கவனிக்க: இந்த மின்னூலைத் தனிப்பட்ட வாசிப்பு, உசாத்துணைத் தேவைகளுக்கு மட்டுமே பயன்படுத்தலாம். வேறு பயன்பாடுகளுக்கு ஆசிரியரின்/பதிப்புரிமையாளரின் அனுமதி பெறப்பட வேண்டும்.
இது கூகிள் எழுத்துணரியால் தானியக்கமாக உருவாக்கப்பட்ட கோப்பு. இந்த மின்னூல் மெய்ப்புப் பார்க்கப்படவில்லை.
இந்தப் படைப்பின் நூலகப் பக்கத்தினை பார்வையிட பின்வரும் இணைப்புக்குச் செல்லவும்: Public Trust Doctrine: The Sri Lankan Version

Page 1
Public Trus
The Sri Lank
Dinesha Sa
 

st Doctrine
Jan Version
Democracy and Equality Programme Occassional Paper No. 1
ices International
Centre for
Ethnic Studies
mararate

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Public Trust Doctrine

e: The Sri Lankan Version

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Page 5
Public Trus
The Sri Lank
Dinesha Sa
LL.B. (Hons) (Colombo), LL.M Lecturer, Department of Public & I University of Colc
International Centre for
Colom

st Doctrine
can Version
mararatne
. (Harvard), Attorney-at-Law international Law, Faculty of Law, ombo, Sri Lanka
Ethnic Studies (ICES) mbo

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Acknowled
The original idea of developing of the Public Trust Doctrine in by Dr. Nishan De Mel, Executiv Centre for Ethnic Studies, (ICE to analyse the scope of the doctr by the Supreme Court. Over a pe evolved into a more comprehens capture the development of the historical perspective, and alsof perspectives. I am thankful to (project co-ordinator at ICES) a developing this piece.
An initial draft of this paper National Conference in 2009. Thi responses given by the panellist M.A. Sumanthiran (Attorney-a (Attorney-at-Law) and Mr. S Solicitor General). I also benefit initial draft by Mr. N. Selvakku Faculty of Law, University of Co I am also grateful for the init by Ms. Sankhitha Guneratne ai third year undergraduates at the Colombo.
I am extremely appreciative Mario Gomez, (Law Commission former Senior Lecturer, Faculty c in reviewing this paper. Those c refining my arguments and in te doctrine of public trust in Sri La
October, 2010

ilgements
a comprehensive legal analysis Sri Lanka was proposed to me e Director of the International S) in 2009. The initial idea was ine in light of its recent revival riod of almost a year, this work sive piece that has attempted to doctrine in Sri Lanka from a rom regional and international Nishan, to Lahiru Pathmalal nd to ICES for their support in
was presented at the Junior Bar spaper has benefitted from the s at that session - namely, Mr. t-Law), Mr. J.C. Welliammuna havindra Fernando (Deputy tted from the responses to the maran, (Dean/Senior Lecturer, lombo).
ial research assistance provided nd Mr. Damitha Karunaratne, 2 Faculty of Law, University of
of the comments given by Dr. er, Sri Lanka Law Commission, fLaw, University of Colombo), omments were very helpful in asing out more nuances of the Inka.
Dinesha Samararatne

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Research for this paper was
2009 to A

arried out during September gust 2010.

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CPC EFL ICJ IDPS JKH ILMSL PERC PIL PTD SC SLBC SLIC UDA USA
Abbre
Ceylon Environ Internat Internal John Ke Lanka M Public E Public II Public T Suprem Sri Lank Sri Lank Urban I United

viations
Petroleum Corporation mental Foundation Limited ional Court of Justice ly Displaced Persons els Holdings Aarine Services Limited interprise Reform Commission nterest Litigation rust Doctrine
e Court a Broadcasting Corporation Ka Insurance Corporation Development Authority States of America

Page 9
Con
Acknowledgements
Abbreviations
1.
Recent Revival of the Doctrin 1.1. Overview of the Paper 1.2. The Three Recent Cases a A. Vasudeva Nanayakka the "LMSL. Case B. Sugathpala Mendis & and Others: the “Wate C. Vasudeva Nanayakka
the “Sri Lanka Insurau
Possible Origins of Public Tru 2.1. The Concept of "Trust” ir
English Public Law A. Public Trusts in Engli B Principle of Trustint English Administrativ 2.2. Public Trust Doctrine in
International and Compa A. Origins of the Conce its Adoption in Englis B. Use of the Concept in C. Public Trust Doctrine
Judicial Development of Publ 3.1. Basis of the Doctrine 3.2. A Doctrine that Limits E. 3.3. Trusteeship of Natural an A. Trusteeship of Natura B. Trusteeship of Nation

tents
V
viii
e of Public Trust l
l
ta Glance 3 a vKN Choksy and 30 Others:
3 Others v CB Kumaratunge er's Edge” Case 4 ra v K N Choksy and Others: nce” Case 5
st Doctrine 7
Equity and
7
sh Public Law 7 he Exercise of Public Power in re Law 11 Environmental Law: rative Jurisdictions 13 st in Roman Law and h Law 13 the United States 15 in India 19
ic Trust Doctrine in Sri Lanka 27
27
cercise of Discretionary Power 28 d National Resources 30 l Resources 30
al Resources 35

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6.
3.4. Public Trust: A Doctrine th 3.5. Public Trust as Revived in t 3.6. The Scope of the Doctrine
Making a Case for a Sri Lankan Doctrine of Public Trust 4.1. Public Trust Doctrine as a F Existing Principles of Public A. A Re-wording of Existir Administrative Law B. Public Trust Doctrine
the Right to Equality 4.2. The Sri Lankan Version of P A. Public Trust Doctrine as
Review B. Public Trust Doctrine as Court and the Public Sp 4.3. Centrality of Judicial Discre
Public Trust Doctrine A. PTD in Fundamental Ri the Supreme Court as th B. "Who guards the guards
Proposals for Development of P In Sri Lanka
5.1. Questions of a Threshold an 5.2. Forum for Public Trust Litig 5.3. Standing in Public Trust Lit 5.4. Remedies and Follow up Me
Public Trust Doctrine; A Judicia
References

it Promotes the Rule of Law 37
he Trilogy of Cases
Version of the
e-articulation of
Law g Principles of
A Component of
ublic Trust Doctrine
a Separate Ground of
Empowering the irited Individual tion in the
ghts Cases;
e First and Final Court
ublic Trust Litigation
d Constitutional Basis ation
igation
'chanisms
l Pilgrimage?
40
45
51
51
51
52
53
53
55
56
57
59
63
63
65
65
66
70
72

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Recent Revival of the D
1.1. Overview of the Paper
The Public Trust Doctrine (herei the Sri Lankan Supreme Court cases that were decided over the l as the SLIC case, the Waters E Unprecedented orders were mac declaration by the Court that the p of land in the privatisation of LM Waters Edge case was null and by various quarters in Sri Lank was made was that the SC was c Constitution and arrogating pow those decisions were welcomed
1 Vasudeva Nanayakkara v. K N Chok
Supreme Court Minutes 4th June
2 Sugathpala Mendis and Others v. C No 352/2007, Supreme Court Min
3 Vasudeva Nanayakkara v. NKChoi Supreme Court Minutes 21st July,
4 See for instance, Disputed Justice, http://www.lankabusinessonline.c Economic Impact, 18th September 2 at, http://www.lankabusinessonline Choices Unravel, 18th September 2 at http://www.lankabusinessonline PIL: The Good, the Bad and the U. http://www.thebottomline.lk/2009

octrine of Public Trust
nafter “PTD”) was relied on by (hereinafter the "SC") in three ast two years; commonly known dge case and the LMSL case. le by the SC in those cases. The rivatisation ofSLIC, the transfer ASL and the lease of land in the void, was received differently a. A common criticism that overstepping its role under the ers to itself. On the other hand, by some others who perceived
sy and Others, S.C. (FR) No 158/2007, 2009.
BKumaratunge and Others, SC (FR) utes 8th October 2008.
csy and30 Others, S.C. (FR)209/2007, 2008.
Lanka Business Online, accessed at, om/fullstory.php?nid=2032090498, 009, Lanka Business Online, accessed .com/fullstory.php?nid=1177305189, 009, Lanka Business Online, accessed .com/fullstory.php?nid=1427517323, gly - A rebuttal from Nihal's lawyers, /11/11/news1.html

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2 Public T
them as a signal that the SC is wi in the face of blatant abuse of
Two petitions related to vi internally displaced persons (he before the SC over the last year. of IDPs was challenged, Justice of the Court, questioned thes filed the petition in "public inte again by the Senior State Coun same organisation sought leav alleged violations of the right (
The above mentioned exa validity and/or applicability ( Litigation (hereinafter “PIL”) is in Sri Lanka. This paper attemp - the Public Trust Doctrine - a Lankan Public Law. It will be PTD is a result ofjudicial activis of PIL) forms an integral parto its underlying constitutional va need to be taken to settle thos a higher measure of clarity and concepts can be continued to b power and the exploitation of
The objective of this paper PTD as a platform to engage in the doctrine. The first part willt to the recent cases that relied paper will explore two possible analyse briefly the use of the ( Law and two foreign jurisdictic
5 Centre for Policy Alternatives ar Others, S.C. (FR) 457/2009, Cen v. Commissioner of Elections ana
6 Centre for Policy Alternatives an
and Others, supra.

rust Doctrine. The Sri Lankan Version
lling to engage injudicial activism xecutive power. olation of fundamental rights of reinafter the IDPs), were brought In the case where the detention Amaratunga, speaking on behalf tanding of the organisation that rest.” Those concerns were raised sel in the second case, where the e to proceed with regard to the of franchise of the IDPs. imples of cases indicate that the of the PTD and Public Interest perhaps nota settled point of law ts to revisit one of those concepts as introduced and applied in Sri suggested that even though the im, that it (along with the concept fthe Sri Lankan legal system and lues. However, suitable measures 2 aspects of the law and bring in | predictability, so that those two e used against the abuse of public public resources.
is to use the recent revival of the a detailed and critical analysis of herefore give abriefintroduction on PTD. The second part of the origins for the doctrine and also ioctrine in Public International ons; United States and India. The
td Another v. Minister of Defence and tre for Policy Alternatives and Another ! Others, S.C. (FR) 111/2010.
dAnother v. Commissioner of Elections

Page 13
Dinesha Samararatne
third section of the paper will Lanka and an attempt will be m of the doctrine as evident frc the paper will seek to establis developedin Sri Lanka and con ground of review for executive fifth partwill be a set ofpropos be developed for "Public Trust
1.2. The Three Recent Cases
In all three of the recent casest right to equal treatment befo under Article 12(1) of the C due to executive and administ Additionally, the petitioners c before the Court as public spirit this complaint on behalf of the
A. Vasudeva Nanayakkara v
LMS' Case This case was with regard to th Services Ltd., (hereinafter “LMS was a fully owned subsidiary oft (CPC). LMSL had a monopolyi bunkering services, both wit impugned executive actions of John Keels Holdings (JKH) to and 2002.
On a detailed examinatio that the entire process of priva
7 "Alpersons are equal before the la of the law” Art. 12 (1) ofthe Con "the Constitution”).
8 Vasudeva Nanayakkarav. NKC) Supreme Court Minutes 21st Jul
9 Acronym for Lanka Marine Serv

analyse PTD as developed in Sri ade to identify the characteristics om case law. The fourth part of h the unique nature of PTD as sider whether it can be a separate 2 and administrative action. The als as tohow a framework could
Litigation.”
at a Glance
he petitioners claimed that their re the law, which is guaranteed onstitution, had been violated rative actions that were illegal.” laimed that they were standing ed individuals who were bringing : citizens of the country.
KN Choksy and 30 Others: the
le privatisation of Lanka Marine SL) which, prior to privatisation, he Ceylon Petroleum Corporation in the Colombo Port, in providing hin the port and offshore. The the sale of the shares of LMSL to ok place between the years 2000
n of the facts, the Court found tisation had been carried out by
wandare entitled to the equalprotection stitution of Sri Lanka, 1978 (hereinafter
oksy and 30 Others, SC (FR) 209/2007, y, 2008.
rices Ltd.

Page 14
4 Public Tru
the Chairman of the Public En (hereinafter referred to as “PER or supervision of the Cabinet of therefore that the grant of over
the agreement providing for a m for JKH was null and void an the Board of Investment and LM effect in the LMSL decision, th except for the sale of shares in th undertaken by the Chairman of
B. Sugathpala Mendise. Others the “Water's Edge” Case The lease and subsequent transf had been acquired under the L purpose of urban development we
10 For instance, while the entire p prescribed by law, the decisions in in direct contravention of the dec had made with regard to LMSL.O had considered a Memorandum tl liberalisation of bunkering in the Committee of Ministers should co The outcome of the Report and Minster of Shipping was a decisic liberalisation ofbunkering services that LMSL enjoyed at the moment of a year. The final outcome of th however was atransfer of90% oft Holdings for the price that was four value of LMSL, the provision of a account of the purchase, the transf for which no consideration was paic of a monopoly for JKH bunkering
11 i.e. the Common User Facility Agr 12 Sugathpala Mendis and Others v. C 13 Land Acquisition Act No. 9 of 195
14 The acquisition was executed undel

st Doctrine. The Sri Lankan Version
terprise Reform Commission C”) without any authorisation Ministers.' The Court declared eight acres of land to JKH and onopoly in bunkering services d that all agreements between 1SL were also null and void. In e SC reversed all transactions, eprivatisation process that was
PERC.
v CB Kumaratunge and Others:
er to Asia Pacific Ltd., land that and Acquisition Act for the is challenged in this case. From
brocess was outside the procedure hade by the Chairman of PERC was isions that the Cabinet of Ministers in the 22nd of June 2000, the Cabinet hat was submitted to it regarding the Colombo Port and decided that a insider the issue and submit a report. the recommendations made by the on to initiate a staggered process of ; and that the monopoly ofbunkering should beliberalised over the period e actions of the Chairman of PERC he ownership of LMSL to John Keels hd to be significantly below the actual a tax holiday of 3 years for JKH on er ofaland ofover eightacres to JKH l to the government and the provision Services.
eement dated 20th August 2002.
BKumaratunge and Others, supra. 0 as amended.
the Land Acquisition Act supra, s. 5,

Page 15
Dinesha Samararatne
1997 to 2003 a series of actions the Cabinet of Ministers and th (hereinafter the “UDA"), whic this land being transferred to A price that, as held by Court, w actual value of the land. The cei that even though the land had a "public purpose it was evic that took place from 1997-200 a public purpose in mind, but and irresponsibly in alienating
On a thorough examinatic inter alia that the transfer of titl Ltd., during the material peri land be vested back with the for the public purpose of “relo as a means of decentralising sensitive areas” and for flood re the Court ordered the UDA to the improvements made on th
C. Vasudeva Nanayakkarav
Lanka Insurance” Case
The reversal of the privatisation o (hereinafter “SLIC”) was a cC
in 1984 by the Minister of Lands: Authority under the Certificate stipulated that "the land should n that for which it was originally ac v. CB Kumaratunge and Others. 15 Under s. 5 of the Act, land may
purpose. 16 Sugathpala Mendis and Others
at p. 59. 17 Vasudeva Nanayakkara v KN Ch Supreme Court Minutes 4th Jur

were taken by the Executive i.e. e Urban Development Authority h resulted in the ownership of sia PacificGolf Course Ltd., ata hich was significantly below the tral conclusion of the Court was been acquired to be utilized for lent through the series of events 3, that the Executive had not had
rather, had acted both illegally the land for profit. . on of the facts, the Court ordered e and lease of land to Asia Pacific bd was null and void, that such UDA and that the land be used cation of governmental agencies it from Colombos commercially tention purposes. Additionally, compensate Asia Pacific Ltd., for e land.
KN Choksy and Others:7 the "Sri
Sri Lankan Insurance Corporation insequence of the fundamental
ndvested with the Urban Development of Vesting. That Certificate of Vesting ot be utilised for any other purpose than quired". Sugathpala Mendis and Others supra at p. 7.
be acquired under the Act for a public
I. CB Kumaratunge and Others, supra
oksy and Others, S.C. (FR) No 158/2007, e 2009.

Page 16
6 Public Tr
rights petition that challenged basis that it amounted to an a executive power. Court found, in Treasury had acted beyond the e in several instances in the priva the Tender Board for the priva was established that the Secreta the requirement that the Tende the Cabinet and had bypassed same. Moreover, Court foundth purchased the SLIC had not bee and were not in existence at thi for SLIC had commenced, i.e. Greenfield Pacific E. M. Holding were incorporated in Gibraltar. ordered inter alia, that the Sha for the sale of 90% of SLIC shar
In all three of the above des. PTD in granting leave to proce applications and also in deterr The common thread in the judi is that executive power can on public benefit. It was also eviden when an application before it c has been violated, that the doctr intervenes and vindicates thes
18 Seein this regard, Edwards, B., U. Role of the Auditors, Report publis Project, Washington D.C., 2009. the part of the auditors to expo, privatization process.
19 See in this regard, Articles 3 and

ust Doctrine: The Sri Lankan Version
the privatisation process on the rbitrary and illegal exercise of ter alia, that the Secretary to the xecutive authority vested in him atisation process. In appointing tisation process, for instance, it try to the Treasury had ignored rBoard should be appointed by the Cabinet in constituting the at the companies that eventually na party to the bidding process e time the privatisation process Milford Holdings (Pvt) Ltd and s Ltd, both being companies that Based on those findings, the SC re Purchase Agreement signed es was null and void.“ cribed cases, the SC relied on the ed with the fundamental rights mining the merits of each case. cial attitude in those three cases ly be exercised in trust and for tthat Court was of the view, that learly establishes that the PTD ine itselfrequires that the Court overeignty of the People.'
alawful Privatization in Sri Lanka: The hed by the Government Accountability
The report highlights the failure on se the fraud and irregularities of the
4 of the Constitution”).

Page 17
2
Possible Origins of P
This section reviews existing leg judicial opinions in an effort ti for the PTD. This paper takes 1 possible origins for this doctri other in the equitable jurisdict England. The Roman law idea natural resources must be prote use of the present and future ge. of public trusts requires general be exercised in furtherance of p power was given. Elsewhere in t while both those stands have clea of the PTD in Sri Lanka — that t doctrine, is clearly a home grow
2.1. The Concept of "Trust” i
Law
A. Public Trusts in English Pub
"Trusts” and "Equity” are two col in the Court of the Chancello harshness of the automatic appl. concept of trust provides that in
20 See the discussion under sections
21 Seein general in this regard, Oakle Law of Trusts, (9th Ed., Sweet & N

ublic Trust Doctrine
al scholarship and comparative o identify the possible sources the position that there are two ne; one in Roman law and the ion of the Chancery Courts in essentially means that certain cted by the state for sustainable nerations. The English law idea ly, that public power must only public purposes for which such his paper, it will be argued that urly influenced the development he Sri Lankan "version” of that 'n one.
n Equity and English Public
lic Law
ncepts that have been developed r in England, to mitigate the cation of black letter law. The certain contexts, property can
4 and 5 of this paper.
, A.J., Paker and Mellows, The Modern saxwell, London, 2008).

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8 Public Tr
be held by one person, on behalf The types of trusts include exp charitable trusts.' The Sri Lan body of law that was inherite colonial era, includes that conci of Trusts is found in the Trust Trusts is also used in other legis Ordinance' and the Muslim M Waqfs Ordinance.?o
It is possible that this cor the PTD in Sri Lanka. That ar the characterisation given to "I Law, by John Barratt, in an artic According to John Barratt, "pub was developed through the con Court and is now an establish
22 Ibid.
23 No. 9 of 1917 as amended. S. 3 follows - "trust” is an obligation and arising out of a confidence r or declared and accepted by him, anotherperson and the owner, of su is nominally vested in the owner, t the property is vested or to be veste person concurrently with the own,
24 No 12 of 1947 as amended.
25 No 51 of 1956. See in general wit
Sri Lanka, Cooray, A., Oriental Co-existence: The Case of Trust Comparative Law, (2008) 12(1), a
26 Barrat, J., Public Trusts, (2006) 69
Oakley, A.J., supra, at pp. 1-23.
27 Barrat cites the case of Attorney C NS 312, where the Court held, (y under a locallegislation, were pers expedient in such cases, that there sh that persons in the receipt of pub

ust Doctrine. The Sri Lankan Version
of and for the benefit of another. press, implied, constructive and kan law, which includes a large d from the British during the ept of trusts. The Sri Lankan law Ordinance' and the concept of lation such as the Trust Receipt osques and Charitable Trusts or
lcept of trusts have influenced gument is made on the basis of ublic Trusts” in English Public le in the Modern Law Review.o lic trusts” in English Public Law cepts of equity in the Chancery ed concept in the law”7 Barrat
of the Ordinance defines a "trust" as annexed to the ownership of property, eposed in and accepted by the owner, for the benefit of another person, or of tch a character that, while the ownership he right to the beneficial enjoyment of din such otherperson, or in such other
er.”
h regard to the concept of "trusts” in and Occidental Laws in Harmonious in Sri Lanka, Electronic Journal of vailable at http://www.ejclorg.
(4) M.L.R. 514-542. See in this regard,
general v. Dublin Corporation 1 Bligh with regard to whether a corporation onally liable for misuse of funds), "It is could be a remedy, and highly important lic money should know, that they are

Page 19
Dinesha Samararatne
establishes through analysis of public funds were subject to pr to the idea of a public trust.’
Barrats article traces the c English Public Law. Through a statutes, Barrat demonstrates ho the concept of public trust an from it. Two factors that led the mechanism of audit surcha equitable remedies with the legal to Barrat, the concept was cont the recognition of the fiduciary councillor to the taxpayer. That mechanism that recognises the c v. Porter is a recent case that up
liable to account, in a Court of Eq as for withholding, the funds.", Bal
28 "Publicfunds could now beprotected
and losses from misappropriation public trusts' resulted from the sepa jurisdiction long applied to prote p.521. He cites the following cas Attorney General v. Brown 1 Sw Corporation 1 Bligh NS312, Parr
29 "Despite public trusts doctrinespe, remedial changes increasingly di authority audit surcharges and til Audit surcharges were an admit litigation in the Chancery, Remed public trusts remedies to be applied the need to base them explicitly on 525.
30 Barrat supra, at p. 526 onwards.
Prescott v Birmingham Corporatio
1983) A.C. 768.
31 Magill v. Porter (2001) U.K.H.L. 6

English case law, that the use of inciples of equity and gave rise
ievelopment of this concept in in examination of case law and w the English Courts developed d subsequently made a retreat to this retreat were the use of arges and the incorporation of remedies.” However, according inued to be employed through duty owed by a local authority , according to Barrat, is another :oncept of public trusts. 'Magill held an audit surcharge against
tuity, as well for the misapplication of rrat, supra at p. 520. din Chanceryagainst misappropriation, made good by those responsible. These rate application of permanent equitable ct charitable funds.” Barrat, supra at es as authority for this proposition: uns 265, Attorney Generalv. Dublin v, Attorney General 8 Cl& Fin 409.
rmanent basis, two nineteenth century verted its practical application: local 1e fusion of legal equitable remedies. listrative substitute for public trusts ial fusion enabled the other equitable in the Queens Bench Division without public trust status.” Barrat at suprap.
Roberts v. Hopwood [1925) A.C. 578, n 1 Ch 210 (Ch), Bromley LBC v. GLC
7.

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10 Public T
local councillors who had mis Lords in that case affirmed th authority may be exercised for powers were conferred and not
The Court further held th
“It follows from the propositi as if upon trust, that those inconsistent with the public conferred betray that trust a
Since 2000 however, the remed abolished in English Admini
32 Magill v. Porter, supra, para 19. : W., and Forsyth, C.F., Administr Press, Oxford, 2000) at pp 356-3 v. Tower Hamlets London Boroug Ltd (1988]AC858at872,*Statut is conferred as it were upon trus, validly be used only in the right a conferring it is presumed to have
33 The House of Lords in this judge of Ireland in Attorney General v 119 at 160-161, “Municipal Con bodies for any purpose of redress individuals who constituted the é been committed, cannot be mad persons doing acts that, when do1 which are induced by the individu and this Court holds that persons w of their office may be rendered e. whom they allow, by their absenc corporate property... As the trus by the Legislature, and appointed to attend to the interests of the Co and uprightly, and to see that eve over which he and they are placea

ust Doctrine. The Sri Lankan Version
used public funds. The House of at "Powers conferred on a local the public purpose for which the otherwise.'
at,
on that public powers are conferred who exercise powers in a manner purpose for which the powers were ld so misconduct themselves.'
y of an audit surcharge has been strative Law. Therefore Barrat
Lord Bingham of Cornhill cites Wade ative Law (8th ed., Oxford University 57, and Lord Bridge of Harwich in R gh Council Exp Chetnik Developments ory power conferred for public purposes t, not absolutely - that is to say, it can nd proper way which Parliament when intended...”
ment quotes from the Lord Chancellor . Belfast Corporation (1855) 4 IR Ch porations would cease to be tangible on account of a breach of trust, if the xecutive, and by whom the injury has 2 responsible. They are a collection of te, are the acts of the Corporation, but als who recommend and support them; 'ho withdraw themselves from the duties tually answerable for the acts of those e, to have exclusive dominion over the tees of the corporate estate, nominated by their fellow-citizens, it is their duty poration, conduct themselves honestly yone acts for the interests of the trust

Page 21
Dinesha Samararatne
argues for a revival of the conc recognition of the fiduciary dut taxpayer. On that basis, a coun for the misuse of public funds. This interpretation of "pub doctrine of public trust. The id trust for the community and th can be held personally liable foi (which is the rationale for an au. in English Public Law, to meant public authorities is held intru the House of Lords endorses a Forsyth in this regard,
"Statutory power conferredf were upon trust, not absolut used only in the right and p conferring it is presumed to h
That interpretation has also b in developing the legal basis fo that the concept of "public trust Court of England, could be ones PTD has emerged.
34 "...since mid-nineteenth centuryg
efficient, professionally objective litigation to replenish misappropr. provided local audit system, a sim Makinguse of the existing centra considerable advantage, clearly c. the consequences of wilful miscor jurisdiction relating to unlawfuln
35 Court cites, Wade W., and Forsy
pp 356-357, at para 19 of Porter
36 See discussion under subheadin

11
ept of public trusts through the yowed by a local authority to the cillor could be personally liable 34
blic trusts” has a similarity to the ea that public funds are held in at those persons in public office rits misuse or mishandling of it, dit surcharge) has been extended that statutory power exercised by st. In the case of Porter v. Magill, n observation made by Wade &
or public purposes is conferred as it ely - that is to say, it can validly be roper way which Parliament when lave intended . . .*
een used by the Sri Lankan SC r the PTD. Therefore, it seems s” as developed by the Chancery source from which the SriLankan
overnment sawa need to create a more and less costly alternative process then lated public funds, based on the alreadyilar initiative today could be beneficial. land local audit systems it could, with onfine the personal liability involved to duct instead of discretionary equitable ess." Barrat, supra at p. 542.
th, C.F., Administrative Law, supra at V. Magill, supra.
g2.1.B. in this regard.

Page 22
12 Public T
B Principle of Trust in the E.
Administrative Law
It has been suggested that, t sought to be enforced throug existing principles of British law and therefore that the doc For instance, one of the princij discretion vested in an adminis the Constitution, cannot be ab grounds on which the abuse of exercise of discretion for an im considerations have not been ta considerations have been takenir is exercised in bad faith.' Ins issue a writ of certiorarito quasl following observations with reg discretion by court.
“The Courts have, eversince ti control over the discretion e. the like, in order to prevent abused.”*
Using those principles related t discretion as an example, it coul is in fact a re-incarnation of e Administrative Law as applied
The overarching idea her conferred upon an office - it i power can only be used to fulfill
37 Seeingeneral, Craig, P, Administ London, 2008) and Wade W., and
38 Craig, P, supra, p. 559. 39 Craig, P, supra, p. 562. 40 Craig, P, supra, p. 555. 41 Craig, P, supra at p. 55.

ust Doctrine. The Sri Lankan Version
ercise of Public Power in English
he values of good governance the PTD can be found in the and Sri Lankan administrative rine is neither new nor unique. les of administrative law is that trative officer through statues or used.” There are three principal discretion is reviewed by Court; proper purpose, where relevant ken to account and/or irrelevant to account' and where discretion uch instances, the Court could that decision."Craig makes the gard to review of administrative
he origins of judicial review, exerted xercised by tribunal, agencies and that power from being misused or
o the exercise of administrative d be demonstrated that the PTD tablished principles of English in Sri Lanka.
is, that when public power is s necessarily implied that such he objective of such conferment
rative Law, (6th ed., Sweet & Maxwell, Forsyth, C.F., supra.

Page 23
Dinesha Samararatne
of power and within the limits in fact, a vital aspect of the PTI three of this paper.
2.2. Public Trust Doctrin International and Compa
A. Origins of the Concept in
English Law
The second possible source and/c Public Law, is the Roman law id must be heldintrust for the publi scholarship on the PTD in enviro of Justinian, where it is stated t rights to "the air, running water, naturalresources therefore, wer
and were commonly owned for law developed this idea further
42 As per Justinian, “By the law o mankind - the air, running water, the sea. No one, therefore is forbid that he respects habitations, mon like the sea, subject only to the lay that rule is as follows, "The partici public things lie may permit all the a special jurisdiction to prevent at even the shore of the sea was sai public: it is not the property of t adjacent to the shore, but it belon of the shore are lost by the act of i jurists, we must understand popu, the guardianship of the Roman p. Institutes of Justinian, , (3rd ed, I
43 Also see in this regard, David Environmental Human Rights, an 16 New York University Envirol to Takacs, the Institutes of Just civil law in Europe and along wit introduced.

13
of that power. Those factors are ) as will be illustrated in section
e in Environmental Law: rative Jurisdictions Roman Law and its Adoption in
or origin of the PTD in Sri Lankan ea, that certain natural resources C. Mostjudicial opinions and legal nmental law refer to the Institutes hat, the public had unrestricted he sea and the sea shore".' Those e incapable of private ownership he benefit of everyone. English to the effect that;
f nature these things are common to the sea and consequently the shores of den to approach thesea-shore, provided uments, and buildings, which are not, v of nations" and the commentary on ularpeople or nation in Mwhose territory world to make use of them, but exercise yone from injuring them. In this light d, though not very strictly, to be a res he particular people whose territory is gs to them to see that none of the uses individuals...with the opinions of other li Romani esse to mean “are subject to eople”. Sandards, Thomas Collett, The ondon, 1865) at pp. 168-167.
Takacs, The Public Trust Doctrine, d the Future of Private Property, (2008) nmental Law Journal 711. According inian influenced both common and hit the public trust doctrine was also

Page 24
14
Public T
"The Crown was thought to beds below them in order to and navigation for the advar held this property in trust fo
That concept has been employ to argue for the responsibility aspects of the natural enviro) enjoyment of society but also generations.' For instance, thi into the South African legal provisions" and also through natural resources.
44 Scanlan, Melissa Kwaterski, The
45
46
47
48
and the Degradation of Trust R Power in Wisconsin, (2004), Vo 140 citing the case of Willow Ri (Wis. 1898).
See in this regard the case of J. Honourable Fulgencio S. Factoran Court (Philippines). In this case, on the principle of inter-genera brought by minors alleging thatt Philippines was in violation ofth of rainforests of the country.
See, in general - Robyn Stein, W A Country Case Study Examini System, (2005), Vol. 83, Texas La
S. 24 of the South African Con "Everyone has the right to an en health or well-being and to ha benefit of present and future gen and other measures that preven promote conservation; and secum and use of natural resources wh social development.”
S. 3 of the National Water Act 36 trusteeship of nations water res. trustee of the nations water reso

rust Doctrine. The Sri Lankan Version
have ownership of waters and the control the highways of commerce tage of the public; thus the sovereign r the people."
2d in modern environmental law, of the state to preserve certain hment not only for the use and for the sustainable use of future s concept has been incorporated system' through constitutional legislation for management of
Evolution of the Public Trust Doctrine esources: Courts, Trustees and Political l 27, Ecology Law Quarterly 135, at p. ver Club v. Wade, 76 N.W. 273, 278-79
uan Antonio Oposa and Others v. The 1 and Another G.R.No:101083 Supreme the Supreme Court of Philippines relied tional equity and upheld the petition he destruction of the forest cover in the e rights of the unborn to the enjoyment
ater Law in a Democratic South Africa: ng the Introduction of a Public Rights w Review 2167.
stitution of 1996 provides as follows, vironment that is not harmful to their ve the environment protected, for the erations, through reasonable legislative | pollution and ecological degradation; e ecologically sustainable development ile promoting justifiable economic and
of 1998 of South Africa titled, "Public ources” provides, "3. (1) As the public urces the National Government, acting

Page 25
Dinesha Samararatne
B. Use of the Concept in the Uni
This idea of Public Trusts is alsou, (hereinafter the "USA'). Navig: beds for instance are considere for the public and for public be The case of Illinois Centrall to be a landmark case of the American law. In that case the S the State of Illinois cannotabdic in the waters of Lake Michigan, the Illinois Central Railroad. Th grant to the Central Railroad th Lake Michigan, one mile outw lake, which amounted to the sh commercial area of the city." navigable waters of Lake Michi the public, the Court made the
"The state can no more abdic the whole people are interest under them, so as to leave ther of private parties... than it ca administration of governmen In the administration of got
through the Minister, must ensure conserved, managed and controlled for the benefit of all persons and mandate. (2) Without limiting su responsible to ensure that water is a in the public interest, while pron National Government, acting th regulate the use, flow and control
49 Melissa Kwaterski Scanlan, supra 50 Illinois Central Railroad v. Illinoi
51 See, Sax, J., The Public Trust Doct Judicial Intervention, (1970), 68 l 489 - 491 for a discussion on this

15
ted States
sed in the United States of America ble waters and underlying river d to be held in trust exclusively neft.* Railroad v. Illinois, is considered application of this doctrine in upreme Court of USA held that :ate its authority over navigation by grant of submergedlands to Le Illinois legislature had made a hat included all land underlying rards from the shoreline of the Loreline of the waterfront of the in holding that the land under gan should be held in trust for following observation;
ate its trust over property in which ed, like navigable waters and soils n entirely under the use and control in abdicate its police powers in the t and the preservation of the peace. vernment, the use of such powers
that water is protected, used, developed, in a sustainable and equitable manner, in accordance with its constitutional bsection (1), the Minister is ultimately located equitably and used beneficially loting environmental values. (3) The rough the Minister, has the power to of all water in the Republic.”
146 US 387 (1892).
ine in Natural Resource Law: Effective Michigan Law Review, 471-566, at p.
CaS62.

Page 26
16 Public T
may for a limited period be body, but there always rema those powers and exercise the more conformable to its wi. public property, or propert under navigable waters; the the direction and control of
Subsequent courts in the USA PTD, and held that certain na the state in trust for the people The most authoritative sch review article written by Josep Doctrine in Natural Resource La in the Michigan Law Review in and South Africa have relied on in that article, in applying the their own jurisdictions.o Acc public trusts should meet three
"If the doctrine is to provide some concept of a legal righ
52 Illinois Central Railroad v. Illinois
53 Hudson County Water Co. v. M
Lakes Charter Annex 2001, WIF (N.Y. App.Div. 1998) - upheld a 1 particular area in Long Island, In 1 (Haw. 2004), Save Ourselves, Inc. Commission 452 So. 2d 1152 (La (Alaska 1996), Arizona Center fo; 837 P.2d 158 (Ariz. Ct. App. 1991) Court ex rel. Maricopa 972 P2d So.2d 1085, 1101-02, 1109-10 (L - as discussed in Alexandra B. K Recognising Rights and Integrating Law Review, 699 at 711.
54 Sax, J., supra.
55 See for example the case of Mehta

ast Doctrine. The Sri Lankan Version
elegated to a municipality or other as with the state the right to revoke n in a more direct manner, and one tes. So with trusts connected with of a special character, like lands cannot be placed entirely beyond he state.”
have continued to rely on the ural resources must be held by 53
olarship in this regard is the law h Sax, titled, The Public Trust w: Effective Judicial Intervention, L970. Courts in the USA, India the academic arguments made doctrine of public trust within ording to Sax, the doctrine of Criteria.
a satisfactory tool...it must contain in the general public; it must be
, supra at p. 454.
cCarter 209 U.S. 349 (1908), Great Realty Corp. v. State 672 N.Y.2d 1007 estriction by law of development in a 2 Waiola O Moloka'i, Inc., 83 P3d664 v. Louisiana Environmental Control
1984), Pullen v. Ulmer 923 P2d 54 Law in the Public Interest v. Hassell
San Carlos Apache Tribe v. Superior 79 (Ariz. 1999), Avenal v. State, 886 . 2004)- Upheld a diversion project ass, Modern Public Trust Principles: Standards, (2006), 82(2), NotreDame
v. Kamal Nath, infra,

Page 27
Dinesha Samararatne
enforceable against the gove an interpretation consisten environmental quality.”
There are three consequencest the doctrine.
"Three types of restrictions o thought to be imposed by the p to the trust must not only be u be held available for use by thi may not be sold, even for a property must be maintained
To Sax, the "conceptual support idea that given the particular na such as navigable waters, such r ownership. It is evident from doctrine to apply only for the p natural resources. The concept application.
56 Sax, J., supra, p. 471. 57 Sax, J., supra, p. 477.
58 Sax, J., supra, p. 484 — on “concep as follows, "The approach with th certain interests are so intrinsical free availability tends to mark the serfs...An allied principle holds tha gifts of natures bounty that they c populace?” At p. 485- “...that certa that makes their adaptation to pri regard, David Takacs, supra, "Th from the longstanding idea that sa of nature so essential to human them, and so the sovereign must The philosophy and the obligation not the specific resources to which Public Trust Doctrines reach seen of those who would protect both to the sustainable use of that wor,

7
rnment; and it must be capable of t with contemporary concerns for
hat arise from the application of
in governmental authority are often ublic trust first, the property, subject used for a public purpose, but it must 2 general public; second, the property fair cash equivalent; and third, the lfor particular types of uses.’
” for the doctrine arose from the ture of certain natural resources, esources are incapable of private his writing that he perceived the reservation and equitable use of , in his view, had only a limited
tual support” for PTD, Sax comments 1e greatest historical support holds that ly important to every citizen that their society as one of citizens rather than of it certain interests are so particularly the ought to be reserved for the whole of the in uses have a peculiarly public nature vate use inappropriate.” See also in this le Public Trust Doctrine's power comes ome parts of the natural world are gifts life that private interests cannot usurp steward them to prevent such capture. are the central elements of the doctrine, the ideas and duties attach. As such, the ns constrained only by the imagination the natural world and the publics right ldʼ

Page 28
18 Public Tr
"It is clear that the historical narrow. Its coverage include: states, that aspect of the pu mark on the margin of thes over those lands, and the wa any consequence...Tradition parklands, especially if they h specific purposes; and, as a m such lands not be used for nom
Even though the doctrine had be recognises that the ultimate guarc legislature. Therefore, according of the doctrine, the judiciary sho increased adherence to the PTD Sax calls it - is a situation where
"...a diffuse majority is made minority. For self-interested a an undue influence on the pub and administrative bodies and based public interests. Thus, ti perform, and have been per of political power for a dison remanding appropriate cases tc has been aroused.”o
Alexandra Klass Writingabout th in the USA, echoes Sax in saying under that doctrine vests with th should only perform a gap fillin
59 Sax, J., supra, p. 556. 60 Sax, J., supra, pp. 559-560.
61 “In the end, state public trust pri substitute for strong legislative pro environment. Our current regula protection for natural resources a in place prior to the 1970s. Howev

st Doctrine. The Sri Lankan Version
scope of public trust law is quite , with some variation among the lic domain below the low-water 2a and the great lakes, the waters ters within rivers and streams of tl public trust law also embraces ave been donated to the public for nimum, it operates to require that park purposes.”
'en applied by the judiciary, Sax lian of the “public” should be the to him, through the application uld push the legislature towards . "Public resource litigation” as
Wy
subject to the will of a concerted nd powerful minorities often have lic resource decisions of legislative cause those bodies to ignore broadly he function which the courts must forming, is to promote equality ganised and diffuse majority by the legislature after public opinion
e contemporary use of the PTD that the primary responsibility elegislature and that the Court gfunction.
1ciples will not and should not be a tection for natural resources and the tory state surely provides far more 1d the environment than the system 2r, there are many gaps in the system

Page 29
Dinesha Samararatne
C. Public Trust Doctrine in Indi
The Indian experience is directly the Sri Lankan Courts have ma judicial authorities, in employi
The PTD has been held tc the case of Mehta v. Kamal Nat interpreted the right to life in th a corresponding duty of the sta involved the construction of a 1 in the change in the course oft Court ordered inter alia, that cancelled and that compensati to the environment. Several sign by the Court with regard to t conclusion. According to the C in relation to natural resources ownership. However, Court
resulting from lack of enforcemen and a host of other impediment of strong environmental protec implemented by state courts can gaps, if scholars expand their vie and judges follow the lead of the a academy and the legal profession ( comprehensive approach to natur the public trust doctrine along wi andstandards. Such an approach, in the law to see that all these sou in the process, move the legal dc contemporary environmental ana Klass, supra, at p. 753.
62 Mehta v. Kamal Nath 19971 S.C.
63 "No person shall be deprived of his to procedure established by law.” 1949 as amended.
64 “The Public Trust Doctrine primi resources like air, sea, waters and t

19
3.
relevant to this analysis, in that de express references to Indian ng the doctrine in Sri Lanka.
be part of the law of India in h. The Indian Supreme Court e Indian Constitution to include te to apply the PTDo This case resort on a river bank, resulting he river. Applying the PTD, the the applicable lease should be on be paid for damages caused hificant observations were made he doctrine in coming to that 'ourt, the doctrine applied only that are not capable of private adopts a dynamic approach in
t, lack of political will, lack of resources 's to the enactment and enforcement tion laws. Public trust principles as play a significant role in filling those v of these principles and more lawyers 'ecisions...In this way, those in the legal an begin the process of creating a more alresources protection that relies upon th statutory and constitutional policies goes beyond the formalistic distinctions rces of law form a cohesive whole and, ctrine to the next level in addressing natural resource issues.” Alexandra B.
C. 388.
life or personal liberty except according Art. 21 of the Indian Constitution of
arily rests on the principle that certain he forests have such a great importance

Page 30
20
Public T
identifying the types of natur ambit of the doctrine as in th the opinion of the Court, the d Indian jurisprudence and coul particular natural resources fol
"Our legal system - based on public trust doctrine as part ( trustee of all natural resouri public use and enjoyment. F the sea-shore, running waters lands. The State as a trustee natural resources. These resou converted into private owner,
Several other cases have follo India." Takacs commenting on
65
66
67
to the people as a whole that it wou a subject of private ownership. Th they should be made freely availab in life. The doctrine enjoins upon ti jortheenjoyment of thegeneralpu private ownership or commercial p para 25.
"It is no doubt correct that the p1 common law extended only to cert commerce and fishing. But the A expanded the concept of the public the public trust doctrine should no. operating in our natural resource, 25.
Mehta v. Kamal Nath, supra, para
As cited in, David Takacs, supra, M Sahu 1999S.C.C. 464 (apublic par that may not be replaced with a sh Grama Panchayat v. State of Ken exploitation case) — held that gro that its excessive use can be challe Ltd. v. Radhey Shyam Sahu and C

st Doctrine. The Sri Lankan Version
l resources that fall within the American jurisprudence. In octrine was always a part of the d be used for the protection of public use.
English common law - includes the f its jurisprudence. The State is the es which are by nature meant for ublic at large is the beneficiary of airs, forests and ecologically fragile is under a legal duty to protect the rces meant for public use cannot be thip.”
wed this judicial approach in that approach, points out that
uld be wholly unjustified to make them 'e said resources being a gift of nature, le to everyone irrespective of the status he Government to protect the resources blic rather than to permit their use for urposes.” Mehta v. KamalNath, supra,
ublic trust doctrine under the English in traditional uses such as navigation, merican Courts in recent cases have trust doctrine... We see no reason why be expanded to include all ecosystems .” Mehta. v. Kamal Nath, supra, para
34.
..I. Builders Pvt. Ltd. v. Radhey Shyam ..and market are public trust resources opping complex. Also see, Perumatty ala (2003) (Coca-Cola groundwater ind water belongs to the public and ged before courts, M.I. Builders Pvt. thers (1999) 6 SCC 464, Intellectuals

Page 31
Dinesha Samararatne
the doctrinal basis may not be v
"Even after reading these cases I do not understand how exact off this manoeuvre. The decisi are saying, this Public Trust 1 Indian law, or whether it is a to say that United States law Doctrine to be part of its comn and it should obtain in India, the court felt the Public Trust demands on the government to rights.”
However, in analysing the recent Tirupathi v. State of AP and Ot Areas Development Board v. CF be argued that the Indian Supre develop its jurisprudence with
The Intellectuals Forum c the tank bed-lands of two tank The petitioners challenged the a as a violation ofthe states obliga including water resources. In Court expounded the jurispru and its implications; and identil
Forum, Tirupathi v. State of A.P. a Resorts and Hotels Ltd. and Anoth Appeal Nos.4155 and 4156 of 200
68 David Takacs, supra.
69 Intellectuals Forum, Tirupathi v. S
1350.
70 Karnataka Industrial Areas Deve
Others (2006) AIR SC 2546.
71 Intellectuals Forum, Tirupathi v. S 72 Article 14 of the Indian Constitut

21
very clear.
and various interpretations thereof, ly the Indian Supreme Court pulled pns do not reveal whether the judges Doctrine has always been a part of new provision. Mostly, they seem has always found the Public Trust non law heritage as a British colony, too. What is clear, however, is that Doctrine was necessary to bolster its advance constitutionally protected
cases such as Intellectuals Forum, hers'and Karnataka Industrial (enchappa and Others” it could me Court has sought to further regard to PTD.
ase involved the alienation of s mainly for housing purposes. alienation as violating PTD and tion to protect the environment making its determination, the Idential basis of PTD in India fied the right to equality,’ right
nd Others (2006)3 SCC549, Fomento er v. Minguel Martins and Others Civil 0.
tate of AP and Others (2006) AIR SC
alopment Board v. C. Kenchappa and
'tate of AP and Others, supra.
ion.

Page 32
22 Public T
to life’ and the other fundar Constitution, as providing the in the opinion of the Court, P. constitutional value of protecti the duty of the state and the d environment, Court comment
“Article 48A of the Constit State shall endeavour to pro to safeguard the forests and 1 of the Constitution of India, every citizen of India, inter a environment, including fores. compassion for living creatu fundamental in the governan the duty of the State to apply further these two articles are t the scope and purport of the the Constitution...”
The Court makes reference to thi of the doctrine, its developmer dicta of the Mehta case.” In thi a step further and holds that th applied in matters that involve
"...when the state holds a res use of the public, it provides f upon any action of the Gove with the existing legislations, use. To properly scrutinize the Courts must make a disi
73 Article 21, ibid. 74 Intellectuals Forum, Tirupathi v. S 75 Article 48A and 51A of the India 76 Intellectuals Forum, Tirupathi v. S 77 Mehta v. Kamal Nath, supra.

ust Doctrine: The Sri Lankan Version
ental rights recognised in the ramework for PTD. However, D is located most firmly in the on of the environment.” Citing uty of the citizen to protect the
as follows:
ution of India mandates that the tect and improve the environment vildlife of the country. Article 51A enjoins that it shall be the duty of ia, to protect and improve national s, lakes, rivers, wildlife and to have es. These two Articles are not only ce of the country but also it shall be these principles in making laws and o be kept in mind in understanding fundamental rights guaranteed by
e Roman and English law origins ut in the USA and reaffirms the is case however, the Court goes he strict scrutiny test should be the PTD.
ource that is feely available for the or a high degree of judicial scrutiny rnment, no matter how consistent that attempts to restrict such free such actions of the Government, inction between the governments
tate of AP and Others, supra.
Constitution. tate of AP and Others, supra.

Page 33
Dinesha Samararatne
general obligation to act for more demanding obligation certain public resources.” This judicial view is endors Karnataka Industrial Areas Dev and Others. 'This case involve of land for non-industrial purp basis that those lands should b grazing purposes. Court heldw the PTD requires that a reason development and protection of The foregoing analysis sugg and application of PTD is fii of environmental law. PTD i application of international p. such as sustainable developme the polluter pays principle."
D. International Environment
Trust The concept of public trust as i also been used in internationa Hungary v. Slovakia°! determir Justice (hereinafter the “ICJ”) ir G. Weeramantry. That case invol Czechoslovakia regarding the (
78 Intellectuals Forum, Tirupathi v.
79 Karnataka Industrial Areas De1
Others, supra.
80 See in general in this regard, Ka Board v. CKenchappa and Othe
81 25th September, 1997. A disput regarding an agreement to bui Danube.

23
the public benefit, and the special, which it may have as a trustee of
2d in the subsequent case of elopment Boardv. C. Kenchappa l a challenge to the acquisition loses in different villages on the epreserved for agricultural and ith the petitioner and ruled that lable balance is struck between the environment.
ests that the Indian development 'mly located within principles s seen as a central link in the rinciples of environmental law nt, precautionary principle and
all Law and the Doctrine of Public
trelates to natural resources has law, particularly in the case of Ledin the International Court of the separate opinion of Judge C. ved a treatybetween Hungary and onstruction of a system of locks
State of AP and Others, supra. elopment Board v. C. Kenchappa and
"nataka Industrial Areas Development S, Sирra.
arose between Hungary and Slovakia d and operate certain "locks” on the

Page 34
24 Public Tr
on the Danube as a "joint inves Slovakia seceded from Czechoslo had abandoned the construction under the treaty of 1977. The tw the ICJ for a determination inter entitled to have had abandoned to the implementation of the tre to the principles of Internationa that the parties have an obligati carrying out the construction p Judge Weeramantry (at that ti: addresses generally, the obligatic with the principles of Internati specifically, the principle of sust
The case of Hungary v. Slov makes a ruling on the principle tracing the development of that draws interalia from the traditi Sub-Saharan Africa and the Islan his Excellency quotes extensive support the idea, that natural re by those in power for inter alia In addressing the dispute from development, Judge Weeramant
82 A treaty"concerning the construct Nagymaros System of Locks.” 197
83 "Three issues on which I wish to ma
to those of the Court, are the role development in balancing the com environmentalprotection; the protec describe as the principle of continui and the appropriateness of the use estoppel, for the resolution of probi such as environmental damage.” supra, Separate Opinion of Judge

st Doctrine: The Sri Lankan Version
ment” by contracting parties.o vakia in 1993. In 1989, Hungary project that it had undertaken 'o parties referred the matter to alia as to whether Hungary was he project in 1989. In referring aty, the Court makes reference Environmental Law and holds on to follow those principles in roject. In his separate opinion, me Vice President of the ICJ) on of the state parties to comply onal Environmental Law and ainable developmento
akia is the first time that the ICJ of sustainable development. In principle, Judge Weeramantry onal legal history of Sri Lanka, nic tradition. In that judgement ly from Sri Lankan history to sources are to be held in trust the purpose of public benefit. the perspective of sustainable ry makes the observation that;
ion and operation of the Gabcilcovo7.
ke some observations, supplementary played by the principle of sustainable peting demands of development and tion given to Hungary by what 1 would ng environmental impact assessment; of interpartes legalprinciples, such as ems with an erga omnes connotation Introduction, Hungary v. Slovakia, Weeramantry.

Page 35
Dinesha Samararatne
"Among those which may be referred to are such far-rea trusteeship of earth resource rights, and the principle tha conservation must go hand
having a vitality of its own welfare of the community.
opportunity should be afora duty lying upon all member integrity and purity of the en
Yet again, as in the USA and Ind of PTD is confined to the p resources, with emphasis on t The other aspect òf the idea o Judge Weeramantry is the con natural resources.
"Natural resources are not i and a principle of their use maximum service of peopl there should be a maximiza species, while preserving their development is the betterme
The principle of sustainable de of trusteeship of natural resol opinion, is "one of the most an which modern internationalli customary and treaty law.'
84 Hungary v Slovakia, Separate O 85 Ibid.
86 See for example, the Rio Declar:
Right to Development of 1986.

25
extracted from the systems already hing principles as the principle of , the principle of intergenerational t development and environmental in hand. Land is to be respected as and being integrally linked to the When it is used by humans, every ed to it to replenish itself...there is a s of the community to preserve the
vironment.”o
ian jurisprudence, the application reservation of environmental he sustainable use of the same. f"trusteeship” as expounded by cept of "collective ownership” of
ndividually, but collectively, owned,
is that they should be used for the e. There should be no vaste, and tion of the use of plant and animal regenerative powers. The purpose of nt of the condition of the people.”
'elopment along with the concept urces, according to this separate ient ideas in the human heritage” whas now incorporated into its
pinion of Judge Weeramantry, supra.
tion of 1992 and the Declaration on the

Page 36
Judicial De Public Trust Do
3.1. Basis of the Doctrine
The Sri Lankan Constitution ( PTD. It is ajudicialinnovation of the Constitution. The Cou Articles 3, 4 and 12(1) of th
1.
"In the Republic of Sri Lanka sove. Sovereignty includes the powers c the franchise.” Art.3 of the Cons
"The Sovereignty of the People following manner:- (a) the legislat by Parliament, consisting of elect the People at a Referendum; (b) the the defence of Sri Lanka, shallbee. elected by the People; (c) the judici by Parliament through courts, t established, or recognized, by the ( by law, except in regard to matte, andpowers of Parliament and of of the People may be exercised di (d) the fundamental rights which recognized shall be respected, sect government, and shall not be ab1 manner and to the extent hereina, be exercisable at the election of t Members of Parliament, and at é has attained the age of eighteen y elector as hereinafter provided, h electors.” Art. 4 of the Constituti
"Alpersons are equal before the la of the law.” Art. 12(1) of the Cor

relopment of trine in Sri Lanka
loes not expressly recognise the based on the overarching values it generally makes reference to e Constitution when relying on
eignty is in the people and is inalienable. f government, fundamental rights and titution. shall be exercised and enjoyed in the ive power of the People shall be exercised ed representatives of the People and by "executive power of the People including cercised by the President of the Republic alpower of the People shall be exercised ibunals and institutions created and onstitution, or created and established s relating to the privileges, immunities ts Members, wherein the judicial power rectly by Parliament according to law: are by the Constitution declared and red and advanced by all the organs of idged, restricted or denied, save in the 'erprovided; and (e) the franchise shall e President of the Republic and of the very Referendum by every citizen who 'ars, and who being qualified to be an is his name entered in the register of Ո:
and are entitled to the equalprotection titution.

Page 37
Judicial Development of Public Tru.
the PTD. In tracing the use of evident that it is a relativelyne the Sri Lankan SC in respondin public power, exploitation of n private benefit or in response be in violation of the "Sovereig
3.2. A Doctrine that Limits E
It seems that the PTD made its a as a principle that prevents the al This development is attributable has presided over almost all thi the doctrine to that end.
The earliest reference to judgements is in the case C case involved a divestiture of Acquisitions Act, which was divestiture is not for a "public term "public purpose” under the following opinion of H.W
"...Statutory power conferre it were upon trust, not abso be used only in the right and conferring it is presumed to
Based on that observation, th public authority is not absolute used exclusively for the “publi vested with the Minister unde
Art.3 and 4 of the Constitution De Silva. v. Atukorale (1993) 1 S. S. 5 of the Land Acquisition Act Wade W., and Forsyth, C.F., sup
"Unfettered discretion is wholly i possesses powers solely in order ti supra note 19 at p. 354

it Doctrine in Sri Lanka 27
the PTD in Sri Lankan law, it is w concept that has been used by g to either abuse of discretionary atural and national resources for to actions that are considered to inty of the People.”
xercise of Discretionary Power
dvent to Sri Lankan jurisprudence use of discretionary public power. 2 to Justice M.D.H. Fernando who judgements that have employed
public trust found in reported f De Silva v. Atukorale. This land acquired under the Land challenged on tie basis that the c purpose.” In interpreting the that Act, Fernando J., relied on ... Wade.
d for public purposes is conferred as lutely - that is to say, it can validly proper way which Parliament when have intended.'
e Court held that discretion of a and that such discretion must be : good.” Similarly, the discretion the Act to restore acquired land
iL.R. 283.
, supra.
ra, at 353-354. appropriate to a public authority, which at it may use them for the public good.",

Page 38
28 Public TI
to owner, is also not absolut Fernando Jobserves,
"It was a power conferred sol not for his personal benefit; be exercised reasonably and relevant grounds of public ir
Additionally the Court observe be found in British, American a not only in the "sphere of admi wherever discretion is given for
A similar approach can b v. Premachandra which was a case was a fundamental righ termination of services on gro reiterated in this case that discre and dismissal are not absolute be exercised for public benefit.
9 De Silva. v. Atukorale, supra, atp. 10 Ibid. 11 Bandara v. Premachandra (1994)
12 Fernando J, “Powers of appointm Constitution on various authorit private benefit, and their exercise caprice; they cannot be regarded unless the enabling provisions con Premachandra, supra, at p.312.
13 Jayawardene v. Wijayatilake (20 a fundamental rights applicatio appointment of an Inquirer into Bandara v Premachandra, supra, a powers of appointment and dismis. in the public interest, and not for p1 for the public and that the exercis reason and not caprice..." at p. 15

list Doctrine. The Sri Lankan Version
Commenting on that power,
y to be used for the public good, and was held in trust for the public; to in good faith, and upon lawful and terest.”
s that this is a principle that can ld French law and can be applied listration” but that"...it operates some public purpose."
e found in the case of Bandara lso decided by Fernando J. This Es application challenging the unds of discrimination. Court tionary powers of appointment powers and that they can only ? Jayawardene v. Wijayatilakeo
297.
1 Sri L.R. 301.
2nt and dismissal are conferred by the es in the public interest, and not for must be governed by reason and not as absolute, unfettered, or arbitrary, pel such a construction.” Bandara v.
1) 1 Sri LR 132. This case involved challenging the cancellation of an sudden deaths. Fernando J, follows hdheld that, "It is accepted today that al are conferred on various authorities vate benefit, that they are held in trust of these powers must be governed by

Page 39
Judicial Development of Public Trus
and Premachandra v. Montagu subsequent cases that rely on
Bandara. To In both those decis discretion is not absolute and public interest. In this line of the PTD in English Administra that statutory powers are notab only be exercised for the benef
3.3 Trusteeship of Natural an
Natural and national resources resources that could overlap i. issued several judgements in W held that the exploitation of abu amount to a violation of PTD. paper, the Sri Lankanjurisprud USA and Indian courts have reli of natural resources for public
A. Trusteeship of Natural Resou
The PTD has been used for t of natural resources from exp The celebrated judgement of B Industrial Development'7 is the c
14 Premachandra v. Montague Jaya involved a challenge to the exer two provinces in appointing chie Fernando J, makes reference to t Forsyth C.F., as cited in Atukora or unfettered discretions in public functionaries in trust for the publ. propriety of the exercise of such a the purposes for which they were
15 De Silva. v. Atukorale, supra. 16 Bandara v. Premachandra, supra
17 Bulankulama v. Secy, Ministry o

it Doctrine in Sri Lanka 29
Le Jayawickrama' are two other the holdings of Atukorale' and ions, Fernando J., reaffirms that that it can only be exercised in cases, the Court seems to locate tive law principles which provide solute and that such powers can it of the public.
di National Resources
are two distinctive categories of
n certain instances. The SC has thich the Court has consistently ise of both types of resources can As discussed elsewhere in this ence is unique in that regard; the ed on PTD only for the protection use and benefit.
:CCS
he protection and preservation loitation by the Sri Lankan SC. ulankulama v. Secy, Ministry of ase in point. This case involved an
wickrama [1994) 2 Sri L.R. 90. This case cise of the power of the Governor of fministers to the respective provinces. he same quotation from Wade, W., and les case, supra. “There are no absolute law; discretions are conferred on public ic, to be used for the public good, and the iscretions is to be judged by reference to so entrusted." at p. 105.
. f Industrial Development (2000) 3 Sri

Page 40
30 Public Tru
application, claiming an immine rights due to a proposed agreer and a foreign company for explor 'In recognising a violation off Amerasinghe J., elaborated as tot in Sri Lanka.
The Bulankulama case se pronunciation of the nexus betwe andthePTD. AmerasingheJ., hol of democratic values, in that it ultimate sovereigns and that hold only temporary bearers of those therefore is that such powers ca the interests of the People.
“The Constitution declares tha is inalienable (Article 3). Bein, powers of the People are exerc the time being entrusted with c
Having established the idea of c the People as the basis for the pu goes on to provide reasons as to w resources should be considered that doctrine.
Relying on Sri Lankan politi as recorded in the Mahavamsa, ar Amerasinghe J. holds that orga are required to exercise that po argument, Amerasinghe J also r
L.R. 243.
18 Under art. 126 (1), an applicatio fundamental rights or an imminen
19 Bulankulama v. Secy, Ministry of
253.

st Doctrine. The Sri Lankan Version
ht infringement of fundamental ment between the government ation and mining of phosphate. undamental rights in that case, he scope of the PTD as applied
'ems to be the first judicial en Article 3 of the Constitution is that Article3 is an expression affirms that the People are the 2rs of powers of government are powers. The logical conclusion n only be exercised to further
it sovereignty is in the People and g a representative democracy, the ised through persons who are for ertain functions.”o
lemocracy and sovereignty of blic trust idea, Amerasinghe J, thy the management of natural to be a fundamental aspect of
cal history under a monarchy, d the Sri Lankan Constitution, hs of state are guardians who Iwer in trust. In making that elies on the approach adopted
n can be made for a violation of tviolation of fundamental rights.
Industrial Development, supra at p.

Page 41
Judicial Development of Public Trusi
by Judge C.G. Weeramantry int In the Bulankulama case, Amer. applicable to the modern constit that it leads to a much broaders through the idea of "shared res the doctrine as applied in India
In the opinion of the Court, management rests primarily wi and the judiciary also share in th developing legal standards for latter byproviding interpretatio subjecting actions of the Execul
The respondents in this cas that the Court could not "interf of the government in situations a "trustee.” It was argued that ti decisions in relation to due pr argument and held that unde Constitution, the Court is expr jurisdiction where the actions/or
20 Hungary v. Slovakia, supra. Sees
CatS6C.
21 Bulankulama v. Secy, Ministry oj
256.
22 In coming to this conclusion, the Central R Co v Illinois 146 U.S. 38, 1. SCC 388.
23 "The Executive does have a sign conferred by law, yet, the manager placed exclusively in the hands oft power is subject to judicial review done on many occasions, legislate o and the Courts have the task of effect to the will of the people as ex v. Secy, Ministry of Industrial Dev

Doctrine in Sri Lanka 31
he case of Hungary v Slovakia. singhe J, affirms that the same is utional regime in Sri Lanka and cope of the public trust doctrine ponsibility' in comparison to
or in the USA.’ even though the task of resource th the executive, the legislature hat responsibility: the former by resource management and the ns for those legal standards and tive to judicial review.’ e sought to rely on PTD to argue ere” in the exercise of discretion where the government acts as he Court may only review such ocess. The Court rejected that r articles 4, 17 and 126 of the ressly authorised to exercise its missions of the executive violates
section 2.2.D. for a discussion of that
f Industrial Development, supra at p.
Court looked at the cases of Illinois 7 and MCMehta v KamalNath (1977)
ificant role in resource management nent of natural resources has not been he Executive. The exercise of Executive . Moreover, Parliament may, as it has n matters concerning natural resources, interpreting such legislation in giving pressed by Parliament.” Bulankulama 'elopment, supra at p. 257.

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32 Public T
fundamental rights and that su that the government exercises
The concept of "shared re Court, is broader than the cont emphasises the responsibility o that of the individual. The Co of "shared responsibility” towa specifically the use of land) to standard in Sri Lanka.
24 "For the present limited purpose, 1 is justification in looking at the co but rather a way of thinking abo Codrington, Ancient Land Tenure the fact that the King was bhupatio of the earth’’-‘lord - adhipati - of th approval in support of the view til was of little or no significance. Mo there were two parties, and only tw. were the ruler and the subject, a required to pay a share of its gros protection he was entitled to rece system the question of ownership fact antecedent to that process of a right from political allegiance whic last century, but is not even nowfu general, it seems were given the enj to be rendered in consideration of piousandpublic purposes unrelate were under an obligation to make the grant or, in default, suffer thei
The public trust doctrine, relied u since the decision in Ilinois Centra a recognition of public rights in na over certain waters, has been extena basis. Nevertheless, in my view, it is I should prefer to continue to look as our anscestors did, and our con responsibility” Bulankulamaw, Sec supra at p. 256.

ust Doctrine. The Sri Lankan Version
hjurisdiction applies to powers Ven as a trustee.
sponsibility” introduced by the rept of PTD, not only because it fall organs of the state, but also urt relies on historical evidence rds natural resources (or more argue that it is the applicable
what I do wish to point out is that there ncept of tenure, not as a thing in itself ut rights and usages about land. H. W. and Revenue in Ceylon, pp-5-6, refers to rbhupala-lord of the earth, protector efields of all. He quotes Moreland with at at first, the question of ownership' reland wrote as follows: "Traditionally o, to be taken into account; these parties nd if a subject occupied land, he was s produce to the ruler in return for the ive. It will be observed that under this of land does not arise: the system is in isentangling the conception of private h has made so much progress during the ly accomplished..." Later, grantees, in yment of lands for services rendered or their holdings, or lands were given for d to any return. For their part, grantees proper use of the lands consistent with
loss or incur penalties.
pon by learned counsel on both sides, R. Co. u. Illinois(3), commencing with Ivigation and fishing in and commerce ed in the United States on a case by case : comparatively restrictive in scope and at our resources and the environment temporaries do, recognizing a shared y, Ministry of Industrial Development,

Page 43
Judicial Development of Public Trust
Subsequent cases have uphe of PTD presented in the Eppaw Gedara Wijebanda v. Conservato Shiranee Tilakawardane J., ech Justice Amerasinghe in holding of the state to ensure that natur preserved for public benefit. Thi application made by an individua to mine a quarry in a location c petitioner claimed that his righ as another individual, similarly permit. Even though the Court had been granteda permitin viol the PTD, Court also held that t had been violated due to the al this judgement, Tilakawardan between PTD, sustainable devel equity and holds that the state hi those principles in all decisions resources.’
25 Watte Gedara Wijebanda v. Conse
S.C. Application No. 118/2004, 2007.
26 "The doctrine of public trust was
jurisprudence and was founded o property resources such as river government in trusteeship for thef public. This doctrine emphasizes protect and conserve these resour exploitation byprivate individuals, gains. Such resources being an end freely to the generalpublic, irrespeci level in life. This doctrine is an "a protect the peoples common herita tidelands surrendering the right of when the abandonment of that tru larger interest of the purposes of th

Doctrine in Sri Lanka 33
ld the particular interpretation vala case. In the case of Watte
• General of Forests and Others' oed the judicial reasoning of ; that PTD requires all organs al resources are protected and s case was a fundamental rights lwho had been refused a permit lose to a national reserve. The t to equality had been violated situated, had been granted a held that the other individual ation of the applicable rules and he petitioner's right to equality bitrary refusal of a permit. In e J., also reaffirms the nexus opment and inter-generational as an obligation to comply with it takes in relation to natural
rvator General of Forests and Others, Supreme Court Minutes 5th April
initially developed in ancient Roman in the principle that certain common s, forests and air were held by the ree and unimpeded use of the general the obligation of the government to es for public use and protect it from or short term monetary or commercial owment of nature should be available ive of the individuals status or income firmation of the duty of the state to ge of streams, lakes, marshlands and protection only in the rarest of cases, st is consistent with fundamental and at trust. Contemporary concerns with

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34 Public TI
In the case of Singalan, Thalangama Appuhamilage Si J., writing for the Court of Ap case. The main issue before the the jurisdiction of the Magistri public nuisance under the Per or replaced by the National E In holding that the jurisdiction superseded, the Court relied c Weeramantry in Hungary v. reasoned that the basic principle Lawgiveriseto universal obliga of those rights cannot be restric conventional forms of litigation the Court makes reference to th
the state and its role in the prot links with this doctrine of publi governments make policy decisio useful utilisation, conservation an in the interest of the general publ conserved for intergenerational us the principle of intergenerational holds the guardianship and conset forfuture generations, a sacred dut of accountability. Under the public trust doctrine as a to consider contemporaneously, th through the efficient managemen the protection and regeneration o Watte Gedara Wijebanda v. Cons supra, pp.17-18. 27 Singalanka Standard Chemicals Sirisena and Others, C.A. 85/1998 28 Penal Code, Ordinance No. 2 of 29 National Environmental Authorit
30 Hungary v Slovakia, supra.

ust Doctrine. The Sri Lankan Version
a Standard Chemicals Ltd. v. isena and Others”Ranjith Silva eal also followed the Eppawala Court in this case was whether te to make orders in relation to al Code had been superseded nvironmental Authority Act.” of the Magistrate has not been n the argument made by Judge Slovakia, where his Excellency s of International Environmental tions and therefore adjudication ted by general rules that apply to ...'In supporting that argument, e idea of "shared responsibility”
ection of the environment have close c trust. As part of this responsibility ns related to the environment and its dprotection and should always be only ic with a long term view of such being 2. For this doctrine is closely linked with 2quity. Human kind of one generation vation of the natural resources in trust y to be carried out with the highest level
dopted in Sri Lanka, the state is enjoined 2 demands of sustainable development of resources for the benefit of all and four environment and its resources." rvator General of Forests and Others,
Ltd. v. Thalangama Appuhamillage , decided on 1st of October 2009.
883 as amended. y Act, No. 47 of 1980 as amended.

Page 45
Judicial Development of Public Trust
referred to in the Eppawala case.
B. Trusteeship of National Reso
The trusteeship of natural resou. SC to trusteeship of national resol Lanka Broadcasting Corporation Foundation Limited v. Urban Dev Green case)the SC used the PT In the SLBC case, the petiti termination of a radio programm of expression, as he had been a reg In recognizing a violation in that for the Court, held that, airwav that the state or any other actor so "subject to a correspondinglyg to the rights and interests of the t The Galle Face Greeni caseo i UDA had signed with a private of a large beach front and prome The fundamental rights applic Governmental Organisation, Limited (hereinafter "EFL) that: environment. When the petition for information related to the agi to provide any information with such refusal. In its petition ther
31 See further the case of Environm. Mahaweli Authority and Others, Minutes 17th June 2010.
32 Fernando v Sri Lanka Broadcasting
33 Environmental Foundation Limité S.C. (F/R) Supreme Court Minute
34 Fernando v Sri Lanka Broadcastin,
35. Environmental Foundation Limité
supra.

Doctrine in Sri Lanka 35
DITCeS
ces has been extended by the 1rces as well. In Fernando v. Sri (SLBC)' and Environmental elopment Authority (Galle Face D to that end. oner alleged that the arbitrary e violated his right to freedom ularlistener ofthe programme. instance, Fernando J., writing es are a limited resource and “operating on them” must do reater obligation to be sensitive public nvolved an agreement that the Company for the management nade in the capital, Colombo. ation was made by a NonEnvironmental Foundation focuses on issues related to the er organisation had requested eement, the UDA had refused out providing any reasons for 'fore EFL alleged that its right
2ntal Foundation Ltd and Others v. S.C. (FR) 459/08, Supreme Court
Corporation, [1996) 1 Sri L.R. 157.
d v. Urban Development Authority,
28th November 2005.
Corporation, supra, at p.172. d v. Urban Development Authority,

Page 46
36 Public T
to information and right to e UDA had entered into an agre Statute.
The Court upheld the ar. and held that even though the the private company was an of the Galle Face Green, that reason for that conclusion wa private company had agreed t The Court held that the agree to the land in question had n any point of time. In a brief ol Face Green, the Court points ( dedicated for the use of "Ladić the English Governor, Sir Henr in 1856. The tablet marking the that the Governor recommends that basis the Court holds as f
"The Galle Face Green shou, in continuance of the dedica necessary resources for this p the Government of Sri Lanka Governor who made the ded
The implications of the above di unclear. Does it mean that th leased at all? Is that beach fro use of the public with the role trustee. Another concern with that at no point does the Court Court mentions in passing, tha "dedicated to public benefit” bu
36 Ibid, p. 2. 37 Ibid., p. 9.

rust Doctrine: The Sri Lankan Version
uality had been violated as the ment ultra vires the authorising
uments made by the petitioner greement between the UDA and greement for the management tamounted to a lease: the main s that under the agreement, the o make payments to the UDA. ment was ultra vires as the title ot been vested with the UDA at utline of the history of the Galle out that the entire area had been es and Children of Colombo” by y Ward, who initiated the project establishment of the walk, states s the same "to his successors. On ollows;
ld be maintained as a public utility tion made by Sir Henry Ward and urpose should be made available by l, being the successor to the Colonial ication.o
ita of the judgment are somewhat Le Galle Face Green cannot be nt dedicated exclusively for the of the state restricted to that of a regard to this judicial opinion is make any reference to PTD. The t the Galle Face Green is an area t the Court makes no attempt to

Page 47
Judicial Development of Public Trust
use PTD as a legal basis for its c be "maintained as a public utilit on its own jurisprudence such as jurisprudence such as the case Illinois' and developed an argu its conclusion. Such a route to t Green case would have provide case and it would have been o relation to national resources.
The SLBC case and the Gal as examples of the use of PTD t addition to certain natural resc both of those types of public rest of private ownership.
3.4. Public Trust: A Doctrinet
The third strandofjudicial opinio of the PTD is different in that two strands of judicial interpre of overarching restriction on a argument has been developed r and 4 of the Constitution, i.e. th People.”
This particular approachi in regard to the Nineteenth An In reviewing the constitutiona amendment to the Constitution N. Silva, proposed that soverei
"...continues to be reposed in are only custodians for the ti
38 Bulankulama v. Secy, Ministry oJ 39 Illinois v. Illinoi Central Railroad 40 Articles 3 and 4 of the Constitut 41 In Re the Nineteenth Amendment

Doctrine in Sri Lanka 37
onclusion, that the area should ” The Court could have relied he Eppawala case' and foreign of Illinois Central Railroad v. hent based on PTD in reaching he conclusion of the Galle Face d a stronger legal basis for the oportunity to develop PTD in
le Face Green case can be taken o protect national resources in purces. One common factor in ources is that they are incapable
hat Promotes the Rule of Law
in regarding the scope and nature it brings together the previous tation under one broader idea ll powers of government. This nainly on the basis of Articles 3 le notion of*Sovereignty of the
set out in the judicial opinion tendment to the Constitution.' ity of the proposed nineteenth the former Chief Justice, Sarath nty;
he People and organs of government te being, that exercise the powerfor
Industrial Development, supra.
supra.
). o the Constitution 20023 Sri L.R. 85

Page 48
38 Public Tr,
the People. Sovereignty is thu the People.”
Moreover,
"The power that constitutes a government in relation to ano, exercised, where necessary, in novel concept. The basic prem held in trust.'
Reference is made to English la that trust is "implicit in the conf Against this background, th of the People can only be exel power that is set out in Article the exercise of powers of gove organ of government on other ( in trust for the People.'
The Courtisessentially affirr organs of state to be accountable
42 Ibid., at p.98. 43 Ibid, at p. 99.
44 Ibid., Court also relied on Wade, W
conferred for public purposes is absolutely - that is to say, it can va way which Parliament when confer Wade, W, Forsyth, C.F. supra, at
45 "(1) the powers of government at People as proclaimed in Article 3 of government continue to be reposea and attributed to the three organ Legislature and the Judiciary, bei powers in trust for the People.(3) T organs of government include pow to other organs that have been put balance of power that has been str should be exercised only in trustf Amendment to the Constitution, su

st Doctrine. The Sri Lankan Version
is a continuing reality reposed in
check, attributed to one organ of ther, has to be seen at all times and trust for the People. This is not a ise of Public Law is that power is
w by the Court in concluding arment of power."
le Courtholds that sovereignty cised through the balance of 4 of the Constitution; and that rnment and the check by one organs can only be carried out
ning that the rule of law requires to each other. "Rule of law” as
V., and Forsyth C.F., "Statutory power conferred as it were upon trust, not lidly be used on the right and proper ring it is presumed to have intended.” 3.356.
e included in the sovereignty of the the Constitution.(2) These powers of l in the People and they are separated s of government; the Executive, the ng the custodians who exercise such he powers attributed to the respective 'ers that operate as checks in relation in place to maintain and sustain the uck in the Constitution, which power or the People.” In Re the Nineteenth pra, at pp. 100-101.

Page 49
Judicial Development of Public Trus
a concept has been elaborated c of Courts in several previous c in the case of Elmore Perera v. Courtmade the following obse "The principle of equality be is a necessary corollary to th underlying the Constitution Supreme Court is enabled to 1 of discretion by the Executive
The affirmation of the soverei affirmation of the rule of law, a together and considered as a w Others v. Central Environmen case was a writ application that of the southern expressway, of the SC.
In this case Justice Fernal PTD in Sri Lankan jurispruden of the different rules of the doc over time. Even though this an thewrit jurisdiction ofthe Cour of the Court, the doctrine is a c Law as a whole.
Fernando J.,
"...this Court itself has long trust” doctrine: that powers absolute or unfettered but a exercised for the purposes for that their exercise is subject tc purposes...Besides, executivep fundamental rights in genera
46 Elmore Perera v. Montague Jaya 47 Ibidi, at pp. 320 - 321.
48 Mundy and Others v. Central En Appeal, 58/2003, Supreme Cour

Doctrine in Sri Lanka 39
in as a primary basis for the role ases in Sri Lanka. For instance, Montague Jayawickrama, the rvation.
ore the law embodied in Article 12 e high concept of the Rule of Law . By virtue of this provision, the eview and strike down any exercise
which exhibits discrimination.”
gnty of the People and the res the basis for PTD are brought ihole in the case of Mundy and al Authority and Others.' This t challenged the proposed route which the appeal was heard by
hdo traces the genealogy of the ce and presents a categorisation trine as developed by the Court alysis is presented in relation to t, it is evident that, in the opinion ornerstone of Sri Lankan Public
recognized and applied the public vested in public authorities are not e held in trust for the public, to be which they have been conferred, and judicial review by reference to those ower is also necessarily subject to the l, and to Article 12(1) in particular
vickrama [1985) 1 Sri L.R. 285.
ironmental Authority and Others, S.C. is Minutes 20th January 2004.

Page 50
40 Public T
which guarantees equality be of the law...."'
The view of the SC as eviden seems to be that PTD and the assumes in applying the doct merely of the law in the sense law, but in the sense of enforc. underlie the rule of law, particul rights of people against arbitr
3.5. Public Trust as Revived i
The trilogy of recent cases de the PTD rely on all of the case section, except, for the Heath the above analysis it seems tha Mundy case that would have p to hold certain actions of the
The dynamics of the Sc relevant perhaps in underst the Mundy decision in its su Fernando, considered to be v mostjudge of the SC at the tim appointed as Chief Justice fro General. The International issued on Sri Lanka during C example of several serious crit of independence, a retrogre rights, politicisation of the Co of inconsistent jurisprudence.
49 Ibid, at p. 13.
50 Mundy and Others v. Central
supra.
51 Seeingeneral in this regard there "Sri Lanka: Failing to Protect th the Judiciary, "(2001), para 1.12
52 "The judiciary is currently vulne

rust Doctrine: The Sri Lankan Version
fore the law and the equal protection
ced in the above discussed cases broad discretion that the Court ine is in fact a reaffirmation not of enforcing positive, blackletter ing the constitutional values that arly the protection offundamental ary exercise of public power.
in the Trilogy of Cases
:cided by the SC on the basis of es that have been analysed in this 2r Mundy case. *However, from at it is the holding of the Heather rovided the Court with authority 2xecutive as void.
C during this period would be anding why the SC overlooked bsequent cases. Justice M.D.H. very progressive, was the senior e Chief Justice Sarath N. Silva was m his then position as AttorneyBar Association in two reports Chief Justice Silvas period, is one ticisms levelled at the SC for lack ssive approach to fundamental urt and also for the development ” Justice M D H Fernando who
Environmental Authority and Others,
portofthe International Bar Association, te Rule of Law and the Independence of
at p. 15 and para 2.9. at p. 22.
arable to two forms of political influence:

Page 51
Judicial Development of Public Trust
had been repeatedly left out of Constitutional significance, even The Mundy case was one oft Justice Fernando, and it is a 1 and progressive interpretation provisions. However, the Silva ( in a subsequent case, has overlo
In the LMSL case, in usin Article 3 and 4 of the Constitut organs of Government, the Leg Judiciary are reposed with power to be exercised for the People.” (
from the Government and from and degree of influence oscillates relationship between them at the t suffers from political influence has a influence of the Chief Justice, the of the Supreme Court in relation between the judiciary and the exei
Chief Justice Silva is perceived to very much in control of all aspec As a result of his control over the it is commonly believed that he h allocation procedure as a tool to from hearing politically sensitive between the Chief Justice and the G individual judges reluctant to retu to be critical of the executive. Th; dissenting judgements during his
The IBAHRI is concerned that t the doctrine of locus standi and a fundamental rights cases is based to pronounce on populist issues r of legal principles. Furthermore, fundamental rights applications be significant concern” Report of the in Retreat: A report on the indepe rule of law in Sri Lanka,” (2009),
53 Vasudeva Nanayakkarav. NK C.

Doctrine in Sri Lanka 41
benches that heard matters of ually opted for early retirement. he last judgements written by eaffirmation of his purposive of the relevant constitutional ourt, looking at similar issues oked that authority.
g PTD reliance was placed on ion to hold that, "the respective islature, the Executive and the as custodians for the time being Diting the case of, Bulankaluma,
the Chief Justice himself. The nature between the two and depends on the ime. The perception that the judiciary risen in recent years due to the excessive apparently inconsistent jurisprudence to certain issues, and through tensions tutive.
be a domineering personality who is ts of the functioning of the judiciary. listing of cases in the Supreme Court, as used the administration of the case sideline senior Supreme Court judges cases. The perceived close relationship overnment has from time to time made rn judgements which may be perceived s may be illustrated by the scarcity of enure in office.
le recent expansion of the concept of the constitutional right to equality in on the inclination of the Chief Justice ather than on a sound rationalisation he apparent decline in the number of ing lodged in recent years is a matter of International Bar Association, "Justice indence of the legal profession and the
pp. 7-8. Ioksy and 30 Others, supra, at p. 67.

Page 52
42 Public Tr
the Courtholds that all resource with accountability and in furt the People.
Justice Thilakawardene, Waters Edge judgment, seems nature of the PTD and its impl of executive power under the holds that in spite of the perso) a sitting President under Artic power that is exercised is by n exercised only for the benefit of an example of the specific applic in the decision, Thilakawardene in Heather Mundy in that, the P specific types of functions of th land, other assets and even ecol
54 Ibid.
55 Art. 35 (1) “While any persona h shall be instituted or continued a respect of anything done or omitte, or private capacity.”
56 Writing in reference to the office the case), Thilakawardene J., held understand that no single position has unlimited power and the Con and ambit of even the power vest head of this country.". p. 40 and "V is a duty that must accord with thi also come from one's own conscien People. This means that while the private property in an unfettered in favours and, even in an overwhelm private property away, their publi the larger benefit of the People, the the country and in accordance wit and Others v. CB Kumaratunge not added).

1st Doctrine. The Sri Lankan Version
s of the state should be managed herance of the best interests of
writing for the Court in the to shed more light on both the ications. Examining the nature Constitution, Thilkawardene J. hal immunity that is granted to le 35 of the Constitution,* the o means absolute but must be the People. That observation is ation of the doctrine. Elsewhere J. echoes of the approach taken TD is presented as applicable to e Executive i.e. management of nomic opportunities.
olds office as President, no proceedings gainst him in any court or tribunal is d to be done by him either in his official
the President, (the 1st respondent in that, "...it is important to specifically 1 of office created by the Constitution stitution itself circumscribes the scope ed with any President who sits as the While the exercise of Presidential power 2 Rule of Law, such compliance should ce and sense of integrity as owed to its y can use their private power and their 1anner when granting any privileges or ing act of great generosity, give all their c power must only be strictly used for : long term sustainable development of h the Rule of law.” Sugathpala Mendis and Others, supra, at p. 41 (emphasis

Page 53
Judicial Development of Public Trust
"...it is to be noted for our pu - its land, economic opporti handled and administered un trusteeship posed by the publ. in a manner for economic gra the entirety of the citizenry of the benefit of granting gracion family and/or friends.””
From the subsequent analysis c that the PTD can be used to chal that do not have any direct co-I impose accountability. Asperth and meaningful supervision of th from a particular executive role, responsibility that is vested in ti
Another significant and n regarding the implications of th can only be developed as an ex the People and only in pursua. observation is made bythe Cour existinglegal frameworkforinves
57 Ibid.
58. This holding was made in referenc i.e. the former President, to dista the Cabinet exercised executive provided for Asia Pacific Holding BKumaratunge and Others, supr.
59 Sugathpala Mendis and Others v.
at pp. 56-57.
60 "The fundamental flaw in the inve alleged autonomy, the fact remain, the thumb", so to speak, of the exe be the Minister of Finance at the h Development at the helm of the U the BOI, the directives of the Cabin There can never be any expectatic

Doctrine in Sri Lanka 43
poses that all facets of the country Inities or other assets - are to be der the stringent limitations of the c trust doctrine and must be used owth and always for the benefit of the country, and, we repeat, not for is favours to a privileged few, their
if the Court, it can be gathered lenge decisions of the executive elation to public benefit and to case, not exercising continuous he execution of powers that stem can amount to a violation of the rust on that office.
ew position adopted by Court ne PTD is that legislative policy (pression of the Sovereignty of nce of the PTD. This judicial tin making the criticism that the itmentisexcessivelypoliticised*
e to the attempt by the 1st respondent, nce herself from the manner in which power in relation to the concessions S. Sugathpala Mendis and Others v. C l, at p. 44.
CB Kumaratunge and Others, supra,
stment system I see is that, despite such that such bodies are ultimately "under :utive heads of this country, whether it elm of the BOI, the Minister of Urban DA, the President-appointed. Board of et of Ministers or even of the President. n that corruption will not rear its ugly

Page 54
44 Public Tr
Does this mean that the Court C. legal reform where it finds that PTD? The reasoning of the Co aspect. Whether this line of jud as an aspect of PTD remains to The PTD as elaborated in of the trilogy of cases, is a reaff Waters Edge case. The Court by articulating in clear terms t rule of law, right to equality be According to the Court,
"The Rule of Law is the prin State within the limits of the operates as a check to ensur organs of government are h to the benefit of the people ar
Executive, which is the custoa
head when no definitive, public accountability exist. As long as 1 politicized to the extent as revealed to relegate the autonomy afforded and transactions laced with chara, will continue to be shuffled throu which such imbalance can be coun guidelines by which state actors at by current legislation. While Cou to direct the appropriate state auth and legislate law that will serve, in the law of the lack of supervis agencies involved with the inves; steps to create publicly available approval... Whatever the legislat with the Sovereignty vested in thi Public Trust, "Sugathpala Mendi Others, per Thilakawardene J., su
61 Sugathpala Mendis and Others v,
at p. 57.

ust Doctrine: The Sri Lankan Version
ould make recommendations for a piece of legislation contradicts ourt does not elaborate on this icial interpretation will take root
be seen.
the SLIC case, the most recent irmation of the approach of the takes the analysis a step further he nexus between public trust, fore the law and public interest.
ciple which keeps all organs of the 2 law and the public trust doctrine e that the powers delegated to the eld in trust and properly exercised ld not to their detriment. When the lian of the Peoples Executive Power
guidelines to ensure transparency and he investment infrastructure remains in this case, coercive forces will continue to these agencies to the realm of theory cteristics of fraud and corruption which gh to completion. The main method by tered is through establishing appropriate e to operate, a terrain largely left empty t cannot enact legislation, Court is able iorities to accordingly pursue, concretise as checks and balances to fill the void ion. The UDA and BOI, and all other tment process in Sri Lanka must take guidelines regarding mechanisms of ion drafted, it must ultimately accord e People, by furthering the Doctrine of s and Others v. CB Kumaratunge and pra, at pp. 56-57.
, CB Kumaratunge and Others, supra,

Page 55
Judicial Development of Public Trust
“act ultra vires and in derogat are intended to safeguard the public interest to implead such interest to keep the executive 1 is the "positive component” in
3.6. The Scope of the Doctrine
In tracing and analysing the use SC over almost two decades, w recent trilogy of cases, it is possit that form the core of the concep
One is the principle of trust resources and the shared respor of the same.63 The state is requi of the People, in administerin national resources that are veste is similar to the approach fou the role of trusteeship requires alienate ownership of natural rel Where the “public benefit” con could be void or voidable.64 A that of trusteeship of resources economic.65 All resources ves used or alienated in furtherance 'sharedresponsibility'howeverse by the Sri Lankan courts and it role in the protection of nationa
The principle of publicben of power by the state. Up to no
62 Ibid. 63. See in this regard the discussion
64 See the discussion on the case o
4.2.
65 See the observations made in the
subheading 3.5.

Doctrine in Sri Lanka 45
on of the law and procedures that resources of the State, it is in the action before Court."...the public vithin the power given to it by law the right to equality.”
of the PTD by the Sri Lankan ith particular emphasis on the ble to identify several principles it. 'eship over natural and national isibility towards the protection red to act as a trustee on behalf g and preserving natural and d with the state. This approach und in American law, in that that the state can use and/or sources, only for public benefit. dition is not met, such action n extension of this principle is in general, whether natural or (ed with the state can only be of public benefit. The notion of 'ems to be a unique one adopted requires citizens to fulfil their land natural resources. 2fit places a limit to the exercise V, courts have not attempted to
nder subheading3.3.
Heather Mundy under subheading
Waters Edge case, as discussed under

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46 Public T
define what "public benefit” w is used frequently as a measur ofgovernment have violated t determining "public benefit” competing need for developme protection of areas of cultural individual rights. This comple to be both cautious and creati "Public interest” is anothe Wherever the court has relied that there is an element of "pu rights application. As in the c has not elaborated on the mear identified different petitioners the case of organisations, the c of that organisation and in the at their role in the public rea required involvement in pub persons/organisations raising of national significance and/or resources have so far been id "public interest.”
The increase in the use c seen as an increase of citizen recognition and endorsement positive development. Itempo focus the concept of the sover Another principle of PTI is absolute.' All discretionar constitutional, should only be People, who are ultimately sov used in this instance to empha
66 See in this regard the observatio
case, under subheading 3.3.B.
67 See in this regard the discussion

rust Doctrine: The Sri Lankan Version
ould include, but it is a term that e in determining whether organs he public trust placed in them. In he court is called to balance the nt, protection of the environment, ind/or historical significance and balancing act, requires the court We.
ir principle that is centralto PTD. on PTD, it has also satisfied itself blic interest” in the fundamental ase of'public benefit, the court ling of this concept but rather has as acting in the public interest; in ourt has examined the objectives case of individuals, it has looked lm. The court seemed to have lic affairs as a pre-requisite for matters of public interest. Issues issues related to natural/national entified by Court as matters of
of PTD by the SC could also be participation in governance. The of public interest by the SC is a wers civil society and brings into 2ignty of the People. ) is that no discretionary power y powers whether statutory or exercised for the benefit of the ereign. The image of a trustee is sise that although the law grants
ns of the court in the Galle Face Green
under subheading 3.2.

Page 57
Judicial Development of Public Trus
discretionary powers, that di on behalf of the People. This constitutional and administrat relied on by courts consistentl principle in relation to PTD at as a basic value of the Sri Lank Reference has also been m of legislative power. The formul promote and further public be to itself a supervisory role in Waters Edge case suggests that, the development of legislative promotion of public benefit a laws to achieve the same objec that only the Waters Edge case in the exercise of legislative pov interventions in that regard is constitution does not recogni and upholds Parliamentary S being judicial review at the pl whether this principle can beg to be seen.
It can be gathered from that the underlying values oft rearticulated in terms of sover of law which requires inter a and everyone is accountable u rule of law is interpreted in rel locating the rule of law in the possible to make applications rights applications. Therefore, the PTD has been employed, e as a supporting argument.
68 Sugathpala Mendis and Others 69 See in this regard, Article 120 o

f Doctrine in Sri Lanka 47
cretion can only be exercised is a fundamental principle in ive law in general and has been y. The reliance by court on this he most has reaffirmed its place an Constitution. ade to trusteeship in the exercise ation of legislative policy should nefit and the court has assumed that regard. Obiter dicta in the the Court can both recommend policy for the protection and nd it can also interpret existing tive. It must be noted however proposes the idea of trusteeship ver. Whether the court can make s also debatable, given that the se judicial review of legislation overeignty, the only exception re-enactment stage.' Therefore, iven effect to in practice remains
the above discussed principles he PTD are democracy which is signty of the People and the rule ia that no one is above the law nder the law. The concept of the ation to the right to equality. By right to equality, it has become related to PTD as fundamental n almost all of the cases in which uality before the law is also used
CB Kumaratunge and Others, supra. the Constitution.

Page 58
Making a Case for a S. Doctrine ol
This section will seek to advance judiciary has developed a vers Sri Lanka. The arguments for a be examined in establishingth
4.1. Public Trust Doctrine a Principles of Public Law
Before considering whether th Lankan SC is unique, this secti that PTD is in facta new term u of Sri Lankan Public Law.
A. A Re-wording of Existing P It is possible to argue that the of the values already encompas principles of Administrative La whenever a public officer exerc in accordance with the purpos been vested with him and thats if it were exercised "in trust' vested with the right to seekj actions that are deemed ultra 1.
1 Wade W, and Forsyth C.F., supra

i Lankan Version of the Public Trust
the argument that the Sri Lankan ion of the PTD that is unique to und againstthat proposition will at position.
s a Re-articulation of Existing
le PTD as developed by the Sri on would examine the argument sed to refer to existing principles
rinciples of Administrative Law
PTD is merely a re-articulation sed in traditional, common law w. Those principles require that ses his discretion, he must do so e for which such discretion has uch power must be exercised, as oreover, individuals have been dicial review of administrative res i.e. beyond the scope of the
note 89.

Page 59
Making a Case for a Sri Lankan Ver
powers vested with such officer possible therefore to perceive th regard to PTD in Sri Lanka as existing principles of administ The dicta of the Indian case v. State of AP and Othersois pe whether PTD is in fact only a reof administrative law. In that ca between the general obligation the "special, more demanding a trustee of certain public resc in this article illustrate that th - those public resources cannc with third parties for private us state for public use, including f In instances where PTD is used power, it could be argued, follo Forum case, that a higher stanc courts. Therefore, it is possibl stemmed from traditional foun Law that it is a new concept th of this body of law.
B. Public Trust Doctrine -
Equality It could also be argued that the E interpretation of the right to eq Courts have relied on the doctri a platform for its application. Go idea of equality includes the executive action can violate ex common law based principles
2 See in general, Wade W., and Fo 3 Intellectuals Forum, Tirupathi v. 4 Ibid.

ion of the Doctrine of Public Trust 49
or government institution. It is ejudicial pronouncements with a re-formulation of the already rative law.
of Intellectuals Forum, Tirupathi haps instructive in considering articulation of existing principles se, the Court makes a distinction to act for public benefit” from obligation which it may have as urces.” The case law discussed ere are special rules that apply it be alienated, cannot be vested e and must be maintained by the or the use of future generations. l to review the exercise of public wing the dicta in the Intellectuals lard of scrutiny is applied by the le to argue that while PTD has dationalideas of Administrative at seeks to expand the horizons
A Component of the Right to
TD is no more than a progressive uality. Whenever the Sri Lankan ne, they have used article 12(1) as mez argues that the contemporary idea that no administrative or pressly set out procedure or the of public law, such as legitimate
syth, C.F., Supra, and Craig, P supra. State of AP and Others, supra.

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50 Public T
expectation. As per that view, t of the collective right to equali
"Discretionary powers give untrammeled. They are to be they were conferred. Arbitrar antithesis of fair play and eq placed in public officials.”
This approach to the PTD emph power that does not fulfill the was conferred is arbitrary and of all persons to be treated equi this perspective, the PTD can e an interpretation of the right t before the law.
4.2. The Sri Lankan Version ol
While it is accepted that the Sr which are drawn from principle as applied in Sri Lanka and has understanding of the right to equ the law, it seems that the scopec is unique and it has amountedt administrative and executive ac
A. Public Trust Doctrine as a Sep
The more recent case law has u ground of review and has held the doctrine are null and void. T separate ground of review is ma
"...this Court itself has long trust” doctrine: that powers v absolute or unfettered but ar. exercised for the purposes fo and that their exercise is sub
5 Gomez, M., supra, p. 457.

ust Doctrine. The Sri Lankan Version
Le PTD would be an articulation y of society.
to public institutions are never ised to achieve the purpose for which and unreasonable decisions are the ual treatment and violate the trust
asizes that any exercise of public objective for which such power therefore contrary to the right illy under the law. Viewed from :asily be accommodated within o equality and equal treatment
f Public Trust Doctrine
i Lankan PTD has aspects of it s ofEnglish Administrative law a bearing on the contemporary Lality and equal treatment before if the doctrine as it stands today a separate ground of review of tion in Sri Lankan courts.
arate Ground of Review
ed the PTD as an independent hat actions that are contrary to he first reference to the PTD as a de in the Heather Mundy case;
ecognized and applied the public sted in public authorities are not held in trust for the public, to be which they have been conferred, 2ct to judicial review by reference

Page 61
Making a Case for a Sri Lankan Ve;
to those purposes...Besides, subject to the fundamental r in particular which guaran equal protection of the law. include the right to notice a and decisions contrary to the of fundamental rights woul. therefore void or voidable."
According to the Court, the b Constitution and the Commo Thilakwardena J., reafirms PT and holds that the Court can re even if an express provision o exercise of that power. As per power of the Court could even { power of the Court and the do executive, even when makingd opportunities.
Therefore it is evident that Court, provides it with a sweepi to make varied orders, includi contracts entered into by the g express law that empowers th relying on the Constitutional extends its power of judicial r separate ground of review for is possibly unique to Sri Lank
Mario Gomez, in his rec Writs: Sri Lankan Public Law observation in agreeing with
CaSe:
"The Supreme Court, in a explicitly recognized two r
6 Heather Mundy and Others v.
Others, supra, at p. 13.

ision of the Doctrine of Public Trust 51
executive power is also necessarily ights in general, and to Article 12(1) ees equality before the law and the ...the protection of the law” would nd to be heard. Administrative acts "public trust” doctrine and violative l be in excess or abuse of power and (Emphasis added).
asis for the doctrine is both the in Law. In the Waters Edge case, Das aseparateground ofreview view any exercise of public power, f the law grants immunity to the her Ladyship's view, the review xtend to the exercise of legislative ctrine should be followed by the lecisions with regard to economic
the doctrine as developed by the ng power of review and the power ng for instance, the annulment of overnment even when there is no 2 Court to make such orders. By ld the Common Law, the Court eview and it perceives PTD as a administrative action. That view an Public Law.
ent article, Blending Rights with New Brew, makes the following the dicta of the Heather Mundy
pioneering piece of jurisprudence, ew grounds of review: the public
Central Environmental Authority and

Page 62
52 Public Tr
trust doctrine' and fundamer administrative decisions that doctrine or fundamental righ power and would therefore be
PTD as a separate ground review c
as being useful and necessary cases such as the trilogy of cas place. However, such blankete is not necessarily helpful; the v could very well be its weaknes away from following that appro arguments used in developing t the court.
B. Public Trust Doctrine as Emp
Spirited Individual Another characteristic of the PTD basis for public interestlitigation to the Heather Mundy case, th Articles 3 and 4 of the Sri Lank: for allowing matters related to P trilogy of cases, the Court accel the basis that he is a "public spil The sovereignty of the Pec Court in extending the traditi instances.' The Court seems to
7 Gomez, M., Blending Rights with Brew, (2006, Supplement), Acta Ju
8 Bulankulama v. Secy, Ministry of
Heather Mundy and Others v. Ce Others, supra.
10 See in general in this regard, Ud Emerging Jurisprudence on Public presented at "Law in Context: An University of Colombo, October,

ist Doctrine: The Sri Lankan Version
tal rights”. According to the Court, contravened either the public trust ts would be an excess or abuse of
void or voidable.”
ould on one hand be commended articularly in a context where es discussed in this article take xtensions of the Court's power ery vagueness of the extension . Subsequent courts could shy ach due to the weakness of the his extension of the purview of
lowering the Court and the Public
is that it provides a constitutional 1. From the Bulankulama case, Le SC has expressly referred to an Constitution as justification 'TD as PIL. For instance, in the ots the petitioner's standing on ited individual.”
ople has been relied on by the onal rules of standing in such recognize that in certain cases
Writs: Sri Lankan Public Laws New ridica, at p. 455. industrial Development, supra. ntral Environmental Authority and
agama, D., Some Reflections on the interest Litigation in Sri Lanka, paper Agenda for Reform,” Faculty of Law, 008.

Page 63
Making a Case fora Sri Lankan Vers
where the PTD has been violat be able to bring the matter to th difficulties in relation to access complexities of the procedures often than not, would not even abuse of authority. In such inst mechanism of PILto compleme For instance, the privatisation of the public at large. However, ol and/or organisation that had acci could have made that applicatio PTD therefore can be seen a the public spirited individual an accountability, transparency an where the traditional checks al have not been effective.
4.3. Centrality of Judicial Di
Doctrine
It is evident that the PTD, as de vests very broad powers of revie where the Court has relied on t the recent trilogy of cases, that procedural rules and substantiv to respond to applications that c is advanced by some quarters th body which is not accountabl exercise of its powers; therefor application of the law to dispu than engage in judicial activis. relevant to the SC when it exer to fundamental rights applicati from the decision of the Court. arm of the government that app a context that goes against thes any accountability or review b

On of the Doctrine of Public Trust 53
d, the average citizen may not e attention of the Court due to to information and resources, nvolved etc. Individuals, more pe aware of certain instances of ances, the Courthas used the nt its role in enforcing the PTD. SLIC was an act which affected hly a public spirited individual ss to the particular information in to Court.
sa doctrine that empowers both d the Court in the promotion of d the rule of law - in instances hd balances established by law
scretion in the Public Trust
veloped by the Sri Lankan SC, win the Court. The line of cases he PTD suggest, particularly in the judges are expanding both e law, i.e. their scope of review, ome before them. An argument at, the judiciary is an unelected 2 to any other organ as to the , it should confine itself to the tes that come before it, rather m. That criticism is even more ises its jurisdiction with regard ns, as there is no right of appeal herefore, the argument runs, the lies the PTD itself exercises it in pirit of the doctrine i.e. without other organs of government.

Page 64
54 Public Tr
The only form of review availab a fundamental rights applicati which is also subject to the discr seeks to examine those issues b)
A. PTD in Fundamental Rights (
First and Final Court
As discussedelsewhere in this pap article 12(1), i.e. the right to equal rights jurisdiction of the Court. to determine fundamental right the SC. Where evidence is foun rights before the Court of Appe required to refer that matter to t
This leads to an interesting q of Appeal may or may not rely above establish a clear line of equality with PTD. If PTD is the rights, does the Court of Appeal matters? The Courtis yet to mak at least one case related to the en of Appeal has relied on PTD.’o Th to be that the Court of Appealm
When PTD is applied by 1 cases, it does so as the first and fi below, evidence in those case testimony.“ Whether the fundar
11 This applies only in cases where t executive or administrative action. District Court against private part 12 See in this regard, Article 126(3) o
13 Singalanka Standard Chemicals.
Sirisena and Others, supra,
14 See in this regard the rules 44 and
of Sri Lanka 1991, published in ga 1991.

st Doctrine: The Sri Lankan Version
le within the Court system for in is a revisionary application etion of the Court. This section iefly.
:ases; the Supreme Court as the
2r PTD hasbeen appliedthrough ty and through the fundamental The Constitution vests power s applications exclusively with d of a violation of fundamental al in a writ matter, the Court is he SC.? uestion as to whether the Court on PTD. The cases discussed authority linking the right to refore a matter of fundamental lose its jurisdiction over such 2 a ruling on that issue. There is vironment in which the Court Lejudicial view therefore seems ay rely on PTD. he SC in fundamental rights nal court. As will be discussed is by affidavit without oral hental rights mechanism is the
he application is made to challenge An action can be brought before the es who violate fundamental rights.
the Constitution. Ltd. v. Thalangama Appuhamillage
5 of the Rules of the Supreme Court ette extraordinary 665/32, 7th June

Page 65
Making a Case for a Sri Lankan Versi
most appropriate to determine of cases, is therefore debatable. for revisiting the judgements iss rights matters is an applicatio) that mechanism however is ver revisionary jurisdiction of the ( the discretion of the Court.
It is relevant to note hereth were made to the SC regarding t was in relation to the judgement in the Waters Edge case and th affidavit that had been tendered Treasury, to the effect that he will the future. This paper will only application. The second applicat issues that cannot be addresse
paper.
In the case of Sugathapala M Bandaranayke Kumaratunga : petitioners sought revisions ofth orders by Court on the basis t them. The SC refused revision ( had delayed making that applic
15 Article 128 of the Constitution.
16 S.C. (FIR) Application 209/2007, S 2009. Dr. P.B. Jayasundara, whose and Chairmen of PERC had bee! of Public Trust in the trilogy of c the LMSL case, Dr. Jayasundarag of affidavit, that he will not unde In the revisionary application, I that affidavit. In a 6 to 1 majority withdraw that undertaking. Justic
17 Sugathapala Mendis and Others v. C and Others, S.C. (F/R) No.352/20( 2009.

on of the Doctrine of Public Trust 55
PTD cases such as the trilogy Dhe only mechanism available ues by the SC in fundamental for revision.' The scope of y limited, especially since the 2ourt can be activated only at
at two revisionary applications he recent trilogy of cases. One s and orders itself of the Court 2 other was with regard to the o Court by the Secretary to the not assume any public office in analyse the former revisionary ion gives rise to several critical d within the confines of this
Mendis and Others v. Chandrika and Others'7 the intervening e judgement and the incidental hat it had caused injustice to on the basis that the petitioner tion and also on the basis that
upreme Court Minutes 13th October
actions as Secretary to the Treasury held to have violated the Doctrine ases. In the course of proceedings in ve un undertakingto Court, by way rtake any public office in the future. r. Jayasundara sought to withdraw lecision, the Court permitted him to e Shiranee Tilakawardene dissented.
handrika Bandaranayke Kumaratunga 7, Supreme Court Minutes 7th August

Page 66
56 Public Tri
judgements made by the SC in rights jurisdiction is final. The f the opinion of the Court, from powers vested with the Court to applications.
“...inherent to the effective su Fundamental Rightsis the abil to administer relief and make directions are just and equi, two-word threshold clearly m and power required of the Su the infinitely myriad ways in violated...the Supreme Couri Fundamental Rights stem, not. of judicial power, but from an 1 these matters for which the Co. Fundamental Rights applica from other types of appeals he greater latitude in their cons order to encompass the equita applications."
The view of the Court seems to jurisdiction of the Court provide with which it could undertake executive action and that revisio in exceptional cases.
B. “Who guards the guards?”
The question then is — can a bo. PTD, to hold the executive acco will not be held accountable by other organs of government? Ca almost exclusively a judicial cre:
18 Ibid., p. 7.

lst Doctrine. The Sri Lankan Version
the exercise of its fundamental inality of the decision arises, in
the very unique nature of the determine fundamental rights
pervision of matters pertaining to ty and power of the Supreme Court directions so long as such relief and able” - a simple and unqualified leant to give the broad discretion preme Court to effectively address which fundamental rights can be is broad powers over matters of from an overzealous interpretation understanding of the very nature of urt has been empowered to protect. tions are qualitatively different ard before this Court and warrant ideration and to grant redress in ble jurisdiction exercised in these
be that the "just and equitable” sit with the sweeping authority review of administrative and n of such decisions will lie only
ily of unelected judges, use the untable, when they themselves either another court or by the n they rely on a doctrine that is tion in assuming such power?

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Making a Case for a Sri Lankan Versic
The issue as to whether an un "law making” and the degree ofth debate. One viewis thatjudges ma determinations as to the legality brought before them. Another vic the judiciary with the authority to and the legislature; in exercising confined to the mere application also expected to flesh out the valu as and when relevant. In the mat seems that the Sri Lankan SC ha However, expansion of the over time be followed by releva sustainable and consistent develo only take place within an identifie open ended and unqualified use C the highest court of the land, co and irregular application of PTD Heather Mundy judgement in the The Court, in such situations, tak and even political.
An analysis of legal argum constitutional framework alone narrative of PTD as developed in the particular approach adopted in how the Court perceives its r branch of government.
In a context where the exec macroorthemicrolevel) and wł and judicial mechanisms have r excesses, over an extended peric uses the idea of Public Trust to st takes upon itself, the role of gove this "assumption of power” by t

n of the Doctrine of Public Trust 57
elected judiciary can engage in ir accountability is an ongoing y onlyactas umpires andmake r illegality ofactions/disputes w is that the constitution vests actas a check on the executive that authority, judges are not of the black letter law but are es that underlie a constitution ter of its PDjurisprudence, it
embraced the later view. law by the judiciary should nt constitutional reform; the pment of those expansions can lconstitutional framework. An fthe PTD, by the Court, albeit uld result in the inconsistent ; the neglect of the dicta of the trilogy of cases is an example. es the risk ofseeming selective
ent (or the lack of it) and the will not provide a satisfactory Sri Lanka. The motivation for by the Court could be found ble in relation to the Executive
utive abuses its power (at the ere other legislative, executive peatedly failed to check those d of time, it seems that the SC pin. In doing so, it sometimes nance. The classic response to ejudiciary is to point out that

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58 Public Tr
as an institution that is not bas the judiciary has no legitimacy
In considering the impa governance, made by the judici it is also relevant to identify th cases discussed in this paper, th of society is upheld by Court a i.e. a minority. This could be ( understood role of Court, in e the fundamental rights chapter characterised as a defence of religious, ethnic etc.) againstal the Court is called upon to de powerful. Seen in that light, the in acts of governance might pe.

ust Doctrine. The Sri Lankan Version
ed on democratic elections, that
to assume that role. ct of the decisions related to ary, underthe guise ofthe PTD, he fall out of it. In many of the e "cause” of the diffuse majority gainst those in power in society compared against the generally xercising its jurisdiction under . That exercise of power is often minorities, (whether political, majority. However in both cases fend the powerless, against the : use of PTD by Court to engage rhaps be more acceptable.

Page 69
Proposals for D Public Trust Litiga
This section explores the idea a distinctive form of litigation i essay so far, has sought to establ component of Sri Lankan Publi Courts have developed a uniqu doctrine is to be relied on as an of executive and administrative such litigation should take place framework. This section seeks to to be addressed in developing su
5.1. Questions of a Threshold a
The jurisprudence on PTD in helpful in understanding whetl for the applicability of the doct executive or administrative pow resort and an application made criteria used by the courts in the been made that those criteria ap of administrative action. The u PTD perhaps seems to lie in th afforded through the doctrine, this section.
Whether the Courtshouldic rights jurisdiction in applying P
Il See the discussion under secticn 5.4.

2velopment of tion. In Sri Lanka
of "Public Trust Litigation” as in Sri Lankan Public Law. This sh that, PTD is an entrenched c Law and that the Sri Lankan e form of the doctrine. If that independent ground of review action, this essay proposes that within a certain and reasonable identify some issues that have ich a framework.
nd Constitutional Basis
Sri Lanka is not particularly er there is a specific criterion ine. Clear evidence of abuse of er, application to court as a last n good faith seem to emerge as cases analysed, but the pointhas ply in general to judicial review liqueness of the application of e remedies that the Court has which is discussed elsewhere in
ntinuetorelyonitsfundamental D is a question both in relation

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60 Public T
to procedure and substance. As rights applications are determ filed by parties. There is no ti In dealing with disputes as co state owned enterprise or the state, leading evidence by affid Moreover, no appeal may lie agai The procedure for determining therefore may not be appropria many cases.
In terms of substantive la paper illustrate that the right to whereby the fundamental right been activated in matters that in has been expanded to includ actions of the state. The issues has sought to address however, within the realm of individualo It is necessary thereforeto con constitutional remedy should require the application of the do Through the developmen as it stands today, can be used intervention in situations thath for elsewhere in the Constitutio the applicability of the doctrine a the Court will respondeffectively abuse of executive power, when: the Court. The doctrine theref for instance, on the economy, i. investors as to the uniform app the SC in ensuring accountabilit power. It will also increase the judiciary as a guardian of their
2 See in this regard the Rules of the Sup

1st Doctrine. The Sri Lankan Version
mentioned before, fundamental ined on the basis of affidavits ial and/or leading of evidence. mplex as the privatisation of a ax concessions granted by the avit alone could be inadequate. inst the determinations of the SC. fundamental rights applications te for the application of PTD in
W, the cases discussed in this equality has been the channel 's jurisdiction of the Court has volve PTD. The right to equality e protection against arbitrary of governance that the Court do not seem to fall comfortably r collective fundamental rights. sider whether a more relevant be introduced for cases that octrine. t of a new remedy, the PTD, in Sri Lanka to justify judicial ave not been expressly provided n. It would result in certainty in nd provide a firm guarantee that to complaints regarding blatant such matters are brought before re can have a positive impact, h promoting the confidence of licability of law and the role of y for blatant abuse of executive confidence of the public in the overeignty.
reme Court of Sri Lanka 1991, supra.

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Proposals for Development of Public
5.2. Forum for Public Trust Li
Whether the SC is the appropri PTD cases should also be reflec an apex court should only conce not fact. The fundamental right SC has been an exception to th:
It may be possible to cor different courts in public trust application for a writ of habea can be filed in the Provincial Appeal. Once such application would send the matter to an ap an inquiry regarding the deten may be possible to envisage am senda Public Trustlitigation to | with regard to the facts. Upon su make its decision as to whether
5.3 Standing in Public TrustL
Even though Article 126 restri an infringement (or imminenti rights application, or her attorne those rules through judicial i Court has accepted the standin victim has died as a result of the individual or organisations, to b applications.
Therefore, standing may n PTD case. The Court has been
3 See in this regard articles 141 and 15.
Art. 126 of the Constitution.
5 See in general in this regard, Udagal Jurisprudence on Public Interest Litig
6 See for instance the cases of Wijesir
Sriyani Silva v. OIC Payagala (2003)

Trust Litigation in Sri Lanka 61
itigation iate forum for determination of ited on. The general view is that 2rn itself with matters of law and is jurisdiction of the Sri Lankan at. hsider the involvement of two : litigation as in the case of an s corpus. A habeas corpus writ High Court or in the Court of is allowed to proceed, the Court propriate Magistrates Court for tion of the corpus. Similarly, it echanism whereby the SC could the District Court for an inquiry lch determination, the SC could
the PTD applies.
itigation
cts the standing to a victim of infringement) of a fundamental ay-at-law, the SC has liberalised nterpretation. In general, the g of the next of kin, where the violation, or the public spirited ring certain fundamental rights
ot be an obstacle in taking up a progressive in general and used
4G of the Constitution.
ma, D., Some Reflections on the Emerging ation in Sri Lanka, supra. i v. Siriwardena [1982) Sri L.R. 171 and Il Sri L.R. 14.

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62 Public
the notion of"public interest”) that allege the violation of PT in the interest of certainty a introduce constitutional refol
5.4. Remedies and Follow up
It is possible to argue that the article, are significant not neces to the developmentofthe juri the type of remedies offered fundamental rights that it uphe declaring the lease agreement and void and the declaration o privatisation of LMSL to be ni in Sri Lanka. Those developm the scope of the jurisdiction o
Article 126 authorises til deems to be "just and equitab Courtin granting remedies un compensation to the individu of fundamental rights. In tha to whether the amount of com whether the amount has to be for the actual damage suffered views have been expressed in
In fundamental rights a interest” and/or instances whe with regard to violations of P trilogy of cases discussed in t
7 Art. 126 (4) of the Constitution.
8 See for instance, Saman v. Leeladasa J., Judicial Protection of Human Ri 2004, " (Law & Society Trust, 2005) of Human Rights" in "Sri Lanka: St. Trust, Colombo, 2001), at p. 16

rust Doctrine: The Sri Lankan Version
bosely in entertaining applications D. However, as discussed before, d consistency, it is necessary to m in this regard.
Mechanisms
rilogy of cases focused on, in this arily interms of their contribution sprudence on PTD but rather for by the Court for the violation of ld. Re-vesting SLIC with the state, in the Waters Edge case as null several agreements related to the ull and void were unprecedented ents highlight the question as to f SC in the application of PTD. he SC to make an order that it le”The general approach of the der Article 126 has been to grant al, if the Court finds a violation t regard, the debate has been as pensation should be nominal or determined after consideration Different judicial and academic his regard. plications made in the "public e the Court would make findings TD at a national level as in the is article, compensation for the
(1989 l Sri L.R. 1, De Almeida Guneratne, hts, in, "Sri Lanka: State of Human Rights p. 121, Attappattu, S., "Judicial Protection te of Human Rights 2002,” (Law & Society

Page 73
Proposals for Development of Public
individual would not be an app. the violation of PTD would mo) collective and the type of remed would need to take that into acc Theissue ofremediesis con to the role of the Courts in gene expertise of the Courtis strictly the law and that it should not eng of public policies etc. The execut in those functions. However, it is those raised in the trilogy of cas the Court, it is compelled to go reconsider the question of an ap It is regrettable that the SC of the jurisprudential basis for judgements which were based of the Court has been to ide) observations with regard to PTI on a remedy. Consequently the S that is has overstepped its bou that had negative implications, economy. Those judgements we was making several other order in the legal community and th interference in the executive an organs of government. Recomm for admission of Grade 1 stu of arrests and detention,' and standards for noise emissions'
9 Ranjith Haputhantirige and Thimuri ll and Others, S.C. (FR) No. 10/07, Supr
10 Ceylon Workers Congress v. Minister of
2007 to September 2008.
11 Ashik and Others v. O.I.C. Welligama
Court Minutes Oh September 2007.

Trust Litigation in Sri Lanka 63
ropriate remedy. The impact of re often than not impact on the lies that such violations require
Ount. nected to the ongoing debate as ral. The general view is that the in the area of the application of age in lawmaking, development ive and the legislature specialise evident that when issues such as es discussed arebroughtbefore beyond its traditional role and propriate remedy. does not engage in an analysis its orders in any of the recent on PTD. Rather, the approach ntify the relevant facts, make D and proceed to make a ruling Cattracted the typical criticism; Indaries in ordering remedies particularly for the country's reissued at a time when the SC s that were considered by many e general public, as an undue illegislative powers of the other lendations regarding the policy dents to schools, monitoring l recommendations regarding are a few examples.
Wihansa Haputhantirige v. Karunawathie eme Court Minutes 30 July 2007.
Defence, S.C. (FR), S.C. Minutes December
and Others, S.C. (FR) 38/2005, Supreme

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64 Public
Taken at face value, th in the trilogy of cases, and tl general, is acceptable. The im in when the other organs ofg Moreover the PTD, as demons a jurisprudential basis for the the Court fails to develop tha not pay adequate attention to exceptional remedies that it p1 the "legality” of those remedie in making those orders will re the possibility of any future c. "activist” approach of the Silva
It is also relevant to con and procedures for accountal as a follow up to a ruling on F a conclusive process of litigati highlighting the failure of theo as a check. As analysed above, t generally restricted to declaring to be null and void. Once the necessary to remedy the expos particular remedies provided Law. The failure to do so could remaining at large and/or cont
Additionally, profession to conduct disciplinary inve professionals who are involved exposed through PTD cases.o
12 For instance, one person held respo privatisation of SLIC has re-assumed another person is the Minister of Ju:
13 See for instance, the report publis) Project. See also, GAP Report: Inac 2010, Sunday Times, Sri Lanka, at BusinessTimes/btl7.html

rust Doctrine. The Sri Lankan Version
remedies provided by the SC eactivism of the Silva Court in pression that the Court stepped overnment failed is quite strong. rated in this article, does provide approach of the Court. However, tjurisprudential basis and does developing a justification for the Ovides in those cases. As a result, s and the legitimacy of the Court main in doubt. This also reduces ourt following or replicating the
Court in relation to PTD. sider how existing mechanisms bility of the state could be used "TD. PTD should not be seen as on but perhaps as a catalyst for ther organs of government to act he outcome of a ruling on PTD is ;actions that are contrary to PTD Court makes such an order, it is 2d abuse of power, through other by law, for instance in Criminal result in the actual perpetrators inuing to act with impunity.' l bodies should be required tigations into the conduct of in misconduct and fraud that is
isible by the Supreme Court for the illegal the post of Secretary to the Treasury while ice and Law Reforms.
ed by the Governmental Accountability ion on corruption in Sri Lanka, 4 April essed at, http://sundaytimes.lk/100404/

Page 75
Public Trust Doctrine;
This article has sought to enga Public Trust Doctrine as devel Sri Lanka. An attempt was mi of the doctrine and also to id doctrine in Sri Lanka. The ma been that the Sri Lankan versi that it draws from at least two ofa “public trust”The result ha of Public Trust” rooted in the People. Of course, the weakne a broad discretion with the juc that, this paper has put forward could be developed to provide in employing this doctrine.
Constitutional reform is the future development of th such reforms come to pass, fu would do well to develop a cor jurisprudence in this area that good governance and strengthe
1 "Journey of judicial pilgrimage” is Industrial Areas Development Boa Bhandari J., writing for the Indian S

5
A Judicial Pilgrimage?
ge in a thorough analysis of the oped by the Supreme Court of ade to identify possible origins 2ntify the characteristics of the in contention of this essay has on of the doctrine is unique, in different approaches to the idea s been a home grown "Doctrine notion of the sovereignty of the is of this doctrine is that it vests liciary. In an attempt to address proposals as to how a framework better guidelines for the Cour.
both useful and necessary for e Public Trust Doctrine. Until ure Sri Lankan Supreme Court sistent, progressive and creative would promote the principles of n the credibility of the Court. The
a phrase used in the case of Karnataka d v. C. Kenchappa and Others, supra, by upreme Court at para 102.

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66 Public T
following comment made by M. in that regard.
"The credibility of the court underliejudicial decisions are if those values are participatc values are humane and dem
2 Gomez, M., In the Public Interest, Participatory Justice, (Legal Aid Cent p. 153.

ust Doctrine: The Sri Lankan Version
trio Gomez, would be instructive
will be enhanced if the values that made articulate. It will be amplified ry. It will be magnified greatly if the cratic.*
Essays on Public Interest litigation and , University of Colombo, Colombo, 1993)

Page 77
Refer
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Bandara w. Premachandra (1994) 1
Bulankulamav. Sec, Ministry of Ind
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Fernandov Sri Lanka Broadcasting
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The Nineteenth Amendment to the Jayawardene v. Wijayatilake (2001) Premachandra v. Montague Jayavid Saman v. Leeladasa [1989) 1 Sri L.F Sriyani Silva v. OIC Payagala (2003 Wijesiri v. Siriwardena [1982) Sri L.
Unreported
Ashik and Others v. O.I.C. Welligam,
Minutes Oh September 2007.
Centre for Policy Alternatives and A and Others, S.C. (FR) 111/201
Centre for Policy Alternatives and
Others, S.C. (FR)457/2009.
Ceylon Workers Congress v. Ministe December 2007 to September
Environmental Foundation Limited (F/R) Supreme Court Minute
Environmental Foundation Ltd an Others, S.C. (FR)459/08, Sup

C1CCS
Sri L.R. 301. ustrial Development (2000) 3 Sri L.R.
R. 283. krama [1985) 1 Sri L.R. 285. Corporation (SLBC) [1996) 1 Sri L.R.
Constitution (2002) 3 Sri L.R. 85.
1 Sri LR 132.
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'. 1.
) 1 Sri L.R. 14.
R. 171.
a and Others, S.C. (FR) 38/2005, S.C.
nother v. Commissioner of Elections 0.
Another v. Minister of Defence and
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28 November 2005. i Others v. Mahaweli Authority and reme Court Minutes 17 June 2010.

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68 Public T
Mundy and Others v. Central Envi Appeal, 58/2003, Supreme C
Ranjith Haputhantirige and Th Karunawathie and Others, S. July 2007.
Singalanka Standard Chemicals Ltd.
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Sugathpala Mendis and Others v. C No.352/2007, Supreme Court
Vasudeva Nanayakkarav. KNChoks Supreme Court Minutes 4th Ju
Vasudeva Nanayakkarav. NK Chok Supreme Court Minutes 21“Ju
Watte Gedara Wijebanda v. Conser S.C. Application No. 118/2004 2007.
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Fomento Resorts and Hotels Ltd.. an Others Civil Appeal Nos.4155 a
Intellectuals Forum, Tirupathiv, Sta
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M.I. Builders Pvt. Ltd. v. Radhey Shy Mehta v. Kamal Nath (1997) 1 S.C.C Perumatty Grama Panchayatv. State
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Attorney General v. Belfast Corporat Attorney General v. Brown 1 Swans 2 Attorney General v. Dublin Corporat Bromley LBC v. GLC (1983) A.C. 768

st Doctrine: The Sri Lankan Version
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muri Wihansa Haputhantirige v. .. (FR) No. 10/07, S.C. Minutes 30o
Thalangama Appuhamillage Sirisena ded on 1 of October 2009.
3 Kumaratunge and Others SC (FR) Vinutes 8th October 2008.
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d Another v. Minguel Martins and und 4156of 2000.
e of A.P. and Others (2006) 3 SCC
e of AP and Others (2006) AIR SC
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um Sahu (1999) 6 S.C.C.464. 388. of Kerala (2003).
In (1855) 4 IR Ch 119. 5. in 1 Bligh NS312.

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agmail.com