As stated earlier, the main contention of the learnedCounsel for the petitioners at the hearing was that no reasonswere given by the Is* respondent for his decision. In the light ofthe aforementioned, it is apparent that it would be necessaryto examine whether the failure to give reasons to petitionersby the l8t respondent had infringed the fundamental rights ofthe petitioners guaranteed in terms of Article 12(1) of theConstitution.
Sri Lanka Law Reports
[2009] 1 SRIL.R.
As stated earlier, learned Senior State Counsel strenuouslycontended that not giving reasons for the rejection of thepetitioners’ application is not a fatal error and the learnedCounsel for the petitioners contended that such failure hasamounted to a violation of the petitioners’ fundamental rightsand relied on the decision of this Court in Karunadasa vUnique Gem Stones Ltd. (supra)
The contention of the respondents regarding thequestion for the need to give reasons is that the failure to givereasons by the Commissioner is not a fatal error and cannot beconstrued to mean that there is no valid reason for therejection of the petitioners’ application as claimed by thepetitioners. Further it was submitted that the failure togive reasons does not take away from the fact that theCommissioner formed his opinion after a proper inquiry andfurther the failure to give reasons by the Commissioner inhis letter is not fatal as the reasons have been adequatelyexplained to this Court by way of the 1st respondent’saffidavit.
An examination of the decisions relied on by the respon-dents in support of their contention clearly shows thatthose decisions have spelt out the general position regardingthe necessity to give reasons for a decision. For instance inSamalanka Ltd. v Weerakoon, Commissioner of Labourand others (supra) this Court had held that in the absenceof a statutory requirement, there is no general principle ofadministrative law that natural justice requires the authoritymaking the decision to adduce reasons, provided that thedecision is made after holding a fair inquiry. The decision inYaseen Omar (supra) also had been on the same lines, whereit was held that neither the common Law nor principles ofnatural justice requires as a general rule that administrativetribunals or authorities should give reasons for their decisionsthat are subject to judicial review. Considering the questionthat arose in that appeal it was held that there is no statutoryrequirement imposed on the Commissioner to give reasonsfor his decision.
Hapuarachchi and Others vs Commissioner of Elections and Another
(Dr. Shimni Bandaranayake, J.)
The decision in Karunadasa v Unique Gem atones Ltd.and others (supra) had taken the view that natural justicealso means that a party is entitled to a reasoned considerationof his case.
Therefore it would be apparent that none of the decisionsreferred to earlier, which were relied on by the respondentssupports the contention that not giving reasons for a decisionby an administrative authority is not a fatal error.
In such circumstances, it would be pertinent to examinethe legal position pertaining to the need to give reasons.
For a long period of time, as stated by Bandaranayake, J.,in N. S. A. M. Nanayakkara v Peoples Bank and others14*
the commonly accepted norm in English Law had been thatthere is no general rule or a duly to state reasons for judicialor administrative decisions (Pure Spring Co. Ltd. v Ministerof National Revenue)*5* Statements of Reasons for Judicialand Administrative Decisions, Michael Akehurst, M. L. R.Vol. 33, 1970, pg. 154). As pointed out by Michael Akehurst,a statement of reasons is not required by the rules of naturaljustice and therefore there is no duty to state reasons for thedecisions of Courts, juries, licensing justices, administrativebodies and tribunals or domestic tribunals (Michael Akehurst(supra)). This position was again considered in Marta Stefanv General Medical Council*6* by the Privy Council, where itwas held that there was no express or implied obligation onthe Health Committee to give reasons for its decision withineither the Medical Act 1983 or the General Medical CouncilHealth Committee (Procedure) Rules Order of Council 1987.Referring to right to reasons, S. A. de Smith (De Smith’sJudicial Review 6th Edition, 2007, pg 411) had clearly statedthat,
“On this view, a decision – maker is not normally required toconsider whether fairness or procedural fairness demandsthat reasons should be provided to an individual affectedby a decision because the giving of reasons has not been
Sri Lanka Law Reports
[2009] 1 SRI L.R.
considered to be a requirement of the rules of proceduralpropriety.”
This position is well compatible with the theory that thereis no general common law duty to give reasons for decisions(Minister of National Revenue v Wrights’ Canadian RopesLtd.(7) R v Gaming Board for Great Britain, Ex. p. Benaimand Khaida(S) MC Innes ▼ Onslow – Fane(9) R v Civil ServiceAppeal Board Bx. p. Cunningham'101
However, this position has changed dramatically and aspointed out by de Smith (supra, pg. 413),
… it is certainly now the case that a decision – makersubject to the requirements of fairness should considercarefully whether, in the particular circumstancesof the case, reasons should be given. Indeed, sofast is the case law on the duty to give reasonsdeveloping, that it can now be added that fairness orprocedural fairness usually will require a decision – makerto give reasons for its decision. Overall the trend of thelaw has been towards an increased recognition of theduty to give reasons. . . .” (emphasis added).
Thus it appears that although the common law had failedto develop any general duty regarding the need to give rea-sons, there are several exceptions to this general principle.'
One clear method, as pointed out in N.S.A.M. Nanayakka-ra v People’s Bank (supra) was through statutory intervention,which came into being by the recommendations of the Reportof the Committee on Administrative Tribunals and Enquiries,commonly known as Franks committee (Cmnd. 218 (1957)).The Franks Committee recommended the need to give reasons((supra), para 98, 351), that came into being through theTribunals and Inquiries Act, 1958, which was replaced by theTribunals and Inquiries Act, 1992.
, The Franks Committee Report of 1957 ((supra) at para98), in fact highlighted the issue as to why reasons should
Hapuarachchi and Others vs Commissioner of Elections and Another
(Dr. Shirani Bandaranayake, J.)
be given, referring to ministerial decisions taken, after theholding of an inquiry.
“It is a fundamental requirement of fair play that theparties concerned in one of these procedures shouldknow at the end of the day why the particular decisionhad been taken. Where no reasons are given theindividual may be forgiven for concluding that he hasbeen the victim of arbitrary decision. The giving of fullreasons is also important to enable those concernedto satisfy themselves that the prescribed procedurehas been followed and to decide whether they wishto challenge the Minister’s decision in the courts,or elsewhere. Moreover as we have already said inrelation to tribunal decisions, a decision is apt tobe better if the reasons for it have to be set out inwriting because the reasons are then more truly tohave been properly thought out” (emphasis added).
In addition to the above there are several other instancesin which the common law had imposed a duty to give reasonsfor its decisions. One such method was developed on the basisthat the absence of reasons would render any right of appealor review nugatory. Thus in Minister of National Revenuev Wrights Canadian Ropes Ltd. (supra), which consideredan appeal from an income tax assessment, the Privy Counselstated that,
“Their Lordships find nothing in the language of the Actor in the general law which would compel the Minister tostate his reasons for taking action. . . . But this does notmean that the Minister by keeping silent can defeat thetax payer’s appeal. . . . The Court is… always entitled toexamine the facts which are shown by evidence to havebeen before the Minister when he made his determination.If those facts are. . . insufficient in law to. support it, thedetermination cannot stand. …”
Sri Lanka Law Reports
[2009] 1 SRI LR.
A number of other decisions had taken a similar approach.For instance, in R v Civil Service Appeal Board, Ex parteCunningham (supra), Lord Donaldson Mr and McCowan andLeggatt, LJJ., had held that although there was no general rulethat required administrative tribunals to give reasons, thatsuch an obligation could arise as an incident of proceduralfairness in appropriate circumstances.
This approach had been followed in other cases. InR v Secretary of State for the Home Department Ex parteDoody<n> which considered whether the Secretary of State isrequired to inform the prisoner the reasons as to why he wasdeciding on a certain period of time for imprisonment, LordMustill expressed the view that, although there was no generalduty to provide reasons, there was a duty to give reasons in thatinstance, as it would facilitate any judicial review challengedby the prisoner. Lord Mustill had clearly stated in Doody(supra) that,
"… I find in the more recent cases on judicial review aperceptible trend towards an insistence on greateropenness, or if one prefers the contemporary jargon,-‘transparency’, in the making of administrativedecisions.”
. Another method and one which was extremely importantfromthepracticalpointofview.indirectlyimposedarequirementthat reasons be stated and if not had decided that the resultreached in the absence of reasoning is arbitrary. Thus in thewell known decision in Padfield v Minister of AgricultureFisheries and Food'121 the House of Lords decisivelyrejected the notion that the absence of a duty to statereasons, precluded the Court from reviewing the reasonsfor the decision. It was therefore stated by Lord Pearce inPadfield (supra) that,
“If all the prima fade reasons seem to point in favour ofhis taking a certain course to carry out the intentions ofParliament in respect of a power which it has given him
Hapuarachchi and Others vs Commissioner of Elections and Another
(Dr. Shirani Bandaranayake, J.)
in that regard, and he gives no reason whatever for takinga contrary course, the Court may infer that he has nogood reason and that he is not using the power given byParliament to cany out its intentions.”
Accordingly an analysis of the attitude of the Courtssince the beginning of the 20th century clearly indicatesthat despite .the fact that there is no general duty to givereasons for administrative decisions, the Courts haveregarded the issue in question as a matter affectingthe concept of procedural fairness. Reasons for anadministrative decision are essential to correct any errorsand thereby to ensure that a person, who had suffereddue to an unfair decision, is treated according to thestandard of fairness. In such a situation without astatement from the person, who gave the impugneddecision or the order, the decision process would be flawedand the decision would create doubts in the minds of theaggrieved person as well of the others, who would try toassess the validity of the decision. Considering the presentprocess in procedural fairness vis-a-vis, right of thepeople, there is no doubt that a statement of reasons foran administrative decision is a necessary requirement.
Referring to reasons, fair treatment and proceduralfairness, Galigan (Due Process and Fair Procedures, ClarendonPress, Oxford, pg. 437) stated that,
“If the new approach succeeds, so that generally astatement of reasons for an administrative decision willbe regarded as an element of procedural fairness, thenvarious devices invented in the past in order to allow theconsequences of a refusal of reasons to be taken intoaccount will gradually lose their significance.”
The necessity to give reasons was considered by thisCourt, as referred to in Bandaranayake, J.’s judgments
Sri Lanka Law Reports
12009]! SRI LR.
in Lai Wimalasena v Asoka Silva and others1131 and inN. S. A. M. Nanayakkara v People’s Bank (supra),in Wijepala vJayawardene1141,Manage v Kotakadeniya(1S1,Suranganie Marapana v The Bank of Ceylon andothers and in Karunadasa ▼ Unique Gemstones (supra)
In Wijepala v Jayawardene (supra) considering thenecessity to give reasons, at least to this Court, MarkFernando, J., was of the view that,
“The petitioner insisted, throughout that establishedpractice unquestionably entitled him at least to his firstextension and that there was no relevant reason for therefusal of ah extension. . . .
Although openness in administration makes it desirablethat reasons be given for decisions of this kind, in thiscase I do not have to decide whether the failure to doso vitiated the decision, However, when this Court isrequested to review such a decision, if the petitionersucceeds in making out a prima facie case, then thefailure to give reasons becomes crucial. If reasons arenot disclosed, the inference may have to be drawnthat this is because in fact there were no reasons -and so also, if reasons are suggested, they were infact not the reasons, which actually influenced thedecision in the first place” (emphasis added).
In Manage v Kotakadeniya and others (supra), where anapplication of a Post Master for his extension of service, uponreaching the age of 55 years was refused, Amerasinghe, J.,was of the view that,
“the refusal to extend the service of the petitioner was notbased on adequate grounds.”
The order of retirement was thus quashed on the basisthat the petitioner in that case was treated unequally andthat there had been discriminatory conduct against thepetitioner.
Hapuarachchi and Others vs Commissioner of Elections and Another
(Dr. Shirani Bandaranayake, J.)
In Suranganie Marapana v The Bank of Ceylon andothers (supra) it was held that the Board failed to show theCourt that valid reasons did exist for the refusal to grantthe extension, which was recommended by the corporatemanagement and therefore it was held that the refusal to grantthe extension of service sought was arbitrary, capricious,unreasonable and unfair. Considering the question in issuethe Court had stated that,
“Even though Public Administration Circular No. 27/96dated 30.08.96 (P8), which was an amendment to Chap-ter 5 of the Establishments Code, does not have any directapplication to the matter before us, it clearly sets out theattitude of the State in regard to the question of extensionof service of public sector employees, when it states thatwhere extensions of service of State Employees are refusedthere should be sufficient reasons to support suchdecision beyond doubt’’ (emphasis added).
It is also noteworthy to refer to the views expressed byMark Fernando, J., in Karunadasa v Unique Gem Stones
(supra) with reference to the need to give reasons for adecision, where it was stated that,
“. . . whether or not the parties are also entitled to be toldthe reasons for the decision, if they are withheld, oncejudicial review commences, the decision ‘may becondemned as arbitrary and unreasonable’; certainly theCourt cannot be asked to presume that they were validreasons, for that would be to surrender its discretion.”
On a consideration of our case law in the light of the attitudetaken by Courts in other countries, it is quite clear that givingreasons for an administrative decision is an important featurein today’s context, which cannot be lightly disregarded.Moreover in a situation, where giving reasons have beenignored, such a body would run the risk of having actedarbitrarily, in coming to their conclusion. These aspects havebeen stated quite succinctly in the following passage, where
Sri Lanka Law Reports
[2009] 1 SRI LR.
Prof. Wade had expressed the view that, (Administrative Law,9th Edition, pg. 522),
“Unless the citizen can discover the reasoning behind thedecision, he may be unable to tell whether it is reviewableor not, and so he may be deprived of the protection of thelaw. A right to reasons is therefore an indispensablepart of a sound system of judicial review. Naturaljustice may provide the best rubric for it, since thegiving of reasons is required by the ordinary man'ssense of justice. It is also a healthy discipline for allwho exercise power over others" (emphasis added).
And more importantly,
^Notwithstanding that there is no general rulerequiring the giving of reasons, it is increasinglyclear that there are many circumstances in which anadministrative authority which fails to give reasonswill be found to have acted unlawfully” (emphasisadded).
The importance of giving reasons, irrespective of thefact that there are no express or implied obligation to do so,had been clearly shown in many decisions and it wouldbe pertinent to mention the views expressed in Osmond vPublic Service Board of New South Wales and Another*171and Marta Stefan v General Medical Council (supra).
In Osmond (supra), the appellant was employed in theNew South Wales Public Service. In 1982 he applied forpromotion to the vacant post of Chairman of the Local LandsBoard. He was not recommended for this appointment andappealed to the Public Service Board under section 116 of thePublic Service Act 1979. Soon after his appeal was heard bythe Board he was informed orally that it had been dismissed,although no written notice of the decision was ever given tohim and requests for a written decision with reasons wererefused on the ground that it was not the Board’s practice togive reasons.
Hapuarachchi and Others vs Commissioner of Elections and Another
(Dr. Shirani Bandaranayake, J.)
It was held that natural justice required that the appel-lant should be given the reasons for the decision of the Boardin his appeal and Kirby, J. had stated that,
“The duly of public officials, in making discretionarydecisions affecting others in the exercise of statutorypowers, is to act justly and fairly; this will normallyimpose an obligation to state the reasons for theirdecisions. Such an obligation .will exist where theabsence of reasons would render nugatory a facilityprovided to appeal against the decision or would diminisha facility to test the decision by judicial review andensure that it complies with the law and that relevantmatters only have been taken into account.”
In Marta Stefan (supra), the question related to a doctor,who was subjected to suspension of her registration forvarying periods following decisions of the Health Committeeof the General Medical Council that her fitness to practicewas impaired. In February 1998 her case came before theHealth Committee again and the Committee concluded thather registration should be suspended indefinitely. The onlyreason given for the decision was that the Committee havecarefully considered all the information presented to themand continue to be deeply concerned about her medicalcondition and that the Committee have again judged herfitness to practice to be seriously impaired and have directedthat her registration be suspended indefinitely.
Allowing the appeal by the Doctor, it was held that therewas no express or implied obligation on the Health Committeeto give reasons for its decision within either the Medical Act1983 or the General Medical Council Health Committee(Procedure) Rules Order of Council 1987, but that in the lightof its judicial character, the framework in which it operatedand the provision of a right of appeal against its decisions therewas a common law obligation to give at least a short statementof the reasons for its decision, that the extent and substanceof the reasons would depend upon the circumstances andthey did not need to be elaborate or lengthy, but they should
Sri Lanka Law Reports
[2009] 1 SRIL.R.
be such as to tell the parties in broad terms, why the decisionwas reached. It was also decided that the doctor’s case wouldbe remitted to a freshly constituted Health Committee forrehearing with reasons to be given for its decision.
The petitioners had complained of the infringement oftheir fundamental right guaranteed in terms of Article 12(1)of the Constitution. Article 12(1) of the Constitution dealswith the right to equality and reads as follows:
“All persons are equal before the law and are entitled tothe equal protection of the law.”
Equality, which could be introduced as a dynamicconcept, forbids inequalities, arbitrariness and, unfair deci-sions. As pointed out by Bhagwati, J. (as he then was) inE. P. Royappa v State of Tamil Nadu118'
“From a positivistic point of view, equality is antithetic toarbitrariness. In fact equality and arbitrariness are swornenemies, one belongs to the rule of law in a Republicwhile the other, to the whim and caprice of an absolutemonarch.”
In such circumstances to deprive a person of knowing thereasons for a decision, which affects him would not only bearbitraiy, but also a violation of his right to equal protectionof the law.
As pointed out by Craig (Administrative Law, 4th Edi-tion, 1999 pg. 430) referring to Rabin (Job Security and dueProcess: Monitoring Administrative Discretion Through aReasons Requirement (44 U. Chi. L.R. 60)) the very essence ofarbitrariness is to have one’s status redefined by the Statewithout an adequate explanation of its reasons for doing so.
It is therefore apparent that as pointed out by ProfessorWade (Administrative Law, supra pg. 527), the time has nowcome for the Court to acknowledge that there is a generalrule that reasons should be given for decisions based on theprinciple of fairness. Prof. Wade (supra) had further stated that,
Hapuarachchi and Others vs Commissioner of Elections and Another
(Dr. Shirani Bandaranayake, J.j
“Such a rule should not be unduly onerous, sincereasons need never be more elaborate than the nature ofthe case admits, but the presumption should be in favour ofgiving reasons, rather than, as at present, in favour ofwithholding them,”
It is to be noted that there have been instances whereCourts had quashed the decisions when only vague reasonshad been given (Re Poyser and Mills’ Arbitration119’ or incircumstances where ambiguous reasons were provided (R vIndustrial Injuries Commissioner, Ex parte Howarth
It is not disputed that in the instant application, althoughthe 1st respondent had informed this Court his reasons forthe refusal of petitioners’ application for the recognition of theParty in question, that in his communique to the petitionerson 21.01.2008 (X7) referred to above, no reasons whatsoeverwere given, which in my view means a denial of justice,an error of law and more importantly in connection to thismatter, the said decision to withhold the reasons is arbitrary,unfair and unreasonable within the framework of Section12(1) of the Constitution.
In such circumstances for the reasons aforementionedI hold that the decision reflected in the documentdated 21.01.2008 (X7) is null and void and therefore the l8trespondent had violated the petitioners’ fundamental rightsguaranteed in terms of Article 12(1) of the Constitution. Thepetitioners’ application is accordingly allowed. I direct the 1strespondent to re-consider the application submitted by thepetitioners and to give reasons for his decision following suchre-consideration.
I make no order as to costs.
AMARATUNGA, J. – I agree.
MARSOOF, J. -1 agree.
Application allowed. Respondent directed to reconsider theapplication and to give reasons for his decision.