Tuesday, May 31, 2011

Legal note on the Court Ruling

It has been reported in the electronic media that the Court of Appeal on an application by some petitioners has ordered former Heads of Dept. in Wayamba, Ruhuna and SJP universities to resume work as Heads.

Please note the following:

1. When there is a court order, to refuse to follow it can amount to
contempt of court. Therefore former heads of those universities should be
informed that they have to follow the court order.

2. When an order is made in the Court of Appeal an appeal can be filed to
the Supreme Court. The FUTA lawyers area aware of the situation and will do
the needful.

3. FUTA should be aware of the judgement in 1999 of Deepika Udugama and
Others v. the Attorney General (Supreme Court Determination on the
Universities Amendment Bill by Justices RNM Dheeraratne, AS Wijetunge and
Shirani Bandaranayake No. SC/SD /5/99, 6/99 etc of 11 May 1999

This was a case challenging proposed amendments to the Universities Act. One
clause in the proposed amendment tried to bring in the condition that Deans
and Heads of Departments could not cease to funcion as a Dean or Head until a new Dean or Head is appointed. The Supreme Court held that this clause was invalid and violated fundamental rights. The Court said (quotation below):

"Proposed new subsection 49 (1) (b) provides that where a Dean resigns his office by writing under his hand addressed to the Vice Chancellor he shall continue to function until a new Dean is elected by the Faculty Board. Likewise proposed new subsection 51(2) (1) provides where a Head of a Department tenders his written resignation he shall continue to function until such time a new head or a person to act in that post is appointed. It was submitted that compelling a person who has resigned to continue to function is violative of Article 14 (1) g (Constitution) as the freedom to engage oneself in an occupation also contemplates the freedom to disengage himself. We also find that the provision is arbitrary and unreasonable. These clauses are inconsistent with Article 12 (1) and 14 (1) g of the Constitution."

THerefore this amendment could not be enacted and is not in the law.

Please note:

Article (14 (1) (g) of the Constitution says "Every citizen is entitled to-
the freedom to engage by himself or in association with others in any lawful
occupation, profession, trade, business or enterprise;"

Article 12 (1) of the Constitution says "All persons are equal before the law
and are entitled to the equal protection of the law."

Camena Guneratne
Senior Lecturer / Dept. of Legal Studies
Open University of Sri Lanka
Nawala, Nugegoda, SRI LANKA