Sri Lanka: We seem to be doing the opposite to intellectual tradition!

The law is our common heritage that came to us through the travails of history. Marquis de Favras was sentenced to death in the wake of the French Revolution to appease the mob clamouring for aristocratic blood. The Committee of Inquiry disregarded the ancient jurisprudence of France drawn from Rome, ‘testis unus, testis nullus’ – one witness is no witness – there must be at least two.

by Rajan Hoole

( March 13, 2017, Colombo, Sri Lanka Guardian) For many decades now, the expression, rule of law, has tended to be associated with pathological extremes involving murder and torture. We have tended to blindly accept repressive laws as a guarantee of our security and complained little when their use was extended to become part of our daily life, like occupation of lands for supposed security purposes. The great danger is that we become desensitised and cease from any obligation to observe the law.

The law is our common heritage that came to us through the travails of history. Marquis de Favras was sentenced to death in the wake of the French Revolution to appease the mob clamouring for aristocratic blood. The Committee of Inquiry disregarded the ancient jurisprudence of France drawn from Rome, ‘testis unus, testis nullus’ – one witness is no witness – there must be at least two. The historian John Adolphus has this to say about the social consequences of tampering with the law for narrow ends:

“This murder performed under colour of law, but in contempt of all sound rules of jurisprudence and reason, first opened the way for those neglects of the established norms of inculpation and evidence, which facilitated the mock trial of the King, and subjected the country to all the horrors of the revolutionary tribunal.”

The Revolutionary Tribunal’s judicial murder of Louis XVI again disregarded the Roman jurisprudence of France. His counsel Raymond de Seze had thundered: “Nullumcrimen sine lege” – there was no crime when there was no law against the King’s rule.

That was one of the earliest statements prohibiting retroactive application of laws. It was adopted into our 1978 Constitution, but was disregarded in the Prevention of Terrorism Act. That Act and its application did immense damage to our legal sensibilities, and accelerated institutional decay. The decay becomes particularly serious when it comes to the administration of our higher education by the University Grants Commission (UGC).

We rely on the UGC to strive for high standards in our universities and ensure that this country sustains and enhances a healthy intellectual tradition. We seem to be doing the opposite.

I submit that our relationship to the law is animportant marker of our intellectual integrity. To a large extent it is the urge to be right and fair that makes us thinking beings. When we lose that obligation we become dullards. Almost always, common sense and fairness constitute an adequate guide to the law.

A leading scholar from the Biomedical Genetics Section of Boston University posted his application in Boston for the Vice Chancellorship in Jaffna on 27th December 2016, allowing ample time before the closing date of 16th January. It arrived a day or two late in Jaffna. From a common sense standpoint the issue was clear. The university had appointed a search committee to search far and wide for suitable candidates; it found none. Then why make an issue of a scholar of marked achievements who applied in good faith and in good time? All applications were opened only on 27th January by the evaluation committee which duly scheduled the scholar’s application along with those of five other internal deans.

At the Council meeting the next day, the Vice Chancellor, apart from the slightly delayed receipt, gave two other irrelevant and inapplicable reasons for dropping the scholar. One was that he had not indicated his citizenship, and, the other, that he had not applied through the head of his department. The Council decided to consult the UGC’s legal department. The UGC’s advice received about two weeks later without giving any argument, or legal reference, was that the university is not bound to accept applications after the closing date.

Even if this reasoning were correct, the law does not stop there. The law is contingency-based and intrinsically considerate. It employs the concept of reasonableness, by which the applicant who has acted reasonably has legitimate expectations of being processed duly. A rule established in R v London County Council ex parte Corrie (1913) as applicable to this case is the applicant’s right to appeal against the rejection of his application; while the University had a duty ‘merely to exercise discretion in each case,and not to shut the door indiscriminately either on all applicants or on applicants who did not conform to some particular requirement [as a deadline that was not crucial – the applications were opened eleven days later].’

However, the unshakable answer to the dilemma lay in the sufficiently well-known Postal Rule, which the University and UGC tried to pretend did not exist. It was simply what reason and common-sense dictated. A healthy intellectual tradition would have railed at the crass treatment the scholar got.

The Postal Rule was established with reference to Contract Law in the British cases of Adams vsLindsell (1818) and Henthornvs Fraser (1892), and closer home in the Indian case of KamisettiSubbiah v Katha Venkataswamy (1903): “… acceptance [of a contract] is complete when it is put in the course of transmission. The place of posting has been held to be the place of completion of contract.” The unanimous judgment of the five member bench of our Supreme Court presided over by Justice Basnayake explicitly extended its scope to a more general context: “Where a letter, fully and particularly directed to a person at his usual place of residence, is proved to have been put into the post office, this is equivalent to proof of delivery into the hands of that person; because it is a safe and reasonable presumption that it reached its destination (University of Ceylon v Fernando [1957] 59 NLR 8).” This rule meant that the applicant had delivered his application on 27th December 2016.

Here was an offer from a scholar of proven ability that would have enhanced the academic resources of the University. The University’s and the UGC’s attitude to him was entirely negative. The President’s commitment regularly made to welcome back skilled expatriates, demands courtesy and a willingness to engage and secure the applicant’s skills even if not as vice chancellor. Instead we were attempting to knock him off with invalid legal reasons hoping that he would simply disappear.

On 25th February, the VC stood by the rejection of the application. Giving a variety of legal reasons, including the Postal Rule, Prof. Tharmaratnam expounded to the Council why the rejection of the application is a violation of the law.

The VC backed up the UGC’s negative advice by citing universities’ Establishments (E-) Code, which states that ‘Applications … should have been received not later than the last date and time stipulated in the advertisement’. She claimed that the E-Code was an authority superior to the Supreme Court. Tharmaratnam replied pointing to the absurdity of this position; the e-Code drafted in 1984,which remains largely unrevised all this time, is only meant to be a guideline. He said besides that the UGC’s advice, without giving any argument or legal reference does not constitute legal advice at all – it is just one line dogma.

Given the scholarly context of the question at hand, our intellectual curiosity and reason should have been stirred to find a solution appropriate to a university. However, the internal council members (deans etc.) had little to say and did not stand up to the VC. One external council member later told Prof. Tharmaratnam, ‘I agree with you one hundred percent, but the UGC appointed us and we must do what it tells us.’ It is the general trend in our universities that where political or personal favour determine the standing of both internal (academic) and external council members, they are eager to satisfy their patrons than protect the academic standing of their institution. It gives an idea of how our higher education system hugs mediocrity and keeps its doors shut to protect persons who detest ability.

Although the election was held on 26th February, three external members, Tharmaratnam, Jeyakumaran and Nesiah, reserved their right to pursue the matter legally and in the first instance to seek the Attorney General’s opinion on Prof. Tharmaratnam’s argument, on the understanding that, if he agrees with it, the Council would cancel the election.

The event, though, not newsworthy in the usual sense, is a lesson on how our legal and intellectual sensibilities are dulled by demands of repressive laws adopted in the name of security to our great hurt. We must not lose faith that the law, in spirit, works towards greater fairness and aspires to become more human and accessible. It is the property of all mankind.

Author: Sri Lanka Guardian

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