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The Impact Of Ouster Clauses In Modern Sri Lankan Jurisprudence

By Krishanth Rajasooriyar |  25th March 2020

The Impact Of Ouster Clauses In Modern Sri Lankan Jurisprudence Image

Ouster clauses are statutory provisions that exclude certain actions and decisions from the jurisdiction of competent courts of law. Such clauses prevent the courts from remedying the injustices that can be caused by executive zeal and pose a great peril towards good governance and the goals of sustainable development. In fact, as O. Sambo and Abdulkadir state1 , “it seeks deny the litigant any judicial assistance in respect of the matter having bearing on sustainable development and good governance brought before it. The legislature seeks, by the enactment of ouster clauses, to deny the court the power of judicial review in respect of the matter in which its jurisdiction has been ousted”. Courts, however, tend to take a narrow view of provisions that restrict or remove the jurisdiction of courts to inquiry into any matter, and as a rule, narrowly interpret clauses ousting its common law jurisdiction.

Ousting the jurisdiction of the court is a reaction from the legislative arm of the government to the increasing powers of the court in respect of judicial review of certain kind of disputes.

However, the review of impugned decisions claimed to be protected by ouster clauses by courts promotes "constitutional justice, democratic principles, good governance, and sustainable development and reduces injustices in the polity".

 Ouster clauses, which are also termed "finality clauses" may be expressed in statutes as "the decision shall be final" or "shall be final and conclusive", or "by way of writ or otherwise", or "shall not he questioned in any legal proceedings hatsoever".