Judicial aspect of ‘Public Trust Doctrine’
H. K. Seneviratne
There seems to be a proliferation of lawsuits in which citizens,
demanding judicial recognition of their rights as members of the public,
sue the very governmental agencies which are supposed to be protecting
the public interest.
The public trust doctrine used to be an effective tool of general
application for citizens to obtain a judicial intervention to protect
their interests.
The public trust concept restrains the governmental activities in
dealing with the properties or interests in respect of which the State
holds in trusteeship for the public. This implies restrains on
governmental authority where such property or interest is subject to the
trust.
These special obligations towards the protection of property or
interest to some extent are imposed by statutory or constitutional
provisions and judicial developments thereon.
The Constitution declares that the sovereignty is in the people and
is inalienable (Art. 3). It is this inalienable right that the people
exercise through Parliament, the President and the judiciary. (Art. 4)
The chapter VI of the Constitution {articles 27, 28 and 29} declares
certain Directive Principles of State Policy for the guidance of
Parliament, the President and the Cabinet of Ministers in the enactment
of laws and the governance of Sri Lanka.
In SC (F/R) Application No. 503/2005 it is observed that the Cabinet
of Ministers were custodians of public property and public funds and
such property and funds will have to be dealt with according to the law
for the benefit of the people.
Though the Article 28 states that provisions on the Directive
Principles of State Policy contained in chapter VI of the Constitution
do not confer or impose legal rights and obligations and are not
enforceable in any court or tribunal, the directive principles of State
Policy as laid down in Chapter VI of the Constitution include - “the
promotion of welfare of the people by securing and protecting, as
effectively as it may, a social order in which justice (social, economic
and political) shall guide all the institutions of the national life”
(27 {2)(b)}; “rapid development of the whole country by means of public
and private economic activity and by law prescribing such planning and
control as may be expedient for directing and co-ordinating such public
and private economic activity towards social obligations and public
wealth” [27 (2) (d)]; “protect, preserve and improve the environment for
the benefit of the community” [27 (2) (14)].
Further Article 28 imposes a fundamental duty on every person in Sri
Lanka, natural or juridical, to uphold and defend the Constitution and
the law of the country [Art. 28 (a)], to preserve and protect public
property and to combat misuse and waste of public property [Art. 28 (f)]
and to protect nature and conserve its riches [Art. 28(f)].
These obligations are some of the fundamental principles that
underpin the operation of legal systems within the territorial
boundaries of Sri Lanka. Generally these public policies in each country
reflect the essence of territoriality as they could be applied only
within the territorial boundaries of such State.
Where these rights are defined at a supranational level it would be
necessary for each State to consider the extent to which such
international principles of law are to be allowed to influence the
operation of the law within its own territory.
No court will apply “foreign” law if its application would conflict
with its own system of public policy. However, the influence of
“foreign” laws is becoming increasingly evident with the increasing
freedom of movement of people between States and in dealings with
international trade and commerce between States.
Article 27 (15) declares that the State shall promote international
peace, security and co-operation, and the establishment of a just and
equitable international economic and social order, and shall endeavour
to foster for international law and treaty obligations in dealing among
nations.
This invites the application of international law and treaty
obligations in the promotion of International peace, security and
co-operation and in the establishment of a just and equitable
international economic and social order.
In Bulankulama vs Secretary Ministry of Industrial Development, the
question was raised on behalf of the State the “the Government and not
the Court, is the “Trustee” of the natural resources of Sri Lanka.
Thus, as long as the Government acts correctly the court will not put
itself in the shoes of the Government. That is to say the court may or
may not agree with the final outcome. However, if the Government has
correctly acted as trustee, the court will not interfere.” The court has
not answered the issue whether the court or the ‘Government’ is the
trustee as it was not the issue before court.
Dr. Amarasinghe J in the above case is of the view that the
jurisdiction of Supreme Court is put beyond any doubt by Article 126 (1)
of the Constitution which, among other things, bestowed on the Supreme
Court the “sole and exclusive jurisdiction to hear and determine any
question relating to the infringement or imminent infringement by
executive or administrative action of any fundamental rights” and that
court is neither assuming a role as “Trustee” nor usurping the powers of
any other organ of Government and it is discharging a duty which has in
the clearest terms been entrusted to this court, and this court alone by
Article 126 (1) of the Constitution.
In S.C. (FR) No. 352/2007 the judgement states that -”Following
Bandara Vs. Premachandra (1994) 1 S. L.R. 301 in which the Court held
that “...the State must, in the public interest, expect high standards
of efficiency and service from public officers in their dealings with
the administration and the public. In the exercise of constitutional and
statutory powers and jurisdictions, the judiciary must Endeavour to
ensure that this expectation is realized...”
In dealing with the responsibility of the organs of the government
under the Public Trust Doctrine the judgment further stated that “the
Public Trust Doctrine is based on concept that the powers held by organs
of government are, in fact, powers that originate with the people, and
are entrusted to the Legislature, the Executive and the Judiciary only
as a means of exercising governance and with the sole objective that
such powers will be exercised in good faith for the benefit of the
people.
Public power is not for personal gain or favour, but always to be
used to optimize the benefit of the people. To do otherwise would be to
betray the trust reposed by the people within whom, in terms of the
Constitution, the sovereignty reposes. Power exercised contrary to the
Public Trust Doctrine would be an abuse of such power and in
contravention of the Rule of Law.”
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