The Doctrine of Public Trust

Upholding the sovereignty of the people:

Following is the Inaugural Commemorative Oration delivered by Chief Justice Sarath N. Silva PC at the 125th Anniversary Celebration of the Attorney General’s Department held at the BMICH on May 12. First part was published yesterday.

As you are well aware, the English legal system and jurisprudence to which we have recourse often is not founded on a written Constitution or formalized system of administrative courts akin to the ‘droit administratif’ of France. Constitutional and Administrative Law evolved in England as part of the Common Law and is stated in broad principles that are effectively applied by astute English Judges to impart justice in each case.

Sovereignty

The principle of Common Law is that sovereignty is reposed in Parliament. Notionally, The Queen, The House of Lords and The House of Commons constitute the sovereign Parliament. Thus the concept of sovereignty of the People does not directly feature in English Law.

The principle of the Rule of Law, evolved to ensure that the power reposed by Parliament on any public authority is exercised within its proper limits fairly and reasonably.

In emphasizing this proposition a few judgments and some texts state that power is exercised by a public authority ‘in trust’. ‘Trust’ being a prolific element of English Law featuring in many dimensions thus found its way to Administrative Law as well. None of these writings, as far as I am aware state the beneficiary of such trust. This may not be possible since notionally power is held and exercised for Parliament.

Constitution

Our Courts also took over the concept on the same terms and recorded that power reposed in a public authority is held and exercised in trust, without expressly stating the beneficiary of such trust. The ice was broken in the Determination made by a bench of Seven Judges in regard to the 19th Amendment to the Constitution (2002 SLR - Vol. 3 p. 85).

The Amendment was introduced effectively remove the power of the Executive President to dissolve Parliament. The two main Articles (3 and 4) of the Constitution which relate to the sovereignty of the People and the exercise of such sovereignty have been analyzed in this Determination. I would cite a single paragraph of the Determination which captures the drama of the deliberations -

“These Articles relate to the sovereignty of the people and the exercise of that sovereignty. Mr. H. L. de Silva, PC., submitted and correctly so, that the two Constitutions of Sri Lanka of 1972 and 1978 are unique in proclaiming that sovereignty is in the People and specifically elaborating the content of such sovereignty, whilst in most Constitutions the term “sovereignty” is used only as descriptive of the power of the State, similar to Article 1, which states that - “Sri Lanka (Ceylon) is a Free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the Democratic Socialist Republic of Sri Lanka.”

Political theory

This submission was further developed by Mr. Batty Weerakone from the perspective of political theory and he submitted that in terms of Articles 3 and 4, sovereignty is transmuted from a “grim reality” to something that is “tangible” or “palpable”, without being elusive or visionary.”

The conclusions of the Determination are stated in pages 100 and 101 and I would cite only those relevant to the aspect of Public Trust,

(1) The powers of Government are included in the sovereignty of the People as proclaimed in Article 3 of the Constitution.

(2) These powers of Government continue to be reposed in the People and they are separated and attributed to the three organs of Government; the Executive, the Legislature and the Judiciary, being the custodians who exercise such powers in rust for the People;

(3) The powers attributed to the respective organs of government include powers that operate as checks in relation to other organs that have been put in place to maintain and sustain the balance of power that has been struck in the Constitution, which power should be exercised only in trust for the People;

Thus it was firmly laid down that the powers of Government continue to be reposed in the People and are exercised by the three organs of the Government being the Executive, the Legislature and the Judiciary as custodians of such power only in trust for the people.

Fundamental right

Since fundamental rights form part of the sovereignty of the people in terms of Article 3 of the Constitution and have to be respected, secured and advanced by all organs of Government in terms of Article 4(d), in a matter of general or public importance where an infringement of a fundamental right is alleged a person or group of persons would have a sufficient locus standi to invoke the jurisdiction of the Supreme Court in the public interest. Thus limitation of locus standi has been removed in matters of public interest to give the Doctrine of Public Trust a dynamism and an effectiveness in upholding the fundamental rights of the people.

I would cite the following instance in which the Doctrine of Public Trust was availed of to uphold the public interest without in anyway in any impinging or the useful action of the Government or stifling development.

They are:

i) The Galle Face Green case where a proposed lease of Galle Face Green to construct temporary restaurant was prevented;

ii) The privatization of all Regional Transport Boards which now form the Ceylon Transport Board was prevented;

iii) The privatization of water resources in the country was prevented;

iv) The ‘P-Toms Agreement’ which provided for a direct transfer of donor, aid to a committee based in Kilinochchi which was completely under the control of the LTTE was restrained;

v) The merger of the Northern and Eastern Provinces, purportedly in terms of the 13th Amendment to the Constitution was declared invalid leading to the establishment of a sperate Provincial Council for the Eastern Province;

vi)The Grant of 8 Acres of land on which Oil Tanks and bunkering facilities are located within the Port of Colombo to a private company was terminated;

vii)Two instances in which the wrongful alienation of large extents of wetlands in Kotte and Dehiwala were terminated;

viii)A variety of environment related cases in which sand mining, noise pollution, air pollution and quartz quarrying have been restrained and brought under strict regimes of monitoring;

Thus the Doctrine of Public Trust has now come of age and would continue to meaningfully uphold the sovereignty of the people.

(Concluded)