’.
The Writ of Mandamus
The effect of an order of mandamus is to create a positive duty to either validly exercise a power or to perform some physical act. An order of mandamus is not a remedy for prohibiting the exercise of a power. It is never granted by way of a prohibitory injunction or a restraining order. Nor does mandamus lie to enforce purely contractual duties under a contract of employment. The general principle is that contracts of employment are enforceable by ordinary action and not by judicial review. The exception appeared to be situations where the employment has a statutory ‘underpinning’ such as statutory restrictions on dismissal which would support a claim of ultra vires or a statutory duty to incorporate certain conditions in terms of employment. (Per S.N. Silva J, in Mendis v Seema Sahitha Panadura Janatha Santhaka Pravahana Seveya).
In granting a writ of mandamus in appeal, compelling the University of Kelaniya and others to award the Degree to a petitioner, the Supreme Court in Perera v Prof. Daya Edirisinghe - Per M.D.H. Fernando J., held “whether the Rules and Examination Criteria have statutory force or not, the Rules and Examination Criteria, read with Article 12 of the Constitution, confer a right on a duly qualified candidate to the award of the Degree having satisfied the Rules and Examination Criteria, there was a public duty ……. enforceable by mandamus”.
The Writ of Habeas Corpus
Freedom of an individual is a universally recognized principle. However, in terms of Article 13 of the Constitution, it is not an absolute right and could be curtailed or the restriction has to be in accordance with law. The writ of habeas corpus provided for under Articles 141 and 154P (4) (a) is a remedy broadly in two different types of situations. Firstly, where the corpus is illegally detained (Articles 141 (b) and 154P (4) (a); Secondly, where, although the corpus is not in illegal detention, the corpus is either improperly detained or is to be dealt with according to law. (Article 141 (b) and Article 141 (a). Practically habeas corpus has become the remedy against illegal detention. Perhaps, habeas corpus until 1978 more frequently sought in settling disputes regarding the right to custody of minors. But now, section 24(3) of the Judicature Act No.2 of 1978 deals with this area of issues.
The Writ of Procedendo
Procedendo is also a writ which has developed through Common Law principles. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgement. This writ was the earliest remedy that was available where a lower court refuses or neglects to pronounce its order. Originally, the writ was issued by the Court of Chancery to all subordinate courts. In issuing a Writ of Procedendo, the Court of Chancery would merely direct an inferior court to proceed to judgement. However, it would not specify what the judgement should be. Disobedience or neglect by the lower court to comply with the writ resulted in the lower court Judge becoming liable to be punished for contempt. It is to be noted that in Sri Lanka, the Writ of Procedendo has more or less become obsolete. Even though, the Constitution of 1978 has empowered the Court of Appeal and in certain instances the Provincial High Court to issue this writ, proceedings for the writ of Procedendo is rarely instituted.
The Writ of Quo Warranto
Unlike other writs the writ of quo warranto was introduced into the law of Ceylon by Ordinance No.4 of 1920, which amended the Courts Ordinance for this purpose. Under the law this writ may be granted to determine whether the holder of a public office is legally entitled to it. It is necessary that the office which is usurped should be ‘of a public nature and a substantive office, not merely the function or employment of a deputy or servant held at the will and pleasure of others. A writ of quo warranto is applied for to have it declared by court that someone who is in de facto possession of a public office is not de jure entitled to it because his election or appointment to it is a nullity for some reason or because the public office in question does not exist in law. For quo warranto to be available, the office in question must de facto be held by the respondent at the time the application is made and at the time it is granted. Quo warranto may be applied for in combination with mandamus or certiorari.
Interim relief
The court proceedings for writs in many cases involve prolonged litigation. Therefore interim relief is an essential remedy for claimants to avoid their claims in some cases at the end being rendered nugatory in the passage of time. The Sri Lanka (Court of Appeal) Rules 1990, provide for the granting of interim relief, even without issuing notice to other party. Rule 2 of the Court of Appeal (Appellate Procedure) Rules 1990 provides for the granting of interim relief by the Court of Appeal.
Subsection 1 of Rule 2 states as follows:
'every application for a stay order, interim injunction or other interim relief shall be made with notice to the adverse parties or respondents that the applicant intends to apply for such interim relief; such notice shall set out the date on which the applicant intend to support such application and shall be accompanied by a copy of the application and the documents annexed thereto'.
However, more importantly, the proviso to section 2(1) of the said Court of Appeals Rules provides for granting of interim relief even without such notice being given. The said Rule provides as follows;
‘(a) interim relief may be granted although such notice has not been given to some or all of the respondents if the Court is satisfied that there has been no unreasonable delay on the part of the applicant and that the matter is of such urgency that the applicant could not reasonably have given any such notice, and
(b) in such event the order for interim relief shall be for a limited period not exceeding two weeks sufficient to enable such respondents to be given notice of the application and to be heard in opposition thereto on a date to be then fixed'.
Circumstances under which interim reliefs are granted by our Courts were discussed in a number of landmark cases such as Billimoria v Minister of Lands, Duwearachchi and Another v Vincent Perera and, Mahaindasoma v Mithripala Senanayake and Others. Also in the case of Duwearchchi and Another v Vincent Perera and Another, the Court of Appeal held that the court should be guided by the following principle when granting interim relief.
1) will the final order be rendered nugatory if the petitioner is successful?
2) where does the balance of convenience lie?
3) will irreparable and irremediable mischief or injury be caused to either party?
Thus the law permits granting of interim relief in the form of a stay order, in the event it appears to the Court that the refusal of the interim order would render the final order nugatory if the petitioner is successful. Therefore, it is vital that this remedy be effectively granted to claimants in cases where the three principles propounded in the Duwearchchi and another v Vincent Perera and another has been adequately satisfied.
(Concluded)
(Prof. Sarath Mathilal de Silva is a regular columnist discussing legal matters that he thinks are useful to readers)
