008-SLLR-SLLR-1999-V-2-GALAPPATHTHI-ARACHCHIGE-NIHAL-v.-ARIYA-BULEGODA-AND-OTHERS.pdf
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Galappaththi Arachchige Nihal v. Ariya Bulegoda and Others
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GALAPPATHTHI ARACHCHIGE NIHALv.
ARIYA BULEGODA AND OTHERS
SUPREME COURTFERNANDO, J„
WADUGODAPITIYA, J. ANDGUNAWARDANA, J.
S.C. SPECIAL (E) NO. 2/98OCTOBER 28, 1998
Expulsion of a member of a recognized political party – Article 99 (13) (a) ofthe Constitution – Failure to satisfy the essential pre-conditions for expulsion -Order to pay court costs.
On 16. 08. 1998 the Sri Lanka Pragathisheeli Peramuna (SLPF) the 3rdrespondent expelled from the Party the petitioner, a member of the partyrepresenting it in Parliament, consequent upon a vote of "no confidence" adoptedby its National Council. The 3rd respondent sought to justify the expulsion onthe basis of Article 12 (v) of the 1997 Constitution of the party which providesfor the expulsion of a member who is under suspension, by adopting a vote ofno confidence. The suspension relied upon by the 3rd respondent was imposedon the petitioner under the 1996 Constitution, pending disciplinary proceedingsagainst him. That Constitution had no provision for expulsion of such memberby adopting a vote of no confidence. The petitioner challenged the expulsion inthe District Court. The matter was settled on terms, inter alia, that disciplinaryproceedings will not be continued.
Held:
The petitioner's suspension necessarily came to an end in terms of theDistrict Court settlement. As such an essential pre-condition for passinga vote of "no confidence", ie a valid suspension – was not satisfied. Thepurported expulsion of the petitioner is therefore invalid.
The 3rd respondent had caused an unnecessary waste of judicial time andwas liable to pay court costs.
Quaere
Whether the petitioner's rights and liabilities consequent upon his suspension underthe 1996 Constitution had to be determined under that Constitution; and in the
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absence of express provision in the 1997 Constitution, a vote of *no confidence*under that Constitution could be founded upon a suspension under the 1996Constitution.
Cases referred to:
Galappaththi v. Bulegoda and others (1997) 1 Sri LR 393.
Galappaththi v. Bulegoda and others SC Special (E) 1/98 SC Minutes23 March 1998.
APPLICATION under and in terms of Article 99 (13) (a) of the Constitution challengingthe expulsion of the petitioner from the SLPF.
Manohara de Silva with Sunil Watagala for the petitioner.
Dr Jayampathy Wickremeratne with Sivaji Felix and Thilan Uyanage for the1st to 3rd respondents.
Cur. adv. vuH.
October 30, 1998.
FERNANDO, J.
This is an application under Article 99 (13) (a) of the Constitution bythe petitioner, a Member of Parliament representing the 3rd respond-ent, the Sri Lanka Pragathisheeli Peramuna (SLPF), challenging hisexpulsion from that Party on 16.8.98 by its Politburo consequent upona vote of "No Confidence" adopted on 9.8.98 by its National Councilof Representatives.
The petitioner had successfully challenged two previousexpulsions, by applications filed on 30.12.96 (SC Special 248/96,SCM 19.2.97) and on 23.2.98 (SC Special (E) 1/98, SCM 23.3.98).
The 3rd respondent seeks to justify the expulsion on the basisof Article 12 (V) of its revised Constitution (adopted on 30.11.97) whichempowers the Party's National Council to pass a vote of “NoConfidence" in respect of a member who is under suspension,whereupon the Politburo can proceed to expel him. Learned counsel
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Galappaththi Arachchige Nihal v. Ariya Bulegoda and Others(Fernando, J.)
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for the 1st to 3rd. respondents submitted that such a vote of “NoConfidence" was duly passed on 9.8.98, and argued that the essentialpre-condition as to suspension was satisfied because the petitioner’smembership was at that time suspended by an order made on 8.4.97(under the previous Constitution revised on 30.11.96) by the 1strespondent, the President of the Party. Although several otherquestions of fact and law arose in the course of the hearing, the onlyquestion which we need to decide is whether that suspension wasin force at the relevant time.
That order of suspension was not indefinite, but was expresslystated to be operative until the conclusion of pending disciplinaryproceedings. Soon after that order was made, the petitioner filed anaction in the District Court of Mount Lavinia on 3.6.97, inter alia,challenging that order. The matter was settled on 8.6.98 on the terms,inter alia, that the present 1st and 3rd respondents recognised thepetitioner as representing the 3rd respondent Party in Parliamentand that disciplinary proceedings against him would not be proceededwith. Thereupon the petitioner withdrew his action.
Learned counsel for the petitioner submitted that the disciplinaryproceedings were thereby abandoned, and that, as a necessaryconsequence, the suspension too came to an end.
Learned counsel for the 1st to 3rd respondents submitted thatalthough the suspension had been imposed under the 1996Constitution, it nevertheless continued to be operative under the next(1997) Constitution; that although the 1996 Constitution did not providefor expulsion of a suspended member by means of a vote of "NoConfidence", yet the 1997 Constitution did make provision for suchexpulsion, which provision – he claimed – was applicable to a member,such as the petitioner, suspended under the 1996 Constitution; andthat although the petitioner's suspension came to an end, insofar asfurther disciplinary proceedings were concerned, he was neverthelessliable to expulsion through a vote of "No Confidence".
It is arguable that the petitioner's rights and liabilities consequentupon his suspension under the 1996 Constitution had to be determined
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under the provisions of that Constitution, and that, in the absenceof express provision in the 1997 Constitution, a vote of ’NoConfidence” in terms of the 1997 Constitution could not be foundedupon that suspension. But even assuming, for the sake of argument,that it could, yet it is quite clear that the petitioner's suspension wasexpressly limited to the duration of the then pending disciplinaryproceedings, and necessarily came to an end, for all purposes, whenthose proceedings were abandoned in terms of the settlementreached in the District Court of Mount Lavinia.
It follows, therefore, that an essential pre-condition for passing avote of “No Confidence" – ie a valid suspension – was not satisfied;that the National Council had no power to adopt such a vote; andthat consequently the Politburo had no power to expel the petitioner.I therefore determine that the purported expulsion of the petitioneris null and void, and of no effect in law.
The petitioner has asked for "punitive or exemplary costs" in a sumof one million rupees. While it is not an unreasonable inference thatthe repeated attempts to expel the petitioner have not been madein good faith, and have seriously vexed him – for which he may havea legal remedy elsewhere – I do not think that the award of costs,in these proceedings, of anything more than what the petitioner hasactually incurred is justified. However, insofar as this Court isconcerned, the 3rd respondent (through its officers and organs) havecaused a needless waste of judicial time, and it is fitting that the 3rdrespondent be ordered to pay Court costs. I therefore order the 3rdrespondent (a) to pay the petitioner, on or before 31.12.98, a sumof Rs. 25,000 as incurred costs, and (b) to deposit with the Registrarof this Court, on or before 31.12.98, a further sum of Rs. 25,000 asCourt costs.
WADUGODAPITIYA, J. – I agree.GUNAWARDANA, J. – I agree.Expulsion determined invalid.