By Nayana
This year marks the conclusion of 20 years of fundamental rights jurisdiction under the 1978 Constitution. It is also the twentieth anniversary of the introduction of one of the most controversial types of public tribunals, the Special Presidential Commissions of Inquiry.

Both these developments and many related issues form the subject matter of Dr Mario Gomez’s recently published work titled "Emerging Trends In Public Law". The book also marks the first venture into law publishing by Vijitha Yapa Bookshop, and legal scholars will no doubt hope that it will be followed by more.

As befits an updated Ph.D. thesis, this book does not aim to be a comprehensive text on the entire field of public law but instead, as its title suggests, it selects certain areas for critical analysis such as access to justice (locus standi); the judicial approach to ouster clauses; participatory justice and the right to receive reasons for decisions; and trials by commissions of inquiry.

Together with Sunil Cooray’s "Principles of Administrative Law" published earlier this year, this book represents the first time writers have had a substantial body of home-grown public law jurisprudence to work on. One of the notable changes in approach is that whereas writers of the past dealt with public law principally in terms of the traditional English writ jurisdiction (certiorari, prohibition, mandamus) and left fundamental rights as a matter for "constitutional" lawyers, today’s authors, prompted by a series of Supreme Court judgments, also see the relevance of fundamental rights jurisdiction as a tool for ensuring fair administrative procedure.

The first impression of Dr Gomez’s book is that it is a refreshingly practical work to have come out of the halls of academia. Chapter divisions are not based on classifications imposed by legal theory but deal with practical issues such as who has the standing to sue, and in what circumstances the courts will exercise a power of review over the decisions of non-judicial bodies. As such, it will not only serve as a students’ textbook but will also be of benefit to practitioners and to the growing body of civil society groups and even commercial entities who have begun to see legal action as the key to securing governmental fairness and accountability.

The author pertinently observes that the traditional British idea of ministerial accountability to parliament, depending as it does on the vigour and competence of the opposition, the efficiency of the committee system and the autonomy of the individual member, "leaves much to be desired" in Sri Lanka.

Hence judicial review assumes greater importance and brings us considerably closer to the Indian experience. However, Dr Gomez, while making moderate use of Indian examples, does not waste pages on Bhagwati-worship but keeps his vision focussed firmly on the Sri Lankan scene.

For instance, he appears to be the first author of a major work to deal with cases such as Gunaratne vs Kotakadeniya, where an Attorney-at-Law successfully obtained a writ against the then Commissioner of Motor Traffic (now Postmaster-General) over the improper award of a contract for laminated driving licences; and the case of Kalupahana vs Nihal Mahinda, where the Supreme Court allowed an Attorney from "Lawyers for Human Rights and Development" to file action on behalf of a 14 year old girl who alleged torture by the Police and refused to permit the withdrawal of the action at the instance of the girl’s parents who, as it later transpired, had been intimidated by the Police.

While sporadic negative decisions in the field of locus standi such as Somawathie v Weerasinghe are not ignored, the overall impression gained on reading the chapter on standing to sue is a positive one which will, one hopes, encourage more public interest litigation.

Another interesting feature of "Emerging Trends" is that it is not confined to cases that go directly to the superior courts. For instance, reference to the courtroom achievements of the Environmental Foundation includes the many public nuisance cases it has handled in the Magistrates Courts, highlighting the fact that the first legislative recognition of the concept of public interest litigation occurred in colonial times with the public nuisance chapter of the Code of Criminal Procedure.

Decisions on commercial matters of a public nature also rate a mention, such as the case of Amarasekera vs Mitsui (the original Hilton Hotel case) in which a shareholder who held less that the mandatory 5 per cent of shares required to institute action under the "oppression and mismanagement" chapter of the Companies Act was nevertheless held entitled to maintain a derivative action on behalf of the company under common law principles.

Broadening the area of non-judicial action which can be subjected to judicial review was probably not one of the objectives of the framers of the 1978 Constitution. However its provisions relating to expulsion of members of Parliament and the imposition of civic disabilities have had just such an effect.

As pointed out in Dr Gomez’s book, it was the case filed by Lalith Athulathmudali following his expulsion from the United National Party after the unsuccessful impeachment motion against President Premadasa which gave rise to what is probably the definitive judicial pronouncement as to when a decision will be subject to review.

The expulsion process within the UNP had apparently been carried out without the petitioner’s knowledge, and when challenged in court, it was argued on behalf of the party that its internal proceedings were not subject to judicial review. On the other hand, under the 1978 Constitution, expulsion from the governing party almost invariably leads to the loss of the member’s seat in Parliament.

Departing from the traditional question of whether the impugned decision was "quasi-judicial" or merely administrative, Justice Fernando stated that judicial review was available in the case of the exercise of any "power vested in a body of persons having authority to determine disputed matters involving civil consequences to individuals".

In his chapter on commissions of inquiry, Mario Gomez conducts a comprehensive survey of what will probably go down in our legal history as one of the most controversial developments of the last twenty years.

As the author points out, the extra legal nature of these commissions and the publicity that generally accompanies their appointment, plus the fact that it is the government of the day that initiates such commissions, makes it imperative that adequate safeguards exist to protect those under investigation.

This aspect was well appreciated by Justice T.S. Fernando who headed the commission of inquiry into the conspiracy aspects of the assassination of Prime Minister S.W.R.D. Bandaranaike. This example is not quoted by Gomez, perhaps because it took place under the less draconian 1948 Commissions of Inquiry Act, but is worth mentioning. A.C. Alles, who was one of the Crown Counsel assisting the commission, has related in his account of the Bandaranaike assassination, how the commission first spent several months in camera carefully sifting through the trial court record, the police investigation notes and memoranda received from the public, before determining whom to summon for a public hearing.

Alles points out that such circumspection was not only required in order to safeguard the reputations of the persons summoned from unjustified vilification, but was also the appropriate course of conduct for "independent and impartial judges".

In Dr Gomez’s book the Special Presidential Commission hearings of 1978 against members of the Bandaranaike government as well as the Commission appointed to examine NGOs receive particular attention. The largely unsuccessful attempts to seek judicial review are also considered.

Of necessity, this book could not take in the recent and still pending challenges to the present series of Special Presidential Commission findings, but once the dust has settled, Dr Gomez would not doubt be a competent person to analyse what he has referred to as "an unfortunate aspect of our public law".