This case concerns the groves of academia. It was long held in the rarified academic world that academic autonomy demanded that disputes in Universities be resolved through an outsider who was given special ‘visitorial jurisdiction’ because such a person was essentially acting in a supervisory capacity and would be deemed more impartial.
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The visitorial jurisdiction exercised by such persons went into the heart of issues of academic autonomy i.e that issues concerning Universities should not be taken up in the Courts of Law.
In the fundamental rights case under review (Dr. Karunanada v. Open University Of Sri Lanka And Others - SLR - 225, Vol 3 of 2006 [2006] LKSC 8; (2006) 3 Sri LR 225 (August 3, 2006)) the petitioner, who is a Senior Lecturer attached to the Open University of Sri Lanka, had complained against his non-appointment as a Professor/Associate Professor in Computer Science of the Faculty of Natural Science “of the 1st respondent University stating that the said non-appointment is unreasonable, mala-fide, discriminatory and arbitrary and in violation of his fundamental rights guaranteed in terms of Article 12(1) of the Constitution, for which this Court had granted leave to proceed.”
The petitioner had been informed by the university that he would not be considered for appointment to the rank of Professor or Associate Professor because he did not obtain the requisite marks that the Selection Panel required a candidate to obtain.
The petitioner had been informed by the Registrar that he had not obtained such requisite marks, because one of the external panelists had given him less than the minimum mark which they determined, meant that his case was not fit to be referred to a third external expert for such an expert’s evaluation, or re-evaluation. But such an expert was appointed after the petitioner appealed to the University authorities.
The Supreme Court case record states:
“As the petitioner had firmly believed that in terms of the marking scheme he was entitled to more than 20 marks for ‘teaching and academic development’, he was of the view that a grave injustice had been caused to him on the evaluation of his application by the panel, which consisted of internal academics of the 1st respondent University. Therefore by his letter dated 09.08.2002, he had made a request to the 2nd respondent to re-consider his application (P7). A Grievance Committee was appointed as a result of his letter and such Committee had recommended, inter-alia that the application of the petitioner be re-considered. Accordingly, a ‘new panel’ and a third External Expert were appointed by the Senate to evaluate the petitioner’s application.”
However the State took a ‘groves of academia are special’ approach to the issue. In essence the State Counsel explained that it’s not proper that the Courts step into the shoes of academics as the latter had an ‘academic mind’. This is a quaint type of position to take of course, when there are possible procedural issues at stake which have nothing to do with issues of academic independence.
The following is an excerpt from the Supreme Court case record:
“At the hearing learned Senior State Counsel, by way of a preliminary objection raised on behalf of the respondents, contended that the Universities cannot be considered pari passu with other State institutions, which are subjected to judicial review under Articles 126 and 140 of the Constitution. His contention was that in a classical sense the University is or ought to be a ‘community of scholars’ irrespective of the fact that the organisational aspects of the University may have the trappings of an institution. The post of Professor is one of the most senior academic positions and therefore the process for the conferment of such position is also highly specialized and unique that such would be executed only by persons, who are qualified and placed in equal or higher standing.”
The salient point however is that there are academic decisions made in universities and then there are administrative decisions that violate constitutional rights. It’s not possible to violate a person’s rights and take up the position that it’s all in the pursuit of academic freedoms and academic independence in the ivory towers of higher learning.
The Supreme Court judgement notes:
“Secondly, he took up the position that the respondents have based their submissions on the misconceived premises that the petitioner is challenging an academic decision of the respondents whereas the contention of the petitioner is that the failure to appoint him as a Professor or an Associate Professor when he had obtained the required marks is unreasonable and therefore violative of Article 12(1) of the Constitution.”
The Supreme Court judgement goes into the aspects of visitorial jurisdiction to drive home the point that decisions taken in universities are not exempt from judicial oversight in Courts of Law despite the notions of ‘academic freedom.’ Visitorial jurisdiction is when an appointed outsider or third party adjudicates disputes in Universities and similar seats of higher learning, so that such matters are dispassionately judged, and also in order that such matters do not have to end up in Court.
The Supreme Court judgement in the case under review states:
“However, in later decisions, the scope of the visitorial jurisdiction was given careful consideration and it was held that the visitor cannot claim to be entirely free from any kind of control by the common law Courts and in the event of the visitor exceeding his jurisdiction that the Courts could declare his acts null and void, (Dean ofYorks case (1841) 2 OB 1).”
Having established that there is no such thing as complete ‘academic autonomy’ , the Supreme Court went on to review the merits of the case. The Supreme Court judgement held that there are certain procedural safeguards concerning appointments to Professor grades and that these had not been observed as far as the Petitioner’s promotion was concerned. Though two evaluators including one appointed subsequently after an appeal by the Petitioner had given the Petitioner more marks than the minimum required to be promoted, he was still not promoted as one particular evaluator had given him less marks than was necessary. Court questioned why the three sets of marks were not averaged, and it was held that the decision to withhold promotion was arbitrary.
R vs. Higher Education Funding Council ex-parte Institute of Dental Surgery (Regina vs. Higher Education Funding Council Ex-parte Institute of Dental Surgery - 1944-1WLR 242) Sedley, J. was cited in the judgement referring to a matter which the latter Sedley J. termed ‘an academic judgement’:
“A mark, for example, awarded at an examiners’ meeting where irrelevant and damaging personal factors have been allowed to enter into the evaluation of a candidate’s written paper is something more than an informed exercise of academic judgement (emphasis added)”.
Emphasis was laid on the fact that procedural safeguards should be the cornerstones of individual liberty and their right to equality. Referring to the importance of procedural fairness, Frankfurter, J. in McNabb vs. United States (1943 - 318 US 332) stated that:
“The history of liberty has largely been the history of the observance of procedural safeguards.”
More cases were cited: “A decade later considering an issue on the same lines, Jackson, J. in Shaughnessy vs. United States (1953 -345 - US 33) stated that: “Procedural fairness and regularity are of the indispensable essence of liberty. Several substantive laws can be endured if they are fairly and impartially applied.”
Court therefore held that the petitioner’s fundamental rights guaranteed under Article 12(1) of the Constitution had been violated by the respondent University and its faculty that were respondents to the application, and that the Selection Committee was required to reconsider the application of the applicant petitioner for the post of Professor that he had applied for. No costs were ordered.
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