Continued from last week
It is for a court to determine whether the body in question has acted intra vires or ultra vires. (that is inside or outside its powers). Judicial review represents a means by which the sovereignty of Parliament is upheld and the rule of law applied. In the United Kingdom Council of Civil Service Unions v Minister for Civil Service, the House of Lords identified the categories of the decisions which could be immune from judicial review and the list is not exhaustive: they are the making of treaties, the dissolution of Parliament the appointment of Ministers, declarations of war and peace and matters relating to granting of honours.
What unites these categories is the fact that each involves matters of high policy which is most appropriately determined in the eyes of the judiciary not by the courts but by the executive. Where this applies it may be said that the rule of law is undermined by respect for the doctrine of separation of powers: an ironic consequence. The doctrine of judicial review nevertheless represents a bedrock for the application of the rule of law, keeping those with lawmaking and discretionary powers within the law.
United States of America
An important aspect of the rule of law in its application to the United States of America is the concept of ‘due process’. The fifth Amendment (1791) provides that no person shall be deprived in any criminal case of life, liberty or property without due process of law and the 14th Amendment (1868), that no State shall deprive any person of life, liberty or property, without due process of law nor deny to any person within its jurisdiction the equal protection of the laws.
The due process clause of the 5th Amendment was thought to have been descended from the Latin phrase ‘per legem terrae’ (according to the law of the land), in Clause 39 of Magna Carta. (1215). The ‘due process’ clause of the 14th Amendment – a clause which has resulted in more litigation than any other provision of the Constitution (with the possible exception of the common clause) – was added from the 5th Amendment to the original draft of the 14th Amendment in the many debates upon the latter.
Around ‘due process’ has turned the discussion of many of the basic liberties of the American citizen, and many of the protections which in England would be derived from the general concept of the rule of law are in the United States the direct results of the interpretation of ‘due process’. Fair trial, freedom from search and seizure, freedom from self – incrimination and coerced confessions, right to counsel, equal treatment before the law – all these and many more facets of the rule of law reach American citizens through the ‘due process’ clause.
India
Despite narrow conception by Dicey impeding its growth in some cases, Indian cases stand as pioneering examples of what an imaginative court could do with this notion. In S.P Gupta v Union of India, nine Judges of the Supreme Court of India ruled in favour of a public interest suit (public interest litigation) filed by certain lawyers as a writ petition.
In this judgment, Bhagawathi J., said: “If there is one principle which runs through the entire fabric of the Indian Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary.”
The Courts have also stated that Public Interest Litigation (PIL) supports the maintenance of the rule of law. The majority of the cases have revolved around alleged excesses by these state or state agencies and the judges have referred to the need to restrain the different organs of government to their respective spheres.
The Indian Supreme Court had through PIL altered drastically the jurisprudential landscape of the Indian sub-continent impacting Sri Lanka as well. Accordingly, PIL has given a new complexion to the Indian legal system. At a procedural level, it has relaxed considerably the rule of standing and given a new dimension to the traditional rules of court procedure. At a substantive level, the courts delved deep into areas of governmental actions and non- action and subjected it to intense scrutiny.
Sri Lanka
In Sri Lanka too, the principles drawn from the rule of law doctrine have proved effective instruments for the control of arbitrariness and the protection of the citizen’s right through the exercise of the fundamental rights jurisdiction under Article 126 of the Constitution. The fundamental rights recognised by the Constitution which embrace a fair number of specific human rights have been broadly interpreted by the Supreme Court, and such interpretations are positive developments that illustrate the usefulness of the rule of law doctrine in the recognition of these rights.
Principles deducible from the doctrine of the rule of law have also greatly contributed to the application and the interpretation of the right to equal treatment and equal protection of the law. These developments approximate the recognition of the American doctrine of ‘due process’ in the elucidation of the right to equal treatment and other human rights and values which have been recognised in our law. It is specially the rule of law doctrine which binds these two elements together through the judicial process, which then brings up the question how human values and human rights come to be recognised in the process of adjudication.
The applicability of the rule of law in fundamental rights jurisdiction through equality was further expanded and articulated by Fernando J in the case of Jayawardena v Wijayatilake, Secretary Ministry of Justice and Constitutional Affairs and Others, in respect of the termination of the holder of the office of Inquirer into Sudden Deaths, where it was held that: respect for the rule of law requires the observance of minimum standards of openness, fairness and accountability in administration and this means - in relation to appointments and removal from offices involving powers, functions and duties which are public in nature - that the process of making a decision should not be shrouded in secrecy.
In arriving at this decision, it was held that a denial of natural justice prior to the cancellation of the petitioner’s appointment was violative of Article 12(1) of the Constitution. The Supreme Court has also begun to use the rule of law in an imaginative way.
In Gunaratne v Petroleum Corporation, the court stated that the principle of equality before the law embodied in Article 12 is a necessarily corollary of the concept of the rule of law. As a result, Article 12 prohibited arbitrary, capricious or discriminatory action. The court observed that the powers vested in the State, public officers, and public authorities are to be held in trust for the public to be used for the public benefit and not for an improper purpose.
In Wickrematunga v Ratwatte, which dealt with the termination of a dealership of the Petroleum Corporation, Court cited Gunaratne case and observed that Article 12 combines elements of the rule of law and elements of the 14th Amendment of the American Constitution. The Court wondered whether it was because of this linkage that there had been a proliferation of applications under Article 12. It
is well settled that a statutory public corporation such as the Ceylon Petroleum Corporation must in good faith and must act reasonably. Such a body must act upon lawful and relevant grounds of public interest. The fact that the 1978 Constitution and system of Government was founded on the rule of law was referred to in Premachandra v Major Montague Jayawickrama to prevent the erosion of that foundation was the primary function of an independent judiciary.
Unfettered discretion cannot exist where the rule of law reigns. The rule of law demands that discretion be restricted. The propriety of the exercise of such discretions was to be judged by reference to the purposes for which they were entrusted. In Priyangani v Nanayakkara, the Supreme Court stated that Article 12 contains ‘safeguards based on the Rule of Law’ which provide against arbitrary and unreasonable action and added that discretionary power can never be treated as absolute and unfettered.
A democratic form of constitution demands that it should be built on theoretical formulations which consider essentials for ensuring achievements of democratic goals and fulfilling aspirations of the people. However, in Sri Lanka due to vast powers concentrated in the Executive Presidency encroaching on and suppressing all three branches of the State, there has been a severe debilitation in the area of the rule of law affecting good governance and liberties of individuals.
The fact that out of 40 years of the operation of our second Republican Constitution of 1978 the country had been ruled under emergency regulations proclaimed by the Executive President for a period of 25 years, thereby naturally poses the question whether this Constitution is the supreme law of the country which guarantees the rule of law.
With the virtual abolition of the 17th Amendment by the 18th Amendment, the powers of the Executive President had been virtually unchecked. Thereafter, the 19th Amendment to the Constitution which abolished the 18th Amendment restoring the rule of law to some extent is a landmark in Sri Lankan democratic governance. While the position was reversed, thereafter, by the 20th Amendment and by the 21st Amendment now, the position appears to have been somewhat restored.
On a balance of all considerations, a need is clear for limitations of some sort upon the restricted appropriation by a few of the earth resources which rightly belong to all. This cannot be achieved without controls.
Conclusion
Negotiating the often – volatile forces of globalisation while managing a process of rapid transformation is not an easy exercise in governance. It is a challenge directed not only at the ruling party, but also to the entire spectrum of political forces that have a stake in order, stability, peace and the welfare of the people. Democratic institutions and practices with the aid of the rule of law need to be strengthened and sustained so that all citizens should enjoy freedom without fear or insecurity.
The rule of law represents one of the most challenging concepts of the Constitution. The rule of law is a concept which is capable of different interpretations by different people. The essence of the rule of law is that of the sovereignty or supremacy of law over man. The rule of law insists that every person irrespective rank and status in society be subject to the law.
For a citizen, the rule of law is both prescriptive – dictating the conduct required by law- and proactive of citizens – demanding that government acts according to law. The rule of law underlies the entire Constitution and in one sense all constitutional law is concerned with the rule of law. The emphasis on the rule of law is a yardstick for measuring both the extent to which the government acts under the law and the extent to which individual rights are recognised and protected by law.
For the rule of law to be respected and applied the legal process – civil and criminal – must exhibit certain features. These features may be categorised as accessibility and procedural fairness. Similar to national level, on an international level too, the rule of law is advanced by international declarations. The expression the rule of law is often referred when democratic liberties are discussed and thus it has become a guarantee of democratic governance.
The rule of law has provided one of the main conceptual bases for administrative law in most Commonwealth countries. Judicial review is the means by which administrative authorities with rule making and administrative powers are confined by the courts within the powers granted to them by Parliament. Thus, judicial review represents the means by which the sovereignty of the people is upheld and the rule of law is applied.
The concept of public trust and the abiding principle that the powers of the State and that of its officials, agents and instrumentalities are held in trust for the public is a necessary corollary of the more generic concept of the rule of law and operates, complements and renders efficacious, the judicial application of the rule of law as a vital check on state and administrative excesses.
His Lordship Sharvananda J in the case of Sirisena and Others v Kobbekaduwa, Minister of Agriculture and Lands makes the following observation on the Rule of Law as also reiterated by the Supreme Court subsequently on numerous occasions :
‘Rule of law is the very foundation of our Constitution and the right of access to the Courts has always been jealously guarded. Rule of law depends on the provision of adequate safeguards against abuse of power by the executive. Our Constitution promises to usher in a welfare state for our country. In such a state, the legislature has necessarily to create innumerable administrative bodies and entrust them with multifarious functions.
They will have power to interfere with every aspect of human activity. If their existence is necessary for the progress and development of the country the abuse of power by them, if unchecked, may defeat the legislative schemes and bring about an authoritarian or totalitarian state. The existence of the power of judicial review and the exercise of the same effectively is a necessary safeguard against such abuse of power.’