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.”