Analysis

USP Saga: What Does USP Ordinance Say?

It appears that the Council’s decision to overturn the decision to suspend the vice-chancellor and the Council’s subsequent decisions are in excess of the Council’s powers.
30 Jun 2020 13:44
USP Saga: What Does USP Ordinance Say?

Did the University of the South Pacific’s Pro Chancellor Winston Thompson make the right call when he got the executive committee together which then made the decision to suspend the Vice-Chancellor Professor Pal Ahluwalia?

Was the USP’s Council right to reinstate the good Professor?

What does the USP Ordinance to Govern the Discipline of the Vice Chancellor say?

A lay person’s reading of the Ordinance’s clauses six and seven reveals some very interesting information.

The Executive Committee has a role to play in accordance with the Ordinance to Govern the Discipline of the Vice Chancellor. Of particular relevance are clauses 6 and 7 of the Ordinance.

Sub-clause 6 (f) allows the Pro Chancellor with agreement from the Executive Committee to suspend the Vice Chancellor during the investigation against the Vice Chancellor if the Pro-Chancellor and the Executive Committee acting reasonably consider that that the Vice Chancellor’s alleged misconduct if proven would be “material” within the meaning ascribed to “material” in the said Ordinance and would result in sanctions being imposed upon the Vice Chancellor by persons outside the University.

Once the Pro – Chancellor and the Executive Committee have made such a decision there appears to be nothing in the Ordinance that allows the Council to overturn such a decision. The only option open to Council was to judicially review the decision of the Pro Chancellor and the Executive Council.

Sub-clause 6 (h) provides that if both the Pro-Chancellor and the Deputy Chair of the Council have a conflict of interest, the Secretary to Council shall convene the special Meeting of the Executive Committee to consider the allegation of misconduct. Whether there exists a potential or actual conflict of interest or not will depend on the surrounding facts and circumstances.

It is impossible to give an opinion on this without being appraised of these facts and circumstances. However it appears that in order for Deputy Chair of Council to be removed from considering the allegation of misconduct against the Vice Chancellor, the Deputy Chair of Council’s the conflict of interest must be an actual conflict of interest not simply a potential one.

There is nothing in the Ordinance which allows someone other than the Pro-Chancellor to appoint the sub-committee to conduct its investigation into the allegations against the Vice Chancellor. This Ordinance was not prepared overnight. This has been part of USP for decades now.

The Council under the Ordinance does not appear to have a role to play in the disciplining of the Vice Chancellor until such time as the sub-committee and the executive committee have completed their tasks which involve among other things the sub-committee investigating the allegation and reporting on the investigation to the Executive Committee and the Executive Committee preparing its final report and recommendations if the Executive Committee does not dismiss the allegation.

At point where the sub-committee has completed its tasks if the Pro Chancellor and the Deputy Chair of the Council have conflicts of interest then the Secretary to the Council in accordance with the Ordinance may consider the allegation instead of the Pro-Chancellor and the Deputy Chair of the Council.

If the Executive does not dismiss the sub-committee’s report then it must present the final report with its recommendations to the Council. It is at this point, the Council has a role to play in the disciplining of the Vice Chancellor that is determining the final consequence that the Vice Chancellor has to face.

It appears that the Council’s decision to overturn the decision to suspend the Vice Chancellor and the Council’s subsequent decisions are in excess of the Council’s powers.

It seems to have interfered with the process where it had no role to play. The Executive Committee and the Pro Chancellor should judicially review the decision of the Council and seek a stay of the same.

The Council’s powers are defined by the Charter and the Statutes of the University. Nothing in the Charter and the Statutes allow the Council to interfere with the specific process outlined in the Ordinance as the Council has done so.

The Council seems to have exceeded its jurisdiction. If its decision is not reviewed it sets a very dangerous precedence for the future and may adversely affect the governance of the University.

It appears that Mr Thompson had indeed done everything by the books.

His reputation is on the line here and going for a judicial review may set matters straight.

Feedback: jyotip@fijisun.com.fj



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