In a strongly worded judgement the Supreme Court condemned the actions of the Sri Lanka Medical Council (SLMC) stating that, it, even though a body created by the law has ‘amounted to taking the law into its hands with a deliberate intention to flout the law and violate the order made by this Court as well as the Court of Appeal.’
In pronouncing the judgement of the petition filed by three graduates of the South Asian Institute of Technology and Medicine (SAITM) on 30 July, it declared that the SLMCC has infringed Petitioner’s fundamental rights to equality and equal protection of the law (article 12(1)), freedom to engage in their preferred lawful occupation or/and profession (Article 14(1)(g)) guaranteed by the constitution.
“The SLMC is not exempted from obeying the statutory provisions of the Medical Ordinance and the Universities Act. The SLMC is a creation of the Medical Ordinance and must confine itself to the powers vested in it by the Medical Ordinance. It has no powers outside those expressly conferred on it by the provisions of the Medical Ordinance,” the order heavily reprimands the SLMCC.
The order further directed the SLMC to provisionally register the Petitioners as medical practitioners in terms of Section 29(2) of the Medical Ordinance forthwith and to pay as compensation Rs. 200,000/= each to each of the Petitioners separately.
Other respondents; Director General and acting director of health services, Minister of Health, Nutrition and Indigenous Medicine and the secretary who were named as 1st to 4th respondents in the matter together with the SLMC, the 5th respondent were further directed to declare that any decision by them to exclude the Medical Graduates of the SAITM, from being eligible for the award of internship appointments as Medical Officers on the sole basis that they are Graduates it, as illegal, null and void ab initio and of no force or avail in law further to direct the Respondents to include , the Medical Graduates of SAITM, as being eligible for the award of internship appointments as Medical Officers.
It further directed the Respondents to include the Petitioners and those who are entitled for provisional registration as medical practitioners in terms of Section 29(2) of the Medical Ordinance on similar basis, in the same list in which the names of Intervenient Petitioners and to take all necessary steps to ensure that the seniority of the Petitioners and their placements will not be jeopardized due to the arbitrary decision on its part to exclude them from being granted the provisional registration as medical practitioners in terms of Section 29(2) of the Medical Ordinance,
Respondents are directed to comply with the judgement and to take all necessary steps within three weeks.
An affected student of SAITM filed a writ petition in the court of appeal in which Justice Vijith Malalgoda declared that the student should be allowed provisional registration.
This lengthy order which was never complied by the SLMCC was later appealed. The Supreme Court hearing the matter concluded and held with the decision of the court of appeal.
Justice Padman Surasena in his 35 page judgement takes dissects the objections taken up by the respondents in answering.
Referring to the defence that was taken on behalf of the SLMC Justice Surasena points out that SLMC does not have the authority to take up the position that the previous order of the Supreme Court is perincuriam.
“According to Article 127 of the Constitution, the judgements of the Supreme Court shall be final and conclusive,” the judgement reads.
Accordingly it states that the SLMCC is not entitled to challenge the validity of the judgment of this Court and that what the council has attempted was to do indirectly, something they have been prevented from doing directly.
“The reason as to why the Petitioners relied on the said judgment is rather simple. It is just their innocent expectation that the SLMC being a statutory body would in all probabilities have respected the conclusions of the apex court of the country. Unfortunately for them that turned out not to be the case,” the order said.
President’s Counsel Upul Jayasuriya appeared for the petitioners on a pro bono basis.
The full judgement can be read here