One of the main issues in every legal system is the long drawn out delay in the litigation. In terms of the Sri Lankan legal system, justice is carried out through judicial tribunals established through the Constitution and through laws passed by Parliament to exercise judicial authority and the judicial power of the people. Hence the judiciary plays an important role in the lives of the people.
When you address the question of law’s delay a significant portion of litigation currently pending in courts originate through bad administrative decisions or administrative inaction. During ancient times, the king functioned as the head of the executive, the head exercising legislative power and also the head executing judicial power. In other words, he was very powerful and was the final authority on all these matters.
However, with the breakdown of the monarchical system of the world and the increase in population, the integration between countries and due to the rapid economic growth which took place in the 19th century there arose a situation where the king could not any longer single handedly handle all these powers. Therefore, power had to be delegated.
In ancient times the primary objective of governance was to maintain law and order, collection of revenue, and maintaining economic standards. Since the commencement of the delegation of powers sometimes to subordinate officers of the king and sometimes to ad-hoc tribunals, it was necessary to maintain uniformity in their decisions. In other words, in most of these instances the functionary or the tribunal was placed in a position where they had to exercise discretion. They would either take a decision in favour of a person or against him.
When discretionary authority is granted to an individual or a tribunal it is necessary to apply uniform standards in their functions. Eventually, there developed a situation where most of such discretionary authority was exercised by individuals or tribunals established statutorily.
Doctrine of ultra-vires
In most legal systems discretionary authority of individuals is controlled in two forms.
A. Political control exercised through Parliament
B. Legal control exercised through courts
The above control is generally referred to as the doctrine of ultra-vires. This is the concept which developed under English Law principles and which is in existence in our legal system today.
Basically, this means the statutory functionary or the tribunal ought to have acted legally. A decision of an administrative tribunal is considered to be legal or intra-vires decision, meaning a decision within the law only if the tribunal has taken the decision acting within his power, without exceeding his power, without abusing his power, and acting reasonably.
The power that a tribunal can exercise is specified in the Statute of Parliament through which it is appointed. Accordingly, the tribunal cannot do anything which is outside the power given to him. If he does so the act becomes invalid on the basis that he has acted without authority or ultra-vires.
Sometimes the tribunal may act within the power given to him by Parliament but without following the procedure specified by Parliament. In such a situation the tribunal is deemed to have acted exceeding its authority and, in this instance, too the decision is considered invalid.
The third situation where a decision of an administrative tribunal would become invalid in law is when it has abused its powers. An abuse of power would take place if the tribunal making the decision has a hidden interest in the subject matter before him. An abuse would also take place where the tribunal has a personal interest or a financial interest in the decision that is about to be made.
Administrative decisions affect the daily lives of ordinary people. Every time a government officer decides to give a licence or cancel a licence or decides to give a permit or cancel a permit or decides to award a tender or cancel a tender, he must ensure that he acts legally. In other words, he must have the power to do so, he must follow the procedure specified in the Statute and he cannot abuse his powers. He cannot take into consideration personnel relationships, pecuniary interest, or personal benefits.
Wrong decision
In South East Asian countries personal interest and political considerations play a huge role relating to administrative decisions. This should never be encouraged.
If a person is affected by a wrong decision of an administrative tribunal, he could make an application to court to nullify or quash the decision. In such situations affected parties go before court and pray for writs of certiorari or prohibition.
Sometimes it is common in Sri Lanka to experience public authorities refraining from taking decisions. They keep postponing their decision or wrongly refuse to take decisions. This is called administrative inaction, while writs of certiorari and prohibition deal with wrongful administrative decisions the relief for administrative inaction is to seek a writ of mandamus.
The Sri Lankan society is heavily dependent on the State. The State is involved with the lives of people at every point, whether it is for getting approval to build a home, or obtaining permit for the land, or obtaining a licence to possess material, and so forth..
If you take the workload of the courts exercising writ jurisdiction a sizeable amount of work or litigation pending in such courts are based on bad administrative decisions or administrative inaction.
While Parliament lays down the power and the manner in which such power should be exercised by an administrative functionary, the courts are permitted by the Constitution to question the validity of such decisions.
It is my experience that in most instances these decisions are taken for wrongful reasons, namely, political reasons and personal reasons. My experience demonstrates that most persons in the public sector who are situationally empowered to take decisions affecting the lives of people are either ignorant of the manner such a decision needs to be taken or are blind to the concept of legality.
One of the problems I find in Sri Lanka is the lack of training of such persons in this regard. Recruitment in the public sector is done on an examination basis. At no stage are they provided any type of training on the exercise of discretion. Hence it is inevitable that they would make mistakes. The courts will not hesitate to declare an illegal decision as an invalid decision.
In my view, the Government must focus on a proper training program to all state sector functionaries involved in taking decisions affecting the lives of people, on how administrative decisions should be taken. This should be a top priority of any government. The legal profession will provide any assistance for such program. They must be trained in the legality of decisions, proper exercise of power, duty to act within the power, duty to follow the prescribed procedure in taking a decision, not take irrelevant considerations into account, and only consider what is relevant. Also, hear all parties to a dispute before a decision is taken and not have any personal pecuniary or subject matter interest.
If this training can be provided the public sector functionaries would make better decisions which would remove a sizeable workload handled by the courts.
- Aanya W.