1. Constitutional Underpinnings of Administrative Law in UK and Sri Lanka

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1 Expanding the Scope of Judicial Review using Constitutional Interpretation in Sri Lanka: A Comparative Study of the Development of Judicial Review in UK U.A. Thaksala Udayanganie Lecturer (Probationary), Department of Public and International Law, Faculty of Law, University of Colombo, Colombo, Sri Lanka uathakshila@yahoo.com Introduction: In the context of administrative law, public authorities are given powers either explicitly or implicitly by parliamentary Acts. Therefore public authorities should exercise their powers within the four corners of the Act. The grounds of judicial review are important in this context and up to date judicial review of administrative action has acquired many developments in its application. Though the doctrine of Ultra Vires was considered as the central principle of administrative law it has moved from Ultra Vires rule to concern for the protection of individuals and for the control of power rather than powers or vires. 1 Therefore the present tendency is to uphold the principles of good administration.achieving this purpose, the requirement of fairness is used in its various guises,and it prohibits the fettering or delegation of discretion, abuse of power, arbitrariness, capriciousness, unreasonableness, bad faith, breach of accepted moral standards and so on. 2 In addition a practice has developed where the principle of legitimate expectations is used as a ground for questioning the actions of administrative authorities. 3 On the other hand, the administrative law in Sri Lanka relating to judicial control has developed several principles such as proportionality, legitimate expectation, public trust doctrine and right to equality. There are two ways of challenging the discretionary power of public authorities: writs and fundamental rights. Unlike UK, judicial review in Sri Lanka is based on the constitution. 4 In this context, it is clear that 1 Dawn Oliver, Is the Ultra Vires Rule the Basis of Judicial Review?,Christopher Forsyth, Judicial Review and the Constitution,[ Hart Publishing-2000],p Ibid 1 3 Pierson vs. Secretary of State for the Home Department [1997]3 A.E.R Our Courts have been mindful of the need to protect not only the rights but even the legitimate expectations of the people, and have not forgotten that the power of judicial review is derived from the sovereignty of the people infra 46,p.24 traditional ground of judicial review has been changed both in Sri Lanka and the United Kingdom. In this backdrop, this paper seeks to analyze the development of administrative law in UK and the influence of European Administrative Law jurisprudence on the public law of the UK, second republican constitution and its influence on judicial control of administrative action in Sri Lanka, Sri Lankan judicial attitude towards expanding scope of the control of administrative action, and expand the judicial control through the interpretation of the constitutional provisions. Key Words: Judicial review, Constitutional underpinnings, Constitutional interpretation, Rights based approach 1. Constitutional Underpinnings of Administrative Law in UK and Sri Lanka The United Kingdom is based on Diecy s doctrine of Sovereignty of Parliament. It simply means that any other parallel body is not being recognized. The only justification of intervention of the courts is to promote the effectiveness of the Parliamentary Sovereignty. Therefore Wade &Forsyth have argued that judicial review is based on Parliamentary Sovereignty and no special interpretation of statute. The simple proposition that a public authority may not act outside its powers might fitly be called the central principle of administrative law. Having no written constitution on which he can fall back, the judge must in every case be able to demonstrate that he is carrying out the will of Parliament as expressed in the statute conferring the power. He is on safe DOI: / _ GSTF

2 ground only where he can show that the offending act is outside the power. The only way in which he can do this, in the absence of an express provision, is by finding an implied term or condition in the Act, violation of which then entails the condemnation of ultra vires. 5 But Lord Woolf has remarked that parliamentary democracy is based on the rule of law [t]he courts derive their authority from the rule of law and cannot act in manner which involves its repudiation. 6 According to him judicial control of administrative action is based on the rule of law. The following statement of him provides the best evidence for this. 7 At present, the judicial review of administrative action in UK is articulated in the Human Rights Act of 1998 and it is influenced by European Administrative jurisprudence. Therefore now, the court uses the rights based approach and in this scenario human rights can be empowered by writs. It is facilitated by unwritten constitution in UK. Thus, the present approach of the court is to go beyond the parameters of sovereignty of parliament and is focused on fair and good administration. The above facts are tacitly accepted in UK, and some scholars like Wade & Forsyth support the fact that judicial review is based on parliamentary sovereignty and scholars like Paul Craig, John Laws and Lord Woolf support the fact that judicial review is derived from rule of law. In the Sri Lankan context, a principle is followed with the introduction of the second republican constitution in 1978, namely constitutionalism. It simply means that everything should be done according to the constitution. One of the most salient 5 Mark Elliott, The Ultra Vires doctrine in a Constitutional setting: Still the Central principle of Administrative Law, Christopher Forsyth, Judicial Review and The Constitution,[Hart Publishing- 2000], p Ibid p.87 7 The Judges duty to uphold constitutional rights: to secure order, certainly, but to temper the rule of the state by freedom and justice. In our unwritten legal system the substance of such rights is to be found in the public law principles which the courts have developed, and continue to develop. Parliament may override them, but can only do so by express, focused provision. Since ultra vires consigns everything to the intention of the legislature, it may obscure and undermine the judges duty.more deeply, ultra vires must logically reduce the constitutional norms of public law to the same condition of moral neutrality as in principle applies to legislation, because by virtue of it the decisions of the courts are only a function of parliament s absolute power. It means that the goodness of the common law is as the legislature s wisdom. But the common law does not lie on any such Procrustean bed. Supra note 05, p.108 features of constitutionalism is that it describes and prescribes both the source and the limits of government power. 8 Both aspects of rule of law are that everything must be done according to the law and equality before the law which is enshrined of the constitution. But the only exception to this rule is the immunity given to the executive president of the state by constitution 9 when the position by case law has been changed. 10 When comparing this with the Sri Lankan context, having written constitution helps in laying down the writ jurisdiction and fundamental right jurisdiction as two separate grounds. Therefore, there is no necessity to protect fundamental rights through writs. However concerning the developments of Administrative Law, even in Sri Lanka it is a trend that courts try to follow a right based approach. In view of the fact that Sri Lanka has a fundamental right system like India and USA, the principles of good governance and public trust doctrine have been developed. But it must be noted that these developments are derived from a right based system and not a writ based system 2. The Developments of Administrative Law in UK The doctrine of ultra vires has been described as the central principle of administrative law. 11 Here the empowering Act lays down limits expressly and their application is merely an exercise in construing the statutory language and applying it to the facts. In this context judicial review is not concerned with the merits of a decision or whether the public body has made the right decision. The only problem to solve before the court is whether the public body has acted legally or illegally. In the case of Associated Provincial Picture Houses Limited vs..wednesbury Corporation 12 Lord Green sets out the circumstances in which the courts would intervene. Any administrative act or order which is ultra vires or outside the jurisdiction is void in law i.e. deprived of legal effect. This is because in order to be valid it needs statutory authorization and if it is not with in the powers given by the act it has no legal leg to 8 Walton H. Hamilton, Constitutionalism, R.A. Edwin, Encyclopedia 9 Art.35(1),The Constitution of the Democratic Socialist Republic of Sri Lanka Senarath vs. Chandrika Bandaranayake Kumarathunga,SCFR 503/ H.W.R.Wade & C.F.Forsyth, Administrative Law,10 th Edition,[Oxford University Press-2009], p [1948] 1 KB GSTF

3 stand on. The court will then quash it or declare it to be unlawful or prohibit any action to enforce it. 13 Due to the many criticisms of ultra vires, there is an ongoing debate on the issue that is ultra vires the single juridical basis of judicial review or whether it has other foundations. Mark Elliot observes it as follows: 14 Lord Woolf has described ultra vires as a fairy tale and John Laws describes it as a fig leaf. 15 But the Wednesbury test was relaxed by subsequent case law. The case of Council of Civil Service Union vs. Minister for the Civil Service 16 (GCHQ case) introduced the threefold division of judicial review which are illegality, irrationality and procedural impropriety and possibility to use proportionality. In addition, in R vs. Secretary of State for the Environment, ex. p. Nottinghamshire County Council 17 Lord Scarman explicitly indicated that wednesbury was not an exhaustive statement of the law. Therefore to fulfill this lacuna Lord Diplock attempts to set out the main grounds of review in a modern way. 18 Judicial Review has I think develop to a stage today when without reiterating any analysis of the steps by which the development has come about: One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call illegality ; the second irrationality and the third procedural impropriety. That is not to say that further development on a case by case basis may not in the course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of Proportionality which is recognized in the administrative law of several of our fellow members of the European Economic Community. Therefore it is clear that the present context of administrative law in UK has moved from Ultra vires to many other grounds. Legitimate expectation is a recently developed ground. In Schmidt vs. Home 13 Supra note 11, p The short comings of the ultra vires doctrine as it is traditionally understood have long militated in favour of its abandonment as the foundation of the existing law of judicial review; in favour of a set of common law rules of good administration -Mark Elliot, fundamental Rights as Interpretative constructions: The Constitutional logic of the Human Rights Act 1998, Christopher Forsyth, Judicial Review and The Constitution,[Hart Publishing-2000],p C. Forsyth, Of fig leaves and Fairy Tales: The Ultra vires doctrine the Sovereignty of Parliament and Judicial Review, Judicial Review and The Constitution,[Hart Publishing-2000] 16 [1985] A.C [1986] A.C CCSU vs. Minister for the Civil Service,[1985] A.C.374 Secretary 19 decision is being considered as the doctrine made come its first time. Lord Denning has stated in this case, The said persons had no legitimate expectation of extension beyond the permitted time and so no right a hearing though revocation of their permits with in the time would have been contrary to legitimate expectation. Therefore it is argued that the European administrative law jurisprudence was influenced by the UK Administrative Law since 1960s.But it was more strongly influenced since 1990s.UK, being a member of European community, had to allow all these grounds of judicial review from its other neighbor countries like Germany and France. However legitimate expectation and proportionality had been recognized in UK implicitly. With the enactment of Human Right Act in 1998, the European Jurisprudence of Administrative Law has been directly introduced to the British system. The preamble of the Act 20 indicates that it will give further effect to the rights and freedoms guaranteed under the European Convention on Human Rights. However prior to implement the Human Rights Act there was a clear cut conflict between the wording of the domestic law and the requirement of the convention. In the case of Taylor Vs. Co- Operative Retail Services 21 Lord Denning described the dilemma. 22 But after the implementation of this Act in 1998; it gains a solution to this dilemma. The Act provides that it is unlawful for a public authority to act in a way which is incompatible with a convention. 23 This Act recognizes concepts like proportionality as grounds for the judicial review of administrative actions. Though proportionality had previously been considered in GCHQ case, there is an overlap between the concepts. The intensity of review is considered greater under the proportional approach. Under the European Convention on Human rights a restriction is placed on a freedom guaranteed by the convention in that it has to be proportionate to the 24 legitimate aim pursued. The doctrine of proportionality is summed up in the phrase not taking a sledge hammer to crack a nut. The implementation of this in a concrete situation is less straight forward. But a Structured Proportionality 19 [1969] 2Ch Human Rights Act [1982] Industrial Cases Report 600at Supra note 11, p. 23 Section 6(1),Human Rights Act Handyside vs. United Kingdom [1976] 1 EHRR GSTF

4 test has emerged from several decisions when assessing whether a decision limiting a right protected under the Human Rights Act 1998 should be upheld or not. 25 In a Structured Proportionality test there are four questions which should be addressed. 26 However all these development have climaxed in protecting human rights. It is simply stated that after 1998, the judicial review on administrative law in UK follows the right based approach. No measure of law reform has had such wide and profound effect on administrative law as has the HRA Second Republican Constitution and its relevancy of Administrative Law in Sri Lanka 3.1 Origin of judicial review in Sri Lanka The historical origin of the public law remedy in Sri Lanka goes beyond British period. Relating to this, the first charter was issued in and it was followed by Ceylon Charter of Justice in Section 22 of the Administration of Justice Ordinance No 11 of 1868 provided full powers to the supreme court to grant and issue according to law mandates in the nature of writs of mandamus, certiorari, procedendo and prohibition against any District court judge, commissioner, magistrate justice or other person or tribunal. Finally under section 46 of courts ordinance, had given wide powers to the Supreme Court to issue mandate in the nature of writs. It is a question that the term according to law means the English Law or any other law. However it was solved in the case Abdul Thasim vs. Edmond Rodrigo 30 In this case Howard CJ stated :This writs specified in the section are unknown to Roman Dutch and Ceylon law and without calling in aid the English law the mandate could not issue and the legislature must be deemed to have enacted a meaningless 25 Supra note 11, p.306-the formulation of the test set out below is based upon the advice of the privy council in De Freitas vs. Permanent Secretary of Ministry of Agriculture Fisheries Lands and Housing [1999] A.C.69 which was adopted by the House of Lords in R.(Daly )vs. Home Secretary [2001] 2 A.C The fourth element in the test set out below is not adopted in these cases but follows from Hung vs. Home Secretary (2007) UKHL Ibid, p See the Assessment by lord Irvine in [2003] PL 308? 28 Article 82 of the Ceylon Charter 29 This charter is empowered the Supreme Court to issue mandate in the nature of writ of mandamus, procedendo and prohibitions against District Court in the field of Civil Law 30 [1947] 48 NLR 121 provision. The courts of Ceylon have also held that the words according to law in section 42 direct the court to issue the writs according to English Law. This interpretation was established by the decision in Nakkuda Ali vs. Jayarathne Introduction of the 1978 Constitution The 1978 constitution has identified the country s writ jurisdiction. Therefore it can be considered as another step forward. Article 140 of the constitution grants the power to Court of Appeal to issue writs and Article 154 P(4) of the constitution grants powers to Provincial High Court to issue writs. Article 140 explicitly provides that Subject to the provisions of the constitution, the Court of Appeal shall have full power and authority to inspect and examine the records of any court of first instance or tribunal or other institution and grant and issue, according to law orders in the nature of writs of certiorari, prohibition, procedendo, mandamus and quo- warronto against the judge of any court of first instance or tribunal or other institution or any other person. 32 In the case Atapattu vs. Peoples Bank 33 it is stated that the provisions relating to Ouster Clause in the Interpretation Ordinance are no more valid law as the writ jurisdiction in constitution and falls within the expression except as otherwise expressly provided in the Constitution in Article 168(1) of the Constitution. 34 Not only the Atapatthu case but the case of Musajee Limited vs.arthur and Others 35 has also recognized this. Justice Weerasooriya held that article 140 of the Constitution prevails over section 22 of the Interpretation Ordinance and went on to state that the ouster clause in section 39(3) of the Ceiling on Housing Property Law therefore does not apply. With the introduction of the 13 th amendment to the constitution, section 154P (4) has empowered the Provincial High Court to grant writs. According to these provisions the Court of Appeal has unlimited jurisdiction to issue writs and Provincial High Court has limited jurisdiction 36 as prescribed by article 154P (1) (a) (b) (i) (ii). In this backdrop, it is argued that the powers of PHC also come under the jurisdiction of Court of Appeal. The reality behind this is that the broader concepts of 31 [1950] 51 NLR A proviso was inserted in 1978 the 1 st Amendment of the Constitution 33 [1997] 1SLR Ibid 35 [2006] 1 SLR Weragama vs. Eksath Lanka Wathu Kamkaru Samithiya,[1994] 1 S.L.R GSTF

5 separation of powers, a system of good governance and the rule of law have not been considered due to political reasons. The result is that Article 140 overlaps with 154 P. 3.3 Development of the Administrative Law in Sri Lanka after 1978 Sri Lankan public law is currently being stirred by a number of different currents. Several can be isolated: the use of administrative law concepts to define constitutional rights; the reliance on constitutional provisions to expand the ambit of the writ jurisdiction; the increasing use of international norms and the application of judicial review standards to political parties. 37 The administrative in Sri Lanka has expanded rapidly from its central principle of ultra vires but this concept has been enshrined in judgments of Sri Lankan courts separately since 1978 in the exercise of the writ jurisdiction and fundamental rights jurisdiction. However these have nurtured the scope of exercising the power of judicial review of a given jurisdiction and accordingly have given finer meaning to the exercise of judicial power of the people by the judiciary and for upholding the rule of law. Apart from the grounds of judicial review such as ultra vires, abuse of discretionary power and rules of natural justice, the grounds of proportionality and legitimate expectation were developed. Dr. Jayantha De Almeida Gunarathne in his article pointed out that Although the very inspiration to recognize a doctrine of legitimate expectations as ground of judicial review may have come from English initiatives ironically as it may appear while such initiatives apparently were taken for the purpose of restricting the right to be heard in introducing such an initiative, it is demonstrable that the Appellate Courts of Sri Lanka, the court of Appeal in its untrammelled jurisdiction under article 140 of the constitution and the supreme court in the exercise of its entrenched fundamental rights jurisdiction, both of which derive their jurisdiction from the concept of peoples sovereignty. 38 The concept of proportionality has been established under the Sri Lankan administrative law since in many cases 39 decided in Supreme Court; it has been accepted as a ground for judicial review. However the final conclusion is that we can agree that proportionality came forward in the phase of human rights through Europeanization of UK and Internationalization of Sri Lanka,. Thus limitations on fundamental rights should be proportionate to the value of relevant right. 40 But with the development of Human rights concepts equal protection of law has been formulated as a right. Within the framework of the 1978 Constitution under Chapter III it is recognized as a fundamental right under section 12(1) and more recently courts have started to observe this in exercising the writ jurisdiction -Mario the Gomez- power must be exercised fairly and without discrimination so as not to infringe on the fundamental right to equality in the constitution. As a result of this interpretation fundamental rights and specifically the right to equality and equal protection with all its ambiguities is emerging as an additional ground of review in a writ application. 41 Several decided cases espoused this approach and the Doctrine of Public Trust and fairness were evolved as two key milestones to support the interpretation of the equality and equal protection which was constitutional guaranteed during this period. Thus the courts have used the concepts of reasonableness, natural justice, legitimate expectation and proportionality to give meaning to fundamental rights contained in the constitution; principally to clarify the content of the equality and equal protection guarantee Used of Fundamental Rights based jurisdiction to challenge Administrative Action Article 126 of the Constitution read together with article 17 entitles a person to invoke the jurisdiction of the Supreme Court in respect of infringement or immediate infringement of fundamental rights enshrined in chapter III of the constitution. The case law in this regard goes back beyond ten years.in the case of Perera vs. Prof. Daya Edirisinghe 43 the court stated that article 12 of the 37 Mario Gomez, Bending Rights with Writs: Sri Lankan public Law s New Brew, ACTA JURIDICA,[Juta Publication-2007], p Dr. J.D.A. Gunarathne, The Scope and Content of the Doctrine of Legitimate Expectation, Junior Bar Law Journal,[Bar Association of Sri Lanka-2006/2007, Vol.II &III,p Premarathne vs. UGC [1993]3 SLR 395, Neidra F do vs. Ceylon Tourist Board and Others [2002] 2 SLR 69,Caldera vs. University of Peradeniya[C.A. Writ No.572/ A.vs. Home secretary (2004) UKHL 56 Abeysekaravs.Competant Authority [2002] 1 SLR Supra note 35, p Ibid 43 [1995 ]1 SLR GSTF

6 constitution read together with the rules of the examination criteria of the University of Kelaniya gave a duly qualified candidate a right to a degree. The University had a duty to award the degree without discrimination even where the university had reserved some discretion.such discretion should be exercised without discrimination so as not to violate Article Since then, there were many decisions which recognized this ground. 45 However, Dr. Gunarathne stated that this judicial pronouncement should be recognized as a significant jurisprudential development, because the importance of the phrase Oder on the nature of writs in Article 140 of the Constitution that vests sovereignty in the people as opposed to prerogative writs known to English Law. 46 It is evident that traditional vires based judicial review of administrative actions have moved towards a right based system of review. In Heather Therese Mundy vs. Central Environment Authority and Others 47 Justice Mark Fernando observes that constitutional principles and provisions have shrunk the area of administrative discretion and immunity, and have correspondingly expanded the nature and scope of the public duties amenable to Mandamus and the categories of wrongful acts and decisions subject to certiorari and prohibition as well as the scope of judicial review and relief Expanding the scope of judicial control within the frame work of the Constitution Judicial review is a great weapon in the hands of the judges; but the judges most observe the constitutional limits set by our parliamentary system on their exercise of this beneficent power Lord Scarman 49 In view of the above facts, administrative law of Sri Lanka has moved towards a right based approach. But the significant feature is that there are two separate jurisdictions for judicial review of 44 Ibid,p Karunadasa vs. Unique Gem Stones [1997] 1SLR 256, Piyadasa vs. Land Reform Commissioner[Supreme Court minutes of 8 July 1998],Dissanayake vs. Kaleel[1993]2 SLR Hon. Justice Saleem Marsoof, The Spanding Canvas of Judicial Review, The Bar Association Law Journal,[Bar Association of Sri Lanka-2005],Vol. XI, P Supreme Court Minutes of 20 January Ibid, p R vs. Secretary of State for the Environment ex.p. Nottinghamshire County Council [1986] A.C.240 administrative action. 50 Due to this reason, judges have discretion to select any jurisdiction depending on the circumstances. However, many of the recently decided cases of Sri Lanka have shown the willingness of the superior courts to expand the scope of the control of administrative action to areas of fundamental rights and also their unwillingness to engage in a critical inquiry as to whether the doctrine of ultra vires constitutes the foundation of for controlling administrative action. In such a context, the development of administrative law in Sri Lanka has not kept pace with the developments in the United Kingdom. There are many reasons for this. One reason is that under the fundamental rights jurisdiction and article 12(1), the judge can uphold the principle of rule of law via equality before the law. It is an essential feature of good and fair administration. Even since 1978 Sri Lankan judges have followed traditional theories of interpretation and not progressive theories like the purposive theory or the judicial free theory. In such a context, their role is very limited to the plain meaning of words of the Constitution. But Constitutional interpretation should reflect the objectives of the constitution. Furthermore, according to the article 3 of the Constitution, in the republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and franchise. Article 4(d) of the constitution also states that the fundamental rights which are by the Constitution declared and recognized shall be respected, secured and advanced by all the organs of government, and shall not be abridged, restricted or denied, save in the manner and to the extent hereinafter provided. To fulfill these objectives a fundamental rights chapter has been included in chapter III and a remedy is given via article 126.But article 126 (3) of the constitution stipulates that: Where in the course of hearing in the Court of Appeal into an application for orders in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus or quo warranto, it appears to such Court that there is prima facie evidence of an infringement or imminent infringement of the provisions of Chapter III or Chapter IV by a party to such application, such Court shall forthwith refer 50 Writ jurisdiction under Article 140 & 154(P)4 (b) of the Constitution Fundamental right jurisdiction under the procedure laid down in Article 126 read with Article 17 of the Constitution GSTF

7 such matter for determination by the Supreme Court and article 126 (4) of the constitution provides that: The Supreme Court shall have power to grant such relief or make such directions as it may deem just and equitable in the circumstance in respect of any petition or reference referred to in paragraphs (2) and (3) of this Article or refer the matter back to the Court of Appeal if in its opinion there is no infringement of a fundament right or language right. In my opinion, when reading article 3, 4(d) and 140 with proviso of the Constitution there is no limitation to expand the doctrine of ultra vires as a ground of judicial review because constitutional provision of article 140 has granted the full power and authority to court of Appeal to issue writs according to law. Not only that, but also the directive principles of the constitution facilitate this argument.especially Article 27 (4) which speaks of obligation of a state to broaden the democratic structure of the government and democratic rights of people. In the CPA vs. Dayananda Dissanayake 51 used this Article 27(4) to interpret a statute. A fundamental right jurisdiction does not reduce the scope of writ jurisdiction because it is very wide. The standing rules applicable to applications for prerogative writs have to be considered in the light of the developments taking place in this sphere of relevant law 52. The problem is that judges try to keep this difference. Functionally, administrative law in UK has developed and if the private sector also exercises their power in the nature of public act, they should also subject to judicial review. Even in the Sri Lankan case of Harjani vs. Indian Overseas Bank 53 Justice Saleem Marsoof has granted a certiorari to review a resolution passed by an overseas private bank. If judges can move on to this attitude it can be argued that it would enhance the justice and justice went to near the home of citizens since in writ jurisdiction there is no time bar and locus standi is very wide (up to now Locus Standi on FR has expanded through PIL) But under Article140 sufficient interest is enough to come before the court to seek a remedy in the nature of a writ 54. It is agreed that traditional ultra vires has undergone many difficulties.but the modern rule of ultra vires has created a significant arena to include all these developments under its shade. The ultimate meaning of the modern ultra vires is not to demonstrate the will of parliament 55 but acting beyond principles of good administration. 56 When administrative authorities breach principles of good administration incorporated in the extended doctrine of ultra vires, courts would be entitled to exercise juridical review and grant relief to the affected parties of such breach. 57 So, under the present constitutional provisions discussed above can be interpreted in a creative manner to uphold the principle of good administration. In this context, the modern extended doctrine of ultra vires can be considered as a ground for judicial control in administrative actions. Conclusion Though the development of administrative law in Sri Lanka has not kept pace with the development of United Kingdom, both jurisdictions have acquired significant developments in the judicial review process. Due to the differences of the constitutional settings of these two jurisdictions, developments have evolved in two different ways. In the Sri Lankan constitution, both the fundamental rights and the writ jurisdiction exist and the tendency of the Supreme Court has been to expand the fundamental rights jurisdiction. But this paper has pointed out that through constitutional interpretation and the new mind- set of judges, we can expand the scope of judicial control in a creative manner. Therefore section 126(3) of the constitution should not be considered as an obstacle to the process of upholding people s sovereignty in a democratic society. Another fact is that this paper clearly pointed out that Article 140 of the constitution confers a wide power to issue writs the jurisdiction conferred by Article 14o,however is not confined to prerogative writs or extraordinary remedies but extends subject to the provisions of the Constitution to orders in the nature of writes of certiorari etc. 58 Therefore, it can be argued that in terms of the phrase according to law, English Law can be interpreted as both English Statutory Law and English Common Law. Thus, there is no obstacle to incorporate developed common law principles on judicial review of administrative action in to Sri 51 [2003] 1 SLR D.U.M. Jayathilake vs. Jeewan Kumaratunga and Others[Court of Appeal minutes of 29 July 2004] 53 [2004] Bar Association Law Reports 134,at Premadasa vs. Wijewardana & Others [1991]1 SLR 333-The writ can be applied for by an aggrieved party who has a grievance or by a member of the public. If the applicant is a member of the public he must have sufficient interest to make the application. 55 Supra note, p Ibid,p C.S. Thalagala, The Doctrine of Ultra Vires and Judicial Review of Administrative Action, Bar Association Law Journal, [Bar Association of Sri Lanka-2011], Vol. XVII,p Heather Therese Mundy vs. Central Environment Authority and Others[Supreme Court Minutes of 20 January 2004] GSTF

8 Lankan administrative jurisprudence. Therefore, here it is argued that by using a broad interpretation judges can creatively adopt the common law principles as a part of our administrative jurisprudence. However, since we have a written constitution, it is essential that these common law principles do not contradict with the constitutional provisions. But the ultimate purpose of the constitution is to protect and promote democracy of the country. The purpose of common law principles is to establish a good and fair administration and to uphold democracy. In view of the above facts, it can be successfully argued that the Sri Lankan courts can adapt common law principles to make use of the provisions of the Constitution in a creative manner to expand the scope of judicial control. Thaksala Udayanganie is a Probationary lecturer of the Faculty of Law in the University of Colombo. Currently, she completed her Master Degree in the field of Public law. She has been teaching Constitutional Law and Administrative Law. Her research interests are Criminal Justice, Administrative Law, Good governance and Human Rights Law. She has presented several papers in international conferences and national conferences. Last May she has presented her paper on the topic of Public Trust Doctrine as a Tool for Promoting Good Governance: A Critical Review of the Doctrine under the Judicial Review of Administrative Law in Sri Lanka at 10th ASLI Conference GSTF