BULEGODA AND ANOTHER
G. P. S. DE SILVA, C.J.,
RAMANATHAN, J. AND_ WIJETUNGA, J.
S.C. NO. (SPL.) 248/96.
FEBRUARY 3, 5, 6 AND 7, 1997.
Expulsion of a member of a recognized political party – Article 99( 13) (a) of theConstitution – Audi alteram partem rule.
By a letter dated 30.11.96 Sri Lanka Pragathisheeli Peramune (SLPF) arecognized political party which party is represented in Parliament by thepetitioner purported to expel the petitioner from the party and sought to nominateanother member of the party as member of Parliament. The said expulsion was asequal to an allegation that the petitioner had ceased to be a member of the partyby reason of his failure to obtain party membership for 1996. The respondentsclaimed that the petitioner forfeited his membership by refusing to pay themembership fee for that year. The allegation was denied by the petitioner but theparty proceeded to expel him without holding an inquiry into the dispute. It wasargued that the petitioner was never expelled from the party but ceased to be amember of the SLPF; hence he is not entitled to invoke the jurisdiction of theCourt under Article 99(13) (a).
The relevant document constitute ex facie a purported expulsion of thepetitioner from the SLPF; hence the court has jurisdiction to entertain hisapplication.
The respondents failed to establish that the petitioner ceased to be a memberof the SLPF by reason of the failure to obtain party membership for 1996.This apart, there has been a violation of the audi alteram partem rule by thefailure of the respondents to hold an inquiry and to give an opportunity to thepetitioner to meet the case against him. Hence, the expulsion of the petitionerwas invalid.
Case referred to:
1. GaminiDissanayake v. M.C.M. Kaleeland Others. (1993) 2 Sri L.R. 135,185.
APPLICATION under and in terms of Article 99(13) (a) of the Constitutionchallenging the expulsion of the petitioner from the S.L.P.F.
D. S. Wijesinghe, P.C., with J. C. Weliamune and Miss. Lilanthi de Silva forpetitioner.
W. P. Gunatilake with J. A. J. Udawatte and Upul Gunaratne for 1st, 2nd and 3rdrespondents.
M.B. Ratnayake with Sunil Watagoda for 4th respondent.
5th, 6th and 7th respondents absent and unrepresented.
Cur. adv. vult.
February 19, 1997.
G. P. S. DE SILVA, C.J.
The petitioner is a Member of Parliament for the HambantotaElectoral District nominated by the 3rd respondent, the Sri LankaPragathisheeli Peramuna (S.L.P.F.), a recognised political party.By this application the petitioner invokes the jurisdiction of this Courtin terms of Article 99(13)(a) of the Constitution seeking inter alia,a declaration that his “purported expulsion” from the S.L.P.F. isinvalid. The 1st respondent is the President of the S.L.P.F. The2nd respondent functions as the Secretary of the S.L.P.F. The4th respondent is the Janatha Vimukthi Peramuna (J.V.P.), arecognised political party. The 5th respondent (JathiyaGalawaganeema Peramuna) is also a political party. According tothe petitioner the 5th respondent is a “coalition" of the 3rd and4th respondent parties.
At the General Elections held in August 1994 the S.L.P.F becameentitled to one parliamentary seat for the Hambantota electoraldistrict. The petitioner was nominated as the Member of Parliamentfor the electoral district of Hambantota by the S.L.P.F He took hisoaths on 6.1.95 and he continued to sit in Parliament till 13.12.96, thatis, till the end of session in 1996. However, on or about 26.9.96 hereceived a letter dated 16.9.96 (marked P21) signed by the 1st and2nd respondents informing him that he has failed to obtain “valid
party membership for the year 1996”. P21 (as translated) reads asfollows:“Sri Lanka Progressive Front
7th Lane,Pagoda Road,Nugegoda,
Mr. Galapatti Arachchige Nihal,Mutumala Mawatha, Pallikkudawa,Tangaila.
Notice of Termination of Membership
It has been revealed that you, Galappaththi Arachchige Nihal whowas nominated and appointed as a Member of Parliament of theSri Lanka Progressive Front for the Electoral District No. 9Hambantota at the Parliamentary Elections 1994, for the vacancyof Member of Parliament for the Party have not obtained PartyMembership, valid for 1996.
Therefore the decision of the Central Committee dated 7.9.96 toconsider having vacated the Membership with effect from 1.5.96has been approved by the Politburo that met on 13.9.96. You maysubmit an appeal by registered post if you wish to give anexplanation within 14 days from date hereof.
Sgd. Ariya BulegodaSgd. Dr. Kamal Karunadasa
ChairmanChief Secretary (seal)
Sri Lanka Progressive Front
Dr. Kamal KarunadasaSecretary
Sri Lanka Progressive Front
copies: 1. Commissioner of Elections
2. Secretary General of Parliament”
By R10 dated 27.9.96 (addressed to the 1st respondent) and P23dated 1.10.96 (addressed to the 2nd respondent) the petitionerstrongly protested against the contents of the letter P21. In R10 andP23 he clearly asserted, inter alia, (a) that he has duly obtainedmembership in the S.L.P.F., (b) that he has not ceased to be amember of the S.L.P.F., (c) that he continues to be a member of theS.L.P.F. (d) that the Constitution of the S.L.P.F. does not require amember to pay membership fees and in fact no member wasrequired to pay membership fees.
The petitioner’s complaint to this court does not by any means restwith the letter P21 for he received copies of two letters addressed tothe Secretary General of Parliament and to the Commissioner ofElections. Both letters were signed by the 1st and 2nd respondentsand were dated 30.11.96. The letter addressed to the SecretaryGeneral of Parliament has been marked as P52A while the letteraddressed to the Commissioner of Elections has been marked asP27. Both letters are in identical terms and (as translated) they readas follows:
“Notice of Cessation of Party MembershipIt is hereby notified that at the party Convention of the Sri LankaProgressive Front held on 30.11.96 it was unanimously decided toexpel Mr. Galappaththi Arachchige Nihal who was nominated byour Party as a Member of Parliament for the Electoral District No.9, Hambantota to represent Sri Lanka Progressive Front and thattherefore he has ceased to be a member of our Party.
It is most respectfully requested to give us the opportunity tonominate another member of our Party to fill the vacancy in hisplace.
Sgd. Ariya Bulegoda
Sgd. Dr. Kamal Karunadasa(seal)
copies: 1. Mr. Galappaththi Arachchige Nihal,
2. Hon. Ratnasiri WickremanayakeMinister of Parliamentary Affairs."
The petitioner, relying on P52A and P27, contends that therespondents purported to expel him from the S.L.P.F. and he istherefore entitled to invoke the jurisdiction of this court in terms of theproviso to Articles 99(13) (a) of the Constitution. On the other hand,the case for the 1st to 3rd respondents (hereinafter referred to as therespondents) is that the petitioner was never expelled from theS.L.P.F. but that he ceased to be a member of the S.L.P.F. by reasonof not having “obtained party membership valid for 1996.” Therespondents rely on P21, on R6 (the minutes of the S.L.P.F. CentralCommittee meeting held on 7.9.96), on R9 (the report of the S.L.P.F.politburo meeting held on 13.9.96) and R12 (the Party Conventionheld on 30.11.96) in support of their case.
Upon the case as presented on behalf of the respondents, the firstquestion that arises for decision is the date of the cessation of thepetitioner’s membership of the party. It seems to me that the evidenceon this crucial point is not only unclear but is also of a contradictorynature. In R6 and in P21 the date given is 1st May 1996. In paragraph61 of the objections filed on behalf of the respondents the date isgiven as 7th September 1996 while in paragraph 68 of the objectionsthe date specified is 16th September 1996. In paragraph 34 of thewritten submissions of the respondents the date is stated to be 31stDecember 1995.
As seen from paragraph 67 of the objections of the respondentsthe gravamen of the charge against the petitioner is that he hasceased to be a member of the S.L.P.F by his “refusal to pay themembership for the year 1996 There is no evidence whateverthat the petitioner was called upon to pay the membershipsubscription for 1996 and that he refused to do so. Nor is thereevidence as to the precise amount of the subscription fee formembership for the year 1996 and the date on which paymentbecame due for 1996. The affidavit of the Treasurer of the S.L.P.F.(R14) does not throw any light on these crucial matters. What is more,neither the party Constitution (P17) nor any rule, regulation orresolution validly passed in terms of the party Constitution makesany provision for the cessation of membership by reason only of non-payment of the subscription fee for one year. It is relevant to bear inmind that the petitioner is not an office-bearer but an ordinarymember of the party. Any rule of resolution passed by the CentralCommittee or other body must be shown to be binding on thepetitioner and that it has been brought to his notice. There is noevidence at all to establish that the petitioner was aware of thecontents of R6 and R9. In short, the respondents have failed toestablish the all-important fact, namely that the payment of an annualsubscription fee is a condition precedent to the petitioner continuingto remain a member of the SLPF. In this regard, R4 is of no relevanceas it is only an application for membership of the party made by thepetitioner.
On a consideration of the matters set out above and the materialon record, I hold that the respondents have failed to establish that thepetitioner has ceased to be a member of the S.L.P.F. by reason of thefailure to obtain “party membership for 1996” (vide P21).
This apart, the other cogent ground upon which the petitionerassailed the “purported expulsion” is that there had been a clearviolation of the audi alteram partem rule. It seems to me that thiscontention advanced on behalf of the petitioner is well founded.Upon receipt of P21, the petitioner wrote R10 (dated 27.9.96) andP23 (dated 1.10.96). While R10 was addressed to the 1strespondent, P23 was addressed to Secretary of the party. In R10 thepetitioner specifically took up the position that he has duly obtainedmembership of the S.L.P.F., that he has not ceased to be a memberof the party and that he continues to remain a member of the party. Insubstance P23 was to the same effect. Once the petitioner deniedthe claim of the respondents that he had ceased to be a member ofthe S.L.P.F., it was incumbent upon the respondents to have held aninquiry and to have given an opportunity to the petitioner “to explain,controvert or mitigate the case against (him)” per Fernando, J., inGamini Dissanayake v. M. C. M. Kaleel and OthersThis, the
respondents failed to do, and the consequence is that the “purportedexpulsion” is void.
It was further submitted as a matter of law, on behalf of therespondents, that there was no "expulsion” of the petitioner from the
S.L.P.F. and therefore this court has no jurisdiction to entertain thepetitioner’s application. With this submission, I am afraid, I cannotagree. The contention that there was no “expulsion" of the petitionerfrom the S.L.P.F. is in the teeth of the express statements made inboth P52A and P27. To my mind, there is no doubt that P27 and P52Aconstitute ex facie a purported expulsion of the petitioner from theS.L.P.F.
Finally, it was contended that this application which was filed on
is time barred. The reasoning is that the petitioner ceased tobe a member of the S.L.P.F. on “the date on which P21 becomeseffective, that is either 14 days from the date of the letter (16.9.96) or14 days after the arrival of the petitioner from abroad, that is 14 daysfrom 26.9.96" (vide paragraph 10 of the written submissions dated10.2.97 filed on behalf of the respondents). It is clear that on therespondent's own showing there is no certainty at all in regard to theoperative date of P21. What is worse, P21 in express terms has aretrospective effect; the cessation of membership from the party isfrom 1.5.96. How then is the period of one month to be calculated? Ihold that the objection based on time bar is untenable and that thiscourt has jurisdiction to entertain the petitioner’s application in view ofP27 and P52A.
For the reasons set out above, I determine that the “purportedexpulsion” of the petitioner is of no force or avail in law and that it isinvalid. The 1st, 2nd and 3rd respondents must jointly pay thepetitioner a sum of Rs. 5000/- (Five Thousand Rupees) as costs ofthese proceedings.
, RAMANATHAN, J. -1 agree.
WIJETUNGA, J. -1 agree.
Expulsion determined invalid.