{"id":60597,"date":"2012-11-17T07:23:14","date_gmt":"2012-11-17T07:23:14","guid":{"rendered":"http:\/\/www.colombotelegraph.com\/?p=60597"},"modified":"2012-11-18T18:19:15","modified_gmt":"2012-11-18T18:19:15","slug":"natural-justice-by-the-wayside-in-public-interest-litigation","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/natural-justice-by-the-wayside-in-public-interest-litigation\/","title":{"rendered":"Natural Justice By The Wayside In Public-Interest Litigation?"},"content":{"rendered":"

By Rohan Samarajiva<\/a><\/span> –<\/strong><\/p>\n

\"\"<\/a>

Dr. Rohan Samarajiva<\/p><\/div>\n

To respond to a question in your publication about whether people had spoken out against Sarath Silva<\/a><\/span>‘s behavior while CJ, I looked for old pieces. \u00a0I found a piece I had written for Montage and another published in the Mirror. Sadly, no longer available on the web.<\/p>\n

Natural justice by the wayside in public-interest litigation?<\/strong><\/p>\n

A former President was found to have abused her powers and fined. A powerful government official was drummed out of all his positions.\u00a0 A conglomerate was compelled to reverse a lucrative privatization transaction.\u00a0 A land deal, suspect from the start, was annulled.\u00a0\u00a0 Electricity prices were reduced, perhaps.\u00a0 Noise pollution is stopped, maybe.<\/p>\n

Draconian TV licensing and control regulations have been stayed.\u00a0 Charging for polythene bags by supermarkets has been prohibited.\u00a0 The selective extension of retirement age was reversed.\u00a0 The relevant actors are being pushed to implement the 17th<\/sup> Amendment<\/a><\/span> to the Constitution.<\/p>\n

The recent hyper-activism of the Supreme Court has opened the floodgates of public-interest litigation.\u00a0 It is seen as the one place where justice will be done; where decisions will be taken; the one element that works in a dysfunctional system.<\/p>\n

Fumbles are rarely recalled. School admission is as broken as ever. Even the appearance of resolution was lacking when the Court tried to resolve salary anomalies so Advanced-Level exam scripts could be marked without delay.<\/p>\n

It is not that the Supreme Court has been supremely effective, but the overall impression is highly positive.\u00a0\u00a0 But is justice being done?<\/p>\n

Let us take a case seen as one of the greatest successes of the Silva Court, the ruling made on the privatization of Lanka Marine Services Limited in an application under Article 126 of the Constitution made by Mr Vasudeva Nanayakkara<\/a><\/span> (SC\/FR 209\/2007).<\/p>\n

The mystery of the BOI-exemption finding<\/strong><\/p>\n

The Financial Times<\/em> of November 23rd<\/sup> , 2008 reported that \u201ca fundamental rights petition filed by public interest activist Vasudeva Nanayakkara against John Keells Holdings (JKH) and Lanka Marine Services (LMS) on the ‘illegal’ tax concessions the company received from the Board of Investment (BOI) during privatization is due to come up before the Supreme Court on Thursday.\u201d<\/p>\n

It stated further and without comment that \u201cthe recent LMS Supreme Court judgment [the above cited CS\/FR 209\/2007] \u2013 in which the privatisation was overturned — dealt with the BOI concessions where they were revoked and LMS was ordered to pay taxes in the amount of Rs.375 million based on formal assessments by the Inland Revenue Department.\u201d<\/p>\n

The Court did, clearly and conclusively, rule on the tax exemption back in July:\u00a0 \u201cThe tax relief granted to JKH was not permissible under the existing Regulations and JKH got an amendment tailor made for its purpose and secured the tax exemption\u201d (pp. 60-61).<\/p>\n

How can a matter on which a decision was made in July 21st<\/sup>, 2008 come up for hearing on November 27th<\/sup>, 2008?\u00a0 This is the mystery.<\/p>\n

No answer was provided by the FT. \u00a0The one thing it reported was that the respondents include \u201cthe current BOI Chairman Dhammika Perera, then BOI Chairman Arjuna Mahendran, [and] former Commission General of Inland Revenue A.A. Wijepala.\u201d \u00a0These individuals, obviously essential for the determination of the legality of the exemption are not among the respondents in CS\/FR 209\/2007.\u00a0 Was the BOI exemption framed as an issue?\u00a0 In the absence of these parties, was relevant evidence obtained and tested through examination and cross examination in CS\/FR 209\/2007?<\/p>\n

How could a finding have been made in a case where relevant parties, the then Chairman of the BOI in particular, had no opportunity to state their side of the case and attempt to clear their names?\u00a0\u00a0 How could this finding have been made in a case where the tax exemption was most likely not an issue (implied by the fact that the same Petitioner had made a separate application on that matter)?<\/p>\n

Natural justice<\/strong><\/p>\n

Cane, An introduction to administrative law<\/em>, third edition, Clarendon, p. 160, describes \u201ca set of common law procedural rules are known collectively as \u2018the rules of natural justice.\u2019\u00a0 The rules of natural justice embody two main principles:\u00a0 the rule against bias, which requires that a person must not be judge in his or her own cause (nemo iudex in sua causa<\/em>); and that a person must be given a fair hearing (audi alteram partem<\/em>).\u201d<\/p>\n

The elements covered by the fair-hearing rule include:\u00a0 \u201cnotification of the date, time, and place of hearing, notification in more or less detail of the case to be met, adequate time to prepare one\u2019s case in answer, access to all the material relevant to one\u2019s case, the right to present one\u2019s case orally or in writing or both, the right to examine and cross-examine witnesses (including one\u2019s opponent), the right to be represented (perhaps by a qualified lawyer), the right to have one\u2019s case decided solely on the basis of material which has been available to (and so answerable by) the parties [some authorities see this as the third rule of natural justice], the right to a reasoned decision which takes proper account of the evidence and answers one\u2019s case.\u201d (p. 161)<\/p>\n

John Keells, the BOI officials and the others capable of speaking to the veracity or otherwise of the complex facts behind the statement \u201cthe tax relief granted to JKH was not permissible under the existing Regulations and JKH got an amendment tailor made for its purpose and secured the tax exemption\u201d may have been preparing their answers for the hearing in the different case scheduled for the 26th<\/sup> of November, not for CS\/FR 209\/2007.\u00a0\u00a0 Indeed, some of them had not even been noticed in CS\/FR 209\/2007.<\/p>\n

Even if evidence had been presented on the BOI exemption, only documents were allowed; no witnesses.\u00a0\u00a0 What of examination and cross-examination of witnesses?\u00a0 Were those whose good names have been impugned given an opportunity to test the evidence?\u00a0 Even if they had been named as respondents, would they have been allowed to cross examine under the summary procedure through which the Supreme Court hears applications under Article 126?<\/p>\n

It appears prima facie from the facts stated above that the second rule of natural justice has been breached in CS\/FR 209\/2007.\u00a0 John Keells, the current and past Chairmen of the BOI, and the then Commissioner General of Inland Revenue are being called to a hearing in November on a matter decided four months ago in CS\/FR 209\/2007.<\/p>\n

Of course, as an adherent of natural justice, I cannot reach a final conclusion on this matter (even though I wield no formal power of any kind), until the affected parties have had an opportunity to present their sides.<\/p>\n

The importance of how<\/strong><\/p>\n

In a different context, Dov Seidman has been quoted as arguing that \u201cin our\u00a0hyper connected\u00a0and transparent world, how you do things matters more than ever<\/strong>, because so many more people can now see how you do things, be affected by how you do things and tell others how you do things on the Internet anytime, for no cost and without restraint.\u201d<\/p>\n

\u201cIn a connected world, countries, governments and companies also have character, and their character \u2014 how they do what they do, how they keep promises, how they make decisions, how things really happen inside, how they connect and collaborate, how they engender trust, how they relate to their customers, to the environment and to the communities in which they operate \u2014 is now their fate.\u201d<\/p>\n

When I studied law, one of the fundamental lessons drilled into me was the absolute importance of the Law of Civil Procedure, the Law of Criminal Procedure and the Law of Evidence.\u00a0 This was the formalized \u201chow,\u201d more important than the \u201cwhat\u201d of the Laws of Property, Contracts, Persons, etc.<\/p>\n

Now it appears that we have forgotten the importance of how<\/strong> in the most sacred of our public institutions.\u00a0 Not even a token protest is raised when natural justice is violated, not only by the lawyers who should know better (with the honourable exception of Deshamanya R.K.W. Goonesekere), but by everyone.\u00a0 No questions are raised when the Court careens through a multitude of complex public-policy issues at high speed.<\/p>\n

We exult in the \u201cwhat\u201d of decisions being taken and the mighty being brought to their knees.\u00a0 We participate in the reproduction of injustice by taking more and more cases likely to be decided under summary procedure in violation of natural justice.\u00a0 By our silence and our actions we are complicit in the violation of the \u201chow.\u201d<\/p>\n

What does this say about our character?\u00a0 And thereby, our fate?<\/p>\n

Judicial activism ,\u00a0<\/strong>policy paralysis<\/strong><\/h1>\n

By\u00a0Rohan Samarajiva –<\/strong><\/p>\n

The Supreme Court has over the past year issued several decisions that significantly change the climate for policy making and implementation in Sri Lanka.\u00a0\u00a0 The Court has, among other things, overturned one privatization (Nanayakkara v. Choksy<\/em>, hereafter the Lanka Marine Services case) and annulled one land alienation by the Urban Development Authority (Mendis v Kumaratunge<\/em>; herafter the Water\u2019s Edge case).\u00a0\u00a0 In the process, the Court has rewritten the rules of policy and implementation.<\/p>\n

In a previous article (Montage<\/em> 2(10):\u00a0 15-16), I described the current wave of judicial activism as a workaround.\u00a0 As with all workarounds, it is a response to a dysfunctional system:\u00a0 a \u201cdo nothing legislature [that] is not making the right laws . . . , [an] incompetent opposition . . . and the inept executive [that] is doing nothing or not implementing laws and policies\u00a0 correctly.\u201d<\/p>\n

Is judicial involvement in, or indeed a judicial veto on, policy, especially at the interface of government and private enterprise a good thing?\u00a0 The question can be answered in two parts.\u00a0 First, the question of whether economic policymaking by the judiciary is a good thing is examined.\u00a0\u00a0 Second, the manner in which the evidence has been considered and decisions made in the recent cases is assessed.\u00a0 Finally, the broad ramifications are discussed.<\/p>\n

Judicial policymaking<\/strong><\/p>\n

Montesquieu was right.\u00a0 Separation of powers is necessary.\u00a0\u00a0 Checks and balances to ensure that powers are not abused are essential.<\/p>\n

Power in traditional monarchies was concentrated in the person of the King, except perhaps to a limited extent religious\/cultural power.\u00a0\u00a0 It is dangerous to concentrate such power in one person.\u00a0 Even if that were not a concern, it would be simply inefficient for power to be so centralized and undifferentiated in the far more complex societies of the present.<\/p>\n

So, specialization and differentiation are good things.\u00a0 There should be an entity to exercise legislative power, ideally representing the People.\u00a0 There should be a separate executive arm to get things done.\u00a0\u00a0 Ideally, there would be two layers within the executive arm, a political layer that directs the other larger layer made up of bureaucrats (not here used as an epithet) or those who follow procedure.\u00a0 The directive layer should be responsible for policy and be politically accountable.\u00a0 The bureaucracy should be responsible for implementation and be administratively accountable.<\/p>\n

Both layers would be governed by legislation, but, unavoidably, each would have to exercise discretion because not every exigency can be addressed in legislation, however detailed.\u00a0 Therefore, checks and balances on the executive are essential.\u00a0 The primary check on the executive is the control of the budget by the legislature.\u00a0 In some systems there is an elaborate system of oversight by committees of the legislature.\u00a0\u00a0 The other check is the judiciary.<\/p>\n

The bureaucracy has the most pervasive effect on citizens.\u00a0 Without them, essential services would not be provided (directly or through others).\u00a0\u00a0 In a broader sense, even the core law-and-order functions of government would not be provided without the bureaucracy, which is an encompassing term that includes the military and the police.<\/p>\n

Though they are not the most obvious or visible of the judiciary\u2019s functions, checking the legislative and executive arms of government is paramount among them.\u00a0\u00a0 This is a key role even in pure Westminster models, where the legislative and executive branches are not separated.\u00a0 The effective control of the legislature (by preventing it from transgressing the Constitution) and the executive are the only safeguards for a society governed by law, and not by men (or women).<\/p>\n

Separation of powers and checks and balances are most visible in the US system of government, but the elements are found in most systems of government.\u00a0 For example, the judiciary served as a check on the legislature through Article 29(2) of the Soulbury Constitution.\u00a0 Through its writ jurisdiction, it also served as a check on the executive.\u00a0 As evidenced by the Bracegirdle case (39 NLR 153), the courts checked the executive even in colonial times.\u00a0 Despite the absence of justiciable fundamental rights, the courts limited executive actions that exceeded authority or violated natural justice.\u00a0\u00a0 Since 1978, under a Constitution that includes justiciable fundamental rights and embodies separation of powers, albeit muddied by the requirement of making MPs Cabinet members, the role of the judiciary has become even more important.<\/p>\n

There is a difference between ensuring proper exercise of executive discretion (within the bounds of the authority conferred by the legislature and in accordance with the principles of natural justice) and substituting the discretion of the court for that of the executive.\u00a0 In the former, the judiciary simply looks at the process, deferring to the political or bureaucratic authorities on substance.\u00a0 In the latter, the judiciary engages in policy making and\/or implementation, questioning the substance of decisions by individual officials, by committees including technical evaluation committees or tender boards, and even by Cabinet.\u00a0 It may not stop at questioning decisions and annulling them, but it may intrude further and set out detailed guidelines for the exercise of executive power.\u00a0\u00a0 The most extreme form is where the Court monitors implementation.\u00a0 The Lanka Marine Services and Water\u2019s Edge cases are examples of intrusive policymaking by the judiciary.<\/p>\n

Until recently, the 1956 dictum of the Supreme Court that \u201cthere is no authority in law for the substitution of the decision or discretion of the court in place of the decision or discretion of the Minister\u201d (John Nadar v. Vanden Drieesen<\/em>, \u00a058 NLR 85) was the law of the land.<\/p>\n

Walking the fine line between checking executive and legislative power and usurping those powers, especially when those branches of government are perceived to be inept or corrupt or both, is not easy.\u00a0\u00a0\u00a0 But the temptation should be resisted, because the judiciary is not equipped either through training or resources to perform legislative or executive functions.\u00a0\u00a0 Furthermore, if the judiciary, especially the Supreme Court, were to perform these functions, what will check its power?\u00a0 Quis custodiet ipsos custodes<\/em>?<\/p>\n

There is only one check on the judiciary:\u00a0 Article 107 of the Constitution, which states, inter alia, that:<\/p>\n

(2) Every such Judge [of the Supreme Court and the Court of Appeals] shall hold office during good behaviour, and shall not be removed except by an order of the President made after an address of Parliament, supported by a majority of the total number of Members of Parliament (including those not present) has been presented to the President for such removal on the ground of proved misbehavior or incapacity.<\/p>\n

(3) Parliament shall by law or by Standing Orders provide for all matters relating to the presentation of such an address, including the procedure for the passing of such resolution, the investigation and proof of the alleged misbehavior or incapacity and the right of such Judge to appear and to be heard in person or by representative.<\/p>\n

How did the Court do as a policymaker?<\/strong><\/p>\n

Unlike similarly placed courts in other countries, the Supreme Court in Sri Lanka relied on its own resources and moved at great speed even when faced with issues that were by its own admission \u201ccomplex\u201d (p. 6, Water\u2019s Edge case ruling).\u00a0 In India, the Supreme Court compelled the executive in Greater Delhi to implement a conversion to Compressed Natural Gas (CNG), engaging in intrusive policymaking and implementation.\u00a0\u00a0 However, it took a whole decade to do it, drawing on various expert committees and giving extensive opportunities for the executive to do the right thing.\u00a0\u00a0\u00a0 In contrast, the entire Water\u2019s Edge proceeding took four and a half months; arguments were heard on three days only.<\/p>\n

Recent \u201cpolicymaking\u201d cases have been heard under summary procedure, which does not allow for verifying the evidence and for the mounting of adequate defenses in complex cases, let alone the vigorous testing of contending viewpoints essential for policy formulation.\u00a0 The evidence was in the form of affidavits and documents, with little attention paid to the provenance of documents.\u00a0 The option of getting a lower court to use the regular procedure to make findings on facts has not been employed.<\/p>\n

In several instances findings have been made contrary to natural justice.\u00a0\u00a0\u00a0 The alienation of land in Narahenpita to \u201cLifestyle Health Services (Private) Limited\u201d as well as the former President\u2019s actions in that regard, described in the Water\u2019s Edge judgment (pp. 44-45; p. 61) do appear malodorous.\u00a0 But, how can a case about land in Battaramulla include a decision on land alienated to other people in Narahenpita?<\/p>\n

The principles of natural justice require that the parties with interests be given a fair hearing and that decisions should be made on the material before the unbiased decision-maker.\u00a0\u00a0 Lifestyle Health was not a party to the Water\u2019s Edge case.\u00a0 It does not appear that the former President was given an opportunity to state her side of the Narahenpita alienation story.<\/p>\n

Similarly, a main finding of the Lanka Marine Services case (p. 56) was that its tax exemption had been obtained in a \u201cfalse and illegal manner.\u201d \u00a0With regard to the Narahenpita land, it could at least be claimed that the Supreme Court did not make a final decision, merely ordering the Bribery Commission to fully investigate the transaction.\u00a0 Lifestyle Health and the former President had a forum left in which to present their sides of the case.<\/p>\n

In the Lanka Marine Services case, the decision was final; it ordered the payment of at least LKR 375 million to the government (Financial Times<\/em>, 23 Nov 2008: p. 1) and impugned the good names of several individuals and companies.\u00a0 The case did not include the present and past Chairmen of the Board of Investment (BOI), which was alleged to have granted the unlawful tax exemption and the Commissioner General of Inland Revenue as respondents.\u00a0 All parties, including the petitioner, appear to have implicitly agreed that the BOI matter would be dealt with in a separate case initiated by the same petitioner where the appropriate parties were listed as respondents.<\/p>\n

The dramatic decisions issued in rapid succession have understandably attracted many litigants to the Supreme Court, which continues to churn out decisions on all sorts of complex issues every few weeks.\u00a0 \u00a0The spike in the Court\u2019s productivity raises two questions, at least.\u00a0 If all these complex cases can be disposed of so quickly, why does the larger legal system that comes under the stewardship of the Chief Justice take so long to decide simpler cases?\u00a0 Alternatively, has the speed of decision making compromised their quality?\u00a0\u00a0 Justice delayed, people are fond of saying, is justice denied.\u00a0 Can the same also be said of high-speed justice?<\/p>\n

Broad ramifications<\/strong><\/p>\n

Injustice has been done to companies, officials, agencies and politicians by the recent overbroad decisions, taken in some cases in violation of the principles of natural justice.\u00a0\u00a0\u00a0 But that is not all.<\/p>\n

The broad sweep of judicial activism has signalled to all who make economic policies and implement them that it is no longer enough to follow procedure, but to act in ways that would be acceptable to a future Court (among other things, the Court has annulled Article 126(2) of the Constitution that required fundamental rights cases to be brought within one month of the alleged infringement) or to ensure that no one will be offended by the decision, thereby precluding a fundamental-rights challenge.\u00a0\u00a0 These being impossible, the best course of action is inaction.<\/p>\n

This is worse than what happened with government-personnel decisions a decade or so ago.\u00a0\u00a0 As a result of the strict jurisprudence of the then Court, it became almost impossible to give promotions and increments in government service on grounds other than seniority.\u00a0\u00a0 In the face of admittedly arbitrary actions by government officials and driven by the ideology that government service was a right not a job, the courts threw out the baby with the bathwater, leaving only the scum of the seniority criterion.\u00a0\u00a0 But at least, people in government knew what the rule was and what it applied to:\u00a0 personnel decisions.\u00a0\u00a0 Now, there is no such certainty or delimitation.\u00a0 All executive actions are fair game.\u00a0 The rule is that there is no rule; one has to guess what the Supreme Court would find acceptable.<\/p>\n

Is it worthwhile trying to figure out what the present judges would decide? \u00a0No, because the time limit on instituting cases has been thrown out.\u00a0\u00a0 So the decision maker has to guess what would be acceptable to any court in the present and in the future.<\/p>\n

So what is the end result?\u00a0 Policy paralysis, something we can ill afford in a fast changing world.\u00a0 We have come full circle.\u00a0 The workaround for inept and\/or corrupt policymaking and implementation was judicial activism.\u00a0\u00a0 Judicial overreach exacerbated the problems of the policy process, paralysing it.\u00a0\u00a0 Attempting to treat the patient, the Supreme Court has aggravated the disease.<\/p>\n

What is the workaround for this?\u00a0 Moderation would be a good place to start.<\/p>\n","protected":false},"excerpt":{"rendered":"

[…]<\/p>\n","protected":false},"author":22,"featured_media":59228,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,46,8],"tags":[6525],"class_list":["post-60597","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-colombotelegraph","category-constitutional-reforms","category-editorial","tag-vasudeva-nanayakkara-against-john-keells-holdings-jkh-and-lanka-marine-services-lms"],"yoast_head":"\nNatural Justice By The Wayside In Public-Interest Litigation? - Colombo Telegraph<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.colombotelegraph.com\/index.php\/natural-justice-by-the-wayside-in-public-interest-litigation\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Natural Justice By The Wayside In Public-Interest Litigation? 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