Children’s hospital: Peradeniya varsity gets leave to appeal

The Supreme Court has granted Special Leave to proceed against an order of the Court of Appeal where the Medical Faculty of the Peradeniya University has been excluded from the administration of the Sirimavo Bandaranaike Children’s Hospital against the express wishes of the late Prime Minister whose name the hospital carries.

This was in an application filed by the University of Peradeniya, against the Minister of Health, the Secretary of that Ministry and the Director General of Health Services in respect of the Sirimavo Bandaranaike Children’s Hospital at Peradeniya.

The University of Peradeniya, in its petition, explained that the late Prime Minister Sirimavo Bandaranaike wrote a letter requesting the University of Peradeniya to make available a portion of its land for the construction of this children’s hospital, and that the letter assured that the hospital would be attached to the University, and would be used to train thousands of future doctors. The University explained that the University readily acceded to the request and made the land available for the project.
The University explained in its petition that the Government of Austria mainly financed the project, with some funds also coming from the Government of Sri Lanka, and even private donations collected by the late Prime Minister herself.

The University went on to explain in its petition that, on the invitation of the relevant Ministers and Government officials, the professors and academics of the Medical Faculty of the University of Peradeniya participated fully [and often played the main role] in the planning and supervision of the project, and especially in identifying the sub-speciality units and the selection of the equipment and in the approval of the equipment supplied and in the supervision of the installation of the equipment.

The University explained in its petition that the Director General of Health had accepted in principle [as shown by the minutes of the relevant meeting] that the hospital should be managed as a separate institution which is similar to the Sri Jayewardenepura Hospital or the Vijaya Kumaratunge Memorial, and that a Cabinet Memorandum had been already prepared on these lines.

The University also explained in its petition that the Secretary to the President of Sri Lanka had stated [as shown in the minutes of the relevant meeting] that there should be a committee of the relevant stake holders to develop and manage the hospital, and that a legal framework was necessary for the hospital, and that pending Cabinet approval there could be a Shadow Board.

The University’s complaint is that, after the construction of the hospital, the University has been completely excluded from participation in the hospital. The University initially made its application to the Court of Appeal, seeking inter alia a writ of mandamus directing the respondents to create a management structure for the hospital that included adequate participation of the University and the staff of the University’s Medical Faculty.

The Court of Appeal [Justices Sripavan and Sisira Abrew] refused the application, on the legal ground that mandamus is issued only for the enforcement of a duty of a public nature arising from statutory rights. The University of Peradeniya has come to the Supreme Court against this order.

The University’s position is that the writ of mandamus could be issued to enforce rights arising out of estoppel and legitimate expectation, and that a court issuing this writ has extraordinary powers to mould the relief, especially when dealing with public interest litigation.

The Supreme Court has given Special Leave to proceed with the Appeal on these questions of law. The appeal is now fixed for argument in the Supreme Court on October 18, 2007. The Court comprised with Justices Shirani Bandaranayake, Andrew Somawansa and Jagath Balapatabendi.

Mr. S.S.Sahabandu President’s Counsel appeared with Mr. A.P. Niles Attorney-at-Law, instructed by Mr. Arjuna Kurukulasuriya Attorney-at-Law, for the University of Peradeniya. Mr. Yuwanjan Wijayatilake President’s Counsel and Additional Solicitor General appeared for the respondents.