by WilliamEtesy » Mon Aug 10, 2020 8:30 am
Equality and Court's Writ legal system
It is a feature of modern democratic life that the courts be permitted to review current administration action. The management power of the State, Exercised by governing administration officials and bureaucrats, Should be susceptible to scrutiny by an autonomous body. Sri Lankan courts have over the last several decades or so, progressed the frontiers of judicial review. Judicial review is at a fundamental level focused on public accountability. It seeks to ensure that public power is exercised according to certain better established norms and principles. Those who wield state power need to account for their actions. It seeks to exclude the hit-or-miss exercise of power.
Writ legislation of the Court
A citizen who is aggrieved by a decision of a public body or inaction of a public body has a number ofdifferent remedies available under public law. One means of the Court through which executive acts and decisions affecting rights of the people may be reviewed is its writ jurisdiction. Taken in the context of our constitutional principles and provisions, These 'orders' constitute one of the principal safeguards against excess and abuse of executive power: Mandating the judiciary to defend the Sovereignty of the people enshrined in Article 3 against violation or encroachment by the Executive, With no trace of any deference a result of the Crown and its agents,
The 13th Amendment to the composition effected on 14.11.1987 established Provincial Councils as a measure of devolving power directed at funds of the ethnic problem and the then ongoing conflict. Article 154P of the 13th Amendment vested an appellate legislation in the Provincial High Court in respect of Magistrate's Courts and Primary Courts within the Province. It also vested a writ jurisdiction in the Court designed for matters set out in the Provincial Council List. item 154P (t) Left an opening to widen the jurisdiction of the Provincial High Court by stating that the Court could 'exercise such other jurisdiction as Parliament may by law provide'.
It is in pursuance of this provision in the metabolism that the High Court of the Provinces (Special supply) change Act No.54 out of 2006, Was enacted by Parliament and qualified on 28.12.2006. This Act amend the prior Act No. 19 over 1990, Which vested in the High Court of the Provinces appellate jurisdiction in respect of orders of Labour Tribunals and those made in terms of sections 5 or 9 of the Agrarian Services Act. part 5A of the Act No.54 of 2006 provides that High Courts established by Article 154P of the Constitution shall exercise appellate and revisionary jurisdiction in respect of judgments, Decrees and orders born and made by the District or Family Courts, Within such state.
the causes or Standards of Review
The exercise of administrative power is reviewed against three sets of criteria:
(i will) General principles of administrative justice, (ii). Doctrine of criminal trusts and (iii). Human rights hopes.
(myself). General Principles of admin Justice
There are standards of review the courts have developed over a considerable certain period of time. examples include grounds such as the lack of jurisdiction, The abuse of the rules of natural justice, Abuse of discretionary power and error of law on the head of the record. In Council of Civil Service Unions v Minister for the Civil Service Lord Diplock re classified the traditional grounds as illegality, Irrationality and step-by-step defects. He also noted the victory of the new ground of proportionality. It is also important that judicial standards do not become a fetter on progressive administrative making decisions. The writ process should not be used to block enterprising and innovative administrative acts. Lord Scarman has informed that, Although judicial review is a great weapon at the disposal of judges, It should improve sales judges, conscious that the constitutional context in which they function.
(ii). people Trust Doctrine
stamp Fernando J. The Supreme Court utilizes this doctrine as a potential tool for numerous types of purposes: (the) To fix the abuse of discretionary power, (t) To avoid the exploitation of natural resources and ( g) To defend the underprivileged.
apart from the above the executive power is also necessarily subject to the fundamental rights in general and to Article 12(1) acquire which guarantees equality before the law and the equal protection of the law. The link between the writ legal system and fundamental rights is also apparent from Article 126(3), Which contemplates that evidence of an infringement of fundamental rights may properly arise during the period of hearing a writ application, Whereupon such application must be referred to the supreme court which may grant such relief or make such direction as it may deem just and equitable. Thus although the supreme court would still be exercising the writ jurisdiction, Its powers of review and relief couldn't survive confined to the old 'prerogative' writs.
Equality of human beings before the law is one of the most important of human rights and that it may be regarded as fundamental in the sense that it is the basis to build up guarantees of specific human rights. There are two famous legal expressions for this right to equality, such as (1) All persons equal prior to an law and (2) All persons are entitled to equal protection of the law. as an example, This term is also found in UDHR (editorial 7), ICCPR (file 26), US make-up (14th modification), [-censured-=https://www.bitchute.com/video/4vTw7t3XkZpA/]moldova beauty[/-censured-] Indian structure (review 14), 1972 constitution of Sri Lanka (piece 18) And 1978 constitution of Sri Lanka (brief article 12).
Today it is a well accepted principle at least in the developing world that what equal protection of the laws seeks is not mathematical equality or formal equality but substantive equality among various groups in society. Formal equality with its focus on the abstract individual did not address deeply entrenched patterns of social disadvantage. In framing option concept of substantive equality, Distributive the law plays a central role. it requires a duty upon the State to take positive measures to promote equality including where appropriate allocation of sources. Resource allocation made by the State requires a complex assessment of far reaching facts and necessitates the setting of priorities and balancing of interests.
Once State takes steps to allocate resources for the benefit of a particular group or groups, It by itself has to exclude other groups. bear in mind, If the State's such group for exclusion is based on the reasonable criteria or grounds, Such class is not considered as violative of equal protection clause. Here the group is made by the elected body of the people and not by the Courts. The Court's role is therefore confined to evaluate the criteria used by the State for classification. The tool used by the Courts in such evaluation is using the equality principle. Therefore equality it isn't just a right but also an evaluative tool for the courts. in order to really give effect to this important task, The right to equality needs be expressly incorporated as a simple right in the FR Chapter of the Constitution. Even if priceless economic social and cultural rights (ESC) Are not enclosed into our present Constitution, The Courts have been able to assert only to some extent such ESC rights particularly through use of equality rights as a fundamental right enshrined in Article 12 of present Constitution. therefore, equal rights is antithetic to arbitrariness. In fact equality and arbitrariness sworn enemies. The recognition that a violation of a legal norm is a violation of the equal protection clause indicates a violation of the principles of administrative law also amount to a violation of the equal protection clause, Thus giving rise to constitutional remedies and additionally remedies in administrative law. This progression did take place both in India and Sri Lanka. The entrenchment of a specific remedy in Sri Lanka's constitutional fabric to question management action which violates fundamental rights, Has resulted in Sri Lankan judges borrowing frequently from the lush and fertile jurisprudence of admin law.
all the way through Wickramtunge v Ratwatte, a questionnaire filed under Article 126 of the Constitution, The supreme court laid down several principles of fair conduct that a public body must observe. Many of these principles were drawn from the area of administrative law. The Supreme Court stated that a statutory public body must act reasonably and in good faith and not erode the basic rights recognized and declared in the Constitution. The Court found that the respondent had been motivated by 'improper purposes' in deciding to terminate the dealership. The case also dealt with the sudden resignation of a facility granted to a petroleum dealer to pay by cheque. The Supreme Court held that in instances of the case the failure to provide reasons for withdrawing this facility pointed to arbitrariness. the court found that the dealer's rights under Article 12 had been violated.
Jayawardene v Wijetilleke, Another general rights application under Article 126, Was a classic abuse of the rules of natural justice. the one that occupied the post of Inquirer into Sudden Deaths in Gampaha was removed without a hearing. The top court held that this action violated the 'equal protection of law' clauses in Article 12(1) Of the constitution. In Tennekoon v de Silva the Court quoting management law scholar H W R Wade, Held that not providing factors behind the transfer of a police office may deprive him of 'the protection of the law' guaranteed by Article 12(1) Of the structure.
In Bandara v Premechandra legal court held that public officers who hold office at pleasure may be dismissed without reasons being provided. alternatively, This does not imply that no reasons need 'exist'. When a legal court (As distinguished from the applicant) requests for reasons, they should be provided. Failure to provide reasons to the court can lead to a conclusion that the act was arbitrary and thus violated Article 12. These powers are not absolute or unfettered and really should be exercised fairly. as per the Court it is now possible to claim relief for the violation of a fundamental right by way of a writ.
The initial application would be filed in the Court of Appeal and since it involves a question of fundamental rights the matter had to be referred to the Supreme Court for adjudication.
The above line of cases show that the Sri Lankan Supreme Court has not been reluctant to borrow concepts from administrative law in interpreting Article 12 of the Constitution. This fusion of administrative law concepts with constitutional ideas has substantially enriched the public law jurisprudence of [-censured-=https://sites.google.com/view/moldovawomen/]moldova dating sites[/-censured-] this country. The judicial review of legislative or management action can have political consequences. In a legal system where the Courts are vested with the power of judicial review, On occasions problems with social, Political and economic overtones come up for mind. Some of them are of transient importance while others have portentous consequences for our children and grandchildren. more often than not such issues are emotionally hypercharged and raise a storm of controversy in the society. Reason and rationalism become the first casualties, And emotions run high. While suffering with them the courts have to raise the issues above the contemporary dust and din, And seem at them dispassionately, according to, The long term interests of the society as a whole. Such problems cannot be answered by the strict rules of logic. Social realities which have their own logic have also their role to play in resolving them.
Equality and Court's Writ legal system
It is a feature of modern democratic life that the courts be permitted to review current administration action. The management power of the State, Exercised by governing administration officials and bureaucrats, Should be susceptible to scrutiny by an autonomous body. Sri Lankan courts have over the last several decades or so, progressed the frontiers of judicial review. Judicial review is at a fundamental level focused on public accountability. It seeks to ensure that public power is exercised according to certain better established norms and principles. Those who wield state power need to account for their actions. It seeks to exclude the hit-or-miss exercise of power.
Writ legislation of the Court
A citizen who is aggrieved by a decision of a public body or inaction of a public body has a number ofdifferent remedies available under public law. One means of the Court through which executive acts and decisions affecting rights of the people may be reviewed is its writ jurisdiction. Taken in the context of our constitutional principles and provisions, These 'orders' constitute one of the principal safeguards against excess and abuse of executive power: Mandating the judiciary to defend the Sovereignty of the people enshrined in Article 3 against violation or encroachment by the Executive, With no trace of any deference a result of the Crown and its agents,
The 13th Amendment to the composition effected on 14.11.1987 established Provincial Councils as a measure of devolving power directed at funds of the ethnic problem and the then ongoing conflict. Article 154P of the 13th Amendment vested an appellate legislation in the Provincial High Court in respect of Magistrate's Courts and Primary Courts within the Province. It also vested a writ jurisdiction in the Court designed for matters set out in the Provincial Council List. item 154P (t) Left an opening to widen the jurisdiction of the Provincial High Court by stating that the Court could 'exercise such other jurisdiction as Parliament may by law provide'.
It is in pursuance of this provision in the metabolism that the High Court of the Provinces (Special supply) change Act No.54 out of 2006, Was enacted by Parliament and qualified on 28.12.2006. This Act amend the prior Act No. 19 over 1990, Which vested in the High Court of the Provinces appellate jurisdiction in respect of orders of Labour Tribunals and those made in terms of sections 5 or 9 of the Agrarian Services Act. part 5A of the Act No.54 of 2006 provides that High Courts established by Article 154P of the Constitution shall exercise appellate and revisionary jurisdiction in respect of judgments, Decrees and orders born and made by the District or Family Courts, Within such state.
the causes or Standards of Review
The exercise of administrative power is reviewed against three sets of criteria:
(i will) General principles of administrative justice, (ii). Doctrine of criminal trusts and (iii). Human rights hopes.
(myself). General Principles of admin Justice
There are standards of review the courts have developed over a considerable certain period of time. examples include grounds such as the lack of jurisdiction, The abuse of the rules of natural justice, Abuse of discretionary power and error of law on the head of the record. In Council of Civil Service Unions v Minister for the Civil Service Lord Diplock re classified the traditional grounds as illegality, Irrationality and step-by-step defects. He also noted the victory of the new ground of proportionality. It is also important that judicial standards do not become a fetter on progressive administrative making decisions. The writ process should not be used to block enterprising and innovative administrative acts. Lord Scarman has informed that, Although judicial review is a great weapon at the disposal of judges, It should improve sales judges, conscious that the constitutional context in which they function.
(ii). people Trust Doctrine
stamp Fernando J. The Supreme Court utilizes this doctrine as a potential tool for numerous types of purposes: (the) To fix the abuse of discretionary power, (t) To avoid the exploitation of natural resources and ( g) To defend the underprivileged.
apart from the above the executive power is also necessarily subject to the fundamental rights in general and to Article 12(1) acquire which guarantees equality before the law and the equal protection of the law. The link between the writ legal system and fundamental rights is also apparent from Article 126(3), Which contemplates that evidence of an infringement of fundamental rights may properly arise during the period of hearing a writ application, Whereupon such application must be referred to the supreme court which may grant such relief or make such direction as it may deem just and equitable. Thus although the supreme court would still be exercising the writ jurisdiction, Its powers of review and relief couldn't survive confined to the old 'prerogative' writs.
Equality of human beings before the law is one of the most important of human rights and that it may be regarded as fundamental in the sense that it is the basis to build up guarantees of specific human rights. There are two famous legal expressions for this right to equality, such as (1) All persons equal prior to an law and (2) All persons are entitled to equal protection of the law. as an example, This term is also found in UDHR (editorial 7), ICCPR (file 26), US make-up (14th modification), [-censured-=https://www.bitchute.com/video/4vTw7t3XkZpA/]moldova beauty[/-censured-] Indian structure (review 14), 1972 constitution of Sri Lanka (piece 18) And 1978 constitution of Sri Lanka (brief article 12).
Today it is a well accepted principle at least in the developing world that what equal protection of the laws seeks is not mathematical equality or formal equality but substantive equality among various groups in society. Formal equality with its focus on the abstract individual did not address deeply entrenched patterns of social disadvantage. In framing option concept of substantive equality, Distributive the law plays a central role. it requires a duty upon the State to take positive measures to promote equality including where appropriate allocation of sources. Resource allocation made by the State requires a complex assessment of far reaching facts and necessitates the setting of priorities and balancing of interests.
Once State takes steps to allocate resources for the benefit of a particular group or groups, It by itself has to exclude other groups. bear in mind, If the State's such group for exclusion is based on the reasonable criteria or grounds, Such class is not considered as violative of equal protection clause. Here the group is made by the elected body of the people and not by the Courts. The Court's role is therefore confined to evaluate the criteria used by the State for classification. The tool used by the Courts in such evaluation is using the equality principle. Therefore equality it isn't just a right but also an evaluative tool for the courts. in order to really give effect to this important task, The right to equality needs be expressly incorporated as a simple right in the FR Chapter of the Constitution. Even if priceless economic social and cultural rights (ESC) Are not enclosed into our present Constitution, The Courts have been able to assert only to some extent such ESC rights particularly through use of equality rights as a fundamental right enshrined in Article 12 of present Constitution. therefore, equal rights is antithetic to arbitrariness. In fact equality and arbitrariness sworn enemies. The recognition that a violation of a legal norm is a violation of the equal protection clause indicates a violation of the principles of administrative law also amount to a violation of the equal protection clause, Thus giving rise to constitutional remedies and additionally remedies in administrative law. This progression did take place both in India and Sri Lanka. The entrenchment of a specific remedy in Sri Lanka's constitutional fabric to question management action which violates fundamental rights, Has resulted in Sri Lankan judges borrowing frequently from the lush and fertile jurisprudence of admin law.
all the way through Wickramtunge v Ratwatte, a questionnaire filed under Article 126 of the Constitution, The supreme court laid down several principles of fair conduct that a public body must observe. Many of these principles were drawn from the area of administrative law. The Supreme Court stated that a statutory public body must act reasonably and in good faith and not erode the basic rights recognized and declared in the Constitution. The Court found that the respondent had been motivated by 'improper purposes' in deciding to terminate the dealership. The case also dealt with the sudden resignation of a facility granted to a petroleum dealer to pay by cheque. The Supreme Court held that in instances of the case the failure to provide reasons for withdrawing this facility pointed to arbitrariness. the court found that the dealer's rights under Article 12 had been violated.
Jayawardene v Wijetilleke, Another general rights application under Article 126, Was a classic abuse of the rules of natural justice. the one that occupied the post of Inquirer into Sudden Deaths in Gampaha was removed without a hearing. The top court held that this action violated the 'equal protection of law' clauses in Article 12(1) Of the constitution. In Tennekoon v de Silva the Court quoting management law scholar H W R Wade, Held that not providing factors behind the transfer of a police office may deprive him of 'the protection of the law' guaranteed by Article 12(1) Of the structure.
In Bandara v Premechandra legal court held that public officers who hold office at pleasure may be dismissed without reasons being provided. alternatively, This does not imply that no reasons need 'exist'. When a legal court (As distinguished from the applicant) requests for reasons, they should be provided. Failure to provide reasons to the court can lead to a conclusion that the act was arbitrary and thus violated Article 12. These powers are not absolute or unfettered and really should be exercised fairly. as per the Court it is now possible to claim relief for the violation of a fundamental right by way of a writ.
The initial application would be filed in the Court of Appeal and since it involves a question of fundamental rights the matter had to be referred to the Supreme Court for adjudication.
The above line of cases show that the Sri Lankan Supreme Court has not been reluctant to borrow concepts from administrative law in interpreting Article 12 of the Constitution. This fusion of administrative law concepts with constitutional ideas has substantially enriched the public law jurisprudence of [-censured-=https://sites.google.com/view/moldovawomen/]moldova dating sites[/-censured-] this country. The judicial review of legislative or management action can have political consequences. In a legal system where the Courts are vested with the power of judicial review, On occasions problems with social, Political and economic overtones come up for mind. Some of them are of transient importance while others have portentous consequences for our children and grandchildren. more often than not such issues are emotionally hypercharged and raise a storm of controversy in the society. Reason and rationalism become the first casualties, And emotions run high. While suffering with them the courts have to raise the issues above the contemporary dust and din, And seem at them dispassionately, according to, The long term interests of the society as a whole. Such problems cannot be answered by the strict rules of logic. Social realities which have their own logic have also their role to play in resolving them.
