Wednesday 25 September 2019

Gajalakshmi Paramasivam

25 September  2019

Dismissed Vice Chancellors & Executive Presidency

Is the Vice Chancellor who is the Chief Administrator of a Sri Lankan University qualified to be so – if s/he lacks the ability to gain knowledge  of the laws applicable to her/his own position?  GroundViews article headed ‘Presidential Interference in Universities’ raised this question in my mind yet again. This time it was about the dismissal of Prof Sarath Chandrajeewa, the Vice-Chancellor of the University of Visual and Performing Arts, Colombo

By law all citizens are entitled to the protection of the law. By truth who is entitled to the protection of the law? One whose investment in law – for which s/he has not derived benefits is entitled to the protection of the law. That is ‘ownership’ investment.

Disciplined conduct is the ladder on which knowledge is raised to the higher level where it becomes common to the whole that the law applies to.  Professor –Sasanka Perera - of South Asian University - New Delhi presents the case  as follows at the primary level:

[Prof Sarath Chandrajeewa, the Vice-Chancellor of the University of Visual and Performing Arts, has been removed from his post by the President of Sri Lanka. No explanation has been offered.  In a letter to Prof Chandrajeewa dated September 18th 2019, the Secretary to the President says, “please note that His Excellency the President has decided to remove you from the Post of Vice-Chancellor of the University of Visual and Performing Arts in terms of section 34 (1) (C) of the Universities Act No. 01 of 1995 with immediate effect.” And that’s it.]

As is my way, I went to the Act – with which I had some familiarity  through my advisory services to Dr Darshanan who was dismissed by the Vice Chancellor of the University of Jaffna, in similar fashion. The above is Amendment to the principal Act - Universities Act No. 16 of 1978.
Section 34 (1) (c) states as follows:

“(c) The Vice-Chancellor of a University may be removed from office by the President, after consultation with the Commission.".

The Public need to therefore know whether the President consulted with the Commission before terminating the Vice Chancellors.

Be that as it may,  Sections 34 (1) (a) and (b) state a follows:
([a)   The Vice-Chancellor of a University shall, subject to the provisions of paragraph (b), be appointed for a term of three years by the President, upon the recommendation of the Commission, from a panel of three names recommended by the Council of that University.
(b)  No person shall be appointed as Vice-Chancellor of the same University for more than two consecutive terms.]

The sovereignty of the legislation is upset when the dismissal procedure is less accountable than the appointment procedure except when it is through personal Belief – to exercise which one needs Discretionary Powers. These need to be specifically spelt out in the law. How can the President believe in an academic in terms of Academic work and / or Administration of the University? Unless the Vice Chancellor has demonstrated to be so corrupt that the Public are at risk of being corrupted if such Vice Chancellor had Administrative Authority – the President has no moral authority to use governance powers.

The Vice Chancellors did have the duty to act as per the following sections:

34 (2) The Vice-Chancellor shall be a full-time officer of the University, and shall be the principal executive officer and principal academic officer thereof. He shall be an ex officio member and Chairman of both the Council and the Senate. The Vice-Chancellor shall be entitled to convene, be present and speak at, any meeting of any other Authority of the University or other body, but shall not be entitled to vote at any such meeting unless he is a member of such other Authority or other body.

34 (3)It shall be the duty of the Vice-Chancellor, in accordance with such directions as may from time to time be lawfully issued to him in that behalf by the Council, to ensure that the provisions of this Act and of any appropriate Instrument are duly observed, and he shall have and may exercise all such powers as he may deem necessary for the purpose

The above two sections empower the Vice Chancellor to require the Secretary to the President to furnish evidence that the President did consult with the Commission. As Chairman of the Governing Council – it is the Vice Chancellor’s duty to present  the decision with its supporting documentation – including his own affidavit to the Governing Council – which governing Council then has the duty to vote on the decision. The Vice Chancellor however does not have the entitlement to vote.

Separation of Powers between Administration and Governance:
Section 44 (1)  of the Universities Act provides as follows:
[The Council of a University (hereinafter referred to as “the Council”), shall be the executive body and governing authority of the University and shall consist of the following persons:-
(i)            The Vice-Chancellor
(ii)          Deputy Vice-Chancellor if any
(iii)        Rector, if any
(iv)         The Dean of the Faculty of Graduate Studies, if any
(v)           The Dean of each Faculty
(vi)         Two members elected by the Senate from amongst its members; and
(vii)       Such number of members as is total to the number of members in paragraphs (i), (ii), (iii), (iv), (v) & (vi) above  increased by one. All such members shall be appointed by the Commission from among persons who have rendered distinguished service in educational, professional, commercial, industrial, scientific or administrative spheres.]

As per my interpretation – in terms of approving Administrative Decisions, a simple majority would be sufficient. This is due to the limits of Administrative authority stopping with the CEO –the Vice Chancellor.

But where a Governing Decision is required  to be delivered, the approval by vote of those in group 44 (1) (vii) – which is the Governing Authority, needs to be greater than the vote by the other  group identified by  Section 44 (1) (i)-(vi) which is the Executive bodyas indicated by the essential qualificationtotal to the number of members in paragraphs (i), (ii), (iii), (iv), (v) & (vi) above  increased by one’

Hence one is entitled to conclude that  the Disciplinary  Authority is the Governing Authority of the Council. It is Not the President of the Country except when the Vice Chancellor is a danger to the Public.

Section 44(1) of the Universities Act  by its very structure requires the Council to be bound by to the Doctrine of Separation of Powers between the Executive Body limited by facts and the Governing Authority unlimited by Truth/Belief.

The final question is whether the Minister for Higher Education is the governor responsible or whether it is the President?

The disciplinary ladder needs to facilitate step by step – the due process of law. A governor has power only after the Administrative process has been exhausted. Direct Administration prior to completion of the lawful process promotes – radicalization. This has been strongly confirmed by the Easter bombings in which the Defence intelligence was abysmally absent. The Truth discovered by us is the nucleus of our intelligence. To it we add our belief in others who have discovered truth in a different form before us. It’s that inner intelligence that leads us from within – through our intuition – anytime, anywhere.  

One who has discretionary powers and applies it before the process of law has been exhausted – invokes the other side through officers who represent her/him. All other investigations above this level - into the root cause of Easter bombings become frivolous.

One who seeks within and finds the truth has the Freedom to use governance authority. Others need to stay within the outcomes produced by the local bodies – in these instances the Universities.

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