Articulating Rights Consciousness: Reinterpreting the Frontiers of the Concept of Substantive Legitimate Expectations as a Ground of Judicial Review in Sri Lanka

Abstract

The concept of legitimate expectations is among the tools developed by courts to impose a check on administrative discretion for the purpose of safeguarding the citizens against the arbitrary exercise of power by public authorities. It can be either procedural or substantive. Given the possibility of the usurpation of executive powers and fettering of administrative discretion in the hands of the judiciary, traditionally it has often been treated as ?a corollary of natural justice? as opposed to a substantive outcome. However, this doctrine has evolved to the extent that courts now inquire into the merits of administrative decisions thereby scrutinizing its substantive content. In this backdrop the main objective of this study is to analyze as to what extent the judicial scrutiny of administrative decisions upholds the principles of good administration and rule of law in the Sri Lankan context. For this purpose this research has been conducted as a qualitative research with extensive scrutiny of case laws and data gathered from books with critical analysis, journal articles and conference papers. This research examines how the criticisms in favour of and against the doctrine of substantive legitimate expectations have influenced the Sri Lankan jurisprudence in recognizing it as an autonomous ground of judicial review. A comparative analysis will be made to its reception in England. The Constitutional foundation of judicial review in Sri Lanka has enabled the judiciary to introduce progressive trends in the contemporary world into the domestic system and expand the frontiers of judicial review. Nevertheless, in certain instances the courts seem to have confused the procedural aspect of the doctrine with its substantive aspect. Despite these pitfalls the approach taken by the Sri Lankan courts to supplement the substantive legitimate expectations with the fundamental rights regime can be recognized as a plus point as it would address many of the deficiencies acquainted with this doctrine in particular the need to define demarcate the frontiers of the doctrine.