Supreme Court Considers Doctrine of Necessity and Non-Justiciability in Fundamental Rights Case
Court Avoids Reviewing Executive Decisions in Rare Cases of ‘Nonjusticiable’
The Supreme Court recently examined the concepts of non-justiciability and the doctrine of necessity in a fundamental rights (FR) case. The Court discussed how, in rare instances, decisions made by the executive may be deemed non-justiciable, especially when they are grounded in necessity and involve expert judgment to resolve complex issues. In this case, the authorities were tasked with selecting one solution from three available options, with the decision ultimately resting on the experts’ recommendations.
The Court emphasized that when executive decisions involve expert analysis and are made out of necessity to address urgent or complex situations, these decisions may not be subject to judicial review, especially when they are based on limited, reasonable options. Despite acknowledging the violation of the right to equality in the selected solution, the Court concluded that the impugned decision was non-justiciable, and therefore, the Court refrained from reviewing it.
However, ultimately in this case the impugned decision to implement the decision was found to be against the rule of law, as it was not contemporaneously documented by the Commissioner General of Examinations (CGE), which violated established legal precedents. As a result, the Court concluded that the decision, though necessary in some aspects, infringed upon Article 12(1) of the Constitution due to its failure to adhere to proper documentation and procedure.
“…The merits and de-merits of each identified solution must remain a matter for the experts. Based on an objective and diligent consideration of such merits and de-merits of each solution, selecting one solution should be a matter for the Commissioner General of Examinations to decide on and for him alone. In the case of Women and Media Collective v The Attorney General [SC FR 446/2019, SC Minutes of 06.06.2024] this Court has explained in detail the concept of ‘justiciability’ and its inter-relationship with the concept of ‘judicial reviewability’. This Court has observed that, certain decisions though impugned before this Court or the Court of Appeal, would not be judicially reviewable, due to the nature of the impugned decision being ‘non justiciable’. In that regard, this Court has noted that, “there may be certain decisions that cannot be subject to judicial scrutiny founded only upon legal standards and principles (provided conditions precedent to the exercise of the power have been satisfied, the decision concerned is procedurally intra vires, decided upon objectively, is not unreasonable or arbitrary)”. In that judgment, there is a detailed description of the very limited circumstances in which this Court would conclude that a particular impugned decision is not reviewable, as the impugned decision is non-justiciable. Particularly due to implications on the Rule of Law by this Court concluding that an impugned decision is not reviewable, this Court would normally be hesitant to arrive at a finding that a particular decision is not justiciable. However, in my view, it appears clearly that this is one of those very limited situations where this Court should not review the impugned decision on the afore-stated premise, i.e. that the impugned decision is non-justiciable…” – Justice Yasantha Kodagoda PC
Case No: SC/FR 286/2024, SC/FR 287/2024, SC/FR 291/2024, SC/FR 294/2024 [Decided on 31.12.2024]
Before: Yasantha Kodagoda, PC, J. Kumudini Wickremasinghe, J. Arjuna Obeyesekere, J.
