027-SLLR-SLLR-2006-V-2-DAEWOO-ENGINEERING-AND-CONTRUCTION-CO.LTD-vs.-AMARASEKERA.pdf
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DAEWOO ENGINEERING AND CONSTRUCTION CO. LTDVSAMARASEKERACOURT OF APPEALSRIPAVAN, J.
SISIRADE ABREW, J.
CA 251/06.
FEBRUARY 14,15, 28, 2006.
Writ of Certiorari – Jurisdiction of court to quash a decision taken by the Cabinetof Ministers-Guidelines on Government tender procedure – Do they apply to theCabinet?-Procedure for consideration of report by Cabinet not spelt out -Constitution Article 4 (c)- Article 140 – Interpretation Ordinance, section 2 – Didthe Cabinet have statutory authority or power?
The petitioner seeks to challenge the decision of the Cabinet of Ministers toaward the contract to the 8th respondent contrary to the decision taken by theProcurement Appeals Board. The tender for the said contract is governed bythe Guidelines on Government Tender procedure of 1997 and the RevisedGuidelines which are formulated by the Government and have the force of lawunder the Constitution.
It was contended by the 8th respondent that the court has no jurisdiction toquash a decision taken by the Cabinet of Ministers.
HELD:
(1) Court has jurisdiction to issue writs on a body of persons according to law.Certiorari lies only against persons or tribunals, the source of whose authorityto make decisions or orders affecting the rights of subjects is legal.
PerSripavan, J.:
“Court has to consider that when the Cabinet took the impugned decision didit do so in the exercise of any statutory authority or power?”
Although the guidelines are to be followed by all the Governmentinstitutions, they do not apply to the Cabinet.
The Procurement Appeals Board is expected a submit a report tothe Cabinet; however the guidelines do not specify when and howthe report is to be decided by the Cabinet. The procedure for theconsideration of the report by the Cabinet is not spelt out.
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In the absence of any procedure Court cannot declare that the Cabinet hasfailed to act in conformity with any procedure prescribed. There has not beenan excess or abuse of executive power.
Per Sripavan, J.:
“Equally Court is ill equipped to pronounce that the decision of the Cabinet isarbitrary, illegal or unreasonable unless there is concrete evidence to establishthat the Cabinet in taking such a decision has violated and acted contrary tothe laws of the land"
APPLICATION for a Writ of Certiorari.
Cases referred to:
Rex vs Electricity Commissioner 1924 KB 171 at 204
Rex vs National Joint Council for Dental Technicians (1953) 1 QB 704at 707
Smithkline Beecham Biological SA and Another vs. StatePharmaceutical Corporation of Sri Lanka 1997 3 Sri LR 20 at 38.
Faiz Musthapa, PC with Sanjeewa Jayawardena and T. Machado for petitioner.D. S. Wijesinghe, PC with Kaushalya Molligoda for 6th and 7th respondents.
K.Kanag – Iswaran, PC with A. M. Illiyas and A. M. Aslam for 8th respondent.
Cur.adv.vult.
March 13,2006.
SRIPAVAN, J.The petitioner in this application seeks to challenge the decision of theCabinet of Ministers to award the contract for Package II of the SouthernTransport Development Project to the eighth respondent contrary to thedecision taken by the Procurement Appeals Board.
Learned President’s Counsel for the petitioner contended that the tenderfor the said Package II is governed by the “Guidelines on GovernmentTender Procedure” of 1997 and the “Revised Guidelines on GovernmentTender Procedure for Projects Assisted by Foreign Financing Agencies”which guidelines were formulated by the Government of Sri Lanka andhave the force oflaw under the Constitution.
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An objection was taken by the President’s Counsel for the eighthrespondent that the court has no jurisdiction to quash a decision taken bythe Cabinet of Ministers. In terms of Article 4(c) of the Constitution, thejudicial power of the People is exercised through courts, tribunals andinstitutions created, established, or recognized by the Constitution orcreated and established by law. The power to issue writs against a judgeof any Court of First Instance, tribunal or other institution or any otherperson is conferred on the Court of Appeal in terms of Article 140 of theConstitution. Section 2 of the Interpretation Ordinance provides that “person”includes “any body of persons corporate or unincorporate”. Thus, this courthas jurisdiction to issue writs on a body of persons according to law. InRex vs Electricity Commissioners at 204, the writ of certiorari was declaredto be available against “any body of persons having legal authority todetermine the questions affecting the rights of the subjects and having theduty to act judicially”. In other words, certiorari lies only against personsor tribunals, the source of whose authority to make decisions or ordersaffecting the rights of subjects, is legal. Commenting on the phrase “Legalauthority” Lord Goddard C. J. In Rex vs. National Joint Council for DentalTechnicians® at 707 said “Legal authority generally means statutoryauthority”. Therefore the court has to consider that when the Cabinet tookthe impugned decision, did it do so in the exercise of any statutory authorityor power? The preface to the “Guidelines on Government Tender Procedure"states that Government institutions are expected to follow the tenderprocedure to obtain goods and services in order to achieve the followingobjectives
To keep the process fully transparent and honest.
To speed up the process.
To obtain financially the most advantageous and qualitatively thebest services and supplies for the country.
Accordingly, the guidelines are to be followed by all the GovernmentInstitutions inclusive of Ministries, Departments, Public Corporations andStatutory Bodies, Fully Owned Government Companies, Provincial Councilsand Local Authorities for the procurement of works, services and suppliesand disposal of Government Assets as stated in the Public Finance CircularNo. 352 dated 25th September 1997 and incorporated in the said guidelines.It is therefore noted that the provisions contained in the guidelines do notapply to the Cabinet. In terms of clause 138:1 of the said guidelines, the
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Procurement Appeals Board is expected to submit a report to the Cabinet,through the Secretary to the Cabinet with a copy to the Secretary of therelevant Ministry within two weeks of an appeal being lodged. The guidelinesdo not specify when and how the report of the Appeals Board is to bedecided by the Cabinet. In other words, the procedure for the considerationof the report by the Cabinet is not spelt out. In the absence of any procedure,this court cannot declare that the Cabinet has failed to act in conformitywith any procedures prescribed. Equally, the Court is ill – equipped topronounce that the decision of the Cabinet is arbitrary, illegal orunreasonable unless there is concrete evidence to establish that the Cabinetin taking such a decision has violated and acted contrary to the laws ofthe land.
Amerasinghe, J. In Smithkline Beecham Biologicals S. A. and Anothervs State Pharmaceutical Corporation of Sri Lanka and Othersf3) at 38states thus :
“I understand this to mean that the procedure relating to Governmentprocurements should ensure the most favourable conditions for theadvancement of the People by obtaining “Financially the most advantageousand qualitatively the best supplies for the country is preeminently a matterof policy that the Government which is accountable to the People, mustdecide…” (Emphasis added)
The proceedings of the Cabinet of Ministers are secret and confidential.A former judge of the Constitutional Court Joseph A. L. Cooray at page191 of his work on “Constitutional and Administrative Law of Sri Lanka” -1995 remarked thus
“The secrecy of Cabinet decisions is necessary for arriving at acompromise and agreement through frank discussions among the Ministersunder the direction of the President, as the Head of the Executive and ofthe Cabinet. This practice gives effect to the principles of public unanimityand collective responsibility and also tends to promote strong and stableGovernment… It is only on the principle that absolute responsibility isundertaken by every member of the Cabinet who, after a decision is arrivedat, remains a member of it, that the joint responsibility of Ministers toParliament can be upheld and one of the most essential principles ofparliamentary responsibility established”.
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Whilst holding that his court has the power to review executive decisionsin appropriate cases, I do not find that in the instant application there hasbeen an excess or abuse of executive Power. The Cabinet concerns itselfwith the provision of numerous monetary benefits, welfare services andthe regulation of many activities for the benefit of the people of the country.Therefore, the court would be hesitant to look into or examine the merits ofexecutive policy. As such, the court is not inclined to issue notice on therespondents. Notice is thus refused.
SISIRA DE ABREW, J. -1 agree.
Notice refused.