Natural Justice Within The Realm of Fundamental Rights - SC

In a recent judgment, the Supreme Court of examined the principles of natural justice and executive action in the context of the Upaly Abeyratne Committee, established by former President Gotabaya Rajapaksa to investigate claims of political victimization. The petitioners argued that they were denied a fair hearing, violating the principle of audi alteram partem and their fundamental rights under the Constitution.

In its judgment, the Supreme Court reinforced the applicability of natural justice principles within the realm of fundamental rights. The court noted:

“….However, our Courts over the time have departed from this stringent approach and has viewed violations of principles of natural justice as a violation of equal protection of law which is a fundamental right guaranteed under the Constitution of Sri Lanka. In cases such as Jayawardene vs Wijethilake, Amerasinghe vs Board of Directors, CWE and Hapuarachchi vs Commissioner of Election our Courts have interpreted the breach of principles of natural justice as an infringement of the right to equal protection of law guaranteed under Article 12 (1) of the Constitution. The modern view of the Court with regard to Article 12(1) of the Constitution is clearly evident in the case of R. Samapanthan vs AG where it was observed that, Art 12(1) which perhaps has the most dynamic jurisprudence in our constitutional law, offers all person’s protection against arbitrary and mala-fide exercise of power and guarantees principles of natural justice and legitimate expectation….”– Justice Vijith K. Malalgoda PC

What constitutes as Executive/Administrative Actions Under FR

In this case, the Supreme Court also has upheld its jurisdiction over the actions of the Upaly Abeyratne Committee, dismissing preliminary objections raised by the respondents who contended that the Commission of Inquiry’s actions did not qualify as executive or administrative actions under the Constitution.

“….there is no basis whatsoever to exclude the conduct of the Commission from the review of the Court under Article 126 of the Constitution read with Article 17 and therefore the preliminary objection taken by 1st -3 rd Respondent pertaining to the jurisdiction of the Court ought to be dismissed. As revealed before this Court, the warrant issued on the 9th January 2020 under the hand of the Secretary to His Excellency the President, by order of His Excellency the President contained specific directions as to the matters that need to be inquired into by the three Commissioners…..” – Justice Vijith K. Malalgoda PC

The court emphasized that while the Constitution does not explicitly define “executive or administrative action,” previous rulings have established a framework for interpreting these terms. The Supreme Court analyzed this claim, citing a history of judicial interpretation to define what constitutes executive or administrative action.

List of Cases on What Constitutes Executive and Administrative Conduct: Several Tests Discussed

Perera vs University Grant Commission – [1978-79-80] 1 Sri LR 128 at 137-138
Wijethunga vs Insurance Corporation – [1982] 1 Sri LR at 5-6.
Rajaratne vs Air Lanka – [1987] 2 Sri LR 128
Leo Samson vs Sri Lanka Air Lines LTD and Others – [2001] 1 Sri LR 94
Ramana vs International Airport Authority of India – AIR 1979 SC 1628
Ajay Hasia vs Khalid Mujib – AIR 1981 SC 487 at 496.
Jayakody vs. Sri Lanka Insurance and Robinson Hotel Company Ltd – [2001] 1 Sri LR 365.
Jayasinghe vs Attorney General – [1994] 2 Sri LR 74 at 81.
Captain Channa D.L. Abeygunawardene vs Sri Lanka Ports Authority and Others – (SC/FR/57/2016 SC Minutes of 20th January 2017).
Faiz vs Attorney General – [1995] 1 Sri LR 372 at 381.
Prameswary Jayathevan vs Attorney General – [1992] 2 Sri LR 356 at 371.
Guneratne vs Ceylon Petroleum corporation – [1996] 1 Sri LR 315.
Wickramatunga vs Anuruddha Ratwatte – [1998] 1 Sri LR 201.
Wijenayake vs Air Lanka – [1990] 1 Sri LR 293.

Case No: SC/FR/27/2021, SC/FR/57/2021, SC/FR/58/2021, SC/FR/74/2021, SC/FR/80/2021, SC/FR/115/2021, SC/FR/125/2021, SC/FR/129/2021, SC/FR/132/2021[Decided on August 09, 2024]

Before: Justice Vijith K. Malalgoda PC, Justice Achala Wengappuli, Justice Arjuna Obeyesekere,