By Rajan Hoole and Kirupaimalar Hoole –

Part I: From Presidential Immunity to Immunity of Presidential Appointees

The subject given was the effect of the internal war on Higher Education in this country with special reference to the region mainly affected by the Tamil insurgency and its suppression. 

Addressing a Science Faculty forum on university recruitment, Professor Tharmaratnam told the audience, “At least in the recruitment of academics, you must be honest and responsible so as to nurture students who are morally and intellectually sound. After all you are the ones who are going to raise our future teachers. If you abuse this process to bring in favourites, they would in turn be paranoid about recruiting those with superior ability and character. Then you are doomed for thirty years, as Jaffna College is now doomed.”

The universities have followed our presidential system and the immunity the holder of the office enjoys. The courts have now come to treat this immunity as blanket immunity; Likewise, the vice chancellors of universities. The ministers, the courts, the University Grants Commission and the University Services Appeals Board, treat this state of affairs as sacrosanct. The result is a crippling incidence of malpractice; I refer in particular to the recruitment of staff and the exclusion of competent scholars who might rock the boat. Behind a façade of activity, the universities have tended to a state of intellectual torpor. I submit that the problem of universities is one of contempt for the law, for which we have for decades, happily blamed terrorists.

Where it began, goes back to the surrender of rationality to nationalism. The earlier emphasis on classics helped us to think meaningfully about the human condition. The ideology of humanism which the classics communicated was healthy; such as Cicero’s, “There is a true law, right reason, agreeable to nature, known to all men, constant and eternal…Nor is there one law at Rome and another at Athens, one thing now and another afterwards; but the same law unchanging and eternal, binds all races of men and all times.”

The first disaster that followed on the heels of Independence in 1948 was the Citizenship Acts, whose effects have continued as a long undeclared war.

Criticism of what was accomplished by the Citizenship Acts from our universities barely touched the surface. Deepika Udagama observes in her contribution to the volume Fates of political liberalism in the British post-colony, “The court was not keen to examine the practical realities of the application of the laws, nor the motives for enacting them.” On the Privy Council’s support for the Act the contribution quotes its reference to the alleged ‘migratory habits’ of Indian Tamils. This was mere dressing up, not argued fact. The essence of the Privy Council’s stand is contained in, “the court will not be astute to attribute to any legislature motives or purposes or objects which are beyond its powers.” That is a sovereign nation has the right to enact its own positive laws – the French Jurist Jean Domat used the term arbitrary law.

The important point for us is that the Privy Council was part of the British Imperial system and how it viewed legislation in the Dominions. British jurists were fine with slave laws in Virginia and Trinidad, but were astute to block any trace of slavery or racial discrimination in British law. That was how they viewed Ceylon and that is not very flattering to us.

The main point is that we got used to doing business with arbitrary law. The 1978 Constitution with its Section 35 on presidential immunity became a rich source of arbitrary law. The spirit of it became the bane of universities by translating vice chancellors into kings and queens with little concern for the law. We briefly view this.

Presidential Immunity, Arbitrary Law and Effects on the Judiciary

On this question, the Judiciary has been on the horns of an unresolved dilemma. The first was the interpretation given in 1983 by a bench presided over by Chief Justice Neville Samarakoon. The relevant part of the interpretation written by Justice Sharvananda reads: “Though the President is immune from proceedings in Court a party who invokes the acts of the President in his support will have to bear the burden of demonstrating that such acts of the President are warranted by law.”

Sharvananda reversed this interpretation in two judgments during 1985 which practically made the president above the law. The first related to the proscription of the JVP on 30^th July 1983 under cover of the anti-Tamil violence in a piece of downright deceit over the so-called Naxalite Plot. The action was justified by Presidential immunity, that it protects “the person holding such high executive office from being subject to legal process or legal action and from being harassed by frivolous actions.”

The second related to the Mahara election petition, where Sharvanada ruled “Article 35 gives blanket immunity to the President from proceedings of any kind whatsoever…”

Justice Mark Fernando reversed this in a judgment in December 1998. But ‘blanket immunity’ became entrenched when Fernando was overlooked in favour of Sarath N Silva for Chief Justice in 1999. In a case filed by Victor Ivan and others challenging President Kumaratunga’s appointment of Sarath N Silva as Chief Justice who was facing ongoing inquiries into his conduct, Justice Wadugodapitiya covered this under Presidential immunity. He chose the authority of Sharvananda over that of his colleague Mark Fernando.

The long term result of this was that presidential immunity – translated to impunity – extended to presidential appointees from chief justices to UGC chairmen and vice chancellors. The courts succumbed, leading to anarchy in the higher education system where rules were held in scant regard. The period 2000 to March 2006 may be held to be a transition period of relative judicial independence, where public interest cases, or from another standpoint, ‘harassing busy people in authority, with frivolous actions’, still enjoyed some traction.

The Citizens Movement for Good Governance or CIMOGG, which Elmore Perera represented with senior activist A.C. Visvalingam, got around them a group of outstanding persons to act as appellants in public interest cases. During the years 2002 – 2005, they exposed through a series of appeals the astounding rot that had set in at the country’s two leading universities at Peradeniya and Colombo. 

In September 2005 CIMOGG’s case against the President’s appointment of the Colombo University vice chancellor was heard in the Appeal Court. Given the complexity and interconnectedness of the charges, the appellants had to rely on getting the court to order the University to produce documents. It should have been routine as in the Poulraj case below. M.A. Sumanthiran with Viran Corea instructed by Mohan Balendra, who represented Colombo University, accused in their motion the CIMOGG, Prof. S.R.H. Hoole (of the UGC), Elmore Perera and the petitioners of abusing the process of court and violating various laws under the guise of public interest. It said the petitioners had ventured to speak untruths, half-truths and even diabolical falsehoods and this could be demonstrated from their affidavit itself. Alleging that they were engaging in the vilification and defamation of the Colombo University Vice Chancellor, it called for deterrent action. 

Justice Sripavan castigated the petitioners in the same spirit. The case was thus aborted, sparing Justice Sripavan from overtly resorting to presidential immunity.

Saraswathie Poulraj, the Colombo Law Faculty, and a Follow-up

Mrs. Saraswathie Poulraj was one among 25 candidates who responded in 2003 to an advertisement by the University of Colombo for Probationary Lecturers in the Faculty of Law, of whom 7 or 8 had second class upper degrees.

The University shortlisted 8 candidates for interview, of whom 4 had 2^nd Upper and 4 had 2^nd Lowers. About 4 who had 2^nd Uppers were not called for the interview. One 2^nd upper and three 2^nd lowers were selected. The University Services Appeals Board’s (USAB’s) Justice DG Jayalath, who heard Saraswathie Poulraj’s complaint of discrimination, duly affirmed the interviews as contrary to the intention of the Circular 721, which obliged the University to consider first class and second upper candidates, who formed Category (1) separately, before considering second lowers – Category (2).

Unfortunately, the Law Faculty that should set an example in respect for the law and even go the extra mile in that direction, resorted to tactics that increasingly brought the university system into disrepute. Encouraged in all likelihood by the Law Faculty, the selected candidates went to the Court of Appeal and requested it to stay the inquiry by the USAB until the decision by the Court of Appeal. This was obstruction of the course of justice; perhaps they felt the Appeal Court was friendly territory. Justice Jayalth of the USAB declined to hold up proceedings there because of the Court of Appeal matter, as there had been no decision of the USAB to appeal against, and moreover not all the facts before the USAB have featured in the Appeal Court action. The fact that the USAB called for documents from the University to test Saraswathie’s allegations, is relevant to the aborted case by CIMOGG against the Colombo University VC. 

By calling for documents, Justice Jayalath also faulted the way the University had tampered with marks at the interview. He ordered the University to advertise and call afresh. The disease is common to the system.

The North

Up to about the early 1980s, Jaffna University had a strong democratic tradition and students were active. It held out hopes of high standards. However with the July 1983 violence and the onset of war, there was a recession. The rot started in the Arts Faculty while, by 1990, Science and Medicine remained largely unaffected. The LTTE’s assassination of Dr. Rajani Thiranagama, who stood for internal accountability, was the signal for the illiberal tide. Favouritism in the Arts Faculty gathered new momentum.

Jaffna University in 1990 was the leading centre for most students from the North-East. From the nature of events, it is evident that a complaint was made to the LTTE about favouritism and academic jobs being given mainly to favourites from Jaffna. The LTTE told the university authorities to recruit staff from all districts of the North-East. This directive applied mainly to the Arts Faculty. Several then recruited were persons designated by the LTTE. However local corruption thrived unabated, while the LTTE tolerated and perhaps, unintentionally, provided cover for it.

To be continued…..

*The three parts of this article are based on the paper submitted by the authors for the seminar on “Problems of Higher Education in Sri Lanka” held under the auspices of the Ecumenical Institute for Study and Development (EISD), Colombo, on 18^th and 19^th November 2017.