Proportionality as a Separate Ground of Judicial Review: A Myth or Reality in United Kingdom and Sri Lanka

Abstract

Administrative Law (AL), is the law which controls the governmental power that is exercised by the Administrative Authorities (AAs). The major purpose of AL is to retain the governmental power within their legal boundaries with prima facie intention of upholding the rule of law and to protect the citizens against the abuse of such power. Under Judicial Review (JR), the court exercises its inherent power to determine whether the actions taken by the AAs are lawful or unlawful and to award suitable remedy. The Doctrine of Ultra Vires is considered to be the central principle of AL. However, with the developments in relation to current changing patterns of the field of AL, courts have identified other grounds of JR such as Unreasonableness, Irrationality, Proportionality, Legitimate Expectation and Public Trust Doctrine in order to challenge the decisions of the AAs. Nevertheless, some arguethattheseidentifications unnecessarily expand the boundaries of JR. Especially with regard to Unreasonableness and Proportionality, some scholars argue that these two grounds are identical and identificationofproportionalityasa separategroundisanunnecessary expansion of the boundaries of JR. On the other hand, some argue that these grounds havetheiruniquefeaturesand proportionality provides a better protection in safeguarding individual rights. Therefore, in the presentt context the problem is whether the application of proportionality in order to challenge the decisions of the AAs is a myth or reality. In this regard, this paper will provide a comparative analysis about position of unreasonableness, irrationality and proportionality in United Kingdom (UK) and Sri Lanka (SL) to identify whether the application of proportionality in above jurisdictions is a myth or reality. Also this paper will discuss the importance of identifying new grounds of JR while emphasizing the significance of proportionality as a ground which does not expand the boundaries of JR. In carrying out the research, author uses both primary and secondary sources which include statutes, case laws, books, journal articles, websites and internet articles.