The law and the universities

Punyaratne Edirisinghe

Universities are the institutions that teach and examine students in many branches of advanced learning, awarding degrees and providing facilities for academic research. In short, Universities shall be the learning centres maintaining highest intellectual and academic environment.

Initially, some acts and Ordinances were enacted to be established the Universities and related institutions to achieve these objectives. Unfortunately, the gradual decrease in discipline and the perpetual increase in some other developments compelled the successive governments, University Grant Commission and governing authorities of respective Universities to introduced stringent laws, severe rules and strict by-laws. Universities are not the places that have immunity from law suit or from the country's common law.

The community of Universities does not have the privilege of a President under Article 35 of the so called JR's Constitution. If not, the University community is ignorant unconscious of the regular law of the land that predominates and excludes the arbitrary excise of power by indiscipline groups.

Mmaxim

There is a legal maxim that the ignorance of the law does not excuse (ignorantia juris neminem execusat) when the mistake is pleaded as a defense , the mistake must be one of fact, not of law. This was simply stated in the English judgment of the case R v Bailey (1800).

"Every man must be taken to be cognisant of the law; otherwise there is no knowing of the extent to which the excuse of ignorance might be carried. It would be urged in almost every case."

And also Blackstone, an eminent jurist observed that "Every man of England, in judgment of law, party to the making of an Act of Parliament, being present thereat by his representatives."

These facts are quite applicable in Sri Lanka's context as well. By reason of the ignorance of these facts, some University students recently protested against the Anti-ragging act and demanded its withdrawal.

It was an Act that was passed in parliament without any objection. There are some provisions in the Constitution of Sri Lanka to get involved in the law- making process for the public. In terms of the Article 78(1) of the Constitution every bill shall be published in the Gazette at least seven days before it is placed on the order paper of Parliament.

Within the one week of the bill being placed in Parliament, it is open to any member of the Public to challenge any bill in the Supreme Court by way of a Written Petition. No proceedings can be continued in relation to such bill in the Parliament until it is determined by the Supreme Court.

Effective

Hence it is advisable to get familiarised with laws that are effective in respect of Universities and what laws made established the University system in Sri Lanka.

The establishment of the University of Ceylon, the first ever University in Sri Lanka is really a creation rather than an historical evaluation.

Until the third decade of the past century, the younger generation of the elite community were enrolled for the Universities and the higher educational institutions of the Western countries and obtained their higher degrees in varies fields including law.

Such productions and the English speaking elites played a dominant role in the independent struggle and some of them were involved in the process of the establishment of the University of Ceylon.

And also the governor-generals, higher officials and the distinguished academics of the colonial government, as they did in the field of Public Administration and bureaucratic system, wanted to set up Cambridge, Oxford-type Universities in the inland. And they honestly and frankly did it by introducing two important ordinances.

These two Ordinances were proclaimed in the colonial period to achieve their targets, namely the Ordinance no. 20 of 1942 and ordinance no.26 of 1943.

Even though they are British-oriented laws, it contained some rational and extraordinary provisions which are worth being continued forever within the context of University. Therefore the subsequent law makers were not hesitant to lay down these provisions as those were in original Ordinances.

The section 4 of the Ordinance no. 20 of 1942 states as follows. "The University constituted by this Ordinance shall have its seat in or near Kandy .....''. Later the operation of section 4 was suspended by the Gazette no. 8945 of 12th June 1943.

The suspension of the said section indicates that the location of the University had been concluded and that it was none other than that of Peradeniya. There is no doubt that the honour in selecting such a seat should go to late Sir Ivor Jennings.

Secondly the section 6(a) to (o) had mentioned the powers of the University. All these sub section were fully introduced by the makers of the act no 16 of 1978.

Profession

The most important Section of the said Act no. 20 of 1942 is the section 7 which states as follows; "The University shall be open to all persons of either sex and of whatever race, creed or class and no test of religious belief or profession shall be adopted or imposed in order to entitle any person to be admitted as a teacher or student of the University, or to hold any appointment therein (other than that of Warden of a Hall of Residence), or to graduate thereat or to hold, enjoy or exercise any advantage or privilege thereof: " This section might have been introduced by foreseeing tragic events such as ragging and sexual harassments which are defined in Anti-ragging act No. 20 of 1998.

The two Ordinances (20 of 1942 and 26 of 1943) had not mentioned more about the student's discipline. Section 6 (m) of the Ordinance states as follows; The University of Ceylon has the power "to regulate and provide for the residence, discipline, and moral, mental, physical well-being of officers, teachers, and students of the University.''

The said section is the only provision that mentioned in the ordinances about the discipline and more emphasis had not been given for the discipline or moral conduct of the students. Meanwhile in the present context, more emphasis has to be given for the laws on discipline by reason of several reasons.

This has been clearly stated by Higher Education Minister Prof. Wiswa Warnapala, in his article published in the Daily News on 18th August 2007, as follows; "The elitist orientation of the early period has disappeared in; in other words, student belonging to the Urban middle class or the affluent sections of the Sri Lankan society, have declined and the dominant position of the public schools has also decline.''

One of the significant features of the Act no 16 of 1978 is the establishment of the University Grants Commission. And one of the objects of the University Grants Commission, as stated in section 3(iv) of the Universities Act, No.16 of 1978, is "the regulation of the administration of Higher Educational Institutions."

During the past thirty years, the Commission has sought to do this through a number of circulars embodying the decisions of the UGC taken from time to time. There has been no single publication where these decisions have been codified.

Taking into account such decisions (NOT ALL) and the establishments code of the government of Sri Lanka issued by the department of Public Administration, the University Grant Commission some years ago, prepared an Establishments Code only as a guide. The contents thereof must necessarily be changed or refined from time to time as conditions and situations get changed.

Power

By virtue of the power conferred under the section 135 of the said Act No. 16 of 1978, the respective Universities can make by laws as it is a body corporate with perpetual succession and a common seal.

Accordingly by laws can be made, subject to the provisions of the act, by the councils, the governing authority, in respect of the matters mentioned in the section 135 (!) . The by-laws shall not be made beyond the power granted by the original enactment. If the by-laws exceed the power granted by the original enactment, such by-laws would be ultra vires.

According to the ultra vires principle the action taken under such by-laws, can be challenged in a competent court. For example, the Section 29 of the Act No. 16 of 1978 states the powers of a University. If the respective University exceeds the powers beyond those conferred on it explicitly or implicitly the ultra vires principle applies.

The principal enactment, the Act no 16 of 1978 has been amended by the Act No. 7 of 1985. In terms of the section 76 of the said amendment "University" means. a) The University of Ceylon established under the Ceylon University Ordinance; b)Any university established under the Higher Education Act, No.20 of 1996; c)Any University established under the university of Ceylon Act, No.1 of 1996; and d)Any Higher Educational Institution established under the Universities act, No.16 of 1978.

The above meaning of the University has been expanded by the Anti-ragging Act. In addition to the said amendment, the Original enactment has been amended by the Act No. 24 0f 1988, Act No. 26 0f 1988, Act no 33 of 1988, Act No. 3 of 1989 and Act No. 01 of 1995.

The amendment made by the Act No. 26 0f 1988 is more important with regard to the students Unions. The said amendment repealed the section 117 0f the principal enactment and new schedule was introduced under section 8. The said section has laid down the duties and functions of the university students Union.

Some of them are; To foster the spirit of corporate life among students of the university; To organise and supervise in consultation with the governing authority student welfare activity in the university, recreational facilities , spiritual and religious activities, the counselling of student and the supply of meals and refreshment; To afford a recognised means of communication with the authorities of such higher educational institution on matters relating to or connected with living and working conditions of the students; To be represented on any other body which may, in accordance with the rules made by the governing authority for the purpose, be appointed to undertake student welfare activities in the university; To assist the university authorities to maintain discipline; To foster an interest and understanding in the arts and life and social well-being of the citizens of the country; To foster activity conductive to the social and moral well-being of the student community and promote activity conductive to healthy social life.

The perusal of the aforesaid duties and functions of the University students Union indicates the nature of the immense responsibilities that have been conferred on the Unions of the respective Universities by the said amendment.

This has become a part of the substantive law of the country after being gazetted on 15th February 1985. The present events happening in some Universities may be pointed out as the evidential facts for the unconsciousness of the laws mentioned above.

Argue

Some argue that the main factor for the rumpuses in the Universities is the rapid expansion in the admission. According to the said article of the Hon. Minister of Higher Education, there were only 904 students in 1942 and whereby the annual intake in 2007 was in the region of 18,000 students.

Those who don't agree with the said view argue that the main causes are the politics-related ragging. Anyhow, by reason of the various factors the Universities had transformed into the killing field in the recent past. Considering the gravity of the situation that arose after the Varaprakash (the fresher student who was killed by ragging at Peradeniya University) the Parliament of Sri Lanka, the supreme legislature in the country unanimously passed the PROHIBITION OF RAGGING AND OTHER FORM OF VIOLENCE IN EDUCATIONAL INSTITUTIONS ACT NO. 20 OF 1998.

The said statute can be defined as the most stringent law that ever imposed upon, not only the Universities but also all educational institutions that are mentioned in the section 17 of the Act No 20 of 1998.

In terms of the said section 17 of the said act the "educational institution means, a higher educational institution, any other institution recognised under Chapter iv of the above-mentioned Universities Act No. 16 of 1978, the Buddha Sravaka Bhikku University, a technical college, a vocational training centre, a pirivena , Sri Lanka Law College, the NIE, a college of education, a government school or an unaided school within the meaning of the education Ordinance.

Sections 2(1) , 2(2) , 3 , 4 , 5 , 6 , 7 respectively cite ragging, sexual harassment and grievous hurt , Criminal intimidation , Hostage taking , Wrongful restraint , Unlawful confinement as offences and define the punishments for such offences.

Section 9 of the said Act restricts the granting of bail to High Court for person suspected or accused of committing offences under this Act.

Section 10 suspends the operation of sections 303 and 306 in the Code of Criminal procedure Act no. 15 of 1979.

Section 14 of the said Act recollects the memory of the University community that the provisions of this Act shall be in addition to the provisions of the penal code and Convention against torture and other inhuman or degrading treatment or punishment Act No. 22 of 1994.

Perfect

The penal code can be defined as a perfect masterpiece of substantive law of the country, Act no 22 of 1994 is the law which was certified by the parliament on 20th December 1994 after being ratified the convention which was signed in New York on 10th December 1984

Priyangani Navaratne and others V Chandrasena (1998) The above case was decided before the enactment of Anti-ragging Act no 20 of 1998. In this case the petitioners (16 in numbers) were teachers, training in the Nilwala Teacher training School. Their internship was suspended in the case of males for two months and in the case females for one month having engaged in ragging junior teachers.

After the first punishment was meted out the Secretary to the Ministry of Education amended the disciplinary powers. This gave the principal the power to impose a further punishment. Therefore, he extended the period of suspension to one year for females and expulsion in the case of men.

Although the Supreme Court held that there was a violation of a fundamental right, the Court declined to award them any relief as according to the Court, the petitioners' act amounted to cruel, inhuman and degrading treatment.

Considering the above-cited provisions in the Act No. 20 of 1998 law courts of the land have no complications in dealing with the unlawful incidents within the Universities. Some provisions in the Constitution of Sri Lanka is fully applicable for the University system as those can be made applicable for the whole country.

Accordingly the members of the University community have sought redress and relief through fundamental applications under articles 17,126, 12(1) and 14(g) in the, for the violation of their fundamental rights guaranteed by the constitution. Most of the application to the SC and Appeal Court indicate the administrative anomalies based on the ultra vires principle.

Offences

And also the whole substantive law and procedural law provisions are quite applicable for the Universities and for the above mentioned educational institutions. For examples: the provisions in the Commission to investigate allegations of bribery or corruption Act No. 19 of 1994, Offences against Public Property act No.!2 of! 982 and Declaration of Assets and Liabilities Law No. 1 of 1975.

Considering the facts mentioned above, the Universities, unlike in the past, have become the entities that are controlled and gripped by the laws and not by the intellectual or academic based principles. The rationality in the environments of the Universities has disappeared.

This is not the situation which is confined to Universities but in the legal fields as well. That was why Hon. Chief Justice Sarath N. Silva used to say once at a gathering of Judges of the Supreme Court and Appeal Courts president's counsels, lawyers and law students that the process needed to be reversed.

His Lordship Chief Justice's reference to reversing the process was in fact an emphasis on the need to have English to be brightened in the field of law. The very same meaning signifies from the reference made by Hon. Minister of Higher Education in the said article.

"The challenge before the government is to convert them into centres of learning. In other words, the culture of learning, for which the Universities were known in the Fifties and Sixties, needs to be restored if the University system is to survive..." As the origin of the system of universities and the system of the judiciary are closely related to the English speaking world, the Hon, Chief Justice and the Hon. Minister are quite correct to speak of reversing and restoring the process.

(The writer is an Attorney at Law of the Supreme Court University of Peradeniya).