Judicial review cannot be triggered by the quantum of a tax increase; only by flaws in the procedure used to effect it. If the former, every government official will have to engage in the impossible task of guessing what would be considered reasonable by a future Court.

Given that Sri Lanka does not have competition laws (other than those that can be implied from various licenses and such), the question of violating competition laws does not arise. Under what competition law regime would the maintenance of identical pricing by LIOC and CPC be allowed?

Quite apart from that, the Court also explains in the order why it considers itself to have jurisdiction on the matter. To quote from the order:

"As noted above, the imposition of the Excise Duty in terms of Section 3(1) of Act No. 13 of 1989 and the imposition of customs duties and the grant of partial waivers as stated in Annex ‘A’ in terms of section 10A and 10A of the Customs Ordinance are executive functions that come within the purview of the fundamental rights jurisdiction of the court. The alleged infringements result from illegal, arbitrary and unreasonable executive action. The Secretary being the appropriate functionary and the Attorney General who represents the President in terms of article 35(3) of the Constitution have been heard on the several days this matter was considered. Accordingly we direct that necessary orders be made in terms of the applicable law to give effect to the content of Annex ‘A’ which has been prepared by the secretary to the Treasury." (as cited in http://transcurrents.com/tc/2008/12/post_206.html…

Therefore, at least as claimed, the interim order is against arbitrary exercise of executive function, not against the legislative prerogative of parliament.

While appreciating (and perhaps even sharing) Rohan's concerns about the Supreme Court introducing "reasonableness" criteria, I can't agree that such usage automatically falls foul of legal or constitutional principles. I would have agreed if he asserted that no other Court other than the Supreme Court should be able to do so.

One does not have to agree with the Supreme Court to recognise that the case involves several sets of legal and constitutional principles, further complicated by the particular peculiarity of the market structure and ownership in the Petroleum Industry of Sri Lanka. The talking frog does not imagine that there is a clear and incontestable justification of the Courts actions. But he is puzzled by claims of there being NO justification WHATSOEVER, despite there being much to be said in support, on the basis of legal/constitutional principles.

All that said, the talking frog will desist from offering any further two-cents on this subject.

Within the legal tradition that our Constitution is anchored in, we'd have to go back to the Magna Carta:

"The King should not levy 'scutage or aid,' other than the customart aids, except by the 'common counsel of the realm'; and to take that counsel he had to summon the archbishops, bishops, abbots, earls and greater men (barons) singly, and the lesser men (barons) by writs addressed to the sheriffs" –Jennings, Ivor (1954). The Queen's government. London: Penguin, p. 13.

But a simpler test can be applied. We can all agree that taxes are unpleasant but necessary. Which part of government is best equipped to perform the unpleasant but necessary task of levying taxes? And of taking on the controversy that comes with it? And of being accountable for the abuse of the power?

It seems to me that the legislature is the best positioned to take on this task. Taxes should be handled through the political process, not judicial or administrative processes. We do not vote for judges. We cannot fire them if they abuse their powers. But we do vote for MPs and we can fire them at the next election and we can yell and scream at them in the meantime.

SB Dissanayake yelled and screamed at the Supreme Court and where did that end up?

Those who like the results of the actions of the Supreme Court and try to defend it should try a mental exercise. Imagine an outcome you do not like (e.g. the Supreme Court imposing Rs 200 a litre tax on petrol so that environmental pollution and traffic jams are reduced). Then imagine how you as a citizen would set about trying to change that ruling. Would you still like the Supreme Court running the country?

I appreciate Rohan's comment and am quite in agreement. If, however, it was meant as an answer to the question on which I ended my previous comment, then my question has been misunderstood (or inadvertently side-stepped).

The Courts can and should intervene in the decisions of the legislature/govt., when fundamental principles of law (normally spelled out in the constitution) are seen to be violated by the laws or regulations that are passed. For instance, people can go to the courts if they are arbitrarily dismissed from govt. employment and the Court could insist that the job be reinstated. This does not mean that the Court has taken over the hiring decisions of the govt. — which would be absurd.

Taxation decision need not be considered a special class of decisions in which such normal recourse to judicial review are disallowed. It is I think right and appropriate to ask about and discuss the principles of law the Courts could use to justify their intervention in decisions of taxation. But avoiding that discussion by making the blanket (and rather strange) assumption that taxation decisions should be sacrosanct — in a way that other legislative/govt. decisions are not — is to set up a red-herring, and it is not the way forward for a thoughtful discussion on the subject.

In this case, the govt. arbitrarily and suddenly introduced a massive increase in the taxation of petrol, in a manner that was designed to offset advantages to the consumer from the decline in world market prices, and was anti-competitive against IOC (violating the principle of the government's own competition laws). Prima facie there seems to be a good case for judicial review, both in terms of equal treatment of commercial entities and abuse of monopoly power (another area of law that comes under the jurisdiction of the courts).

The Court has not as yet decided the case on the basis of either of these principles. What it has issued is an interim injunction to maintain something closer to what the status quo was in taxes, while the case is being heard to completion. Interim injunctions that prevent wild departures from the status quo until a complaint has been decided upon, are quite in-keeping with the principles of proper judicial intervention. (Or so thinks the talking frog, though he admits to knowing less about the law than about economics).

the supreme court made a ruling to sell 1 litre of petrol at 100/= and still the Govt. make a profit of Rs. 20/= for the war front