Many industries functioning in Sri Lanka are subject to regulation of varying degrees. Usually the regulation-making powers are set out in acts of parliament (i.e. enabling acts) which confer such powers, typically, upon an executive authority such as a minister-in-charge of the relevant subject industry.
Regulations are often necessary to achieve certain public policy and public interest objectives of the State. On the other hand, they often have a direct (and sometimes deleterious) impact on the financial and commercial operations of businesses.
Given their propensity to impact the day-to-day operations of businesses as well as the livelihoods of their employees, this post briefly considers the question of whether regulations (which are often enacted by way of what is known as “delegated legislation”) are amendable to challenge before Sri Lankan courts.
The argument in favor of the courts’ power to challenge regulations is that, like administrative action taken by State actors, delegated legislation must comply with the provisions of the enabling act. Therefore, a court may inquire into subordinate/delegated legislation to determine if it is in compliance with, and has been passed according to, the provisions laid down in the enabling act.
An argument against the court’s power to inquire into delegated legislation is that, once delegated legislation is passed, it operates as if it is part of the enabling act, and thus outside the jurisdiction of the court, given that acts of parliament, once passed, are not amenable to challenge before Sri Lankan courts.
In terms of Article 80(3) of the Sri Lankan Constitution, once a bill becomes law it cannot be questioned on any ground whatsoever. Meaning that the courts of Sri Lanka do not have the power of judicial review of enacted legislation. The question therefore is whether the same principle applies to subordinate/delegate legislation, especially where the enabling act has a clause providing for such subordinate/delegated legislation to be deemed part of the act itself.
In the case of Dr KML Rathnakumara and others v. the Post Graduate Institute of Medicine and others SC Appeal No. 16/2014 the Supreme Court described subordinate/delegated legislation as being legislation made under delegated power. In International Cement Traders (PVT) Limited v. Hon. Sirimavo Bandaranaike and others SC Appeal No. 62/2003 it was held that, subordinate/delegated legislation takes place when the legislature delegates its law-making power relating to a subject matter to another body or authority.
In KML Rathnakumara and Sirimavo Bandaranaike cited above, the Supreme Court took the view that subordinate/delegated legislation is valid so long as it conforms to the power granted.
Further, in Dr KML Rathnakumara case, the Supreme Court held that unlike in the case of the principal legislation, there is no statutory prohibition on the jurisdiction of courts to consider the validity of subordinate legislation. Thus, the validity of subordinate legislation is subject to challenge in the courts. The Supreme Court also held that even where, as is often the case, a regulation is required to be approved by resolution of both Houses of Parliament, it still falls on the ‘subordinate’ side of the line, so that the court may determine its validity (or invalidity).
The only exception that the Supreme Court makes, in KML Rathnakumara, is in the case where the legislature itself enacts the subordinate/delegated legislation as part of the act itself, such as in the case of a schedule to the law.
In conclusion, the courts of Sri Lanka do have the power of judicial review, in the case of subordinate/delegated legislation, made by a delegated authority.
Avindra Rodrigo
President’s Counsel
Medhya Samarasinghe
Senior Litigator