Judicial Review over Courts

Historically, jurisdictional error was the central notion, used with regard to inferior courts, when determining whether a writ would lie against such courts under judicial review. In determining jurisdictional error, a distinction was made between acts done without jurisdiction and acts done within the jurisdiction. It was the acts done without jurisdiction that constituted jurisdictional error and thus could be remedied through the issuance of a writ. Lord Woolf et al observed that, during the 17^th century, a distinction gradually emerged between acts performed without jurisdiction, which could be collaterally challenged in civil proceedings for trespass against the justices or annulled through a writ of certiorari, and acts carried out within jurisdiction but containing errors.Footnote ⁵⁷ The latter could not ordinarily be impugned in collateral proceedings and were generally immune from certiorari unless the error was apparent on the face of the record.Footnote ⁵⁸

The doctrine of jurisdictional error posits that once an inferior court has the jurisdiction to entertain an application, it retains that jurisdiction irrespective of whether its conclusions – whether in law or fact – are correct.Footnote ⁵⁹ Even if its determination on any aspect within its proper inquiry lacks evidential support, the court does not lose its jurisdiction.Footnote ⁶⁰ As noted by Aronson, Groves, and Weeks, jurisdictional error was historically confined to situations where a judicial body lacked the authority to even initiate proceedings or where it made orders that were beyond its power.Footnote ⁶¹ It did not encompass what are now considered the older qualitative grounds for review, such as improper purpose or prohibited considerations, nor did it extend to more recent grounds, such as unreasonableness.Footnote ⁶² Additionally, jurisdictional error did not cover errors of law, as such errors occurred within matters that were properly commenced.Footnote ⁶³ If jurisdictional error included factual errors, it was limited to those concerning jurisdictional facts.Footnote ⁶⁴

However, the decision of the English House of Lords in Anisminic Ltd v Foreign Compensation Commission Footnote ⁶⁵ broadened the meaning of ‘jurisdiction’.Footnote ⁶⁶ Subsequent English cases have established that the distinction between jurisdictional error and non-jurisdictional error has been abolished.Footnote ⁶⁷ In Re Racal Communications Ltd,Footnote ⁶⁸ Lord Diplock stated that the ‘break-through made by Anisminic was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished’.Footnote ⁶⁹ This proposition has been reiterated in the later cases of R v Lord President of the Privy Council, ex p Page Footnote ⁷⁰ and Boddington v British Transport Police.Footnote ⁷¹ As Ye has submitted, this line of authority has generally been accepted as representing the current English law.Footnote ⁷²

It is important to note that Lord Diplock in Re Racal Communications Ltd Footnote ⁷³ suggested that the difference between jurisdictional and non-jurisdictional errors may still apply to decisions made by inferior courts, indicating that in the latter case, they may be immune from judicial review.Footnote ⁷⁴ However, Lord Diplock’s formulation of the Anisminic principle in the subsequent case of O’Reilly v Mackman Footnote ⁷⁵ seems to be applicable without distinction to inferior courts and administrative authorities.Footnote ⁷⁶ Moreover, in R v Greater Manchester Coroner, ex p Tal,Footnote ⁷⁷ Goff LJ concluded that in Re Racal Communications Ltd, ‘Lord Diplock did not intend to say that the Anisminic principle did not extend to inferior courts as well as tribunals’.Footnote ⁷⁸ In reaching this conclusion, Goff LJ recognised that ‘historically, inferior courts have always been subject to what we now call judicial review, though originally only in cases of error going to the jurisdiction and error of law within the jurisdiction which appeared on the face of the record’.Footnote ⁷⁹ More specifically, he stated:

In R (Cart) v Upper Tribunal, Footnote ⁸¹ the Supreme Court of the United Kingdom noted that in Anisminic, the ‘House of Lords effectively removed the distinction between error of law and excess of jurisdiction’.Footnote ⁸² Commenting on this case, Wade and Forsyth observe that the Supreme Court, in Cart, rejected all such distinctions in the context of the Upper Tribunal, which, by statute, is classified as a superior court of record.Footnote ⁸³ This indicates that all courts -–except, presumably, the High Court, which has unlimited jurisdiction – exceed their jurisdiction when they commit errors of law and, in principle, are subject to judicial review.Footnote ⁸⁴ However, the Supreme Court, as demonstrated in Cart, will determine the precise scope of judicial review that is permissible.Footnote ⁸⁵ Thus, in R (Privacy International) v Investigatory Powers Tribunal,Footnote ⁸⁶ Lord Lloyd-Jones concluded that ‘the distinction between administrative tribunals and courts of law suggested by Lord Diplock in Racal is likely to be an arid one’.Footnote ⁸⁷

Delayed Trials and Jurisdictional Error

Despite the developments in English law discussed above, Australia has still retained the distinction between jurisdictional and non-jurisdictional errors. More specifically, in Craig v State of South Australia,Footnote ⁸⁸ the High Court of Australia distinguished between inferior courts and administrative bodies for the purposes of jurisdictional error.Footnote ⁸⁹ The High Court stated that an ‘inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’.Footnote ⁹⁰ By contrast, in the absence of contrary intent in the statute or other instrument that established it, an administrative body lacks jurisdiction when it lacks the power to authoritatively determine questions, or when it makes an order or decision otherwise than in accordance with the law.Footnote ⁹¹ Hence, in Australia, any error of law or fact – except for a fundamental lack of power to make a particular type of order – does not constitute a jurisdictional error for inferior courts, which may be remedied through the issuance of a writ.Footnote ⁹² By contrast, a writ may lie against administrative bodies whenever these bodies make an order or decision that is not in accordance with the law. In summary, judicial review may remedy administrative decisions that are inconsistent with the law, while incorrect decisions by inferior courts may not always be subject to such remedy. Nevertheless, Australian courts have determined that delayed decision-making could constitute a jurisdictional error in appropriate circumstances.

The Australian case of NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another Footnote ⁹³ concerned the availability of judicial review on the grounds of jurisdictional error over delayed decision-making by a statutory tribunal. In this case, the appellants applied to the respondent for protection visas, which were subsequently refused. They sought a review before the Refugee Review Tribunal. After hearing oral evidence from the appellants, the tribunal affirmed the refusal of the visas. However, it took many years for the tribunal to reach its decision. The appellants argued before a single judge and the Full Court of the Federal Court that the delay invalidated the tribunal’s decision. They were unsuccessful and subsequently appealed to the High Court of Australia.

The appellants’ claim of unfairness stemmed from the tribunal making demeanour-based findings against them in circumstances where four and a half years had elapsed between the observation of their demeanour and the issuance of the findings. The central issue for the High Court in this case was whether the tribunal’s delayed decision-making resulted in unfairness sufficient to constitute jurisdictional error. A majority of the High Court (4:2) held that the tribunal was required to weigh oral evidence given over several years alongside relevant written material, and that the delay hindered this process from being carried out satisfactorily and fairly. As the tribunal’s decision relied, in part, on the demeanour and credibility of the appellants, consulting contemporaneous notes and tape recordings of the proceedings was not considered to be a satisfactory substitute for observing and forming impressions of individuals giving evidence at the time. Furthermore, the High Court stated that unfairness can arise not only from a denial of the opportunity to present a case but also from a failure to properly consider it.Footnote ⁹⁴ More specifically, Kirby J, who concurred with the majority decision of the Court, observed that, according to the Court’s prior decisions, jurisdictional error arises when a decision-maker fails to meet the essential requirements of the decision-making process as prescribed by law.Footnote ⁹⁵ He emphasised that jurisdictional error is established where there is a failure to comply with the basic tenets of procedural fairness (natural justice), which occurs either because the common law requirements of procedural fairness apply to the actions of statutory decision-makers, such as tribunals, or because these requirements are presumed to be inherent in the functioning of a tribunal established by Parliament, in the absence of clear statutory provisions to the contrary.Footnote ⁹⁶ Furthermore, Kirby J pointed out that where a decision diverges significantly from the fundamental principles of the legislation, such as by materially departing from the requirements of procedural fairness, the law treats the resulting decision as fatally flawed, and, accordingly, not a decision at all within the statutory framework, but one tainted by jurisdictional error.Footnote ⁹⁷

In essence, the basis of the majority decision in NAIS Footnote ⁹⁸ is that if delayed decision-making has adversely affected or violated the fundamental requirements of procedural fairness (natural justice), such delay constitutes jurisdictional error. While not all delays necessarily violate the fundamental requirements of procedural fairness or natural justice, certain delays may be deemed unreasonable enough to constitute a violation of these essential principles.

In Bangs v Connex South Eastern Ltd,Footnote ⁹⁹ which was considered in NAIS,Footnote ¹⁰⁰ Mummery LJ in the English Court of Appeal observed that what constitutes a reasonable time for the provision of a decision depends on all the circumstances of the particular case, including the nature of the tribunal, its jurisdiction, constitution, and procedures, as well as the subject matter of the case, its factual and legal complexity, the conduct of both the tribunal and the parties, and any other special features of the situation in which the delay occurred.Footnote ¹⁰¹ Furthermore, the potential effects of delayed decision-making, which can be significant, are also relevant in determining what is deemed a reasonable time.Footnote ¹⁰² A similar point was made by Bastarache J in the Supreme Court of Canada in Blencoe v British Columbia (Human Rights Commission),Footnote ¹⁰³ a case involving delay on the part of an administrative body, which was alleged to have lost its jurisdiction due to unreasonable delay in processing complaints. The Supreme Court observed that the determination of whether a delay has become inordinate depends on a range of factors, including the nature and complexity of the case, the facts and issues involved, the purpose and character of the proceedings, whether the respondent contributed to or waived the delay, and other relevant circumstances.Footnote ¹⁰⁴ The Court emphasised that the assessment of inordinate delay is not solely based on the length of the delay, but on a consideration of contextual elements, such as the nature of the rights at stake in the proceedings.Footnote ¹⁰⁵ According to the Court, the ultimate objective of considering all these factors is to ascertain whether the community’s sense of fairness would be compromised by the delay.Footnote ¹⁰⁶

While acknowledging these points, Kirby J in NAIS Footnote ¹⁰⁷ concluded that ‘the delay, in this case, impaired the tribunal’s capacity to assess the case presented by the appellants and in particular the tribunal’s capacity to make a proper assessment of the appellants’ credibility’.Footnote ¹⁰⁸ Consequently, ‘the requirements of procedural fairness applicable to the tribunal were not fulfilled’.Footnote ¹⁰⁹ Moreover, he observed that:

In arriving at the conclusion that there was a real risk of impairment to the tribunal’s capacity to assess the appellants’ evidence in this case, Kirby J was also influenced by a factor, previously addressed by Australian courts,Footnote ¹¹¹ that is not confined to the legal character of the body in which it may be manifested, but which is related to a human propensity.Footnote ¹¹² This factor is that extensive delay may sometimes tempt (or appear to tempt) the decision-maker to take the path of easy resolution.Footnote ¹¹³ As the prolonged delay creates increasing pressure to publish a decision, this pressure bears upon the decision-maker over time, leading to the possibility that it unconsciously affects both the decision-making process and the formulation of reasons for the decision.Footnote ¹¹⁴ Against this backdrop, the decision that is easiest to make and express will possess great psychological appeal.Footnote ¹¹⁵

Delayed Trials and Ultra Vires

The Sri Lankan courts have always acknowledged that writs are a creation of English lawFootnote ¹¹⁶ and proceeded on the basis that in the process of issuance of writs, they should be guided by the principles and practices in English law.Footnote ¹¹⁷ As noted earlier, in contemporary English law, the distinction between jurisdictional error and non-jurisdictional error has been abolished. Wade and Forsyth have observed that ultra vires ‘might fitly be called the central principle of administrative law’.Footnote ¹¹⁸ Also, Lord Browne-Wilkinson affirmed in the House of Lords decision in Boddington v British Transport Police Footnote ¹¹⁹ that ‘the juristic basis of judicial review is the doctrine of ultra vires’.Footnote ¹²⁰

In Sirisena and Others v HSRB Kobbekaduwa,Footnote ¹²¹ Sharvananda J in the Sri Lankan Supreme Court noted that while the ultra vires doctrine is not confined to cases of jurisdictional error or plain excess of power, it also encompasses cases of abuse of power – specifically ‘when a power … granted for one purpose is exercised for a different purpose or for a collateral object or in bad faith’.Footnote ¹²² Hence, he stated that the consequences of jurisdictional error and abuse of discretion, such as improper motive or a false step in the procedure, are identical, as both render an administrative act illegal or invalid, akin to a ‘flagrant excess of authority’.Footnote ¹²³ Moreover, in a series of decisions, the Supreme Court of Sri Lanka has declared that unfettered discretion does not exist in public law, thus expanding the ultra vires doctrine to encompass instances of abuse or misuse of discretion.Footnote ¹²⁴

The Latin ‘ultra vires’ translates to ‘beyond powers’ . The doctrine of ultra vires is said to have originated in company law as a means of safeguarding the interests of shareholders in companies.Footnote ¹²⁵ In the past, companies were legally required to include an object clause in their memorandum, specifying the purposes for which the company was established, and any actions outside this clause were considered ultra vires and invalid. This principle, established by the House of Lords in Ashbury Railway Carriage and Iron Company Ltd v Riche,Footnote ¹²⁶ was subsequently adopted in administrative law. Over time, courts have refined and extended this doctrine to review both judicial and administrative actions through writ jurisdiction, ensuring relief for affected parties. Today, the principle has evolved into a firm doctrine of law, encompassing various forms of illegal acts such as acting without authority, acting in excess of authority, abusing authority, disregarding statutory procedures, and violating principles of natural justice.Footnote ¹²⁷

English law recognises that delayed decision-making can constitute an abuse of authority in appropriate circumstances. As Wade and Forsyth have observed, delay in the performance of a legal duty may constitute an abuse of power, which the law will remedy.Footnote ¹²⁸ For instance, in a case where a British patrial was statutorily entitled to enter the United Kingdom ‘without let or hindrance’ but the Home Office refused to issue the necessary certificate through an administrative procedure that would have caused a delay of over a year, the English Court of Appeal held that the certificate could not be arbitrarily withheld or delayed.Footnote ¹²⁹ The Court ordered its immediate issuance, citing the Magna Carta: ‘to no one will we delay right or justice’.Footnote ¹³⁰ Similarly, where police officers were not given formal notice of complaints made against them for over two years, the excessive delay invalidated the disciplinary proceedings.Footnote ¹³¹ In another instance, the House of Lords held that the Advisory, Conciliation, and Arbitration Service’s excessive deferral of inquiries into a trade union’s recognition issue amounted to an unlawful abdication of the Service’s functions.Footnote ¹³² Likewise, the House of Lords has ruled that undue delay by tax authorities, if deemed unfair, could constitute an abuse of power and thus be considered ultra vires.Footnote ¹³³

Among the examples mentioned above, the decision of the English Court of Appeal in R v Chief Constable of Merseyside Police, ex p Calveley and Others,Footnote ¹³⁴ is particularly relevant to the present discussion. The facts of this case were that in June 1981, five police officers (the appellants) faced complaints regarding an arrest they made. Although an investigation was commenced under the Police (Discipline) Regulations 1977, the officers were not formally notified of the complaints until November 1983, violating Regulation 7, which required prompt written notification about potential disciplinary proceedings. In September 1984, a disciplinary hearing was held, during which the Chief Constable found the officers guilty despite their argument that the delay was prejudicial to their ability to defend themselves against the disciplinary charges as to amount to a denial of natural justice. Two officers were dismissed, and the others were required to resign. The appellants appealed to the Police Appeal Tribunal and also sought a certiorari order to quash the Chief Constable’s decision, but the Divisional Court deemed their application premature, as they had not yet exhausted the internal appeal process. The appellants subsequently appealed to the Court of Appeal.Footnote ¹³⁵

The Court of Appeal allowed the appeal, concluding that the significant delay in serving the Regulation 7 notices had prejudiced the appellants during the disciplinary hearing, despite the difficulty in precisely assessing the degree of that prejudice. The Court determined that although Regulation 7 of the Police (Discipline) Regulations 1977 was directory rather than mandatory, the failure to notify the appellants as required represented a serious violation of police disciplinary procedures and principles of natural justice.Footnote ¹³⁶ Consequently, even though the internal appeal rights had not been exhausted, the Court decided to exercise its discretion to grant judicial review. A certiorari was therefore issued to quash the Chief Constable’s decision.Footnote ¹³⁷

The decision in ex p Calveley and Others Footnote ¹³⁸ exemplifies how delayed action or decision-making by an authority can lead to a violation of natural justice and compel a writ court to exercise judicial review, even in the presence of an alternative remedy. Following English judicial precedents, Sri Lankan courts have consistently interpreted natural justice as an open-ended and non-exhaustive principle, emphasising that it is not feasible to establish definitive rules regarding when the principles of natural justice apply, nor to delineate their scope and extent.Footnote ¹³⁹ The application of these principles depends on the subject matter at hand, and outside the well-known categories of cases, no general rule can be formulated regarding their application.Footnote ¹⁴⁰ In short, as observed by the Supreme Court of Sri Lanka in Fernando v Jayaratne,Footnote ¹⁴¹ ‘[t]he aim of the rules of natural justice is to secure justice or to put it negatively to prevent a miscarriage of justice’.Footnote ¹⁴² As such, it is a prudent step for a superior court exercising judicial review in Sri Lanka to cast the net of natural justice wide, encompassing instances of unreasonable delays in criminal proceedings in order to prevent a miscarriage of justice. Moreover, the stipulation of a fair trial as a fundamental right in article 13(3) of the Constitution, which implicitly encompasses the right to be tried without undue delay, may be interpreted as a statutory procedural requirement mandating timely trials. Consequently, a Court of First Instance that contravenes this mandatory requirement may be held liable for failing to adhere to established statutory procedures, and such actions may be invalidated on the broad ground of procedural ultra vires.

Availability of Alternative Remedies

As a general principle, the laws of the United Kingdom, Australia, and Sri Lanka recognise that writs are discretionary remedies and are not available when alternative remedies exist.Footnote ¹⁴³ This issue is particularly pertinent in the context of determining whether a writ may be issued against a criminal court for delays in the trial of accused persons, especially since appeals are available as a remedy against the outcomes of criminal proceedings.Footnote ¹⁴⁴

As Lord Bingham notes, the principle that alternative remedies should first be exhausted is more often asserted than applied at the substantive stage in the judicial review process.Footnote ¹⁴⁵ He observes that, to his knowledge, there are few cases where relief has been denied at this stage on the ground that alternative remedies are available, particularly when the applicant has ‘established an abuse of power’.Footnote ¹⁴⁶ Lord Bingham further suggests that, in cases where unlawful conduct is established before a court of justice, it is generally preferable for the court to recognise the illegality and provide relief, regardless of whether there is an ‘equally convenient, beneficial and effectual alternative remedy’ available.Footnote ¹⁴⁷ However, Wade and Forsyth observe that, notwithstanding Lord Bingham’s views, English judges remain reluctant to permit judicial review when an alternative remedy is available, with the focus shifting to whether the alternative remedy is, in fact, an adequate substitute.Footnote ¹⁴⁸ In this context, the English Court of Appeal in ex p Calveley and Others Footnote ¹⁴⁹ permitted judicial review despite the availability of an alternative remedy, specifically a right of appeal, citing exceptional circumstances. As the Court acknowledged, in exceptional circumstances, such as where there has been a serious departure from established procedures,Footnote ¹⁵⁰ or when an appeal does not provide a timely remedy,Footnote ¹⁵¹ a writ may be issued at the discretion of the court even if the alternative remedy has not been fully exhausted.

In Australia, the availability of an adequate alternative remedy is a key factor for the courts in determining whether judicial review should be granted.Footnote ¹⁵² However, reconciling the various cases concerning the scope of the court’s discretion to grant judicial review where an appeal is available as an alternative remedy remains impossible.Footnote ¹⁵³ While older cases typically regarded the applicant’s right of appeal as irrelevant, most modern cases treat these rights as relevant and, in some instances, highly significant.Footnote ¹⁵⁴ Apart from that, some cases are complicated by the discussion of the distinct question of whether the court’s discretion is diminished or excluded when the jurisdictional error is patent.Footnote ¹⁵⁵

In McLeod v Legal Profession Conduct Commissioner,Footnote ¹⁵⁶ the Supreme Court of South Australia identified that the most apparent instance in which the court might exercise its discretion to deny judicial review is when the applicant has a statutory right of appeal against the relevant decision but opts instead to seek judicial review.Footnote ¹⁵⁷ The Supreme Court explained that depending on the limitations of the right of appeal, the appeal may be just as efficacious as judicial review in addressing the applicant’s concerns.Footnote ¹⁵⁸ Indeed, the Court noted, since appeals typically allow for merits-based challenges to decisions, they are often more efficacious than judicial review proceedings.Footnote ¹⁵⁹ While this scenario represents the usual context in which a writ court will exercise its discretion against granting judicial review, the Court clarified that the discretion is not confined to cases involving a right of appeal as the alternative remedy.Footnote ¹⁶⁰ The Supreme Court emphasised that in all cases, however, the court must carefully consider the nature and effectiveness of the alternative remedy or remedies cited as grounds for exercising its discretion to deny relief.Footnote ¹⁶¹ Where an alternative remedy is no less efficacious, this will strongly favour the court’s decision not to grant the sought relief, although it is not conclusive.Footnote ¹⁶² Citing ex p Calveley and Others,Footnote ¹⁶³ with approval, the Court further stated that ‘[i]n some cases there may nevertheless be good reason to grant the [applicant] the relief sought despite the existence of an alternative remedy’.Footnote ¹⁶⁴

Both the traditional and contemporary approaches of the Sri Lankan courts have expanded the discretion of a writ court to exercise judicial review in exceptional circumstances, even where the applicant has not fully exhausted the right of appeal. In Sirisena v Kotawera-Udagama Cooperative Stores Ltd,Footnote ¹⁶⁵ while pointing out that the principle that a court will not issue a writ of certiorari where there is an alternative or equally convenient remedy is not a rigid rule, the Supreme Court of Ceylon endorsed the view expressed by Humphreys J in R v Wandsworth Justices, ex p Read Footnote ¹⁶⁶ that if a person can demonstrate to the court that they were convicted of a criminal offence due to a complete disregard for the principles of natural justice by the tribunal, they are entitled to seek judicial review.Footnote ¹⁶⁷ Notably, the Supreme Court granted the writ of certiorari despite the availability of an alternative remedy in this case.Footnote ¹⁶⁸ In Halwan and Others v Kaleelul Rahuman,Footnote ¹⁶⁹ while declaring that exceptional circumstances may defy precise definition,Footnote ¹⁷⁰ the Court of Appeal of Sri Lanka stated that although a party seeking judicial review through an application for a writ under Article 140 of the Constitution must first invoke and pursue the appellate jurisdiction, the extraordinary jurisdiction exercised by way of judicial review can be invoked ‘in exceptional circumstances, such as where the court, tribunal, or other institution has acted without jurisdiction or contrary to the principles of natural justice resulting in an order that is void’.Footnote ¹⁷¹ Along the same lines, the Court of Appeal in Ashokan v Commissioner of National Housing Footnote ¹⁷² stated that when a person has acted without jurisdiction, resulting in a decision that has no legal consequence, such a decision is considered a nullity, and it is automatically null and void.Footnote ¹⁷³ Therefore, the Court emphasised that there is no need for a writ court order to set it aside, although it may be convenient or prudent to have the court formally declare it as such.Footnote ¹⁷⁴ As such, the Court held that the availability of an appeal against a decision deemed a nullity was irrelevant.Footnote ¹⁷⁵ This line of reasoning is consistent with the observation in the older English case of Bunbury v Fuller,Footnote ¹⁷⁶ where it was acknowledged that ‘[a] party is not concluded by not appealing against a nullity’.Footnote ¹⁷⁷

More importantly, in the case of In the Matter of the Application of John Ferguson for a Writ of Prohibition against the District Judge of Colombo,Footnote ¹⁷⁸ the Supreme Court of Ceylon granted a writ of prohibition against the District Judge, preventing him from exceeding his jurisdiction despite the availability of an alternative remedy by way of an appeal, declaring that if a party has two remedies provided by law, the existence of one does not preclude the party from pursuing the other, especially ‘if the latter remedy is likely to be more prompt and certain than the former’.Footnote ¹⁷⁹ Considering that the Sectoral Oversight Committee of the Parliament of Sri Lanka has observed that the appeals process in the Court of Appeal and the Supreme Court for certain serious crimes typically takes seven years, it stands to reason that seeking judicial review under article 140 of the Constitution for unreasonable delays in criminal trial proceedings by Courts of First Instance may offer a more expedient remedy.

The Right to Be Tried Without Undue Delay

Sri Lanka does not have a rich jurisprudence on the right of an accused to be tried without undue delay. In The Attorney-General v Segulebbe Latheef and Another,Footnote ¹⁸⁹ the Supreme Court of Sri Lanka only perfunctorily acknowledged that the right of an accused to a trial without undue delay constitutes a vital aspect of the fundamental right to a fair trial enshrined in article 13(3) of the Constitution.Footnote ¹⁹⁰ As the Court noted, while the concepts of fairness and a fair trial cannot be precisely defined, certain aspects or qualities of a fair trial can be readily identified.Footnote ¹⁹¹ Among these qualities, the ‘right of an accused to be tried without much delay’ is paramount.Footnote ¹⁹² However, the Supreme Court did not define the scope or limits of this right, nor the effect of its breach, in this case.

The judicial decisions on fundamental rights in India, which have been consistently borrowed and referenced by the Sri Lankan Supreme Court in its rulings,Footnote ¹⁹³ have established a rich jurisprudence on the right of an accused to be tried without undue delay. Like Sri Lanka, in India, a speedy trial is not explicitly mentioned as a specific fundamental right in the Constitution. Nevertheless, timely justice is recognised as implicit within the scope of article 21 of the Indian Constitution, which declares that ‘[n]o person shall be deprived of his life or personal liberty except according to procedure established by law’ and is now regarded as a sine qua non of that article.Footnote ¹⁹⁴ In Hussainara Khatoon & Ors v Home Secretary, State of Bihar, Govt of Bihar, Patna,Footnote ¹⁹⁵ the Supreme Court of India believed that although a speedy trial is not specifically enumerated as a fundamental right under the Indian Constitution, ‘it is implicit in the broad sweep and content of Article 21’.Footnote ¹⁹⁶ More specifically, the Court, in this case, articulated several key points regarding article 21, which establishes a fundamental right for all individuals against the deprivation of life or liberty unless such deprivation follows a legally prescribed procedure.Footnote ¹⁹⁷ The Court emphasised that compliance with this article requires not just a procedural framework, but one that is ‘reasonable, fair, and just’.Footnote ¹⁹⁸ It further asserted that any deprivation of liberty through a procedure not meeting these standards constitutes a violation of fundamental rights under that article.Footnote ¹⁹⁹ Moreover, the Court highlighted that for a legally mandated procedure to be considered ‘reasonable, fair, or just’, it must guarantee a prompt trial for the determination of guilt.Footnote ²⁰⁰ Therefore, the Court concluded that the right to a speedy trial defined as a ‘reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21’.Footnote ²⁰¹

Despite the Indian Supreme Court leaving the question of the consequences of delayed trials unanswered in the Hussainara Khatoon case,Footnote ²⁰² the legal principles established in that case were further developed in subsequent rulings.Footnote ²⁰³ In Sheela Barse & Ors v Union of India & Ors,Footnote ²⁰⁴ the Indian Supreme Court stated that if an accused is not tried in a timely manner and their case remains unresolved before the criminal court for an excessive period, it is evident that their fundamental right to a speedy trial is being infringed upon unless the delay is attributable to an interim order issued by a higher court or to the actions of the accused themselves.Footnote ²⁰⁵ More importantly, addressing the issue left open in Hussainara Khatoon, the Court ruled that a violation of this fundamental right would result in the prosecution being quashed.Footnote ²⁰⁶ Thus, in Rakesh Saxena v State Through CBI,Footnote ²⁰⁷ the Supreme Court of India quashed the proceedings on the grounds that any further continuance of the prosecution after a lapse of over six years was unwarranted.Footnote ²⁰⁸ Similarly, in Srinivasa Gopal v Union Territory of Arunachal Pradesh,Footnote ²⁰⁹ the Supreme Court of India quashed the proceedings against the appellant, emphasising that ‘[q]uick justice is a sine qua non of Article 21 of the Constitution’ and asserting that keeping an individual in suspended animation for nine and a half years without any substantive case is incompatible with the spirit of the procedure established by law.Footnote ²¹⁰

However, it is important to note that not every type of delay constitutes injustice under Indian law, and thus not all delays warrant the quashing of proceedings against the accused. In State of Maharashtra v Champalal Punajaji Shah,Footnote ²¹¹ the Indian Supreme Court observed that when assessing whether the right to a speedy trial has been violated, it is essential to consider whether the accused contributed to any delays, and whether these delays have hindered their ability to prepare an effective defence.Footnote ²¹² The Court emphasised the importance of evaluating whether such delays were unintentional and arose from factors like court congestion or insufficient staffing of prosecutors.Footnote ²¹³ While a speedy trial is a vital component of a fair trial, the Court clarified that the mere existence of delays does not inherently signify unfairness, and acknowledged that delays may be attributable to the accused’s own actions and may not necessarily result in prejudice against them.Footnote ²¹⁴ Ultimately, the Court concluded that the decision to quash a conviction based on delayed trial must be based on the specific facts and circumstances of each case.Footnote ²¹⁵ If it is determined that, due to the delay, the accused was prejudiced in their defence by being denied a fair opportunity to contest the charges, then the conviction should indeed be annulled.Footnote ²¹⁶ However, in the absence of evidence of prejudice or circumstances warranting such a presumption, the conviction will not be quashed solely due to delays in the proceedings.Footnote ²¹⁷

A landmark decision by the Indian Supreme Court in Abdul Rehman Antulay v RS Nayak and Anr Footnote ²¹⁸ finally adjudicated the scope of the right to be tried without undue delay, including the circumstances in which it could be invoked, its consequences, and its limits.Footnote ²¹⁹ The Court laid down certain non-exhaustive propositions, intended not as rigid rules but as guidelines for cases involving delays in trials.Footnote ²²⁰ These included:

1. (a) The fair, just, and reasonable procedure implied by Article 21 of the Indian Constitution establishes a right for the accused to undergo a speedy trial. This right is fundamentally that of the accused, and while a speedy trial also serves the public interest, this does not diminish its status as a personal right. Timely resolution of a case benefits all parties involved by facilitating a prompt determination of the accused’s guilt or innocence.Footnote ²²¹

2. (b) The right to a speedy trial flowing from Article 21 encompasses all the stages, namely the stages of investigation, inquiry, trial, appeal, revision, and re-trial.Footnote ²²²

3. (c) The concerns regarding the right to a speedy trial from the perspective of the accused include the necessity of minimising the duration of remand and pre-conviction detention to avoid unnecessary incarceration, reducing the anxiety, financial burden, and disruption to the accused’s personal and professional life caused by prolonged investigations or trials, and addressing the risk that undue delays may impair the accused’s ability to defend themselves due to factors such as the death, disappearance, or unavailability of witnesses.Footnote ²²³

4. (d) Typically, it is the accused who seeks to delay legal proceedings, as delay is a known defence tactic. Since the prosecution bears the burden of proving the accused’s guilt, such delays generally disadvantage the prosecution by hindering witness availability and leading to the loss of evidence. However, there may be instances where the prosecution itself causes delays. Therefore, when a violation of the right to a speedy trial is claimed, the initial inquiry must focus on identifying who is responsible for the delay. Actions taken in good faith by either party to protect their rights and interests should not be classified as delaying tactics, and the time spent on such actions should not contribute to the overall assessment of delay. Footnote ²²⁴

5. (e) In assessing whether an undue delay has occurred that has led to a violation of the right to a speedy trial, all relevant circumstances must be considered, including the nature of the offence, the number of accused individuals and witnesses, the workload of the court, and prevailing local conditions, collectively referred to as systemic delays. While it is the obligation of the State, which encompasses the judiciary, to facilitate a speedy trial, a realistic and practical approach should be taken in these matters rather than a strictly pedantic one.Footnote ²²⁵

6. (f) Not every delay necessarily prejudices the accused; in some instances, delays may even be advantageous to them. However, an excessively long delay can be considered presumptive evidence of prejudice. In this context, the fact of the accused’s incarceration is also pertinent. The prosecution should not turn into a form of persecution; determining when this occurs depends on the specific facts of each case.Footnote ²²⁶

7. (g) The accused cannot initiate their own trial; instead, they are tried by the court at the behest of the prosecution. Consequently, a claim of a denied right to a speedy trial cannot be dismissed on the grounds that the accused did not formally request such a trial. Although a formal demand for a speedy trial may enhance the accused’s position if delays occur, the absence of such a request should not be used against them.Footnote ²²⁷

8. (h) The court must apply a balancing test or balancing process to assess various relevant factors and determine whether the right to a speedy trial has been denied in each specific case.Footnote ²²⁸

9. (i) Generally, when a court determines that an accused’s right to a speedy trial has been violated, it typically quashes the charges or conviction. However, this is not the sole option available. Depending on the nature of the offence and other specific circumstances, quashing the proceedings may not serve the interests of justice. In such instances, the court may issue alternative orders, including directing that the trial be completed within a specified timeframe if it remains ongoing, or reducing the sentence if the trial has concluded, as deemed just and equitable in the context of the case.Footnote ²²⁹

10. (j) Imposing a fixed time limit for the trial of offences is neither advisable nor practical, as any such rule would necessarily be contingent. Furthermore, this rule cannot be designed solely to transfer the burden of proof regarding justification to the prosecution. In cases alleging a denial of the right to a speedy trial, it is primarily the responsibility of the prosecution to justify and explain any delays. Concurrently, the court must carefully consider all relevant circumstances of each case before addressing the complaint.Footnote ²³⁰

In the absence of a well-established jurisprudence in Sri Lanka regarding the implicit right to be tried without undue delay under article 13(3) of the Constitution, the propositions mentioned above may provide guidance for the Sri Lankan Supreme Court in defining the scope and parameters of this right. They may also assist a writ court in assessing whether the lack of a speedy trial has resulted in procedural unfairness, including breaches of natural justice. However, it is crucial to emphasise that, in exercising writ jurisdiction, a court must consider that the scope of judicial review should be defined not by the protection of individual interests but by the extent of power and the legality of its exercise.Footnote ²³¹ Additionally, the remedies granted by a writ court should be confined to the appropriate writ sought and its implications. For example, a writ of certiorari issued for a violation of procedural fairness would result in the quashing of the challenged decision or action deemed unlawful.Footnote ²³²

Justiciability of the Right to Be Tried Without Undue Delay

The Constitution provides for an exclusive remedy for the infringement of fundamental rights by executive or administrative action. As article 17 of the Constitution states, every individual has the right to petition the Supreme Court, as outlined in article 126, regarding any violation or imminent violation of a fundamental right they are entitled to by executive or administrative action. Article 126(1) states that the Supreme Court has exclusive jurisdiction to hear and decide on any matter concerning the violation or imminent violation by executive or administrative action of any fundamental right declared and recognised in Chapter III of the Constitution.

The Constitution does not provide a specific remedy for violations of fundamental rights by judicial actions. Thus, a violation of the right to a trial without undue delay by a court cannot be the subject of a fundamental rights application filed before the Supreme Court under article 17, read together with article 126 of the Constitution. Specifically, in Peter Leo Fernando v Attorney General,Footnote ²³³ the Supreme Court noted that remedies for violations of fundamental rights can be pursued only under articles 17 and 126 for violations stemming from ‘executive or administrative action’.Footnote ²³⁴ These remedies do not extend to judicial actions, regardless of whether the errors involve substantive law or procedural issues.Footnote ²³⁵ Moreover, even when the relief is grounded in the State’s liability, such liability must originate from a wrongful ‘executive or administrative’ act conducted without justification by a State agency or its representative.Footnote ²³⁶ Similarly, in Saman v Leeladasa and Another,Footnote ²³⁷ the Supreme Court noted that under its fundamental rights jurisdiction, ‘[r]elief is only available in respect of an executive act. No relief is available in respect of a legislative or judicial act’.Footnote ²³⁸

However, the absence of a specific remedy in the Constitution for violations of fundamental rights by judicial actions does not imply that such infringements are legally permissible. The reason for this is that the provisions of the Constitution form the fundamental legal framework of Sri Lanka, mandating that all organs of government, including the courts, uphold fundamental rights, as these rights are an essential aspect of the sovereignty of the People.Footnote ²³⁹ More specifically, article 4(d) of the Constitution states that

As acknowledged by the Supreme Court in Sunil Rodrigo (On behalf of B Sirisena Cooray) v Chandananda De Silva and Others,Footnote ²⁴⁰ ‘[a]s an organ of government, the role of the judiciary is clear: … [the courts] are obliged to respect, secure and advance fundamental rights’.Footnote ²⁴¹

More importantly, the fusion of fundamental rights jurisdiction with writ jurisdiction in Sri Lanka under article 126(3) of the Constitution has allowed breaches of fundamental rights to be used as a basis for establishing ‘illegality’ in writ applications, thereby rendering such actions ultra vires.Footnote ²⁴² Since writ jurisdiction under article 140 of the Constitution extends to the Courts of First Instance, violations of fundamental rights by these courts can be challenged through writ applications, which must then be decided by the Supreme Court in accordance with article 126(3). More specifically, article 126(3) states:

In relation to a reference made to the Supreme Court under article 126(3) of the Constitution, article 126(4) empowers the Court to grant relief or redress, which it might grant in cases involving violations of fundamental rights by executive or administrative action under the Court’s fundamental rights jurisdiction. As previously mentioned, under article 140 of the Constitution, a writ application may be filed against a judge of any Court of First Instance exercising criminal jurisdiction on the grounds of a breach of procedural fairness due to unreasonable delay in trial. When a writ application is filed in this manner, the judge in question becomes a party to the application.Footnote ²⁴⁴ During the hearing of such an application, if the Court of Appeal finds prima facie evidence of an infringement or imminent infringement of a fundamental right by the judge in question – particularly, the right to be tried without undue delay – it is obligated to forthwith refer the matter to the Supreme Court for determination. The Supreme Court has the authority to grant ‘such relief or make such directions as it may deem just and equitable in the circumstances’ in respect of such reference, or return the matter to the Court of Appeal if it determines that there is no infringement of a fundamental right.Footnote ²⁴⁵

In relation to the provisions of article 126(3) of the Constitution, the Supreme Court observed in WAC Perera v Prof Daya Edrisinghe Footnote ²⁴⁶ that the entrenchment of fundamental rights in the Constitution has implicitly enlarged the scope of writs, which acknowledges that a claim for relief by way of writ may also encompass allegations of fundamental rights infringement.Footnote ²⁴⁷ In particular, the Court held in this case that the fundamental right guaranteed by article 12 of the Constitution ‘ensures equality and equal treatment even where [this] right is not granted by common law, statute or regulation’, and that the violation of it can serve as the basis for ‘illegality’ in a writ application.Footnote ²⁴⁸ This broader interpretation has also extended the jurisdiction of the Supreme Court to adjudicate violations of fundamental rights resulting from the judicial actions of Courts of First Instance, including those exercising criminal jurisdiction. A pertinent issue regarding the jurisdiction of the Supreme Court to adjudicate references from the Court of Appeal under article 126(3) is whether this jurisdiction constitutes a fundamental rights jurisdiction or a writ jurisdiction. Given that article 126 of the Constitution specifically addresses fundamental rights jurisdiction and its exercise, one might assume that the Supreme Court is exercising fundamental rights jurisdiction in this context. However, the Supreme Court reached a different conclusion in the case of Heather Mundy v Central Environmental Authority and Others.Footnote ²⁴⁹ In that case, Mark Fernando J, noting the connection between writ jurisdiction and fundamental rights as articulated in article 126(3), which permits the examination of fundamental rights violations during the consideration of a writ application, pointed out that, in such situations, although the application must be referred to the Supreme Court, which has the authority to grant relief extending beyond traditional ‘prerogative’ writs, the Supreme Court functions within its writ jurisdiction.Footnote ²⁵⁰