KASTHURIARACHCHI

KASTHURIARACHCHI

VS.

SRI LANKA MEDICAL COUNCIL AND ANOTHER

SUPREME COURT
JAYASURIYA, C.J.
DEHIDENIYA, J.
THURAIRAJA, J.
SC/FR/459/2019
FEBRUARY 17, 2020

Fundamental rights-Articles 12(1) and 14(1)(g) of the Constitution- Medical Ordinance, section 29(2)-Sri Lanka Medical Council- Foreign medical graduates-Provisional registration-Examination for Registration to Practice Medicine-Pre-entry qualification-Legitimate expectation- Time bar

The petitioner obtained a medical degree from a foreign university recognised by the Sri Lanka Medical Council (SLMC). She applied for provisional registration, which is a prerequisite to sit for the Examination for Registration to Practice Medicine (ERPM) in Sri Lanka. The SLMC refused provisional registration on the basis that the petitioner had not satisfied the pre-entry Advanced Level qualification imposed by the SLMC in 2010 for foreign medical graduates. The petitioner filed this application before the Supreme Court alleging the infringement of her fundamental rights guaranteed under Articles 12(1 ), 14(1)(g) of the Constitution and on the basis of denial of her legitimate expectations.

Held :

1. In terms of section 29(2) (iii) (bb) (i) of the Medical Ordinance, in order to be entitled to provisional registration as a medical practitioner, a Bachelor of Medicine degree or equivalent qualification from any university or medical school in any country other than Sri Lanka recognised by the SLMC is a requirement.

2. Section 29(2) (iii) (cc) further empowers the SLMC to prescribe . special examinations for foreign medical graduates. The ERPM is prescribed in terms of this provision.

3. The SLMC cannot usurp the powers of parliament which is the regulatory authority of the SLMC and impose further restrictions on sitting for the ERPM other than what is stipulated by statute.

4. Under section 29(2) (iii) (cc), the SLMC is not empowered to prescribe pre-entry qualifications for foreign universities. That is a matter for the relevant foreign university to decide. The SLMC can only evaluate the said university and grant or refuse recognition.

5. The petitioner entered a foreign university recognised by the SLMC and therefore had a legitimate expectation of the opportunity to sit for the ERPM once she completed the foreign medical degree.

6. The fundamental rights guaranteed to the petitioner under Articles 12(1) and 14(1)(g) of the Constitution have been infringed by the arbitrary acts of the SLMC.

7. The one month time bar for the invocation of fundamental rights jurisdiction is inapplicable when the infringement is of a continuing nature.

Cases referred to :

1. S.F. Zamrath v. Sri Lanka Medical Council and others (SC/FR/119/2019, SC Minutes of 23.07.2019)

2. S.M. Halpe and others v. Dr. Anil Jayasinghe (SC/FR/54/2019)

APPLICATION under Article 126 of the Constitution for infringement of fundamental rights.

Chandana Liyanapatabendi, P.C., with Saduni Madhubashiniand Hansini Bandaranayake for the Petitioner.

Manohara de Silva, P.C., for the 1st Respondent. Suren Gnanaraj, S.S.C., for the Attorney General.

cur. adv. vult.

July 23, 2020

DEHIDENIYA, J.

The application Nos SC/FR 399/2019, 400/2019 & 459/2019 are on the same matter and the objections are also filed in the same manner. The parties agreed to argue these cases together and to abide by one judgement.

The Petitioner invokes the jurisdiction of this court alleging the infringement of her Fundamental Rights guaranteed under the Articles 12(1) and the 14(1)(g) of the Constitution by the Respondents.

The Petitioner states that, she has received medical education from the foreign universities and was awarded the relevant degrees of medicine after the completion of the specific periods of study. The Petitioner further states that, having obtained their degrees of medicine she returned to Sri Lanka and sought approval from the Sri Lanka Medical Coun

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