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Minister Sirisena’s decision arbitrary, capricious, unreasonable

In an unprecedented move, a Member of the Sri Lanka Medical Council (SLMC) has challenged his "arbitrary removal" by Health Minister Maithripala Sirisena in a Fundamental Rights (FR) plea before the Supreme Court.

Dr. Shirley Herath, in his application, says that by letter dated 12.1.2012 (which reached him on 19.1.2012), the Minister, acting under powers vested in him by Section 12(1) (f) of the Medical Ordinance, appointed him as a Member of the SLMC for a period of five years with immediate effect. He was also required to intimate his acceptance of the appointment in writing.

Accordingly, he had confirmed his acceptance of the appointment, by his letter dated 19.1.2012, but to his utmost surprise and dismay, he received a letter on the same day from the Minister that he had been removed as a Member of the SLMC.

He became aware of reports in the newspapers that some sections of the GMOA had protested against his as well as Professor Rezvi Sherif’s appointments. However, he had not been afforded a hearing prior to his removal, which is contrary to the principles of natural justice.Dr. Herath says the Minister’s decision to remove him is arbitrary, capricious, unreasonable, male fide, grossly repugnant to the rule of law and violative of the fundamental rights guaranteed to him by Article 12(1) of the Constitution. It is totally without jurisdiction and unsupported by evidence and no reasons whatsoever had been adduced in the letter for his arbitrary removal.

Medical sources said that this was, perhaps, the first time that a Member had challenged his removal from the SLMC by a Health Minister, who is empowered to appoint four nominees to the 25-member Council.

In terms of the Medical Ordinance, a nominee can be removed from the SLMC primarily in case of death, conviction of an offence by a court of law, on found guilty of misconduct in a disciplinary process or in case SLMC registration is lost and his name is erased from the register.

Referring to Dr. Anura Rabel (Incumbent Director, Hemas Hospital) and Dr. G. Weerasinghe, who served as two of the Health Minister’s nominees earlier, the sources said they stepped down on request, but declined to back date their letters of resignation.

The Minister, in terms of the law, cannot arbitrarily remove a nominee after a confirmed appointment, but can only persuade them to resign, the sources noted. "That’s what happened to the two previous nominees".

"What is happening now is an attempt to nominate persons to the SLMC who are not considered hostile towards foreign medical graduates", the sources claimed. "The offspring of some nominees had also studied medicine overseas".

Dr. Herath’s son, Oshala, who himself is a foreign medical graduate from an Indian University, last week met with Justice Jagath Balapatabendi, Chairman, Commission to Investigate Allegations of Bribery or Corruption and handed over a petition outlining a series of allegations against the SLMC. Some of the charges made also related to foreign trips undertaken by some SLMC members and their families.

Contacted by The Sunday Island, Dr. Herath said he had filed a FR application seeking redress but declined further comment as the matter is now before Court.

The petitioner says his appointment and the subsequent sudden cancellation by the Minister brings disrepute to, and undermines the independence of the Sri Lanka Medical Council. The petitioner had a legitimate expectation to serve as a Member of the SLMC Council for five years in terms of the letter of appointment, but he has been arbitrary removed.

The removal is not rationally related to any reasonable objective sought to be achieved but for the collateral purpose resulting in the creation of an inequitable situation to the grave prejudice to him. Irreparable loss and damage would be caused to his reputation, the petition stated.

The petitioner, in his plea, wants Court to, inter alia, declare null and void the decision of the Minister to remove him, to grant compensation in a sum Court may deem fit along with such other and further relief.