Extensive Research on Law

The application of the writ of mandamus in the exercise of the writ jurisdiction of the superior courts in Sri Lanka

This is an updated and improved version of a thesis submitted to the University of Colombo for which the author was awarded the degree of Master of Philosophy. (Laws). The thesis consists of 8 chapters. Chapter I is the Introduction, consisting of four sections, the first of which is an overview of the rest of the thesis.

The Aims and Objects of the Study, and the Scope of the Study, are described in the second and third sections, namely, a description of the power and jurisdiction now vested in the Supreme Court, the Court of Appeal and in the Provincial High Courts to issue the writ of mandamus (including the history of the writ in Sri Lanka), a comparison with the availability of the writ in foreign jurisdiction, and an evaluation of the availability, efficacy and adequacy of mandamus as a remedy.

The fourth section refers to the Conclusions Reached, namely that the availability, efficacy and adequacy of mandamus must match the challenges faced by litigants in obtaining justice against faulty administrative action. The discussion on constitutional restrictions on judicial review and also ouster clauses contained indifferent statutes restricting judicial review of administrative action and Article 35 of the Constitution, which confers on the President of Sri Lanka immunity from suit, and the practical effect of that provision, has been dealt with in detail, referring to the wealth of case law brings home the point that there is no adequate justification for such blanket immunity.

The book also contains a research into decided cases which illustrate that mandamus can issue to compel the performance of a public duty owed by the respondent to the petitioner in cases where there has been a refusal by the respondent to carry it out. The author has dealt with the clearly discernible recent judicial trend in Sri Lanka of enlarging the availability of the prerogative writs. In connection with mandamus, the author has referred also to Lukmanjee v Sylvester (2005) I SLR 233. This judgment of the Court of Appeal is in direct conflict with the earlier decision of Sansoni J., in Munasinha v. Devarajan (1955) 57 NLR 286, which is based on the English law principle that the Crown cannot be compelled by mandamus which is a prerogative writ, and because the Crown has always to act through its servants and agents, even servants and agents of the Crown, acting as such, cannot be compelled by mandamus.

It is an interesting question whether that principle, on which the decision in Munasinha was based, should apply in our country anymore, now that we are a Republic and not a Monarchy and more.

The question assumes pivotal importance in applications for mandamus in such cases as, to compel an acquiring officer to pay compensation for land acquired under the Land Acquisition Act or to compel the Minister of Lands to divest land which had previously been acquired under that Act. There

The book also contains a research into decided cases which illustrate that mandamus can issue to compel the performance of a public duty owed by the respondent to the petitioner in cases where there has been a refusal by the respondent to carry it out. The author has dealt with the clearly discernible recent judicial trend in Sri Lanka of enlarging the availability of the prerogative writs. In connection with mandamus, the author has referred also to Lukmanjee v Sylvester (2005) I SLR 233

have been loud calls for rethinking the rules relating to prerogative writs in the Republic of Sri Lanka, as for example by Dr. Jayantha de Almeida Guneratne, PC., lecturer in Administrative Law at the Sri Lanka Law College, in his article, ‘New Vistas for Judicial Review in the Sphere of Employment. ‘This publication is an important contribution to the advancement of the cause of justice in the public law of Sri Lanka.

This important piece of research done by the author must be seriously considered by those interested in studying the existing law relating to judicial review with particular reference to the writ of mandamus, and those entrusted with the functions of recommending and carrying into effect the needed reforms in the public law of our country. The author has to be commended for the extensive research he has done in regard to several foreign jurisdictions including the UK, USA, Canada, India, Taiwan, Australia, European countries, New Zealand and South Africa.

Reviewed By Sunil F. A. Coorey LL.B (Cey.), Ph.D (Col.) Attorney at Law