SC holds that HRC recommendations can be challenged in Writ application

Tuesday, 11 July 2017 00:22 - - {{hitsCtrl.values.hits}}

By S.S. Selvanayagam

In a landmark judgment, the Supreme Court held that the recommendations of the Human Rights Commission can be challenged in a Writ application.

Justice Sisira J. De Abrew with Justices Upaly Abeyrathne and Nalin Perera agreeing in his judgment upheld the appeal filed by Sri Lanka Telecom PLC.

Appellant Sri Lanka Telecom appealed to the Supreme Court challenging the judgment of the Court of Appeal.

The Court of Appeal in its judgment had held that an adverse recommendation issued by the Human Rights Commission (HRC) in terms of the HRC Act could not be challenged and could not be reviewed by the Court of Appeal in Writ proceedings for judicial review.

Appellant Sri Lanka Telecom cited the Human Rights Commission, its members, M.M.M. Zaheed and others as Respondents. Sanjeeva Jayawardena PC with Pubudini Wicremaratne appeared for Sri Lanka Telecom. Senior Deputy Solicitor General appeared for the HRC. W. Dayaratne PC appeared for Zaheed.

The Supreme Court set aside the judgment of the Court of Appeal and upheld the argument of Sri Lanka Telecom that even a pure recommendation, as opposed to a final order or decision, the recommendation and report of HRC could be challenged in a Writ application as the law pertaining to Writ applications had evolved very greatly in the modern day and that even incidental orders which are not final orders and only recommendations of a tribunal could be challenged in a Writ application if they represent a step in a statutory process and held the potential of affecting the rights of a citizen.

The Supreme Court held that a recommendation made by the HRC generate an affectation of rights and interests and is therefore clearly justifiable and can be complained against in a Writ application.

The Supreme Court also held that whenever any body of persons having legal authority to determine questions affecting the rights of citizens, and whenever the legislature entrusts to anyone other than the superior courts, the power of imposing an obligation upon individuals, and which leads to an affectation of rights, the courts ought to exercise as widely as they can, the power of controlling those bodies if they attempted to make exceed their jurisdiction, even if that decision does not affect the rights immediately. This principle applies not merely to statutory bodies.

Accordingly the Supreme Court reversed the judgment of the Court of Appeal.