GAMINI DISSANAYAKE (PETITIONER IN SC 4,91) v. M. C. M. KALEEL AND OTHERS

016-SLLR-SLLR-1993-2-GAMINI-DISSANAYAKE-PETITIONER-IN-SC-491-v.-M.-C.-M.-KALEEL-AND-OTHERS.pdf


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Gamini Dissanayake v. M. C. M. Kaleel and Others
135
GAMINI DISSANAYAKE(PETITIONER IN SC 4/91)v.
M. C. M. KALEEL AND OTHERS
(Note : Similar applications in Cases Bearing No. 5/91,
No. 6/91, No. 7/91, No. 8/91 and 9/91, No. 10/91, No. 11/91were heard together and disposed of in one judgment).
SUPREME COURT.
FERNANDO, J.
KULATUNGA, J. ANDWADUGODAPITIYA, J.
S.C. (Special).
No. 4 – 11/91.
OCTOBER 31 AND NOVEMBER 1, 4, 6, 7, 8, 11, 12 AND 13, 1991.
Article 99 (13) (a) of the Constitution – Notice of resolution to impeach thePresident – Speaker's notification to President of entertaining resolution[Article 38 (2) (a) and (b)] – Vote of confidence in President by Cabinet Members
Inconsistency of expulsion with the provisions of the Constitution and StatuteLaw – Jurisdiction of Working Committee of U.N.P. – Position of an MPvis-a-vis his Party – Signing notice of resolution to remove the President andagitation for constitutional changes – Failure to initiate prior internal discussion
Causing insult and injury to the President – Deceiving the Cabinet – Breachof rules of natural justice – Audi alteram partem – Bias – Mala tides.
Eight Members of the United National Party who were also members ofParliament singly filed eight petitions bearing numbers SC 4 – 11/91 challengingtheir expulsion from the Party. The respective petitioners in applicationsNo. SC 5/91 and No. SC 8/91 were Ministers of Cabinet rank in the UNPgovernment shortly before their expulsion.
The petitioner in application No. SC 9/91 and the petitioner in applicationNo. SC 1Q/91 were a State Minister and Project Minister respectively in the UNPgovernment shortly before their expulsion. The petitioners have filed theirrespective applications under and in terms of Article 99 (13) (a) of the Constitution.The expulsion of these eight members of the United National Party if held tobe valid will result in their being deprived of their seats in Parliament
The eight applications were heard together. The eight petitioners were allegedto have participated in steps being taken in late August 1991 under Article 38(1) (e) read with Article 38 (2) for the removal of the President who was alsothe leader of the United National Party. Notice of a resolution in terms ofArticle 38 (2) (a) signed by more than the half the whole number of membersof Parliament was stated to have been handed in to the Speaker who on 28
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August 1991 informed the President in writing declaring that he had entertainedthe said resolution in terms of Article 38 (2) (b) and drawing attention toproviso (c) to Article 70 (1). On 08 October 1991 however the Speaker announcedin Parliament that having inquired into the matter he was of the view that thenotice of resolution did not have the required number of valid signatures andaccordingly could not be proceeded with.
The Speaker's letter of 28 August 1991 was received by the President whena Cabinet Meeting at which the petitioners in SC 5/91 and SC 8/91 were present,was in progress. A vote of confidence in the President was called for and thosepresent including the petitioners in SC 5/91 and SC 8/91 unanimously expressedtheir support for the President by a show of hands. However, it later becameknown that they supported the notice and they resigned from the Cabinet on30 August 1991.
On 30 August 1991 the President prorogued Parliament until 24 September 1991.
The resolution in question alleged that the President was guilty of intentionalviolation of the Constitution, treason, bribery, misconduct or corruptionincluding the abuse of the powers of his office, offences involving moralturpitude, permanent incapacity to discharge the functions of his office byreason of mental or physicial infirmity, undermining the powers of Parliamentand of Cabinet Ministers, giving direct orders to Secretaries by-passingtheir Ministers, engaging Secretaries to obtain confidential reports on theirMinisters, endangering the security of the State by arming the Liberation Tigersof Tamil Eelam (LTTE), sending off the Indian Peace Keeping Force (IPKF) withoutconsidering military aspects, resorting to unlawful telephone tapping (includingtelephones of Ministers), engaging in wasteful expenditure, including Gam UdawaCelebrations and establishing a one man dictatorship.
Between 30 August 1991 and 06 September 1991 the petitioners launched apublic campaign reiterating the principal allegations contained in the notice ofresolution as well as other criticisms of the President and appealing for theabolition of the Executive Presidential system and the restoration of ParliamentaryDemocracy making the Executive directly responsible to Parliament. Thiscampaign also revealed that opposition members had been associated withthe petitioner in regard to the notice of resolution and that the petitioners desiredthe widest possible publicity for their views, it was claimed that 47 members ofthe UNP had signed the notice of resolution.
On 03 September 1991, 116 members of the Government Parliamentary Grouppresented to the Speaker a writing dated 30 August 1991 stating that they donot support the resolution and those of them who had signed it were withdrawingtheir signatures and consent and they claimed that they had signed throughmistake or because of misrepresentation.
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On 05 September 1991 the petitioners anticipating disciplinary action by the Partyfor expulsion instituted actions in the District Court of Colombo for declarationsand injunctions against steps being taken for their expulsion. On 06 September1991 they were refused relief. Before they could go to the Court of appeal, theDisciplinary Committee of the Party met the same evening and recommendedexpulsion. A meeting of the working Committee followed immediately thereafter,and a resolution for the expulsion of all eight petitioners was passed. On 07September 1991 the 2500 strong National Executive Committee (NEC)unanimously endorsed that decision. By letters dated 09 September 1991 thepetitioners were informed that they were expelled from the party with effect from06 September 1991 by a decision of the Working Committee. No reference wasmade to NEC's endorsement.
The petitioners continued their public campaign through meetings and ralliescountrywide, press conferences and publicity in the media.
The petitioners filed the present applications and their principal challenge wason the following grounds :
Absence of jurisdiction in the Working Committee.
Inconsistency with the provisions of the Constitution and StatuteLaw.
Breach of the rules of natural justice particularly the audi alterampartem rule.
Bias and mala tides.
Held :
The resolution of the NEC (passed on 19 April 1991) by using the phrase * fullpowers to carry out the responsibilities and functions of the National ExecutiveCouncil " manifests an intention to delegate all powers, duties and functionsincluding the responsibility and the function in relation to disciplinary matters.
The Party Constitution does not treat the Working Committee as a subordinatebody to be entrusted only with routine matters of daily administration. Rule 8(3) (m) of the U.N.P. Constitution expressly empowered the National ExecutiveCommittee (NEC) to vest all or any of its powers and duties whether expresslyenumerated or not on the Working Committee. The delegation in question doesnot purport to be permanent or irrevocable, and thus there is no denudation ofits powers by the Executive Committee. Its size the difficulty of having frequentmeetings, and the complexity of the decision – making process in a large bodyare matters which the Executive Committee could legitimately have taken intoaccount in delegating its powers to a smaller Working Committee selected fromamong its own members. The Executive Committee was authorised to and didvalidly vest in or delegate to the Working Committee its disciplinary powers underRule 8 (3) (m). The Working Committee had jurisdiction to take disciplinary actionagainst the petitioners.
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Our Constitution confers primacy to the political party as against the individualM.P. The party carries the mandate of the electors and in turn gives a mandateto the M.P. The exercise of the rights of the petitioners qua MP's is subordinateto the requirements of party discipline and their freedom to agitate matters inpublic is constrained by reason of their obligations to the party which they havefreely undertaken to honour. Issues in regard to leadership and the system ofgovernment are matters of prime importance to the party and dissenting viewsshould have been the subject of internal discussion before being ventilated outsideparty circles. The internal discussion procedure was mandatory even if the internaldecision might not be binding. A member is not reduced to the position of amere cog in the party machine. Some of his constitutional functions are essentiallydiscretionary and quasi – judicial, some even judicial. Thus article 4 (c) enablesParliament to exercise the judicial power of the people in regard to parliamentaryprivilege.
Any member of Parliament was entitled to sign the notice of resolution in theexercise of his independent judgment and discretion. Signing a notice intendedto be presented, and in fact presented to Parliament in respect of a matter withinits province is a proceeding in Parliament. Freedom of speech (and thought,conscience and expression) clearly embraces the people's right to know, the widedissemination of information and opinions, the public discussion of all mattersof public concern and criticism, however strongly worded, and even if foolish andwithout moderation, of public measures and government action, all this, of course,by peaceful means and without incitement to violence. However this does notentitle the petitioners to relief because they are also charged with the failure toraise these matters internally.
Per Fernando, J.
“ The rules of a Political Party are not a mere matter of contract but the basisof the exercise of the freedom of association recognised by Ahicle 14 (1) (c).
One of the conditions on which party members agreed to exercise this fundamentalright was by mutually accepting reciprocal obligations placing limitations on theexercise of the freedom of speech by each other, in the interests of theirassociation
The ground of expulsion is the signing of the resolution without first raising itwithin the party organisation or the government Parliamentary Group.
As the petitioner in S.C. (Special) 5/91 and the petitioner in S.C. (Special)8/91 lied and deceived the cabinet and have offered no explanation in their affidavitand none is found in the documents their misconduct was grave and expulsionwas intrinsically a proper penalty. Expulsion of these two petitioners was valid.
The allegations against the District Judge of Colombo should be expunged.
Held further (Fernando, J. dissenting).
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The conduct of the petitioners including senior Parliamentarians in disclosing inpublic the serious allegations contained in the resolution cannot be construedas bona fide, and gives credence to the allegation that they used the resolutionas a cover to cause insult and injury to the character, integrity and ability ofthe leader of the party in his capacity as President of the country. Suchcontumacious conduct constitutes indiscipline in the party unrelated to the exerciseof constitutional rights.
The petitioner's rights were not materially affected by the order of expulsion. Allthe issues here relate to legal matters arising upon admitted facts. The subsequenthearing in the Supreme Court is in substance the right to an antecedenthearing. No injustice was caused to the petitioners by their being deprived ofan opportunity to give an explanation before the Working Committee. The expulsionshad not yet taken effect and their validity is to be decided by the Court Therehas been no violation of the rules of natural justice.
The allegations of bias and mala tides have not been substantiated.
The expulsions of the petitioners in cases S.C. (Special) 4/91, 6/91, 7/91, 9/91,10/91 and 11/91 were also valid and justified.
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R v. Aston University Senate ex p. Roffey [1969] 2 QB 538.
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APPLICATION under and in terms of Article 99 (13) (a) of the Constitutionchallenging expulsion from the United National Party.
H. L De Silva, PC, M. L M. Ameen, PC, Neville De J. Seneviratne, R. K. W.Goonesekera, E. D. Wickramanayake, Ranjan Gooneratne, S. L Gunesekera,Gomin Dayasiri, Neil Dias, Ranjith Fernando, Mahendra Amarasekera, DhamsiriFonseka, T. M. S. Nanayakkara, S. T. Jayanaga, Nigel Hatch, Upul Jayasooriya,Mangala Ranaraja, Nalin Dissanayake, Ian Fernando and H. B. Maddumabandafor Petitioners in all eight applications.
K. N. Choksy, P.C., S.C. Crosette – Thambiah, Daya Pelpola, S. J. Mohideen,D. H. N. Jayamaha, Lalith W. Jayawickrema, A. L Brito – Mutunayagam, RonaldPerera and Lakshman Ranasinghe for 1 to 4 respondents in all eight applications.
No appearance for the 5th respondent.
Cur. adv. vult.
December 03, 1991.
FERNANDO, J.
Eight Members of Parliament applied to this Court, by petitions interms of Article 99 (13) (a) of the Constitution, challenging theirexpulsion from the United National Party (“ the Party "), a recognizedpolitical party. The questions of fact and law involved are, exceptin one respect, identical, and the parties agreed that all eight petitionsbe heard and determined together. It was further agreed that the factswere not seriously in dispute, and that any contested question of factshould be determined on the basis of the several affidavits filed,without the need for oral evidence or cross examination of deponents.
SCGamini Dissanayake v. M. C. M. Kaleel and Others (Fernando, J.)143
1. THE FACTS
In late August 1991 a sudden crisis occurred in the Party, when itbecame known that notice had been given of a resolution in termsof Article 38 (2) (a) of the Constitution by more than one-half of thewhole number of Members of Parliament. The petitioners haveproduced a copy of this notice ; it is undated, does not contain thenames, signatures or initials of the signatories, and is notauthenticated in any way ; the Respondents have not denied thatit is indeed a copy of the notice, and so I accept it as a correctcopy. The requisite number of signatures could not have been obtainedunless Party Members also were included. The eight Petitionersadmittedly signed this notice ; when, we have not been told. It issaid that forty Party Members signed, but subsequently (after 28.8.91)some claimed that they had not signed, or had signed through mistakeor misrepresentation, and others withdrew or revoked their signatures.However, it is unnecessary for me to decide any of these intriguingquestions as to the number of signatories, the validity of the signaturesand of the notice itself, and the entertainment of the notice by theSpeaker. It is clear that this notice was the rsult of a secret campaignfor some time prior to August 1991 by Opposition Members ofParliament, the Petitioners, and some other Government Members.It is also admitted that although the notice refers to serious criticismsof the President's conduct from the inception of his period of office,at no stage had the Petitioners expressed any criticism or dissentwhatsoever, either publicly or within the inner councils of the Party.Likewise, they had expressed no criticism or reservation regardingthe Executive Presidential system embodied in the 1978 Constitution,with a view to its abolition or reform or otherwise, except that,according to a newspaper report produced by the Respondents, Mr.Gamini Dissanayake (the Petitioner in S.C. 4/91) stated (in September1991) that in 1989, at a joint meeting of trade unions, he hadadvocated the abolition of the Executive Presidential system for thesolution of the problems of the country, and that the President wasaware of this. The notice was delivered to the Speaker on 27.8.91,or perhaps shortly before. By a letter dated 28.8.91 the Speakerinformed the President that he had entertained a resolution complyingwith Article 38 (2) (a) and (b). Neither this letter nor a copy has beenproduced, but another document reproduces its contents, as to whichthere is thus now no dispute. It. would seem that this letter wasoriginally dated 27.8.91, and then altered to 28.8.91. A copy of the
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notice itself was not sent to the President. The Speaker's letter wasreceived by the President whilst a Cabinet meeting was in progress;two Petitioners (Messrs G. M. Premachandra and Lalith Athulathmudali)being then Cabinet Ministers, were present. A vote of confidence inthe President was called for, and those present, including those twoPetitioners, unanimously expressed their support for the President bya show of hands. However, it later became known that they supportedthe notice, and they resigned from the Cabinet on 30.8.91.
According to a newspaper report on 31.8.91 of a Press Conferenceheld on 30.8.91, at which Messrs Premachandra and Athulathmudaliwere present,
" Asked how it was possible for Messrs Athulathmudali andPremachandra to subscribe to the unanimous expressing ofconfidence in President Premadasa at last Wednesday's cabinetmeeting, Mr. Athulathmudali said the motion had been signed afterthe cabinet meeting. "
Another newspaper account of a farewell speech by Mr.Athulathmudali to his Ministry staff a day or two later, quotes himas having said that he did not sign the notice while he was in theCabinet, but only after resigning. According to yet another report,
11 Mr. Athulathmudali said that at the Cabinet meeting there wasa show of hands. This happened subsequently, he said and addedthere is no inconsistency between raising your hand and thenoffering to resign'."
These reports have not been contradicted. On being asked whetherMr. Athulathmudali signed the notice before or after the vote ofconfidence, learned President's Counsel, after speaking to him, statedto us that he had no clear instructions on this point.
On 30.8.91 the President (who was precluded by Article 70 (1)(c) from dissolving Parliament " after the Speaker has entertaineda resolution complying with " Article 38 (2) (a) and (b)) proroguedParliament until 24.9.91.
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Between 30.8.91 and 6.9.91 the Petitioners commenced a publiccampaign, reiterating the principal allegations contained in the noticeof resolution, as well as other criticisms of the President andappealing for the abolition (and not merely the reform) of theExecutive Presidential system and the restoration of ParliamentaryDemocracy making the Executive directly responsible to Parliament.This campaign also revealed that Opposition Members had beenassociated with the Petitioners in regard to the notice of resolution,and that the Petitioners desired the widest possible publicity for theirviews.
On 5.9.91, the Petitioners, anticipating disciplinary action by theParty for expulsion, instituted actions in the District Court of Colombofor declarations and injunctions ; on 6.9.91 they were refusedrelief. Before they could go to the Court of Appeal, the DisciplinaryCommittee of the Party met the same evening, and recommendedexpulsion ; a meeting of the Working Committee followed immediatelythereafter, and a resolution for the expulsion of all eight Petitionerswas passed. That resolution recited that the President is ex officiothe Leader of the Party ; that the eight Petitioners were bound bythe Party Constitution and had been elected to Parliament on theParty list ; that in the District Court proceedings they had admittedsigning the notice of resolution for the removal of the President ;and then set out the grounds of expulsion thus :
AND WHEREAS the signing . of the aforesaid Resolution,together with several Members of the Opposition in Parliament,is an act of betrayal of the Party membership and the confidenceplaced by the people in the Party and its leadership at successiveelections,
AND WHEREAS after the Hon. Speaker had informed the Presi-dent he had entertained the said Notice of Resolution under Article38(2), Messrs G. M. Premachandra and Lalith Athulathmudali hadin addition deliberately misled and deceived the Cabinet of Min-isters on the 28th of August, 1991, into believing that they wereignorant of and were not associated with the notice of the Resolution,by joining the rest of the Members of the Cabinet in passing anunanimous Vote of Confidence in the President by a show of handsindividually,
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AND WHEREAS the aforesaid eight members have signed thesaid Notice of Resolution without any prior intimation to the Partyor raising or discussing the same within the Party organizationor the Government Parliamentary Group,
AND WHEREAS the said eight members had at the GeneralElection of February 1989 sought and obtained nomination on theLists of the United National Party and the voters had elected themto Parliament on the basis and understanding that they are membersand candidates of the United National Party who accept theLeadership of the Party and the Executive Presidential system ofGovernment, and are therefore bound to adhere to the PartyManifesto and Party Constitution and policies whilst beingrepresentatives of the Party in Parliament,
AND WHEREAS it has been and continues to be the principleand policy of the United National Party that the Government ofthe country should consist of an Executive President elected bythe people and an elected Parliament,
AND WHEREAS the aforesaid members have since the givingof the said Notice of Resolution to the Speaker repeatedlyannounced in public that they are against the elected ExecutivePresidential system, and have also used this as a cover to causeinsult and injury to the character, integrity and ability of the Leaderof the Party in his capacity as President of the country,
AND WHEREAS the aforesaid acts have all been done by thesaid eight members without first raising the said issues within theParty organization or the Government Parliamentary Group as isrequired by the Party Constitution and conventions,
AND WHEREAS the Disciplinary Committee has on the basisof the aforesaid recommended to the Working Committee of theParty that disciplinary action be taken against the said eightmembers for their flagrant conduct in violating the Constitution,conventions, policies and procedures of the Party,
AND WHEREAS the Working Committee having considered theaforesaid conduct and actions of the said eight members and therecommendation of the Disciplinary Committee has come to the
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conclusion that these members have manifestly and flagrantly andin disregard of Party discipline, duties and responsibilities, breachedthe conditions of membership of the Party, acted contrary to theprinciples and policies of the Party, repudiated and violated theConstitution and conventions of the Party, and brought the Partyand its leadership into disrepute and held it up to public ridicule.
The Working Committee accordingly resolves that the afore-said eight members be expelled from the membership of theUnited National Party with effect from 6th September, 1991.
The Working Committee further resolves that the GeneralSecretary of the Party notifies the Secretary General of Parliamentand the Commissioner of Elections of the expulsion of the aforesaideight members.
On 7.9.91, the National Executive Committee unanimously" endorsed " that decision. All this was without any notice whateverto the Petitioners. By letters dated 9.9.91 each of the Petitioners wasinformed that he had been expelled from membership of the Party,with effect from 6.9.91, by a decision of the Working Committee ;no reference was made to the National Executive Committee's" endorsement " of that decision ; a copy of the expulsion resolutionwas also sent.
Thereafter the Petitioners continued their public campaign.Although it has been submitted that the Petitioners were only seekingthe reform of certain anomalies in the Executive Presidential system,the material before us establishes that, throughout, the issuepresented to the public was " Executive Presidency versusParliamentary Democracy." Parliament met on 24.9.91 ; on 8.10.91the Speaker announced to Parliament that, having inquired into thematter, he was of the view that the notice of resolution did not havethe required number of valid signatures and hence could not beproceeded with. On 4.10.91 these petitions were filed.
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ALLEGATION OF BIAS AGAINST DISTRICT JUDGE
The petition in each case, makes reference to the unsuccessfulactions filed in the District Court of Colombo on 5.9.91. Paragraph21 of the petition, and paragraph 22 of the affidavit (in S.C. (Special)No. 4/91), filed in this Court, refer to a speech made by the DistrictJudge of Colombo, as President of the Judicial Service Association,at the Annual Conference of the Association, welcoming the President.In the course of that speech, the District Judge conveyed theappreciation of the members of the minor judiciary of the practiceof promoting senior judges of the minor judiciary to the High Court,and of steps taken in relation to the welfare and conditions of serviceof the members of the minor judiciary, making special mention ofhousing schemes and cars. Such action, he said, was in recognitionof the fact that the judiciary is a vital and integral part of the state,especially in maintaining peace and order. These issues were inno sense personal to the District Judge himself, but related to mattersof legitimate interest and concern to all members of the Association.It was a formal and open expression of gratitude for the provisionof facilities which did not unduly favour the minor judiciary, but whichenabled at least the majority of them to enjoy facilities comparableto public officers. He assumed that judicial officers may, like OliverTwist, ask for more and may give thanks for what they get.
However each Petitioner proceeded to allege that he " has reasonto believe in all the circumstances that justice was* not seen to bedone in his case this was re-iterated in counter-affidavits dated
Learned President's Counsel concluded his submissions onbehalf of the Petitioner on 4.11.91 without in any way relying on thisallegation to support the prayer for relief under Article 99 (13) (a).
These applications are not by way of appeal from, or review orre-consideration of, the proceedings or order in the District Court. Theinsinuation of partiality is in no way relevant to the issues of factand law arising in these applications. We are therefore not calledupon in any way to determine whether that allegation was justified,or even whether there was a reasonable suspicion of bias requiringthe District Judge to disqualify himself. Indeed, if we were to considerwhether there was substance in that allegation, we would be doingso in proceedings to which the District Judge is not, and could nothave been, a respondent, and we would thereby be denying to him
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what the Petitioners claim for themselves, namely the protection ofthe audi alteram partem rule.
In these circumstances we indicated to learned President'sCounsel on 4.11.91 that the pleadings filed in this Court should nothave contained such an obviously irrelevant allegation of bias, andone based on such tenuous grounds ; that this Court could not ignorethe aspersions cast on a judicial officer, of an inferior court butnevertheless an integral part of the judiciary of Sri Lanka ; and thatin the circumstances it seemed right that allegation should no longerbe permitted to remain on the record. Learned Presidents Counselwished to have time for consideration. On 13.11.91, at the conclusionof his submissions in reply, he informed us that the Petitioners, whilere-affirming that they suffer a deep sense of grievance that they weredenied justice when they sought relief in the District Court, never-theless recognised the force of our observations that no finding waspossible on that allegation, and while reserving their right to take upthe matter elsewhere, desired to withdraw the offending averments.
These proceedings involve important questions of law as to thestatus, rights and powers of the Executive President, vis-a-visParliament and Members of Parliament, and the Petitioners seek tovindicate the rights and privileges of Parliament and its Members.When the jurisdiction of this Court is invoked for such purposes, itis more than ordinarily important that nothing should be done unfairlyto impair the independence, and the reputation, of the judiciary orany section of it. Unsuccessful litigants may labour under a senseof grievance, in respect of orders which are either wrong or believedto be wrong ; they have the right to avail themselves of all suchremedies as the law allows, but they are not at liberty to use judicialproceedings recklessly to scatter allegations of partiality. Neither thePetitioners nor their legal advisers should have permitted this baseallegation to be made, and persisted in. It does not redound to thecredit of those professing to enhance democratic institutions andpractices in Sri Lanka, that there was not even a perfunctoryexpression of regret for the injury to the judiciary and the officerconcerned. However, as the allegation was made in restrained terms,in this instance we merely direct the Registrar, to expunge theoffending passages from the record, namely :
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the entirety of paragraph 21 of the petition dated 4.10.91,and paragraph 22 of the supporting affidavit, in S.C. (Special)No 4/91 ; and
the last sentence of paragraph 9 of the counter-affidavit dated
26.10.91,
as well as the corresponding passages in the other seven cases.
THE ALLEGATIONS AGAINST THE PETITIONERS
Learned President's Counsel for the 1 st to 4th Respondents submittedthat the Petitioners were expelled not for signing the notice of resolution,jor for advocating the abolition of the Executive Presidential system,but for their failure to give prior intimation to the proper Partyorganisations (such as the Executive Committee, the WorkingCommittee and the Government Parliamentary Group). Further,after signing that notice, they had used their campaign against theExecutive Presidential system as a cover to cause insult and injuryto the character, integrity and ability of the Leader of the Party inhis capacity as President. In addition, Messrs Premachandra andAthulathmudali had deceived the Cabinet on 28.8.91.
The Petitioners, however, construe the expulsion resolutiondifferently, and say it contains five distinct charges:
1. In regard to the notice of resolution :
That the act of signing, together with OppositionMembers, constituted a bertrayal of the Party ; both themembership and the leadership ;
That Messrs Premachandra and Athulathmudali haddeceived the Cabinet into believing that they were notassociated with the resolution ; and
That the notice had been signed without prior intimationor discussion within the Party organisations.
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2. In regard to the Executive Presidential system :
That having obtained Party nomination, and having beenelected on the basis of their acceptance of the PartyLeadership and the Executive Presidential system, andbeing bound by the Party Constitution, manifesto,principles and policies (one principle and policy being thatgovernment should be by an Executive President electedby the people and an elected Parliament), they hadrepeatedly announced in public their opposition to thisExecutive Presidential system, without first raising thesaid issues within the Party organisations or theGovernment Parliamentary Group ; and
That they had used this as a cover to cause insult andinjury to the character, integrity and ability of the leaderof the Party in his capacity as President.
Learned President's Counsel for the Respondents sought topersuade us that the gravamen of the charge was the lack of priorintimation and internal discussion – which might have transformedthe winter of their discontent into glorious summer of Party unity. Thiswas principally on the basis that the eighth and ninth recitals in theexpulsion resolution set out the recommendation of the DisciplinaryCommittee and the decision of the Working Committee ; that theseventh recital contains the operative charge ; namely the failure toraise those issues internally ; and that the first six recitals merelystate other ingredients (alternative or cumulative) relevent to thatcharge. Since the seventh recital refers to " all" the aforesaid actsthere is some justification for regarding it as referring to all thepreceding recitals ; not being a charge in a criminal proceeding, ahigh degree of precision is not expected. However such a constructionresults in some anomalies. That recital is not relevant at all to thesecond recital ; it is unnecessarily repetitive of the third recital ; itis quite inappropriate to the allegation of causing insult and injury.Further, the first recital is an independent charge, complete in itself:that signing the notice, together with Opposition Members, was anact of betrayal. The seventh recital could therefore be moreappropriately read as applicable only to the sixth, though not to theallegation of causing insult and injury ; or perhaps even as only anaggravating element. Before deciding which of these competing
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interpretations is correct, it is relevant to see how the partiesunderstood that resolution. The Petitioners averred in their petitionsthat they could not legally be expelled on the ground that they signedthe notice of resolution, setting out severed independent contentions;that the act of signing was not a violation of the Party Constitution,conventions, policies, principles or discipline; that Party rules cannotoverride the Constitution ; that they had a Constitutional right andpower to sign the notice ; that the act of signing was not liable tobe questioned by virtue of Parliamentary privilege ; and that the actof signing was in the exercise of the fundamental rights of freedomof thought, conscience and speech. They said nothing about theirfailure to raise the matter internally ; perhaps they had nothing tosay in exculpation, but possibly they did not consider that to be theessence of the charges. It is of some relevance that when thesepetitiohs were called on 24.10.91 to determine certain proceduralquestions, one of the matters in issue was formulated as " whetherthe signing of the [notice of] resolution under Article 38 (2) constitutesa ground for expulsion ", and the lack of prior internal discussionwas not mentioned.
The Respondents replied thus in each case :
“31.if the Petitioner had any complaint or allegations
against the Leader of the Party or desired to advocate' any change in the policy of the Party regarding theExecutive Presidential system, he was obliged and boundto first raise the same within the Organisation of the Partyand abide by the decision of the Party in regard thereto.The Petitioner at no stage raised within the Party or at
any meeting of the Government Parliamentary Group
any complaint against the Leader of the Party or againstthe Party's policy of sin Executive Presidential System."
“32. (a) The Petitioner nevertheless was a signatory to a Notice
of Resolution under Article 38 (2)for the removal
of the Party Leader from the Office of President of SriLanka. The said Notice of Resolution contained serious
allegations of a grave nature It also alleged
mental infirmity against the Leader of the Party.
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(b) Subscription to the said Notice of Resolution containingthe said allegations by a member of the Party and ofthe Government Party Group carries with it by necessaryimplication that the President is a person unfit to be theLeader of the United National Party."
"33. The Petitioner had signed the said Notice of Resolutiontogether with inter alia several Members of the Oppositionin Parliament."
u34.(a)the admitted signing of the said Notice of
Resolution by the Petitioner was an act of betrayal of
the Party Leadership and membership and was aviolation of the Party Constitution and Party responsibilityand discipline, justifying the expulsion of the Petitionerfrom the Party.
the Petitioner had no right to subscribe to such
a Notice of Resolution independently of his obligationsas a Member of the Party and of the GovernmentParliamentary Group.
In any event, the Petitioner was in violation of the PartyConstitution, discipline and responsibility in doing so withoutfirst raising the matter within the Party or the GovernmentParliamentary Group."
These averments appear to place the act of signing the noticein the forefront of the case against the Petitioners ; the failure toraise the matter internally was – as indicated by the words " in anyevent “ – an additional, and subsidiary, charge. This impression isreinforced by the Respondents' explanation for not talking similaraction against other Party Members who signed the notice:
"24. (a) all remaining 116 members of the Government
Parliamentary Group signed documents dated 30th August1991 and 2nd September 1991 disassociating them-selves with the Notice of Resolution under Article 38 (2)of the Constitution and expressing their opposition tosuch Resolution. These documents were presented inperson by the said 116 members to the Honourable
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Speaker on 3rd September 1991. Accordingly nodisciplinary action was taken against any other memberwho may have signed the said Notice of Resolution. Atthe meeting of the Working Committee held on 15thOctober 1991 the Committee required the DisciplinaryCommittee to consider and make recommendations inregard to disciplinary action if any against three membersof the Government Parliamentary Group who haverecently associated themselves in the political activitiesof the Petitioner and the other seven members."
The stress is on disciplinary action for " signing not on theabsence of prior internal discussion. These objections were filed on
The Petitioners were required to file their counter-affidavitsby 28.10.91, after giving notice to the Respondents by 27.10.91.While denying paragraphs 24 (a), and 31 to 34, they averred thatthe Party was not irrevocably committed to the Executive Presidentialsystem, and that " this question was not raised [internally] for thereason that there did not exist a degree of freedom necessary toraise questions which would involve a curtailment of Presidentialpower this they did not elaborate.
It is thus likely that there was some confusion in the minds ofmembers of the Working Committee. The minutes of the WorkingCommittee show that the 2nd Respondent, as General Secretary,made a fair and comprehensive report in respect of the proceedingsand recommendations of the Disciplinary Committee ; with, however,that same element of uncertainty. He referred succinctly to theDistrict Court proceedings and order, the Petitioners' admissions inregard to signing, and the very serious nature of the accusations inthe notice ; to the Petitioners' lawyers' assertion that Members ofParliament had a Constitutional right to sign such a resolution ; totwo Petitioners having misled the Cabinet; and to the public campaignagainst the Presidential system. The minutes record that" he furtherstated " that the Petitioners had not previously raised these mattersinternally ; he then stressed that this was a breach of discipline. Itwas not indicated that signing the notice was not a distinct charge.The findings or views of the Disciplinary Committee are also notspecific on this point ; but it “ was of the view that no inquiry wasnecessary because the fact of signing of the impeachment Resolutionwas admitted." The President" stated that inasmuch as the Notice
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of Resolution was directed against him, he did not wish to
participate in this discussion “ ; earlier he had not taken part in thediscussion and recommendations of the Disciplinary Committee ” inview of the Impeachment Resolution.”
Learned President's Counsel for the Respondents was himself amember of the Working Committee and participated in theproceedings of 6.9.91. On that day too his view must have been thatthe gravamen of the charge was the lack of prior internal discussions.That opinion may have been shared by others. But that position didnot clearly emerge in the Respondents' objections and the 2ndRespondent's supporting counter-affidavit.
It is therefore reasonable to infer that the 2nd respondent as wellas other members of both Committees did think that one of the maincharges was the act of signing the notice. Had attention beingfocussed on this matter, it might have been determined, afterdiscussion, that the issue was not the fact of signing. But that didnot happen. It appears to me that the better view of the expulsionresolution is that one of the grounds for expulsion was the fact ofsigning. That gives rise to serious questions. Could some membershave taken the view that the resolution contained very seriousaccusations, and that a Party member who signed it was guilty ofserious misconduct, warranting expulsion ? If so, could they haveproperly formed such a view where the text of the notice was notavailable ? Had those members been told that was not the charge,and that the real allegation was the failure to resort to internalprocedures, would they have considered it appropriate to impose alesser punishment – such as a brief suspension to be reviewed afterthe resolution was taken up in Parliament ? This means howeverthat one does not really know whether the Petitioners were expelledfor signing the resolution, or for the procedural lapse. Uponconsideration of the resolution and the pleadings, however, I amcompelled to treat the expulsion as involving five distinct charges.
CAN THE WORKING COMMITTEE EXPEL A MEMBER ?
Rule 8 of the Party Constitution establishes a National ExecutiveCommittee consisting of ex officio members (such as Membersof Parliament) and members elected by the (annual) PartyConvention ; It presently has over 2,500 members. It is required to
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meet at least once in every six months. It is " the administrativeauthority of the Party, subject to the directions and control of theParty Convention, and its decisions shall be final, subject to reviewby the Party Convention." Rule 8 (3) provides that " its duties shallinclude the following." Having enumerated various duties, such asconferring with the Parliamentary Party, convening Party conventions,proposing amendments to the Party Constitution, organisingelection funds, adjudicating on disputes between Party organisations,appointing Nomination Boards and sub-Committees for elections, andappointing an auditor and certain officers, Rule 8 (3) sets out threematters relevant for present purposes –
To enforce the Constitution, Standing Orders and Rules, andthe Code of Conduct of the Party, and to take any actionit deems necessary for purpose, whether by way of disaffiliationor cancellation of an organisation or expulsion or suspensionof any individual member or office bearer from office orotherwise. The National Executive Committee shall havepower to take disciplinary action against any member,Balamandalaya, Organisation or Association in a mannersuitable in the circumstances of each case and mete out anypunishment thereof [sic]. Any such action shall be reportedto the next Annual Convention of the Party.
To see that all its officers and members conform to theConstitution and Standing Orders of the Party.
Leader of the Party shall appoint a Working Committee fromthe National Executive Committee consisting of himself, DeputyLeader and all other office bearers and any other membersnot exceeding fifty (50). The Working Committee shall havethe authority to exercise the powers and functions vested init by the National Executive Committee."
The last of these is in no sense a “duty" of the Executive Committee,but is an independent provision.
There can be no dispute that the Executive Committee has the"duty" to enforce the Party Constitution and relevant rules, and the"duty" as well as the "power" to take disciplinary action againstmembers, including expulsion, suspension and other punishments.
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Learned President's Counsel for the Petitioner contends that
the disciplinary jurisdiction of the Executive Committee cannot be
exercised by the Working Committee, for several reasons :
The Executive Committee is a large, elected body, representativeof various sections of the Party ; the Working Committee is asmall body, appointed by the Leader of the Party from amongthe members of the Executive Committee, and therefore not trulyrepresentative of the Party. The plenary power of Administrationwas vested in the Executive Committee, including punitive powersof expulsion. The Rules as a whole do not manifest an intentionthat these powers may be transferred or delegated to any otherbody.
Rule 8 (3) (m) appears to authorise the Executive Committeeto " vest " powers and functions in the Working Committee. Itmakes no mention of the procedure to be followed in regard tosuch " vesting." However, “ vesting “ more than “ delegation ",and amounts to an abdication, renunciation divesting of a powerby the Executive Committee ; if such a " vesting " does occurthere will be a Constitutional change in that a power previouslyvested in the Executive Committee will thereafter be vested inthe Working Committee. Accordingly, such a “ vesting " can onlybe effected by means of a Constitutional amendment ; not bya mere resolution of the Executive Committee.
In any event, even if Rule 8 (3) (m) permits some " vesting "of powers by resolution, this would not extend to any of thepowers and duties expressly enumerated in Rule 8 (3), but onlyto incidental matters and routine matters of day-to-dayadministration.
Even if expressly enumerated powers and duties can be“ vested ”, yet they cannot be transferred in toto, so as to denudethe Executive Committee of all its powers.
In any event the resolution proposed at a meeting of theExecutive Committee held on 19.4.91 –
" It is hereby proposed that the Working Committee of the Partybe vested with full powers to carry out the responsibilities andfunctions of the National Executive Committee of the Party ” –
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is vague, and is ineffective to clothe the Working Committee withdisciplinary powers. Further, the minutes of the meeting do notrecord that the resolution was passed.
The Court should adopt a strict construction, presuming, firstly,that the Party Constitution does not, in general, allow" vesting " or delegation, in the absence of clear and expressprovision ; and, secondly, that, even if there was such provision,disciplinary powers of this nature were not intended to betransferred.
The minutes of the Executive Committee meeting of 19.4.91 areundoubtedly defective. Two resolutions are mentioned, but it is notstated that they were adopted. Had there been no other material,
I would have held that the Executive Committee had not vestedits disciplinary powers in the Working Committee. However,the Petitioners were ex officio members of the Executive Committee;they would have had notice of that meeting, and may have beenpresent ; they could certainly have ascertained what transpired. Itwas averred in the petitions that only the Executive Committee hasdisciplinary powers ; the Respondents replied annexing the minutesof the meeting of 19.4.91 whereby, they said, " the powers andfunctions of the National Executive Committee were by resolutionvested in the Working Committee under [Rule 8 (3) (m)] ". ThePetitioners obtained leave to reply ; however, even in theircounter-affidavits they did not claim that the resolution had not beenpassed ; instead they merely questioned the effect of that resolution,by asserting that it did not enable the Working Committee to exercisethe disciplinary powers vested in the Executive Committee, for thereason that it purported to effect a Constitutional amendment. If thePetitioners were seriously contending that the resolution had onlybeen proposed, but not passed, that allegation should have beenmade clearly, specifically and directly. I am satisfied that theresolution had been passed at the meeting, although the minutesare defective. I also hold that the resolution is not vague. Althoughthe opening words of Rule 8 (3) refer to “ duties ", it proceeds toenumerate a host of powers, duties and functions. The resolution,by using the phrase “ full powers to carry out the responsibilitiesand functions ", manifests an intention to delegate al! powers, dutiesand functions, including the “ responsibility ” and the " function "referred to in Rule 8 (3) (a) in relation to disciplinary matters.
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It is clear that discretionary powers, whether conferred by statuteor by agreement, must in general be exercised by the designatedrepositary of those powers.
u An element which is essential to the lawful exercise of poweris that it should be exercised by the authority upon whom it isconferred, and by no one else. The principle is strictly applied,even where it causes administrative inconvenience, except incases where it may reasonably be inferred that the power was
intended to be delegable
The maxim delegatus non potest delegare is sometimes invokedas if it embodied some general principle that made it legallyimpossible for statutory authority to be delegated. In reality thereis no such principle ; and the maxim plays no real part in thedecision of cases, though it is sometimes used as a convenientlabel. Its proper home is in the law of agency, where it expressesthe point that a principal who must accept liability for the actsof his agent need not accept it for the acts of his agent'sagent ; but even here there are wide exceptions. In the case ofstatutory powers the important question is whether, on a trueconstruction of the Act, it is intended that a power conferred uponA may be exercised on A's authority by B. The maxim merelyindicates that this is not normally allowable. For this purpose nodistinction need be drawn between delegation and agency.Whichever term is employed, the question of the true intent ofthe Act remains (Wade, Administrative Law, 5th Editionpp 319-320)
This is not an instance where from its very nature, the powerto delegate can be inferred. However, Rule 8 (3) (m) appears topermit the Executive Committee to authorise the Working Committeeto exercise powers conferred on the former. Learned PresidentsCounsel's contentions depend almost entirely on the meaning ofthe word " vest which he seeks to equate to ” abdicate ”,“ renounce “ or “ alienate ”, permanently and irrevocably. On beingasked the ordinary meaning of the word, in the context of powerand authority, his reply was that it meant 0 clothe ". In law, wherea grantor “ clothes “ another with power or authority, there is noimplication of a denudation of the grantor's powers, nor ofirrevocability or permanency. That is also the plain meaning of theword, in every day usage and in literature, as evidenced in
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Shakespeare’s immortal lines : " Man, proud man, dressed ina little brief authority To dress a grantee with authority, or to clothe,or vest, him with power, does not imply an irrevocable and permanentrenunciation of his powers by the grantor, ” Vest ” is thus akin to" delegate ", rather than to " abdicate ", “ Vest " is used in thatsense in the Constitution (e.g. in Articles 118 (g) and 138 (2)).Parliament is authorised by Article 4 (c) directly to exercise the judicialpower of the people in regard to matters relating to the privileges,immunities and powers of Parliament and its Members. If Parliamentwere, by law passed in terms of Article 138 (2), to " vest " in theCourt of Appeal power and jurisdiction in respect of the immunitiesof Members of Parliament, this would be an exercise of legislativepower permitted by, and consistent with, the Constitution. Neither suchexercise, nor the result of such exercise, would be inconsistent withthe Constitution. Therefore no question of amending the Constitutioncan arise, and an ordinary law would suffice. In particular, suchvesting would not involve an abdication or alienation of legislativepower in violation of Article 76. In the same way, the ExecutiveCommittee is authorised directly to exercise disciplinary powers ; ifby resolution the Executive Committee " vests “ such powers in theWorking Committee, that is permitted by, and consistent with Rule8 (3) (m). Neither the act, nor the result, of such vesting is inconsistent' with the Party Constitution ; hence no question of amending the PartyConstitution arises, and a resolution is sufficient. A somewhat similarproblem arose in Wickramabahu v. Herath, (,) where it was heldthat :
" If in respect of a fundamental right recognised by Article 13
and (2), an Emergency regulation imposes a restriction whichis permitted by Article 15 (7), such regulation does not over-ride,suspend or amend any provision of the Constitution ; it is arestriction permitted by the Constitution, and is both intra vires andconsonant with the Constitution, and therefore does not ’over-ride’the Constitution.”
I hold that the exercise of a power to " vest" permitted by Rule8 (3) (m) does not over-ride or conflict with the Rules, but is consistentwith the Rules, and requires no amendment of the Rules.
The Petitioners further contend that Rule 8 (3) (m) does notexpressly permit the transfer of disciplinary powers, and that, even
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if it did, both the nature of those powers and the nature of the twoCommittees justify a presumption that the Rules did not contemplateany delegation. Undoubtedly, that Rule does not specifically authorisedelegation of disciplinary powers : it might have said " all or anyof the powers and functions ", or ” including those specified inparagraph (a) ”, and the matter would then have been unarguable.But in my view such a provision was unnecessary. Rule 8 (3) (m)as it stands makes express provision covering the vesting ofdisciplinary powers :
“express provision is provision the applicability of which
does not arise by inferenceThe fact that the language used
is wide and comprehensive and covers many points other thanthe one immediately under discussion does not make it possibleto say that its application can arise by inference only. To be'express provision' with regard to something it is not necessarythat thing should be specially mentioned ; it is sufficient that itis directly covered by the language however broad the languagemay be which covers it so long as the applicability arises directlyfrom the language used and not by inference therefrom."Shanmugam v. Commissioner for Registration of I. and P.Residents (2).
There is neither a prohibition on vesting any of the enumeratedpowers and functions, nor any restriction permitting delegation onlyin respect of minor or routine matters. Although Rule 8 (2) refersto the Executive Committee as " the administrative authority ", thereare numerous other Rules directly conferring important administrativepowers and functions on the Working Committee, such as :
Notwithstanding any other provision, the Working Committeehas the power to dissolve any District Balamandalaya, PollingDivision Organisation, or Main Association (Rule. 2A(4)).
The Nomination Board appointed by the Working Committee,in consultation with the Working Committee; shall nominatea candidate for the Presidency (Rule 9 (a)), as well ascandidates for other elections (Rule 9(b)).
When a vacancy occurs in the office of President, theParliamentary Party in a joint session with the WorkingCommittee shall select the Party candidate (Rule 9 (c)).
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It has the power to approve the constitution and therecognition of local and affiliated organisations (Rules 2A(1),2A(2), 2A(6) and 3(1)(e)).
It may issue directives to members as to their attitude atelections where there is no Party candidate (Rule 3 (1)(c)).
It has power to correct any mistake or omission in, andto give necessary directions in the interpretation andimplementation of, the Party Constitution (Rule 21).
The Party Constitution thus does not treat the Working Committeeas a subordinate body to be entrusted only with routine matters ofdaily administration. I hold that Rule 8 (3) (m) expressly empoweredthe Executive Committee to vest all or any of its powers and dutieswhether expressly enumerated or not. The delegation in question doesnot purport to be permanent or irrevocable, and thus there has beenin fact no " denudation ” of its powers by the Executive Committee;it is unnecessary to consider whether any such " denudation " wouldbe of no effect. Its size, the difficulty of having frequent meetings,and the complexity of the decision-making process in a large body,are matters which the Executive Committee could legitimately havetaken into account in delegating its powers to a smaller WorkingCommittee selected from among its own members ; the ExecutiveCommittee remained free at any subsequent meeting to revoke orvary such delegation. In particular, it could justifiably have taken theview that the advantage of itself conducting disciplinary inquiries wasfar outweighed by the disadvantages.
It remains to consider the final submission that it is easier todelegate an administrative function than a judicial function : Youngv. Fife Regional Council, (3) ; and that even if all other powers andduties may be delegated very different considerations apply to thedelegation of disciplinary powers:
“ A statutory power to delegate functions, even if expressedin wide general terms, will not necessarily extend to everything.Thus it has been held that the General Medical Council must itselfexercise its disciplinary powers over dentists and cannot delegatethem to its executive committee, even though it has expressstatutory power to act through such a committee for the purpose
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of its functions under the Dentists Acts. In the case of Importantjudicial and disciplinary functions the court may be disposed toconstrue general powers of delegation restrictively.” (Wade,Administrative Law, 5th Edition p. 325)
General Medical Council v. U. K. Dental Board(4> is cited. Under theAct of 1878, the Council had no power to delegate its disciplinarypowers ; it could ascertain the facts through a Committee. In1921, the law was amended, by establishing the Dental Board. TheCouncil continued to have disciplinary powers, but the Dental Boardwas in effect substituted for the Committee. The 1921 Act furtherprovided that the Council, for the purpose of its functions, had powerto act by an executive committee of the Council. It was held thatthe Council could not delegate its disciplinary powers to suchexecutive committee. The apparently wide terms of the latter provisionwere on examination found to be inconsistent with the detailedscheme, existing from 1878, under which the Council exerciseddisciplinary powers, after obtaining a report from the Committee(and later the Dental Board). It was held that the wide terms of thatprovision were necessarily restricted by the other, and inconsistent,provisions of the statute. In the Party Constitution, there is no suchinconsistency. Further the Working Committee possesses as alreadynoted, power analogous to the disciplinary power, namely to dissolvemember organisations.
Learned President's Counsel was able to point only to twofeatures of the Party Constitution as militating against delegation of-disciplinary powers. Rule 8 (2) makes the decisions of the ExecutiveCommittee final, subject to review by the Party Convention. Ifdisciplinary powers are delegated to the Working Committee, this rightof review will be lost. It is not clear whether " review " includes theright to reverse or vary a disciplinary order, but assuming that it does,it appears to me that a decision of the Working Committee, in theexercise of delegated authority, will, for the purpose of Rule 8 (2),be deemed to be the decision of the Executive Committee, i.e. adecision made vicariously by the Executive Committee and thereforesubject to review just as a decision made directly : quio facit peralium facit per se. The second matter urged by him was that theallegations against the Petitioners related to questions of policy,and policy was a matter for definition by the Executive Committee(Rule) 9 (1)) ; hence the Executive Committee was best qualified to
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determine what policy was, and whether it had been violated. Thatis not a consideration applicable to the delegation of disciplinarypowers in general, but only against delegation in matters involvingpolicy. • In any event, it is not necessary, and may not even bedesirable, that the body which lays down policy should determinewhether there has been an infraction : just as legislatures are generallynot considered best suited to determine whether the laws enactedby them have been infringed. On the other hand, it is perfectlyreasonable to infer that a body with 2500 members was neverintended to exercise powers of a quasi-judicial nature, especiallywhere facts had to be inquired into.
I therefore hold that the Executive Committee was authorised to,and did validly, vest in or delegate to the Working Committee itsdisciplinary powers under Rule 8 (3) (m). Although argued at length,it is unnecessary to decide the further question whether the“ endorsement " by the Executive Committee of the decision of theWorking Committee constituted a valid ratification thereof.
THE GROUNDS FOR EXPULSION
Position of Member of Parliament vis-a-vis his Party
Learned President's Counsel for the Petitioners submitted that theposition of a member of Parliament vis-a-vis the political party towhich he belonged at the time of election, and his rights, powersand privileges to speak and act according to his own conscience andindependent judgement, was governed by the following principles :
Prior to 1978, a Member was not a mere delegate of hisParty, and enjoyed complete freedom of action and decisionmaking ; there was no legal fetter on his conduct in Parliament.
This position was not changed by the 1978 Constitution, andthe 14th Amendment, which did not reduce a Member toa mere cog in the Party machine. Despite the introductionof Proportional representation, other " pivotal “ provisions(especially Article 4 (a)) in regard to the position of Membersremained unchanged. The 14th Amendment could not beregarded as having altered those provisions by implication,in view of Article 82 (1) and (6).
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A Member of Parliament is “ immune from the dictatorshipof the political party to which he belongs ° because underArticle 4 (a), read with Article 3, he is an elected " repre-sentative " of the people, and not a mere "delegateParliament execises the sovereignty of the people, and theessence of sovereignty is that the body declared sovereignis free of any external restraints and is not subordinate toany other body.
Article 3 provides that sovereignty includes fundamental rights(cf. Article 4 (d)) among which are freedom of thought,conscience, speech and expression.
Article 67 preserves the privileges, immunities and powers ofParliament and its Members ; these include freedom of speechand proceedings in Parliament. If a Member cannot be suedin the Courts in respect of such matters, his conduct cannotbe impeached before the Party Working Committee, nor canhe be asked why he did not first resort to internal procedures.
Constitutional provisions in regard to the President (Article 42)and the Cabinet (Article 43) establish that both are answerableto Parliament. It makes no difference that Article 42 makesthe President only “ responsible ", while Article 43 makesthe Cabinet “ collectively responsible and answerable ", for“ responsible " includes " answerable n. This demonstratesthat on occasion Members of Parliament sit in judgementover President and Cabinet, and in that sphere they mustnecessarily be completely independent.
Learned President's Counsel referred us to Edmund Burke'sfamous speech to the electors of Bristol in 1774:
" Parliament is not a congress of ambassadors from differentand hostile interests ; which interests each must maintain, as anagent and advocate, against other agents and advocates ; butparliament is a deliberative assembly of one nation, with oneinterest, that of the whole ; where not local purposes, not localprejudices ought to guide, but the general good, resulting fromthe general reason of the whole. You choose a member indeed;but when you have chosen him, he is not a member of Bristol,but he is a member of Parliament."
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In 1888, John Bright proclaimed :
" I must follow my own judgement and conscience and not thevoice of my Party leaders."
That may have been true of the sovereign Parliament of theUnited Kingdom, in the 18th and 19th centuries ; without a writtenConstitution ; and with the type of constituency and the limitedfranchise of that era. Whether that is applicable to a non-sovereignlegislature, governed by a written Constitution, which recognises thesovereignty of the people and provides for a separation of functions,in the context of the development of the Party system, I doubt. Thetheory that a Member enjoys absolute and unfettered freedom ofjudgement and action does not seem to be accepted even in theU.K.. Thus Laski observes :
" It is sometimes suggested that a member of the legislativeassembly must be either a delegate or a representative, must eithervote as he is instructed, or use his best judgement upon the issueshe is called upon to decide. That is, in fact, a wholly falseantithesis. For no member can state his total views ; partly becausethere is not the time to do so, partly because new issues arebound to arise. And upon those new issues he cannot, item byitem, consult his constituents in such a fashion as to elicit fromthem their considered judgement. Any constituency is entitled tothe fullest expression it can get of a member's general attitude.It is entitled to know his views upon the questions of the day.Any elector may reasonably ask for an explanation of his politicalactions. But a member is not the servant of a party in the majorityin his constituency. He is elected to do the best he can in thelight of his intelligence and his conscience. Were he merely adelegate, instructed by a local caucus, he would cease to haveeither morals or personality. Clearly, he is not entitled to get electedas a free trader and to vote at once for a protective tariff. Heis not entitled to get elected and then to decide on a year's voyagearound the world. He must be decently consistent in opinion, andreasonably diligent in the performance of his duty." (Grammar ofPolitics, p. 319)
It is recognised that the Party is entitled to exert pressure on aMember :
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° Threats of disciplinary action against Members by Party Whipshave been ruled not to constitute infringements of the privilegeof freedom of speech because they are part of the conventionallyestablished machinery of political organisation within the House.Nevertheless, pressure exerted on a member by the Whips mayinfluence his conduct far more significantly than any connectionhe may have with any outside interest group." (S. A. de Smith,Constitutional & Administrative Law, p. 323)
Similar principles have been laid down in regard to membersof elected councils, in terms suggesting that they are theprinciples applicable to Parliament. A council member ought to giveconsiderable weight to the policies announced in the electionmanifesto of his party (Bromley LB.C. v. Greater LondonCouncil(5), Secretary of State for Education & Science v. TamesideMetropolitan Borough (6> ; and to party policy and the views of partycolleagues'71 ; Ft. v. Greenwich L.B.C. m. It is implicit that a membermust therefore take steps to consult his colleagues. He ought notto treat himself as irrevocably bound to carry out policies, set outin the party manifesto, if subsequently there have been unforeseenand significant changes of circumstances {Bromley, at pp 165-166,182)'; or to " vote blindly in support of party policy " (Waltham Forest,at pp 676-677). He must exercise his own judgment upon everyquestion which, the Council has to decide (Greenwich LB.C. at p525) ; he must make up his own mind without abdicatingpersonal responsibility {Waltham Forest, at p 676). It would thereforebe a breach of his fiduciary duty to fetter his own discretion by apre-determined acceptance, to the exclusion of all other considera-tions, of a decision made by a political party, or a caucus of thatparty, as, for example, to vote against his own assessment of themerits solely to conform to a party manifesto issued prior to hiselection, or to pre-determined party policy {Waltham Forest, at p 677).However, the adoption of a " whip “ system whereby members arerequired to refrain from speaking or voting against the group decision(subject to recognised exceptions) is not objectionable {WalthamForest, at p 674) ; but “ it is not possible to have a party policyas to the existence of facts and they have to be determined byeach member on the evidence." There is nothing morally or legallyculpable in voting in support of a majority which has considered,and rejected, a member’s arguments, provided he considers all the
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options and decides that the maintenance of party loyalty, partyunanimity and party policy is of greater importance than his personalviews and inclinations (Waltham Forest, at p 677). The law does notforbid pressure being exerted on him by his colleagues and the partywhip (Greenwich LB.C., at p 525). In that case eight Labour membersof the Council's housing committee voted against, and therebyprevented, a proposed increase in rents. The majority Labour Groupthen decided that the committee should be re-constituted, and thatnew members be appointed in order to have the rent increaseapproved. At its next meeting the Council so decided, and the newcommittee thereafter approved the increase. Having expressed somedoubt as to whether Burke's pronouncement was wholly in accordwith current political wisdom, the court held that the Council wasentitled to expect its Committees to promote its policy, and thereforealso to remove members who obstruct such policy. This was nota punishment of the dissident members. The law does not forbidsanctions for voting contrary to the wishes of those who have powerto impose them : the party whip may be withdrawn, constituents maydecline to re-elect, or the local party may deselect ; these are notunlawful or an improper fetter on the members.
" At the present day when local government is organised onparty lines, some additional constraints resulting from the existence
of a party line or strategy on particular issues are inevitable
A political party is entitled to take steps to ensure its cohesionand I can see nothing intrinsically wrong in a decision to change
a party's representation on a committee to advance the
policies which the party considers desirablegroup discipline
does not connote punishment but an attempt to keep the grouptogether." (Greenwich LB.C. at p 523)
These observations go further than what was stated in WalthamForest :
“ What would be objectionable would be a provision that amember had forthwith to resign his membership of the council,if, in the absence of a conscience situation, he intended to votecontrary to group policy." (p. 674)
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The Petitioners rely on this for their contention that expulsion isequally objectionable. However, these observations were made in theabsence of legislation permitting that sanction, and seem inapplicableto Sri Lanka as Article 99 (13) (a) expressly recognises the powerof expulsion. Such expulsion is permissible only if the Member is alsoa member of that party ; a candidate who wishes to be free of partycontrol seems free to avoid that sanction by the simple expedientof giving up his membership prior to election.
A voluntary association is a collection of individuals who haveagreed to come together, for a common purpose, under a singleleader or a collective leadership. A political party is a voluntaryassociation the common objective of whose members is to securegovernmental power on the basis of its declared political, economicand social principles, policies and programmes. How an associationdeals with internal dissent and conflict would vary according to itsobjectives : a group with religious objectives may thus be more strictin this respect than a social group. A political party which is in itsformative period, seeking to attract a wide membership, may be morelenient, than an established party ; one seeking to gain power maybe more accommodating than one which is in power. However, allpolitical parties, seeking mass support, need to be cohesive ; thisrequires internal unity and loyalty. To attain their objectives, theyneed to be effective ; problems and conflicts have to be internallyresolved. These are features common to all groups. Thus groupnorms, or common standards of behaviour, are implicit. Members ofa political party who find themselves unable to agree with theircolleagues in regard to objectives, leadership and any otheraspect of their" group " are subject to, at least, an implied obligationto bring up contentious issues for internal discussion and resolutionin the first instance. That is a duty they have in common with allgroups, small or big, insignificant or important. Thus dissent in thefamily must first be discussed within the family circle, before beingraised by a parent in the workplace or a child in the classroom. Atthe other end of the scale, disagreement among members of theCabinet must first be raised within, before being ventilated inpublic ; collective responsibility and confidentiality are not artificialrules but practical norms essential for proper functioning. Thatobligation exists quite independent of express provisions in the PartyRules. Those Rules must not be interpreted without regard to therealities underlying all associations and groups. The question therefore
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is not whether the obligation to discuss internally can be constructedout of little bits and pieces, gathered from here and there in the Rules: that members must not bring the Party into disrepute (Rule 3 (1)
), that they must give a pledge on obtaining Party nomination, toabide by the Party Rules (Rule 9(d)), that Members of Parliamentmust subscribe a pledge of loyalty to the Party (Rule 17 (1)), thatMembers must take every opportunity to raise internally questionsof Party policy about which they are doubtful (Rule 17 (6)), etc. Itis not by asking whether 11 Party Policy " includes the suitabilityof a particular individual to be the leader ; or asking u what isloyalty? " The Party Constitution does not manifest an intention todisplace a fundamental obligation of a member of a political party,that dissent in regard to basic objectives and leadership must firstbe internally raised and discussed ; on the contrary, severalprovidence such as those just mentioned re-inforce that obligation.
The question arises whether the Executive Presidential systemis a fundamental principle of the Party Policy. The fifth recital in theexpulsion resolution unambiguously asserts this. There is not a wordto the contrary in the petition. In the Respondents' objections it wasstated.
" It has been and is the policy of the United National Partysince 1977 that the government of Sri Lanka should consist ofa Executive President elected by the people and an electedParliament. This system of Government was first- advocated bythe Party in the General Election campaign of 1977 and acceptedby the majority of voters. Thereafter, the United National PartyGovernment effected Constitutional changes in 1978 to bringinto existence the Executive Presidential System. At subsequentelections also over the past twelve years, where this system wascriticised by Opposition Parties, the United National Partyconsistently supported the same and succeeded at all suchelections."
In the Petitioner's counter-affidavits there was a bare denialtogether with the further plea that :
“ by the adoption of an 'Executive Presidential System ofGovernment1 neither the United National Party nor its membershipwere irrevocably committed to the continuance of this system ofgovernment nor were they precluded from agitating for its reform
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once anomalies in its working and the consequent abuse or misuseof executive power was observed in its working. The reform ofthe Constitution in regard to this new feature of government waswithin the objectives of the Party“
The Petitioners thus did not deny that the Executive Presidentialsystem was since 1978, and upto August 1991, a fundamental plankof Party policy and principle ; all that they asserted was that it wetsnot immutable, and that they had a right to agitate for its reform.I therefore hold that the issues in regard to leadership and the systemof government were matters of prime importance to the Party, anddissenting views should have been the subject of prior internaldiscussion before being ventilated outside Party circles.
Learned President's Counsel for the Petitioners did concede inthe course of his reply that a norm requiring prior internal discussioncould be legitimate, but submitted that after such discussion if thedissentient view did not find favour with the majority, the minoritywere at liberty to raise those same issues publicly ; they were notbound by the Party decision, and therefore, he sought to argue, therules regarding prior internal discussion were not mandatory, notbeing mandatory, a breach could not be punished. This is a nonsequitur From the fact that the prescribed procedure does not resultin a binding decision, it cannot be concluded that the proceduralrule is not binding. This can be seen in many contexts : that a partymust attempt conciliation (or mediation) before having recourse tothe courts, although he is not bound to accept a suggestedsettlement, and may be non-suited if he has failed to resort to thenon-binding conciliation procedure ; that a party must exhaustadministrative remedies, before applying for a prerogative writ. I amof the view that the internal discussion procedure was mandatory,even if the internal decision might not be binding. I
I discern several significant points of difference under ourConstitution. It is the people who are sovereign, not Parliament.Parliament does not have a monopoly of legislative power, as thereare some laws which it cannot itself enact, and its refusal to enactan ordinary law can be over-ridden (see Articles 85 (1) and (2)). Thejudiciary has a right, although limited, to check an excess oflegislative power, by reviewing Bills for consistency with theConstitution. From 1978 the Constitution provided that a recognisedpolitical party had the right to expel a member, resulting in vacation
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of his Parliamentary seat. Learned President's Counsel sought tocontend that this power of expulsion did not extend to conduct quaMember of Parliament, but there is nothing to justify such a restrictiveinterpretation of Article 99 (13) (a). Article 99, as first enacted,gave overwhelming prominence to the party, and not to the individual. candidate for election : nomination was of the party, which determinedthe order of priority of candidates on the party list, whose namesdid not even appear on the ballot paper, and votes were cast forthe party. The 14th, Amendment did away with the pre-determinedorder of priority, and enabled the voter, after casting his vote for theparty, to express preferences for candidates. Even before, it wasarguable whether voters were influenced more by the party orthe individual candidates, but after 1978 the choice was primarily :between rival parties, although certainly the identity of the candidatescontinued to be of some relevance. Hence the position of theindividual Member vis-a-vis his party is undeniably weaker in SriLanka than in the Uniter" kingdom ; he does not enjoy the samefreedom to resign from h.s party and to cross the floor of the House,and to continue as a Member. The word " representative " in Article4 (a) is by no means conclusive in favour of the I 11 free mandate "theory, and the position of a Member has to be determined byexamining the relevant provisions of the Constitution as a whole.It is neither possible nor necessary in this case to attempt acomprehensive definition cf that position, and it is sufficient toascertain whether he retains a power of independent action, in anysignificant respect.
I take the view that a Member has not been reduced to the positionof a mere cog in the party machine, bereft of any independenceof action. While his relationship to the party tends to suggest that
he has no independence, some of his constitutional functions areessentially discretionary and quasi-judicial; some even judicial. ThusArticle 4 (c) enables Parliament to exercise the judicial power of thepeople in regard to matters concerning Parliamentary privilege ; indetermining, both the facts and the law, as to whether a Memberor an outsider has committed a breach of privilege, it is unthinkable- in the absence of specific provision to that effect – that theConstitution intended a Member to act otherwise than judicially. Inexercising power to remove high officers (Commissioner of Elections,Auditor-General, and Ombudsman : Articles 103 (3) (e), 153 (3) (e)and 156 (4) (e)) and Judges (Article 107 (2)), a Member likewiseperforms not just a discretionary administrative function, but a
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quasi-judicial function, for there can be no party policy as to theexistence of facts warranting removal, which must be determinedsolely on the evidence. If he did not, a serious question may wellarise as to whether Parliament is an institution whose judicialfunctions are liable to judicial review for instance under Article 140.That i do not have to decide, but it is clear that Members do havecertain discretionary functions, were they must not act under dictation.In considering whether a Member has a similar discretion under Article38 (2), it is relevant that the like power under Article 107 (2) is quasi-judicial. It is also relevant that under Article 37 (2), the Chief Justicein forming an opinion, in consultation with the Speaker, that thePresident is temporarily unable to discharge the duties of his office,is clearly required to act judicially. If that opinion is formed on accountof physical infirmity, which thereafter persists, and if Parliament isthen called upon to act under Article 38 (2) (a), in respect of thatsame infirmity, can it be that Parliament is not required to actjudicially? It seems to me that if“ suspension " from office requiresthe exercise of an independent discretion, then necessarily the entireprocess of" removal “ must also be discretionary ; party policy andparty discipline may apply, in the same way as such considerationslegitimately apply to other discretions, but the decision is ultimatelyone of conscience and independent judgement. Learned President'sCounsel for the Respondents strenuously contended that the removalof a President must be looked at very differently from the removalof Judges and high officers, because the President is directly electedby the people, and his election and continuance in office involvequestions of policy and politics ; he thus attempted to minimise theelement of discretion. Article 38 (2) has placed three hurdles in thepath of removal of a President; accepting this contention wouldadd a fourth, namely approval by the majority in one or more partyParliamentary groups, and this may well be an insurmountablebarrier, which will make Article 38 (2) inoperative. That contentionmust fail for another reason as well ; Article 38 (2) applies equallyto a President not directly elected by the people, for it is possiblefor a Member to be elected President, under Article 40, even thoughhe has never faced any election in his life (e.g. if he was nominatedto Parliament under Article 99A).
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Signing the notice, and agitating for Constitutional change:
It would be quite unrealistic to treat these as two unconnectedand severable issues. The Petitioners' position is that defects andanomalies in the working of the Executive Presidential systemenabled abuse and misuse of executive power by the President ;when such abuse and misuse were observed, the need arose forremoval ; and it was only then that the necessity for constitutionalreform was realised. It is implicit in this position that but for suchalleged abuse and misuse of power, they would not have appreciatedthe need, and would not have agitated, for constitutional change.
The Petitioners contend that they had a constitutional right to signthe notice of resolution, exercising their independent judgment anddiscretion, by virtue of Article 38 (2), and also that such conduct couldnot have been questioned in any place outside Parliament, by virtueof the Parliament (Powers and Privileges) Act ; they were entitledto campaign for the abolition of the Executive Presidential systemunfettered by any restraint imposed by the Party Rules, policy andprinciples, by virtue of their fundamental rights under Articles 10 and14 (1) (a).
For the reasons already stated, I hold that any Member of Parliamentwas entitled to sign the notice of resolution in the exercise of hisindependent judgement and discretion ; and that signing a noticeintended to be presented, and in fact presented, to‘ Parliament, inrespect of a matter within its province, is a" proceeding in Parliament."I also hold that freedom of speech (and thought, conscience, andexpression) clearly embraces the people's right to know, the widedissemination of information and opinions, the public discussion ofall matters of public concern, and criticism, however strongly worded,and even if foolish and without moderation, of public measures andgovernment action ; all this, of course, by peaceful means and withoutincitement to violence. Relevant authorities have been cited anddiscussed by Sharvananda, C.J., in Joseph Perera v. A. G. (9).
However, that does not entitle the Petitioners to relief, becausethey are also charged with the failure to raise these matters internally.
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Failure to initiate prior internal discussions :
I have already held that the Petitioners were under a duty in thisrespect. However it is their contention that even if there be such aduty in general, yet upon a conflict between constitutional andstatutory rights on the one hand, and rights or duties arising fromprivate agreements (and in their submission the Party Rules fell intothis category) on the other, the latter must give way. Kelsen'shierarchy of norms was relied on. Certainly, this contention wouldprevail if the grundnorm, or a superior norm, said " You shall doA ”, while an inferior norm purported to say " You shall not do A". But the normative conflict here is between norms of a differentsort : the superior norm says “ You may do A “, while the (allegedly)inferior norm says, in effect, " You may do A, provided you first doB There is thus no real conflict. The " rights " that the Petitionersrely on are not true rights, in Hohfeld's classification, with correlativeduties ; Articles 11 and 13 (1) are examples of rights of thatkind. Articles 10 and 14 (1) (a), and the Parliamentary privilegesand immunities relied on, are not “ rights " but “ liberties " or" privileges ", without correlative duties. The Party Rules prescribe,consensually, only pre-conditions for the exercise of those liberties,implicit in each of which was a genuine option ; the petitioners werefree to accept or regard such pre-conditions, but once accepted theywere binding.
In that background, I am of the view that the obligation to initiateprior internal discussions was valid and binding on the petitioners forseveral reasons.
In regard to freedom of speech, I do not agree that in ourlaw " any system of prior restraints of expression bear a heavypresumption against its constitutional validity ' (New York Times v.U.S.,10>. The American Bill of Rights was primarily directed againstState action, and made no express provision in respect of permittedrestrictions. These had therefore to be judicially prescribed. Ourfundamental rights are differently defined, and are available not onlyas against the .State but as against all others ; permissible restrictionsare specified in detail. There is thus no reason to interpret themwith " heavy presumptions ", one way or the other. The Respondentsrelied heavily on Dissanayake v. Sri Jayawardenepura University |,,,lwhich has been the subject of critical analysis in an article by
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Prof. G. L. Peiris and Erick Jensen in (1989) 38 I.C.L.Q. 788. Thatdecision suggests that the State has the power to regulate freedomof speech in areas outside those specified in Article 15 (2) and (7),and otherwise than by law ; that a student by entering the Universityconsents to the regulation of his constitutional rights in keeping withthe special characteristics of the University environment. From thisthe Respondents argue that the Petitioners, by their membership ofthe Party, consented to the Party regulating their freedom of speech.I am unable to agree to this wide proposition as to the State's rightto regulate fundamental rights. However, I am of the opinion that thefreedom of speech is subject to three limitations. First, limitationswhich are intrinsically inherent in the freedom itself ; the familiarexample, that no one has the freedom of speech falsely to shout" fire " in a crowded place and to cause panic. Next, Articles 15
and (7) permit certain restrictions to be prescribed by law ; andit seems to follow both that such restrictions cannot be prescribedotherwise than by law, and that even by law other or furtherrestrictions cannot be prescribed. Finally, since freedom of speechis a " liberty " (and not a " right "), a citizen has always an option,to exercise his right, or not to exercise it, or to exercise it subjectto some limitation. Such limitations would usually be accepted for thesake of some benefit or advantage. Thus the bank employee whosigns a non-statutory declaration of secrecy, can hardly be heard tocomplain that his freedom of speech has been denied by his employer; so also the Attorney-at-law who accepts judicial office, andfinds that by convention he is debarred from speaking out on variousissues. When Ruth entreated Naomi, " Whither thou goest, I will go; and where thou lodgest, I will lodge. Thy people shall be my people,and thy God my God ", there was no incipient violation of her freedomsof religion, residence and movement, but only a voluntary self-limitation. The politician who joins a political party in order to enterParliament can validly subject himself to a condition which regulates,without denying, his freedom of speech. If you wish to play cricket,you must accept the rules of cricket ; if you are selected for theteam, it is very likely that you will have to agree to procedures aboutchanging the captain.
There is a further consideration. The Petitioners' case waspresented throughout as if only their rights, and fundamental rights,were involved. The Party Rules involve all the other members as well.What of their rights? Just as the Petitioners agreed not to criticise
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their Party and colleagues in public, without prior internal discussion,so also their fellow-members undertook a reciprocal obligation notto criticise the Petitioners. That is not all. The Petitioners soughtto relegate the Party Rules to the lowest level in the hierarchy ofnorms. But Article 99 (13) (a) impliedly recognises at least one aspectof the Party Rules and discipline. More important, the rules of apolitical party are not a mere matter of contract, but the basis ofthe exercise of the freedom of association recognised by Article 14(1) (c) (and by section 18 (1) (f) of the 1972 Constitution). One ofthe conditions on which Party members agreed to exercise thisfundamental right was by mutually accepting reciprocal obligationsplacing limitations on the exercise of the freedom of speech by eachother, in the interests of their association. Hence no question ofsuperior and inferior norms arises. Inherent in the two freedoms isthe liberty to make necessary adjustments. As between freedom ofassociation and Parliamentary privilege, it can hardly be said that thelatter is a " superior 0 norm.
Insofar as Parliamentary privilege is concerned, learnedPresident's Counsel for the Petitoners was forced to concede thatthe conduct of a Member in Parliament can be questioned outsideParliament by a political party or other Association of which he wasa member. He submitted that this was limited to matters whichwere fundamental: if a Member spoke or voted in Parliament againsta particular economic or religious principle or doctrine which wasfundamental to Such party, or if a member of a temperance associationadvocated the consumption of liquor, disciplinary action waspermissible. He submitted that supporting a resolution for the removalof the President could never be fundamental, because it could neverbe a fundamental policy or principal of a party that a particularindividual should continue to hold that office. In answer to the questionwhether a Member guilty of some serious misconduct in Parliament,but leniently dealt with – either because Parliament chose to treatit lightly or because Parliament lacked the power to impose a greaterpenalty – could be penalised by his party, he doubted whether thatwas permissible. But that would mean that a political party cannotinsist on higher standards of conduct than Parliament: which I doubt.If conduct can be questioned in regard to fundamental matters. I seeno reason why it cannot be questioned in regard to other matters,because the law itself makes no such distinction. However, it is clearfrom Counsel's concession that there is an area in which disciplinary
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action is permissible. In the United Kingdom, Parliament is not onlysovereign but is the " High Court of Parliament and Parliamentcan by an ordinary law define its privileges in any terms it pleases.The doctrine restricting review by the ordinary courts must be viewedin that context. But the charge in the present case relates essentiallyto a matter outside the area of proceedings in Parliament, and anteriorto conduct in Parliament. Whatever the position as to the act ofsigning, I am of the view that the Petitioners' conduct in regard tothe failure to observe the pre-condition as to internal discussions couldbe questioned in disciplinary proceedings leading to an order ofexpulsion as contemplated in Article 99 (13) (a).
Causing insult and injury to the President :
There is not a word in the 2nd Respondent's statement to the WorkingCommittee on this matter; no specific acts are mentioned. Althoughhe did refer to newspaper reports, these have not been identifiedin the minutes of that meeting. The newspaper reports producedcontain some critical statements, but we cannot be certain that thesewere produced to the Working Committee ; some of the statementsare ambiguous. The Working Committee could not have regarded thischarge as having been proved, and expulsion on that ground cannotbe justified.
Deceiving the Cabinet :
This charge has been clearly and precisely referred to in the 2ndRespondent's statement and in the expulsion resolution ; there is noambiguity or uncertainty as to the facts. Expulsion on this groundwas proper. I will deal with this later.
BREACH OF NATURAL JUSTICE : (a) audi alteram partem:
It is admitted that the Petitioners were neither informed of theallegations and the evidence against them, nor afforded an opportunity(i) to submit an explanation (ii) to be heard in their defence or (iii)to make any submissions, on the law or the facts, as to whethermisconduct warranting disciplinary action had been proved, and, ifso, whether a lesser penalty than expulsion was appropriate.
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The powers of public authorities, and of certain other bodies, aresubject to control in two ways : what they can do is circumscribedby legal rules relating to jurisdiction and so on ; how they exercisetheir powers and discretions is governed by principles of naturaljustice, which are a code of fair administrative procedures devisedby the courts. These procedural rules are by no means merelytechnical, or of secondary importance ; or a tiresome waste of timeimpeding efficiency. With the growing complexity of modem society,the citizen is constantly affected by the exercise of powers of variouskinds, and procedural fairness increases in importance.
" Procedural fairness and regularity are of the indispensableessence of liberty. Severe substantive laws can be endured if they
are fairly and impartially applieddue process of law is not
for the sole benefit of an accused. It is the best insurance forthe Government it self against those blunders which leave lastingstains on a system of justice but which are bound to occur onex parte consideration." (Shauqhnessy v. U.S. <12))
" The history of liberty has largely been the history of observ-ance of procedural safeguards." (Mcllabb v. U.S. (13))
The most fundamental principle of natural justice is the audialteram partem rule, which is an obvious principle of justice applicablein all judicial proceedings. Natural justice is not now considered tobe part of some ‘fundamental and immutable law, constituting a fetteron the legislative power ; today the courts presume, unless thecontrary appears, that the legislature intended that powers conferredby it be exercised fairly, for “ although there are no positive wordsin a statute, requiring that the party shall be heard, yet the justiceof the common law will supply the omission of the legislature “ (Cooperv. Wandsworth Board of Works (1<), Mersey Docks (etc) Trustees v.Gibbs(,s). Whether this principle extends into non-judicial spheres wasfor long a matter of serious controversy, but it can now be regardedas settled that –
“ This rule is not confined to the conduct of strictly legaltribunals, but is applicable to every tribunal or body of personsinvested with authority to adjudicate upon matters involving civil
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consequences to individuals." Wood v. Wood (,6>, cf Byrne v.
Kinematograph Renters Society Ltd., m.
There was a series of decisions (e.g. Franklin v. Minister of Townand Country Planning (18), Nakkuda Ali v. Jayaratne (,9), R V.Metropolitan Police Commissioner ex p. Parker (20>, over a period ofabout three decades – which Professor Wade labels “ the retreatfrom natural justice ” – which constituted a severe setback to thedevelopment of this branch of the law. However, that period ofconfusion ended with Ridge v. Baldwin (21), when the older authoritieswere re-affirmed.
It was uncertain at one time whether ” purely administrative "powers were subject to the audi alteram partem rule, or only" judicial " powers, and considerable judicial ingenuity was exercisedto characterise administrative powers as “ judicial " or “quasi-judicial 11 to justify intervention (as in Hall v. Manchester Crop (22>,Hopkins v. Smethwick Local Board of Health (23), Urban Housing Co.Ltd. V. Oxford City Council (24).
However, the older authorities, particularly Cooper v. WandswormBoard of Works, Wood v. Woad, and Board of Education v.Rice (25>, recognised the universality of the audi alteram partem rulein its application to administrative powers in general. In Cooper, abuilder commenced erection of a building, without giving seven daysnotice to the Board as required by statute ; the Board thereuponexercised its statutory power to demolish the building ; the builder'saction for damages succeeded on the ground that the Board hadno power to act without giving him notice and allowing him to beheard. While Erie, C.J., considered the exercise of the Board's powerto be “ in the nature of judicial proceedings ", Willes, J., thought thata tribunal invested with power to affect property rights is bound togive an opportunity of being heard before it proceeds, and Byles,
J., held that the Board was wrong whether it acted judicially orministerially. In Rice, Lord Loreburn, L.C., dealing with the Board'spower to discriminate between teachers in church schools and inits own schools, put it in much broader terms :
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”what comes for determination is sometimes a matter
to be settled by discretion, involving no law. It will, I suppose,usually be of an administrative kind ; but sometimes it will involvematter of law as well as matter of fact, or even depend upon matterof law alone. In such cases the Board of Education will have toascertain the law and also to ascertain the facts. I need not addthat in doing either they must act in good faith and listen fairlyto both sides, for that is a duty lying upon every one who decidesanything"
Ridge v. Baldwin settled that question. Lord Reid explained how themere fact that the power affects rights or interests makes naturaljustice applicable to its exercise, and re-affirmed the older authoritieswhich clearly showed how the courts engrafted the principles ofnatural justice on to a host of provisions authorising administrativeinterference with private rights. Lord Hodson was explicit :
"the answer in a given case is not provided by the
statement that the giver of the decision is acting in an executiveor administrative capacity as if that were the antithesis of a judicialcapacity. The cases seem to me to show that persons acting ina capacity which is not on the face of it judicial but rather executiveor administrative have been held by the courts to be subject tothe principles of natural justice." (at p. 130)
These views' were later affirmed in no uncertain terms. LordDenning, M.R., observed (in R v. Gaming Board for G.B.1261 that theheresy that the principles of natural justice only apply to judicialproceedings, and not to administrative proceedings, was scotchedin Ridge v. Baldwin. In Schmidt v. Home Secretary(27), he held thatan administrative body may be bound to give a person who is affectedby its decision an opportunity of making representations, if he hassome right or interest, or even some legitimate expectation, of whichit would not be fair to deprive him without hearing what he has tosay. Lord Diplock (in A.G. v. Ryan held that a person havinglegal authority to determine a question affecting the rights of indi-viduals is, by necessary implication, required to observe the prin-ciples of natural justice when exercising that authority, and thatif he fails to do so, his purported decision is a nullity.
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A decision made by an unbiased tribunal, after duly consideringthe views of those likely to be affected by it, is not only more likelyto be correct, but will be more acceptable and of better quality.Fairness to the individual facilitates a better decision by the tribunal.The duty to give a fair hearing is as much a canon of goodadministration as of good legal or judicial procedure.
Thus today natural justice controls the exercise not only of judicialpower but of practically all powers and discretions. In public law areas,it applies to powers conferred by statute relating to property, officeor status (e.g. to demolish buildings ; Cooper v. Wandsworth ; UrbanHousing Co. v. Oxford City Council, to dismiss a public officer :Ridge v. Baldwin ; Cooper v. Wilsom (29) ; Kanda v. Federation ofMalaya (30), Chief Constable (North Wales) v. Evans (31>), but not inrespect of an office held " at pleasure ", where dismissal withoutcause being assigned is authorised, or where the relationship issimply that of " master and servant " : Ridge v. Baldwin ; cf.Vidyodaya University v. Silva (32) ; to register an applicant forcitizenship : A.G. v. Ryan ; to dissolve a local authority ; Durayappahv. Fernando (33>, to make zoning orders regulating the supplyof dairy products: Jeffs v. N.Z. Dairy Products (etc) Board (34), tosuspend or dismiss registered dock workers : Barnard v. NationalDock Labour Board (35), cf. Vine v. National Dock Labour Board (36).Natural justice applies in many other areas, such as membershipand office in trade unions (Lawlor v. Union of Post OfficeWorkers (37), Burn v. National Amalgamated Labourers Union <38Abbott v. Sullivan ps>, Lee v. Showmen's Guild m, Taylor v. NationalUnion of Seamen (41), Annamunthodo v. Oilfield Workers TrustUnion t42), Stevenson v. United Road Transport Union (43)), societies(Wood v. Woad, at p. 196 ; Byrne v. Kinematograph Renters SocietyLtd; Innes v. Wylie (44), (Andrews v. Milchell<45)), social clubs (Fisherv. Keane (46), Labouchere v. Wharncliffe (47), Dawkins v. Antrobus (48>,Gray v. Allison <49)), and other private associations : (R v. Saddlers'Company, ex. p. Dinsdale (S0,P Johnson v. Jockey Club of South Africa(5,), D'Arcy v. Adamson(52), Graham v. Sinclair(53)). Although the rightsin question arose essentially from contract, a fair hearing was apre-condition to deprivation of rights or to imposition of penaltiesand disabilities being an implied term of such contract (Dawkins v.Antrobus (54>, Wood v. Woad, at p. 196 ; Lee v. Showmen's Guild,at p. 342 ; Burn v. National Amalgamated Labourers Union), anyagreement or practice to the contrary being invalid (Abbott v.
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Sullivan<ss), per Denning L.J., dissenting ; Edward v. SOGAY(se>, Leev. Showmen's Guild, at p. 342). It also applies to ecclesiasticalrights and offices : (R v. Archbishop of Canterbury (57 Capel v.Child <S8), Bonaker v. Evans (5S), R v. North, ex. p. Oakey m),to the deprivation of University degrees for misconduct (Bentley'sCase, R. v. University of Cambridge) ,61>, Re Perqamon PressLtd. (62)) ; and to some extent in relation to academic discipline(iUniversity of Ceylon v. Fernando (63), R. 505 ; ft v. AstonUniversity (64), Blynn v. Keele University (6S>, cf. Herring v.Templeman m). Exceptionally natural justice applies to somepreliminary investigations as to whether a prima facie case hasbeen established, if serious legal consequences could ensue :(Selvarajan v. Race Relations Board m). Indeed, " there has been
a marked expansion of natural justice and fairness reaching
beyond statute and contract B : (Mclnnes v. Onslow-Fane m).
A further source of confusion has been the suggested distinctionthat0 in the sphere of the so-called quasi-judicial the rules of naturaljustice run, and that in the administrative or executive field there isa general duty of fairness " (Bates v. Lord Hailsham(69), cf. Pearlbergv. Varty <70,1 Re Pergamon Press).
" But other judges have expressed what is clearly the preferableview, that there is no difference in principle between natural justiceand 'acting fairly', but that natural justice is a flexible doctrinewhose conteht may vary according to the nature of the power andthe circumstances of the case. In the words of Lord Denning, M.R.,the rules of natural justice – or of fairness – are not cut and dried.They vary infinitely. Attempts to represent natural justice and'acting fairly' as two different things are a sure sign of failure tounderstand that administrative powers are subject to the principlesof natural justice." (Wade, Administrative Law, 5th ed. p. 467).
While I readily accept that exposition of the law, I must add thaton the facts of this case any such distinction would make nodifference.
In Ex. p. Parker t71), Lord Boddard, C.J., held that the exerciseof disciplinary powers was not subject to natural justice :
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" where a person whose duty is to act in matters of
discipline, is exercising disciplinary powers, it is most undesirable
that he should be fettered by threats of orders of certiorari
and so forth, because that interferes with the free and properexercise of the disciplinary powers which he has. D
Now, however, it is accepted that disciplinary bodies " must actfairly just the same as anyone else and are just as subject to controlby the courts ° (Buckoke v. Greater London Council™, R. v. HullPrison Visitors ex p. St. Germain (73)).
An expansive, rather than a restrictive, interpretation of theprotection afforded by the principles of natural justice is demandedby the equality provisions in Article 12 of the Constitution ; fairnesslies at the root of equality and equal protection.
Applying those principles, I do not find it necessary to considerwhether the power of expulsion conferred by the Party Constitutionis judicial or quasi-judicial ; it is a power vested in a body ofpersons having authority to determine disputed matters involving civilconsequences to individuals ; it affects their rights and interests. Thenumerous authorities which I have cited, are but part of a current- indeed, a flood – of authority, overflowing the bounds of admi-nistrative law and statute, into contract, and even beyond, which itis too late to stem or to divert. In a democratic multi-party system,political parties are voluntary associations, and the rights of membersare contractual in nature. There is nothing in the Party Constitutionwhich tends to place a member in the position of a servant in anordinary master and servant relationship, or a person holding officeat pleasure. The rights of members are of far greater importance tothe individual, and to the democratic way of life, than those ofmembers of social clubs ; or even rights relating to employment andlivelihood. These applications are not for certiorari, and hence it makesno difference that the duty to comply with natural justice arises fromcontract, and not from statute. I hold that the power of expulsioncontained in Rule 8 (3) (a) is subject to the principles of natural justice.
Natural justice has been described as 0 fairplay in action “or" fairness writ large and judicially ". Even if the applicable standardwas not " natural justice " but " the duty to act fairly ", the powerof expulsion has to be exercised fairly. In my view, fairness required
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prima facie that the Petitioners be given notice of the allegations andthe material evidence, an opportunity to explain, controvert or mitigatethe case against them, and the right to make submissions. This wasnot done. This Court would therefore, in the ordinary course, declarethe expulsion to be void ab initio (Ridge v. Baldwin ; General MedicalCouncil v. Spackman (74), infra).
However it is necessary to consider whether there were anyexceptional circumstances which render the proceedings fair insubstance, despite the lack of notice and hearing. There is no expresslegislative exemption. The Party Constitution does not purport toexclude natural justice ; indeed, the 2nd Respondent, as GeneralSecretary, issued on 8.8.91 " Guidelines for Disciplinary Inquiries "which embody fundamental concepts of natural justice ; and I havealready referred to the authorities indicating that an attemptedexclusion of natural justice would have been invalid. This is also notan instance in which the very nature of the power, or the urgencyfor its exercise, excludes natural justice (White v. Redfem ;Ft. v. Davey (76)).
There have been cases in which relief has been refused on theground that hearing would have made no difference ; but this is aprinciple to be sparingly applied.
" If the principles of natural justice are violated in respect of anydecision, it is, indeed, immaterial whether the same decision wouldhave been arrived at in the absence of the departure from theessential principles of justice. The decision must be declared tobe no decision." (General Medical Council v. Spackman)
In that case a medical practitioner was a co-respondent in a divorcesuit. He was found guilty of adultery with the respondent, to whomhe stood in a professional relationship. Proceedings were taken bythe Council against him for infamous conduct. To disprove adultery,he sought to lead evidence which had not been led in the divorcesuit; the Council declined to hear fresh evidence. The House of Lordsheld that although the decree in the divorce suit was prima facieevidence of adultery, the Council, by refusing to hear the freshevidence had failed to make due inquiry. It is never easy to say thatthe result was obvious from the start :
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“ As everybody who has anything to do with the law well knows,the path of the law is strewn with examples of open and shutcases which, somehow, were not; of unanswerable charges which,in the event, were completely answered ; of inexplicable conductwhich was fully explained ; if fixed and unalterable determinationsthat, by discussion, suffered a change. Nor are those with anyknowledge of human nature who pause to think for a momentlikely to underestimate the feelings of resentment of those whofind that a decision against them has been made without theirbeing afforded any opportunity to influence the course of events."(John v. Ress) (77>
There are however several cases in which orders have beenallowed to stand although made without a hearing. Extracting aconsistent set of principles from these decisions involves, inTennyson's words,
” Mastering the lawless science of our law,
That codeless myriad of precedent,
That Wilderness of single instances, “
through which we have to beat a pathway out to fairness. To theseI now turn.
" No legitimate expectation " : In one category of cases it is saidthat the victim had no " legitimate expectation ", either 6f a fair hearing,or of receiving the benefit he sought. This has no relevance wherehe already enjoys a legal right, in respect of property, office, statusand the like. The “ legitimate expectation " principle is not a formeron the right to a hearing in those situations, but an extension of theprotection of the audi alteram partem rule to other situations, topersons who do not have legal rights : such as an applicant for alicence (Me Innes v. Onslow-Fane, R. v. Gaming Board for G.B.,or for the renewal of a licence or permit (Schmidt v. Home Secretary,or a member of the public, who seeks to be allowed to enter andremain upon a racecourse on payment of the usual fee (Heatley v.Tasmanian Racing (etc) Commission (78). That there are threecategories is made clear in R. v. Secretary of State for theEnvironment, ex p. Brent L.B.C. (79), in the first, there is a decisionwhich takes away some existing right or position ; the second atthe other extreme, covers the 0 application cases ", where a decision
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merely refuses to grant an applicant the right or position which heseeks, and there is no duty to grant a hearing ; the third differs fromthe second only in that the applicant has some legitimate expectation,arising from what has already happened, that his application willbe granted. Such " expectations " can arise from pronouncementsor undertakings of the authority concerned : AG. of Hong Kong v.Nq Yuen Shiu (80), at 350 ; or from a general practice : O' Reillyv. Mackman,(81) ; Civil Service Unions case(82), Cinnamond v. BritishAirports Authority (83 which the Respondents relied on strongly,was not in the first category, but was an " application " case.In deciding that it fell into the second category, and not the third,the court took into account what had already happened : extensiveprevious misconduct, namely a long record of convictions, with largeunpaid fines. What is more, in that case the order was not final, butwas more like an indefinite suspension, which would have been liftedon giving satisfactory undertakings as to future good behaviour ;hence no real prejudice was suffered. In view of what had alreadyhappened, there was no legitimate expectation.
"Useless formality " : The Respondents also relied heavily onMalloch v. Aberdeen Corporation (84). That concerned an office heldat pleasure, and ordinarily there would not have been a right to beheard before dismissal. However, by a 3 to 2 majority the appellantwas held entitled to a hearing because the statute forbade dismissalwithout " due deliberation '' and invalidated a dismissal unless threeweeks notice had been given to the office-holder of the meeting toconsider dismissal. Lord Reid agreed that it might be a good defenceif it could be clearly demonstrated that hearing " the appellant beforedismissing him would have been a useless formality because what-ever he might have said could have made no difference but therewas a substantial possibility that a sufficient number of the committeemight have been persuaded not to vote for dismissal ; the appellantmight have argued that the regulation in question did not require thecommittee to dismiss him, or that it was ultra vires; he said that thevalidity of the regulation was not obvious ; and he thought theappellant had at least an arguable case (p 1283). It is Lord Wilberforce'sobservation that the Respondents' stress :
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” The appellant has first to show that his position was suchthat he had, in principle, a right to make representations beforea decision against him was taken. But to show this is notnecessarily enough, unless he can also show that if admittedto state his case he had a case of substance to make. A breachof procedure, whether called a failure of natural justice, or anessential administrative fault, cannot give him a remedy in thecourts, unless behind there is something of substance whichhas been lost by the failure. The court does not act in vain."(p. 1294)
Having said that, Lord Wilberforce considered whether the firstrequirement was satisfied ; and held that there was a right to ahearing. He then said
11 Then was there anything he could usefully have said, ifa hearing had been given? The reason for his dismissal wasstated: it is, to say no more, controversial. My noble and learnedfriend Lord Reid, has dealt with this matter and I am happyto accept his conclusion, for the reasons he has developed,that at least on two points – the validity of the regulations and
the construction of [regulation 4(2)] there were genuine
contentions to be made." (p. 1297)
The Petitioners contend that the Respondents must show thata hearing would have been a “ useless formality the Respondentsreply that it is for the Petitioners to show 11 a case of substance ".I do not regard Lord Wilberforce's dictum as casting a burden onthe Petitioners ; and certainly not the burden of establishing a probablecase. Once the petitioner brings himself prima facie within the scopeof the audi alteram partem rule. It is for the respondent to establishcircumstances which would nevertheless deny him its protection. LordWilberforce expressly adopted Lord Reid's conclusion and reasons,and, with respect, it appears to me that what he meant by ' a caseof substance “ was no more than what he later called “ a genuinecontention ”, or what Lord Reid termed " an arguable case ". If apetitioner shows he has an arguable case, then the respondent hasfailed to show that an antecedent hearing would have been an uselessformality, which would have made no difference ; he may prove more,that he had a weighty case, but this he is not bound to do. LordSimon agreed with Lord Reid, and added :
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“ It is unnecessary to determine whether the normal effect ofa failure to proceed in accordance with natural justice by accordinga hearing before dismissal – namely, that the proceedings are anullity – might be obviated were it is shown that such hearingcould only be a useless formality – either because the employerhad no discretion save to dismiss, or because there was nothingthat the employer could say against dismissal. That is not thepresent case." (p 1298)
Of some relevance to the present case is his observation that theappellant “ might have swayed [the committee] by arguments basedon general educational policy which he sought to urge before us,but which we were in no position to weigh." Whether the right toa hearing exists is not to be determined by asking, after the event,what kind of case might have been made out. That there was nocase at all is a fact relevant only to the logically and chronologicallydistinct issue, whether the usual consequences of non-compliancewith the audi alteram partem rule should follow.
Ex. p. Brent, made the distinction clear beyond doubt; the courtheld that it would be wrong to speculate how the authority wouldhave exercised his discretion if he had heard the representations ;it was unrealistic not to accept that it was certainly probable thatthe authority would nevertheless have made the same decision(adhering to a declared policy) ; yet there was material to suggestthat the authority might have been under some misapprehension. Butthe court was not satisfied that the authority would inevitably havemade the same decision, and Certiorari was granted to quash thedecision. In Maradana Mosque v. Mahmud (8S), the Privy Council didnot come to a finding that a substantial case had been made out; the appellant had placed some material and it was consideredunnecessary to decide whether it could be a valid answer to saythat he had in truth no defence if given a hearing.
“ No injustice “ or " no real prejudice " : This is related to the" useless formality " principle, although the stress seems to be moreon the penalty rather than the decision. Blynn v. Keele University,was invoked to support the contention that the denial of a hearingcaused no injustice. The Court did not hold that because there wasno injustice, there was no duty to give a hearing, but, in the exerciseof its discretion, refused to grant relief in respect of the denial of
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natural justice. Certain undergraduates had appeared naked in thecampus. By 30th June 1970, the Vice-Chancellor had clear andreliable evidence that the plaintiff was one of the offenders ;term ended that day, and some of the offenders were graduating on1st July, whereupon they would no longer be subject to the disciplinaryjurisdiction of the University ; holding an inquiry would then havebecome futile in regard to them. He could have punished themsummarily, and granted a hearing to the others, but in order to treatall offenders equally, he decided to exercise his disciplinary powerssummarily, and to give them all a right of appeal to the UniversityCouncil. Accordingly, he excluded the plaintiff from residence on thecampus for one year, and imposed a fine of ten pounds. The plaintiffappealed to the Council (justifying his harmless " sunbathing ", anddeploring the " proven psychologically harmful aftermath of Victorianprudishness ”) ; on 10th August the Council notified him that hisappeal was fixed for 2nd September. The plaintiff had gone abroad,but his mother acknowledged the letter, and stated her own views.He was absent and unrepresented, when his appeal was taken up,and it was dismissed. It was held that the Vice-Chancellor was actingin a quasi-judicial capacity (and not in a " magisterial " capacityor in a matter of internal discipline) ; that he was bound to complywith natural justice. However the plaintiff was refused relief in theexercise of a discretion which " should be very sparingly exercisedthe facts were not in dispute, the offence merited a severe penalty,the penalty imposed was appropriate, and had he been heard, allthat he could have done would have been to plead in rriitigation. Whilenot disregarding the importance of such a plea in an appropriate case,the deprivation of that opportunity was not considered sufficient toset aside a decision which was intrinsically a perfectly proper one.That decision cannot apply where the charge is not clear, or defenceis imposed, especially where mitigation is not obviously out of thequestion.
I must not fail to mention that the Privy Council, in Annamumthodo(at p. 625), rejected the suggestion I 11 that a man could not complainof a failure of natural justice unless he could show that he had been
prejudiced by it It is a prejudice to any man to be denied
justice. He will not, of course, be entitled to damages if he sufferednone. But he can always ask for the decision against him to be setaside."
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" Urgency “ :Learned President’s Counsel for the Respondents
submitted that the need to take prompt action justified the denial ofa hearing. The Petitioners after signing the notice of resolutioncommenced a campaign against the Executive Presidential systemand the President, couched in unrestrained language andaccompanied by the widest possible publicity. The unity, stabilityand cohesiveness of the Party was threatened. Urgent action wasnecessary. After expulsion the Petitioners intensified their campaign,and this confirmed that prompt action was vital (but such subsequentconduct may equally be attributable to resentment engendered bydenial of natural justice). Reliance was placed on Glynn as well asGaiman v. National Association for Mental Health <8B). In Glynn, therewas absolute urgency : had the Vice-Chancellor waited one day more,some of the offenders would have been outside jurisdiction. Thepenalty was not grave, and a right of appeal was expressly reserved; the plaintiff failed to avail himself of it. The punishment imposedon the Petitioners was the maximum ; once communicated toParliament the decision was probably irrevocable ; there was noprovision for internal review or reconsideration. It may be that WorkingCommittee justifiably felt that the Petitioners were seeking to tie upthe matter in the courts indefinitely, by improperly instituting the DistrictCourt actions ; it is arguable that the effect of Article 99 (13) (a)is to exclude injunctive relief. Those considerations would have justifiednot delaying a decision beyond Monday morning. Where urgent actionis required, the action taken must not be more precipitate than thecircumstances require. Socrates was given a hearing before he wascondemned, but pleaded with his judges :
“ I cannot convince you, the time has been too short; if therewere a law at Athens as there is in other cities, that a capitalcause should not be decided in one day, then I believe that Ishould have convinced you. But I cannot in a moment "
Surely the Petitioners could have been given one day, in a capitalcause? Time till Sunday to show cause, may be in writing, thusenabling the Working Committee to take a decision on Sundayevening or early Monday morning. Greater urgency than that has notbeen established. Gaiman does not help the Respondents. It dealtwith the expulsion of members of a Company limited by guarantee,by a decision of the council of management. The point in issue waswhether the council had exercised the power to expel members acting
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bona fide in what it believed to be in the interests of the company;in the exercise of that power the council might have to act at shortnotice, without hearing those affected, but this did not constitute anabuse of power. It was expressly held that the principles of naturaljustice did not apply to the expulsion of members, and the court didnot decide that urgency superseded natural justice.
" Discretion " : The Respondent's also contended that the court hasa discretion to refuse relief, despite a denial of natural justice. I havealready dealt with the circumstances in which that discretion was verysparingly exercised in Glynn, which is completely distinguishable.Learned President's Counsel referred to a passage in Gaiman (atp. 381) where Megarry, J., having held that natural justice doesnot apply, says “ If I am wrong in that, then I consider that theinjunctions should be refused as a matter of discretion ". His reasonsare clear : the plaintiff had not shown a strong prima facie case forthe existence of the right claimed, nor did the balance of conveniencelie in favour of granting the injunctions. These are considerationsrelevant to interlocutory injunctions, and that indeed – and that alone- was what Megarry, J., was dealing with. That dictum thereforehas no application when, as now, a final order has to be made.Secretary of State for Trade v. Hoffman-La Roche<87), was also cited. •That too dealt with an interlocutory injunction, sought in proceedingsto enforce a statutory order (pursuant to a report of the MonopoliesCommission), which had been approved by Parliament. It wascontended that the Monopolies Commission acted contrary to the rulesof natural justice. Even if this be assumed, said Lord Denning, M.R.,its report was not void, and
"it is within the discretion of the court whether to grant
him such a remedy or not. He may be debarred from relief if hehas acquiesced in the invalidity or has waived it. If he does notcome with due diligence and ask for it to be set aside, he maybe sent away with nothing : see R. v. Senate of the Universityof Aston, ex parte Roffey. If his conduct has been disgracefuland if he has in fact suffered no injustice, he may be refusedrelief : see Glynn v. Keete University : Ward v. BradfordCorporation m. If it is a decision or order or report which affectsmany other persons besides him, the court may not think it rightto declare it invalid at his instance alone " .
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He did not think that it would be open to the court, even at theend of the trial, to declare invalid a statutory order approved byParliament. That decision is therefore inapplicable to the case withwhich we are concerned.
"Subsequent hearing is enough It was then contended that sincethe Petitioners were entitled to canvass their expulsion in proceedingsunder Article 99 (13) (a), firstly, the denial of a hearing did not matter,and secondly, even the right to a hearing was excluded. Reliancewas placed on De Simith, Judicial Review of Adminstrative Action(4th ed, 1980, pp 193-194):
" Can the absence of a hearing before a decision is madebe adequately compensated for by a hearing ex post facto ? Aprior hearing may be better than a subsequent hearing, but asubsequent hearing is better than no hearing at all ; and in somecases the courts have held that statutory provisions for anadministrative appeal or even full judicial review on the merits aresufficient to negative the existence of any implied duty to hearbefore the original is made. This approach may be acceptablewhere the original decision does not cause serious detriment tothe person affected, or where there is also a paramount need forprompt action, or where it is impracticable to afford antecedent
hearingsIf, of
course, the initial decision is only provisional in the sense thatit does not take effect at all until a prescribed period for lodgingobjections has expired, the opportunities thus afforded to a person,aggrieved are in substance a right to an antecedent hearing."
The learned author does not express unqualified approval ofany such judicial approach ; he considers only that it " may beacceptable " in three situations : no serious detriment, urgency, andimpracticability. Those are some of the exceptional situations whichI have just considered, and they do not exist here. He sets outa further proviso : statutory provisions must exist for either anadministrative appeal or full judicial review on the merits. That seemsto me to refer to an integrated statutory scheme, covering both theoriginal decision and the appellate proceedings ; not to situationswhere review or appeal is by reason of some independent provision.This is made .clear elsewhere :
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" Whether a decision vitiated by a breach of the rules of naturaljustice can be made good by a subsequent hearing does not admitof a single answer applicable to all situations in which the issuemay arise. Whilst it is difficult to reconcile all the relevant cases,recent case-law indicates that the courts are increasingly favouringan approach based in large part on an assessment of whether,in a particular context, the procedure as a whole gave the individualan opportunity for a fair hearing, Thus, when a provision is madeby statute or by the rules of a voluntary association for a fullre-hearing of the case by the original body (constituted differentlywhere possible) or by some other body vested with and exercisingoriginal jurisdiction, a court may readily conclude that a full and
fair hearing will cure any defect in the original decision“
(pp 242-243)
Wade makes the following observations in regard to the same question:
" Whether a hearing given on appeal is an acceptable substitutefor a hearing not given, or not properly given, before the initialdecision is in some cases an arguable question, in principle thereought to be an observance of natural justice equally at bothstages ; and accordingly natural justice is violated if the true chargeis put forward only at the appeal stage. If natural justice is violatedat the first stage, the right of appeal is not so much a true rightof appeal as a corrected initial hearing : instead of fair trial followedby appeal, the procedure is reduced to unfair tridl followed by fairtrial. This was pointed out by Megarry, J., in a trade union expulsioncase, holding that, as a general rule, a failure of natural justicein the trial body cannot be cured by a sufficiency of natural justicein the appellate body
According to the Privy Council, however, Megarry, J. ‘s 'generalrule' was too broadly stated, since in some cases members oforganisations, whose rights depend upon contract, should be takento have agreed to accept what in the end is a fair decision,notwithstanding some initial defect. An appeal to the committeeof the Australian Jockey Club was held, for this reason, to curean initial decision of the stewards which failed to observe theprinciples of natural justice in disqualifying the owner of a horsefound to have been raced improperly
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In the case of a public authority acting under statutory powersit would seem paradoxical to interpret the provision of a right ofappeal as meaning that the initial decision may be any less fairthan it would have to be if not subject to appeal. In Ridge v.Baldwin the House of Lords did not allow the chief constable'sunsuccessful administrative appeal to the Home Secretary toprejudice his right to a fair hearing before the watch committee.Nor does a full hearing on appeal justify cancellation of a taxi-driver's licence or dismissal of a school-teacher without an initialhearing. Nevertheless it is always possible that some statutoryscheme may imply that the 'appeal' is to be the only hearingnecessary. And an appeal may have greater curative effect wherethe appeal tribunal has original as well as appellate jurisdiction."(pp 487-489)
The following are the principles which seem to me to be applicable.If an order is " provisional ", and is subject to appeal or objection,antecedent hearing is probably not necessary. If it is final, but bystatute or contract there is provision (a) for a "full re-hearing " bythe same or another body having original jurisdiction, or (b) makingthe decision and an appeal against it (especially if it is by way of“ full re-hearing ") part of an integral scheme, it may be that an initialhearing is dispensed with, or that the absence thereof is not fatal.Where the re-hearing is appellate in nature, even if it has beenpartially successful (as in Ridge v. Baldwin) it will seldom cure theinitial defect ; particularly where the initial error is grave and thedecision has serious consequences for the individual. It is vital thatthe procedure as a whole must give the individual an opportunityfor a fair hearing. What has been said above about " re-hearing "and " appeals " does not apply at all to applications for judicial reviewor proceedings under Article 99 (13) (a). The fact that Certiorari liesin respect of a decision can never be a circumstance which willdispense with the need for an antecedent hearing. The anomaliesinherent in the Respondents' contention can be illustrated : ifdisciplinary proceedings are taken against two Party members – onea Member of Parliament, the other not – it can never be that anantecedent hearing is required for the latter, but not for the former,simply because of Article 99 (13) (a). Further the proceedings beforeus cannot in any way be considered a " re-hearing ", let alone a" full re-hearing ". Procedural and time constraints prevented a fullinvestigation by this Court. The precise charges relied on by the
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Respondents became clear only in the course of their Counsel'sreply, and it was only then that the question of the adequacy of thePetitioners' explanation for the lack of internal discussion could beproperly appreciated. Had we to determine, by way of a " full re-hearing ", matters such as Party policy as to the system ofgovernment, the relevant documents (decisions of Party Convention,Manifestos, etc) would have become necessary. I therefore hold thatthe Constitutional remedy under Article 99 (13) (a) does not relievethe Party of the duty to afford an antecedent hearing in disciplinarymatters, and does not cure the lack of a hearing.
“ No evidence " : Finally learned President's Counsel for theRespondents submitted that the Petitioners had not indicated whatfacts they would have placed before the Working Committee had theybeen given a hearing. This is perhaps another aspect of the "uselessformality 11 or “ open and shut case " principle, namely that if theparty aggrieved does not adequately indicate to the Court what factualor legal matters he could have relied on, then the Court will morereadily hold that a hearing would have made no difference. I willassume that this is right. It was only in their counter-affidavits thatthe Petitioners alleged " that there did not exist a degree of freedomnecessary to raise questions which would involve a curtailment ofPresidential power ", and they gave no particulars. I have alreadynoted that the ambiguity in the allegations may have somewhatobscured the need for such explanation ; the reference to the failureto initiate internal discussions could legitimately have been regardedas an aggravating feature of the offence, and not as an independentcharge : Annamunthodo is an instance of such ambiguity. If so, asuccessful defence in respect of the main charge would result in anacquittal in respect of the aggravated charge as well. That apart, thereis material on record. The Petitioners averred that the Party Manifestoof 1989 referred to the proposed restructuring of political systemsand relationships including an enhanced role for Parliament ; that inOctober 1989, at the All Party Conference (“A.P.C.") a proposal wasmade by the S.L.F.P. that the Executive Presidential system beabolished, and that it was thereupon agreed (subject to furtherconsultations by all Parties) to consider Referendum being held oncepeace and normalcy was restored to decide on the acceptability ofthe Presidential system ; according to the Respondents this was notpursued by the A.P.C. as the S.L.F.P. stopped attending theConference shortly thereafter. A newspaper report produced by the
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Respondents contains a claim by Mr. Gamini Dissanayake that in1989, to the knowledge of the President, he had advocated theabolition of the Executive Presidential system ; this was not denied.There was another report of a statement by Mr. Athulathmudali thatthis question arose within the Party Youth League, and that they hadoften to give answers to Youth League members ; what exactly thismeans is not clear. Yet another report produced by the Respondentswas to the effect that Mr. G. M. Premachanda had lobbied in theCabinet to remove certain Emergency Regulations and that thismet with vehement opposition from another Minister. Bearing in mindthat the Petitioners had only three or four days to reply to theRespondents' statement of objections I am of the view that the groundon which the Petitioners would have relied was stated, and that thereis material before this Court relevant to that ground. The position inregard to the charge of deceiving the Cabinet is consideredseparately.
Resulting position : Let me now examine the position in regardto all the charges, apart from that affecting only Messrs Premachandraand Athulathmudali. The Respondents' position is that signing thenotice of resolution and seeking the abolition of the ExecutivePresidential system are not relied on to justify the expulsions ; thecharge of insult and injury to the President is not mentioned, evenindirectly, in the 2nd Respondent's address to the Working Committee,and as I have already indicated it is difficult to understand how theWorking Committee came to a decision on that charge. Thus out offour charges only one remains : the failure to initiate internaldiscussions. The Petitioners could have tendered an explanation ;it may well be that the Working Committee could probably havereached the same decision, but I cannot say that they would inevitablyhave done so. As Wade points out, (p 477) a distinction might bemade, justifying the disregard of natural justice in the case of a tribunalrequired to decide according to law, where the demerits of the claimare such that it would be struck out in legal proceedings as beingan abuse of the process of the court; but in the case of a discretionaryadministrative decision hearing the case can soften the heart of theauthority so as to reduce the penalty even though it is clear fromthe outset that punitive action was justified. I hold that a hearing wouldnot have been a useless hearing and that grave prejudice was causedby the denial of a hearing. There being no exceptional circumstances,the decision would have had to be declared void ab inito had these
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been proceedings for judicial review simpliciter, where that Courtis concerned with observance of procedure, rather than with thesubstance of the decision. As observed in Chief Constable (NorthWales) v. Evans :
11 the purpose of the remedies is to ensure that the
individual is given fair treatment by the authority to which he hasbeen subjected and that it is no part of that purpose to substitutethe opinion of the judiciary or of individual Judges for that of theauthority constituted by law to decide the matters in question. Thefunction of the court is to see that lawful authority is not abusedby unfair treatment and not to attempt itself the task entrustedto that authority by the law." (p 143)
" judicial review is concerned, not with the decision, but withthe decision-making process. Unless that restriction on the powerof the court is observed, the court will in my view, under the guiseof preventing the abuse of power, be itself guilty of usurping power
[It] is not an appeal from a decision, but a review of the
manner in which the decision was made." (pp 154-155)
Our jurisdiction under Article 99(13) (a) is not a form of judicialreview, or even of appeal, but rather an original jurisdiction analogousto an action for a declaration, though it is clearly not a re-hearing.Are we concerned only with the decision-making process, or mustwe also look at the decision itself? Article 99 (13)’ (a) requires usto decide whether the expulsion was valid or invalid, someconsideration of the merits is obviously required. In Oimes v. GrandJunction Canal(84), decrees entered by the Vice-Chancellor had beenaffirmed by the Lord Chancellor, who owned shares in the company.On appeal to the House of Lords the Lord Chancellor's order wasset aside (although " no one can suppose that [he] would be, in theremotest degree, influenced by [that] interest ") ; but the House ofLords then dealt with the appeal on the merits, and affirmed theoriginal decrees of the Vice-Chancellor. Had these proceedings beenpurely by way of judicial review, it may well be that we would haveto shut our eyes to the merits of the decision, and look only at thedefects in the decision-making process. But it is accepted that ourjurisdiction is not restricted. The burden, if any, must be on theRespondents, for it is the denial of natural justice by them which hasresulted in these proceedings. I have therefore to consider whether
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on the merits the Respondents have shown that the decision wasa good one, thereby disentitling the Petitioners to relief. The followingmatters compel me to hold that the Respondents have failed to justifythe expulsions :
It became clear that the failure to initiate prior internaldiscussions was a distinct charge only midway through the legalarguments ;
although the fact that the Petitioners took no steps toinitiate such discussions is undisputed, they have stated thegeneral nature of the explanation which they would haveoffered ; and there is some material to support it; that explanationmight have been rejected after full inquiry, but it was the defectivenature of the proceedings and resolution of the Working Committeewhich was the main reason for this matter not being fully dealtwith in the pleadings and submissions before us ; and
even if that explanation was rejected, it was relevant toa plea of mitigation, and it cannot be said that this was not anappropriate case for mitigation.
I therefore hold that the expulsion of the Petitioners in S. C.(Special) Nos 4, 6, 7, 9, 10 and 11/91 was invalid ; this will notpreclude fresh disciplinary proceedings on the same or differentcharges. While this would normally have applied to the other twoPetitioners (in S.C. (Special) Nos 5 and 8/91) as well, I hold theirexpulsion to be valid for reasons which I set out below.
The case against Messrs Premachandra and Athulathmudali : Ihave now to consider the allegation against Messrs Premachandraand Athulathmudali that they misled and deceived the Cabineton 28.8.91. Learned President's Counsel submitted on their behalfthat secrecy was necessary during the period when the requisitesignatures were being collected. I will assume that secrecy wasjustified upto 27.8.91, when the notice was received by theSpeaker; or even right upto the time on 28.8.91 when the Presidentwas infromed by the Speaker that he had entertained the notice.Thereafter disclosure could not have caused any prejudice to thenotice of resolution. It is not clear when these two Petitioners signed.The material before us suggests that it is possible that they signed
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after the Speaker had written to the President : but that would bein itself extremely grave misconduct ; and it would not in any waymitigate their conduct on the 28th, for it would strain one's credulityto assume that on 28.8.91 they had not made up their minds to sign,and decided to do so only after the vote of confidence. I will take,in their favour, the more lenient view, that they signed before the.Speaker received the notice. When, as Ministers, they joined in avote of confidence in the President at the Cabinet meeting on
they thereby represented to the President, and to theCabinet collectively, that they were not associated with the notice,and that they did not consider that there was justification for presentinga resolution for removal. But how could they possibly have hadconfidence in a man whose removal from office they actively desired? Even to a person who knew that they had previously signed thenotice, their conduct amounted to an assertion that they had changedtheir minds, and were no longer of the opinion that such a resolutionshould be supported. They lied to the Cabinet, and deceived theCabinet. The Cabinet is charged with the direction and control of thegovernment, and operates on the basis of collective responsibility.Deception completely undermines loyalty, trust and confidence, vitalfor its functioning.
Members of democratic institutions owe a duty to be frank andcandid with their colleagues and the public. Secrecy and deceptionare not conducive to the working of such institutions, whose affairsmust be characterized by openness, honesty and fair disclosure. Thusjudges function in open court ; people know what they decide, andwhy, and if they disagree, why they disagree, and what each hasdecided. Proceedings in Parliament too are generally open to thepublic ; secret or unpublished laws and regulations are anathemato a democratic society. In regard to the executive government too,there is a growing global trend towards recognition of the citizen'sright to freedom of information. Democracy is not furthered bypractising economy with the truth, but rather by full disclosure : thetruth, the whole truth, and nothing but the truth, subject to statutoryprovisions for confidentiality in the public interest. A Member ofParliament who lies to or otherwise deceives Parliament is guilty ofa serious breach of privilege :
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° The House may treat the making of a deliberately misleadingstatement as a contempt.
In 1963 the House resolved that in making a personal state-ment, which contained words which he later admitted not to betrue, a former Member had been guilty of a grave contempt(profumo’s Case CJ (1962-63) 246). “ (Erskine May, 20th ed, 1983,p. 149)
No lesser standard can be accepted for a Minister in relation tothe Cabinet and Cabinet proceedings. It may be that our society nolonger expects high standards from politicians or holders of publicoffice ; that politics is considered to be a dirty game, characterizedby intimidation, bribery, false promises and deception. May be ; maybe not. Democratic institutions cannot accept or acquiesce in suchviews. The courts certainly must not give their blessings to such normsof conduct, especially in the case of high officers, and in that contextit is relevant that the State accords to Ministers precedence evenover Judges of this Court. How then can we lower the norms applicableto Ministers?
In their pleadings the Petitioners gave no explanation at all fortheir conduct, although in regard to the other charge they allegedthat the climate was not conducive to free speech and dissent.Learned President's Counsel submitted on their behalf that they mighthave given half a dozen explanations had they been asked. Heventured to suggest that premature disclosure was avoided on accountof apprehensions about the personal safety of themselves and membersof their family. This is unacceptable in the absence of even asuggestion as to the nature and source of any anticipated threat, andnothing but a serious threat would have sufficed. It is also implausible,since they felt able to disclose their role within a day or two. Healso submitted that disclosure might have prejudiced the ultimatepassing of the resolution ; not only is this highly speculative, but itproceeds upon the assumption that action intended to ensure purityat the highest levels of executive government can itself be foundedupon deception and falsehood. Deception may have been politic orexpedient, but it was neither right nor honourable. In the result I findthat –
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the charge was clear and unambiguous from th$ inception;
the facts are undisputed ; the only uncertainty lies in thepossibility that these two Petitioners may have signed the noticeof resolution after it was delivered to the Speaker, which in myview would aggravate rather than mitigate their conduct ;
no explanation has been offered in their affidavits, nor isone to be found in the documents produced ; the explanationssuggested by Counsel in his submissions are speculative ;accordingly, an antecedent hearing would have made nodifference ; and
the misconduct was grave, and expulsion was intrinsicallya perfectly proper penalty.
I hold that the expulsion of the Petitioners in S.C. (Special)Nos. 5 and 8/91 was valid.
BREACH OF NATURAL JUSTICE: (b) bias
Learned President's Counsel submitted that the proceedings andorder of the Working Committee were vitiated by bias, in that –
The President was present and presided at the meetings ofthe Disciplinary Committee and of the Working Committee,although he did not participate in the discussions, recommen-dation and decision ; he had an " interest " in the issue asthe notice of resolution was directed at him.
The eleven members of the Disciplinary Committee were presentand actively participated in the proceedings and decision ofthe Working Committee ; since they had recommendedexpulsion, they should not have participated.
The 2nd Respondent, the General Secretary of the Party, hadbeen named a defendant in the District Court proceedings, hadbeen present in the District Court, had participated in theproceedings of the Disciplinary Committee, and presented thecase against the Petitioners to the Working Committee, virtuallyas the prosecutor ; he should not have participated in theproceedings and decision of the Working Committee.
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There has been controversy as to the precise formulation of thisrule against bias. Thus Lord Hewarfs celebrated dictum in R. v.Sussex Justices (90), seems to suggest that those who decide must,like Caesar's wife, be above suspicion :
" Nothing is to be done which creates even a suspicion thatthere has been an improper interference with the course of justice."
In Cooper v. Wilson, it was said
“ The risk that a respondent may influence the Court is so
abhorrentthat the possibility of it or even the appearance
of such a possibility is sufficient to deprive the decision of all judicialforce, and to render it a nullity."
The same notion appears in the headnote in Uannam v. BradfordCity Councilm. In Eckersley v. Mersey Docks and HarbourBoard(9Z), it was said that judges of all kinds must be free from evenunreasonable suspicion of bias. The better view however is that meresuspicion or possibility of bias is not enough. It is settled that actualbias need not be proved. Two tests vie for acceptance, was therea real likelihood of bias? {R. v. Essex Justices (93>, R. V. CamborneJustices m, R. v. Nailsworth Justices<95), R. v. Barnsley (etc) Justices(96), Simon v. Commissioner of National Housing (97)). Or would areasonable person reasonably suspect that the tribunal might bebiased ? (Lawv. Chartered Institute of Patent Agents m, MetropolitanProperties v. Lannon (99>). Sometimes these two tests are interwovenas if they were one :
"if right minded persons would think that, in the
circumstances, there was a real likelihood of bias on his part, then
he should not sit Nevetheless there must appear to be a
real likelihood of bias. Surmise or conjecture is not enough. Theremust be circumstances from which a reasonable man would thinkit likely or probable that [he] would, or did, favour one side unfairlyat the expense of the other." (Lannon, at p 310)
" If a reasonable person who has no knowledge of the matterbeyond knowledge of the relationship which subsists betweensome members of the tribunal and one of the parties would thinkthat there might well be bias, then there is in his opinion a reallikelihood of bias “ (Hannam at p 700) '
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It has also been suggested that both tests produce virtually thesame result (Hannam, at p 694). On the other hand it has also beenpointed out that sometimes the two tests lead to different results (R.v. Barnsley Justices ; and as in Dimes v. Grand Junction Canal].
It seems to me that the test of bias has an objective as well asa subjective element. Apart from what a person legitimately interestedin the matter may actually think, if there are circumstances whichin the opinion of the court would lead a reasonable man to thinkit likely or probable that the adjudicator would or did favour oneside unfairly, then the test is satisfied ; it does not matter (as in Dimes)that no one actually did think so ; and those circumstances neednot have been known to the person concerned. The subjectiveelement is that even if in those cicumstances the court would notform that opinion, it may be that the objector knew only some ofthose circumstances ; if with such limited knowledge (as in R. v.Sussex Justices) he would reasonably think the adjudicator would ordid favour the other side unfairly, then too the test is satisfied.
The authorities cited fall into distinct categories. The first grouprelates to instances of actual or apparent participation in thedeliberations of the deciding body, by complete " outsiders " (e.g.an " observer “ in R. v. Leicestershire Fire Authority (100), a witnessin R. v. Bodmin Justices (10> or a party (e.g. Cooper v. Wilson ; R.v. Surrey Assessment Committee (,02) or even its own officer (e.g.its clerk : R. v. Sussex Justices, R. v. Essex Justices).
The next group of cases deals with the conduct of theadjudicators. The first point to be noted is that it is proper for anumerically large tribunal to authorise a small sub-committee drawnfrom its own membership to make preliminary investigations andrecommendations, provided that the ultimate decision is by the mainbody. This is the effect of Queen v. L.C.C., ex p. Akkersdyk (103),which held only that a member who had by his conduct made himselfinterested, could not sit with the main body. Similarly, in Jeffs v. N.Z. Dairy Products (etc) Board, the Privy Council did not considerit objectionable for the members of such a sub-committee toparticipate in the decision of the main body ; that decision was heldto be bad only because when the main body met, the members, otherthan the members of the sub-Committee, did not have all the evidenceand submissions. It seems to me that all those who are charged with
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the duty of adjudicating on some matter are entitled to participatein the decision ; if some of them assist their colleagues by conductingsome preliminary investigation, it cannot be that they are therebydisabled from performing their principal duty., (cf. also R. v. GreenwichL.B.C.)
However, if as a member of such sub-committee an adjudicatordoes something whereby he makes himself interested in theproceedings, or places himself in the position of a party or a party'sadvocate, then he is disqualified by bias. In Akkersdyk, some membersof a sub-committee recommended that a licence should not begranted, retained counsel and solicitor to oppose the application fora licence, and then participated in the proceedings ; but when itappeared that they were both accusers and judges, they abstainedfrom further participation. The decision to refuse the licence wasquashed. Frome United Breweries v. Bath Justices (,04>, was similar.
The third category are cases of interest, involving no question ofsub-committees. In R. v. Hendon Rurai District Council<,05), acouncillor voting for a resolution had a disqualifying interest in thesubject-matter of the resolution ; the unanimous decision of thecouncil was quashed. In Lannon, an adjudicator was disqualifiedbecause he had an interest adverse to one party. R. v. AltrinchamJustices (106), was similar. :
" It is ehough to show that there is a real likelihood of bias,or at all events that a reasonable person advised of the circum-stances might reasonably suspect that the judicial office wasincapable of producing the [requisite] impartiality and detachment."
In Hannam, an adjudicator was a member of the body whosedecision was being challenged, and although he had not participatedin that decision he was held to be interested as he was an integralpart of the body whose action was being impugned. In Roebuck v.National Union of Mineworkers (,07), this president of the unionsuccessfully brought a libel action, on behalf of the union, againsta newspaper. The members of the union gave evidence for thenewspaper; one contradicted a written statement made to the union'ssolicitors, and the other showed the newspaper official corre-spondence. The executive committee of the union expelled the twomembers ; the president look an active part in the proceedings, but
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did not vote. It was held that it was no answer to say that he didnot influence the result. The expulsion was quashed.
There is no question here of participation by outsiders. Clearlythe participation of the members of the Disciplinary Committee in thedecision to expel was not improper. None of the authorities in thesecond category are applicable. The 2nd Respondent participatedmore actively, and this is understandable as he was the GeneralSecretary. But none of the members made themselves accusers orprosecutors, or did more than carry out their legitimate functions inregard to a preliminery investigation. The presence of the Presidentdoes not make this case comparable to Roebuck, because he didnot participate at all in the proceedings. Superficially, his presenceappears to fall within the first category, but all those were instancesin which an impression was created in the mind of the partycomplaining that an interested person had participated in thedeliberations. Here no such impression was created, because thePetitioners were not there ; and they do not complain in their petitionsof any such impression. In other words, neither the objective nor thesubjective element in the test of bias is satisfied. It was submittedthat the mere presence of the President would have been adominating influence ; that would probably be true of practically everyleader of almost any political party in Sri Lanka since independence.It is idle to think that his absence would have diminished hisinfluence. In any event, the test of bias cannot be applied as strictlyas in judicial proceedings, for here all members of the* tribunal wouldinevitably have had views, and possibly strong views, on the mattersin issue (see the Bromley L.B.C. case, at pp 131-2, for an intancewhere the court might be considered " interested but yet notdisqualified). Had the " dissidents “ been in a majority, if thequestion of disciplinary action against the " orthodox " minorityhad arisen, I doubt whether the tribunal could be regarded asbiased simply because it consisted of the u dissident " majority.Although the principle against bias does apply, this serves to illustratethe difficulty of applying that principle to a situation in which thereis no lis between two contesting parties. I hold that the mere presenceof the President did not vitiate the decision. It must be noted thatin any event the President could not be regarded as having adisqualifying interest in relation to the charge of deceiving the Cabinet; and on the merits, I consider that charge to have been established.Further, in view of my findings regarding denial of natural justice in
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respect of the failure to initiate internal discussions, it is not strictlynecessary for me to consider the issue of bias.
CONCLUSION :
I am deeply appreciative of the ready co-operation and assistanceextended by Counsel to the Court in elucidating the many importantissues, of rare complexity, which arose right through theseproceedings.
I direct the Registrar to expunge the matters referred to in paragraph
of this judgment.
I determine that :
the expulsion of the Petitioners in S.C. (Special) Nos 4,6,7,9,10and 11/91 was invalid ; and
the expulsion of the Petitioners in S.C. (Special) Nos 5 and8/91 was valid.
I make no order as to costs.
KULATUNGA, J.
These Applications (Special) Nos. 4-11/91 were of consent heardtogether as they involved the same issues and rested substantiallyon the same facts. The petitioners are Members of Parliament andare members of the United National Party (UNP) (the 4th respondent)which is a recognised political party within the meaning of theParliamentary Elections Act No. 1 of 1981. The 1st, 2nd and 3rdrespondents are the Chairman, General Secretary and GeneralTreasurer of the UNP respectively ; they are all members of theNational Executive Committee (NEC) and the Working Committee ofthe UNP. The 5th respondent is the Secretary General of Parliamentagainst whom no relief has been claimed ; he has been joined forthe purpose of giving him notice of these proceedings.
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The petitioners have invoked the jurisdiction of this Court underthe Proviso to Article 99 (13) (a) of the Constitution. Each of themseeks a determination that his expulsion from the membership of theUNP communicated by the letter dated 09.09.91 (P1) under the handof the 2nd respondent is invalid. The decision for the expulsion ofthese petitioners has been made by the Working Committee of theUNP by its resolution dated 06.09.91 (P1A). The grounds for suchexpulsion have been set out in P1A ; and the decision of the WorkingCommittee to expel the petitioners has been endorsed by the NECon 07.09.91 as evidenced by the extracts of the minutes of the NEC,marked R5.
FACTS
The petitioners are Members of Parliament having been electedto Parliament from the UNP at the General Elections held in February
The petitioner in application No. 4 held office as a CabinetMinister until March 1990. The petitioners in applications Nos. 5 and8 were Cabinet Ministers and the petitioners in applications Nos. 6and 7 were a State Minister and a Project Minister respectively inthe government; each of them had resigned from his office as suchMinister a few days prior to the impugned expulsion. The petitionersin applications Nos. 9, 10 and 11 are Members of Parliament forthe electoral districts of Kegalle, Badulla and Colombo respectively.Under Article 99 (13) (a) of the Constitution the seats of thesepetitioners will become vacant by reason of their expulsion from themembership of the UNP and they will be deprived of their status asMembers of Parliament unless they obtain a determination from thisCourt that the impugned expulsion is invalid.
The conduct of the petitioners for which they were expelled consistsof a series of alleged acts and omissions by them in the course ofa campaign connected with an attempt by some Members ofParliament to take proceedings under Article 38 (1) (e) read withArticle 38 (2) for the removal of His Excellency Ranasinghe Premadasafrom the Office of President of the Republic of Sri Lanka. Under Rule7 (1) of the UNP Constitution (P2) The President, being a memberof the UNP, is also the Leader of the Party. A copy of the requisitenotice of resolution given to the Speaker under Article! 38 (2) (a) hasbeen produced marked P3B. The petitioners state that the said noticeof resolution had been signed by not less than one-half of the whole
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number of Members of Parliament; and that on 28.08.91 the Speakerinformed the President by writing that he had entertained the saidresolution in terms of Article 38 (2) (b) and further drew the attentionof the President to Proviso (c) to Article 70 (1).
The respondents deny that the said resolution was duly entertainedby the Speaker inasmuch as the Speaker announced in Parliamenton 08.10.91 that having inquired into the matter, he was of the viewthat the notice of resolution did not have the required number of validsignatures and accordingly it could not be proceeded with. Thepetitioners have joined issue on this and reiterate that the saidresolution was duly entertained ; but those are proceedings inParliament which this Court cannot or need not inquire into for thepurpose of determining the applications filed by the petitioners.Reference will, therefore, be made to the said resolution only to theextent that the contents thereof may be relevant to the question beforeus namely, the validity of the impugned expulsion.
The resolution alleges the existence of all the grounds for theremoval of the President provided by Article 38 (2) (a). It allegesthat the President is guilty of –
intentional violation of the Constitution and/or
treason and/or
bribery and/or
misconduct or corruption including the abuse of the powersof his office and/or
any offence under any law involving moral turpitude.
It also alleges that the President is permanently incapable ofdischarging the functions of his office by reason of mental or physicalinfirmity. This is followed by a purported statement of the particularsof the allegations. From that statement I have extracted the followingitems as they are relevant to a consideration of the conduct of thepetitioners outside Parliament between 28.08.91 and 06.09.91. i.e.during the period prior to their expulsion which' conduct is evidencedby copies of news paper reports R 3A to R 3G and R 4A to R 4LThe respondents rely inter alia, on such conduct as constituting goodgrounds for the impugned expulsion. The resolution states that thePresident has –
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. violated several provisions of the Constitution whereby the
powers of Parliament and of Cabinet Ministers have beenundermined ;
given direct orders to Secretaries by-passing their Ministers;
engaged Secretaries to obtain confidential reports on theirMinisters ;
endangered the security of the State by arming the LiberationTigers of Tamil Eelam (LTTE) and sending off the Indian PeaceKeeping Force (IPKE) without considering military aspects.
resorted to unlawful telephone tapping including the telephonesof Ministers ;
engaged in wasteful expenditure including for Gam UdawaCelebrations ;
established a one man dictatorship colloquially referred to asa "one man show."
The newspaper reports R 3A to R 3G and R 4A to R 4L whichhave not been denied show that the petitioners led by the petitionersin applications Nos. 4, 5 and 8 had prior to 06.09.91 commenceda public campaign in the course of which they hacJ agitated everyone of the matters referred to above at regular press conferencesand in statements to the media by them, and also in a speech madeby the petitioner in application No. 4 at a religious ceremony in atemple and in a speech made by the petitioner in applicationNo. 8 to the officers of the Education Ministry when he went thereto wind-up duties upon resignation.
One of the allegations contained in P 1A is that on 28.08.91 afterthe speaker had informed the President that he had entertained thenotice of resolution P 3B the petitioners in applications Nos. 5 and8 joined the rest of the members of the Cabinet in passing anunanimous vote of confidence in the President by a show of handsindividually. This has not been denied by either of petitioners ; andthe petitioner in application No. 8 has in R 3B and R 4E admittedthe event.
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On 03.09.91, 116 members of Government Parliamentary Grouppresented to the Speaker a writing dated 30.08.91 (R15) regardingthe resolution for the removal of the President stating, inter alia, asfollows
“ We write to hereby inform you that we do not support thesaid resolution. Those of us who have placed our signaturesdo hereby withdraw and revoke our signatures and consentthereto ",
and proceeded to request the Speaker not to place the resolutionon the Order Paper. On 02.09.91 the same members passed a voteof confidence in the President (R16). This document also containsa statement that interested parties had obtained the signatures ofcertain Government and Opposition Members of Parliament throughmisrepresentation and deceit.
Simultaneously with the above developments the petitionerscommenced holding of daily press conferences which were presidedover by the petitioners in applications Nos. 4, 5 and 8. At the firstconference reported in the press on 01.09.91 (R 3G) which wasattended by all the petitioners, they claimed to have with them 47UNP M.P.s. The same number is claimed in R 4C (02.09.91) andR 4G (04.09.91). They also assured the public that the resolutionwill have the support of two thirds of the Members of Parliament andclaimed that more will join them. In R 11K (06.10.91) they claimedthat 44 out of the original 47 M.P.s were still with them.
On 05.09.91 the petitioners filed actions in the District Court ofColombo. In the plaint (P4) they set out the events relating to theresolution for the removal of the President a copy of which theyannexed to the plaint and state that they apprehend that the NECand/or the Working Committee of the UNP would suspend or expelthem from the party particularly in view of the fact that a meetingof the NEC had been summoned for 07.09.91 by a notice dated
a copy of which they annexed to the plaint. They prayedinter alia for a declaration that they are not liable to be so suspendedor expelled and for an enjoining order and interim and permanentinjunctions in that regard. On 06.09.91 the District Judge after hearingCounsel made order (P6) refusing to entertain the actions and refusingthe enjoining orders sought by each of the petitioners. At 7.30 p.m.on the same day the Working Committee passed the resolution P1A
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expelling them. On 07.09.91 the NEC attended by 2500 members• endorsed the decision of the Working Committee.
The respondents state that subsequent to their expulsion thepetitioners launched a country-wide campaign and condemned theExecutive Presidential system and the party leader; between 10.09.91and 20.10.91 they held public rajlies for this purpose at Nugegoda,Kandy, Kurunegala, Kegalle, Badulla, Galle, Kalutara, Ratnapura,Kiribathgoda, Puttalam and Polonnaruwa. The petitioners do not denythis but state that these activities being subsequent to their expulsionare irrelevant to these proceedings and have been introduced tomislead the Court ; and further state that they did not campaign forthe abolition of the Presidential system or the reversion to the pre1978 system. They state that the essence of their contention in publicwas that the Executive Presidency should be made more accountableto Parliament and the President's powers should be reduced.
After the Speaker ruled on 08.10.91 that the resolution for removalof the President cannot be proceeded with, the opposition moved amotion of no confidence in the Speaker. This was debated on 10.10.91;petitioners voted in favour of it whilst the Government ParliamentaryGroup voted against it.
GROUNDS OF EXPULSION
The grounds of expulsion as appearing in the Working Committeeresolution (P1A) may be summarised as follows :-
(a) Signing the notice of resolution (P3B) together with several
members of the opposition which is an act of betrayal of theParty Membership and the confidence placed by the peoplein the Party and its Leadership at successive elections.
(b) Signing the said notice of resolution without any priorinformation to the party or raising or discussing the samewithin the Party Organizations or the Government Parliamen-tary Group.
In particular the petitioners in applications Nos. 5 and 8 misledand deceived the Cabinet of Ministers on 28.08.91 into thebelief that they were ignorant of and were not associated with
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the notice of resolution by joining the other members of theCabinet in passing a vote of confidence in the President.
Having been elected to Parliament as UNP M.P.s on thebasis of the Executive Presidential System and under theLeadership of the President ;
engaged in a public campaign against the ExecutivePresidential System which is the principle and policy of theUNP.
used such campaign as a cover to cause insult and injuryto the character, integrity and ability of the Leader of the Partyin his capacity as President of the country.
Doing all the aforesaid acts without first raising the saidissues within the Party Organizations or the GovernmentParliamentary Group as is required by the Party Constitutionand conventions.
By such conduct and actions the petitioners have manifestlyand flagrantly and in disregard of Party discipline, duties andresponsibilities.
breached the conditions of membership of the Party ;
acte’d contrary to the principles and policies of theParty ;
repudiated and violated the Constitution and conventionsof the Party ; and
brought the Party and its Leadership to disrepute andheld it up to public ridicule.
THE UNP CONSTITUTION
The respondents rely upon the following provisions of the UNPConstitution (P2).
Rule 3 (1) – In accepting membership of the Party a person agrees-
(a) to accept the Principles, Policy, Programme and Codeof Conduct of the Party ;
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to conform to the Constitution and Standing Ordersof the Party ;
not to take part in political or other activities whichconflict or might conflict with the above undertakingsand not to bring the Party into disrepute.
Office bearers ; line of authority
Rule 7(1) – The President of the country, if he is a member ofthe Party, shall be the leader of the Party.
7(3) – Members of the Parliamentary Party shall be bound byorders and directions of the Leader and in his absencethe Leader of the Parliamentary Party as to the conductof matters in Parliament.
Parliamentary elections ; obligations of party candidates and M.P.s
Rule 9(d) – A candidate shall be called upon to give a pledge thatif he succeeds in entering Parliament on the PartyTicket he will conform to the Principles, Policy,Programme and Code of Conduct of the Party and thathe will abidebythe Standing orders andthe
Constitution oftheParty and that he will carryout
the Mandate oftheParty ; if he fails to do so,the
Executive Committee shall take action for thepunishment of such offender.
9(g) – Any candidate who after election fails to act in harmonywith the Principles, Policy, Programme, Rules and Codeof Conduct and Standing Orders of the Party shall beconsidered to have violated the Constitution.
Standing Orders of the Parliamentary Party
17(1)-Every memberofthe Parliamentary Party shall
subscribe to a pledge of loyalty to the Party.
(2)-He shall voteinthe Parliament according tothe
Mandate of the Parliamentary Party conveyed throughthe whip of the Party.
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– If any member has any conscientious scruples on any
matter of Party Policy he may be free to abstain fromvoting, subject to the written approval of the Leaderof the Parliamentary Party.
– Members should take the fullest advantage of the
opportunity at the Party meetings of raising questionsof Party Policy concerning which they may have doubts.
GROUNDS URGED AGAINST THE EXPULSION
The petitioners challenge the expulsion on three grounds namely,
absence of jurisdiction in the Working Committee ;
inconsistency with the provisions of the Constitution of SriLanka and Statute Law ;
breach of the rules of natural justice.
They allege that the decision to expel them is mala fide.
ABSENCE OF JURISDICTION IN THE WORKING COMMITTEE
The two main constituent bodies of the UNP are the Party Conventionand the National Executive Committee. The former is the largestrepresentative body at national level and meets regularly once a year.The latter is the Administrative Authority of the Party at national leveland consists of approximately 2500 members. Under Rule 8 (3) ithas the power,' inter alia, to take disciplinary action against anymember in a manner suitable to the circumstances of each case andmete out punishment. The Working Committee is established by Rule8 (3) (m) and is appointed by the Leader of the Party from the NECconsisting of himself, Deputy Leader and all other office bearers andany other members not exceeding fifty. The same rule confers onthe Working Committee the authority to exercise the powers andfunctions vested in it by the NEC. By a resolution of the NEC dated
(R2) the Working Committee has been vested with fullpowers to carry out the responsibilities and functions of the NEC.
Mr. H. L. de Silva, P.C. for the petitioners strenuously contendsthat under rule 8 (3) the power to take disciplinary action is vestedsolely in the NEC ; that such power being judicial or quasi judicialit can be exercised by the NEC alone ; that Rule 8 (3) (m) whichprovides for vesting of powers as opposed to delegation would enable
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the NEC to give away only its ancillary powers e.g. running of theHead office, fund raising or propaganda ; that R2 is a wholesaledivesting by the NEC of its power vested in it by the UNP Constitutionand the Working Committee cannot exercise such power in theabsence of an amendment to the Constitution enabling the delegationof particular powers ; that R2 is outside the contemplation of Rule8 (3); that even assuming the possibility of a delegation of powers,NEC cannot delegate its disciplinary power because Rule 8 (3) (m)is in general terms and gives no such power either expressly orby necessary implication. Mr. de Silva cited a number of decisionsincluding Barnard v. National Dock Labour Board(3S); Vine v. NationalDock Labour Board (36) and Young v. Fife Regional Council(3). Thefirst two cases relate to sub delegation of powers not authorisedby statute. In the third case power was delegated without anyauthority therefor. In Vine's case Lord Somervell said –
“ I am, however, clear that the disciplinary powers whether
" judicial “ or not, cannot be delegated " (p. 951)
In Young's case it was held that the delegation was not empoweredexpressly or by necessary implication and hence the decision madein virtue of delegation is a nullity ; per Lord Ross p. 334.
Mr. de Silva further submits that the expulsion in P.1 A beinginvalid, the NEC could not have validated it by its endorsementR5 ; he supports this with the decisions in Barnard's and Vine'scases (Supra) and Blackpool Corporation v. Locker <109).
Mr. Choksy, P.C. for the respondents submits that in the casescited by Mr. de Silva the power had been delegated without anyauthority therefor or there was held to exist an unauthorizedsub-delegation of power; here is a case where the power to delegateis conferred expressly by Rule 8 (3) (m) ; the word 'vest' appearingtherein, properly construed in the context and as appearing in a non-statutory document, means “delegate" ; and hence the power maybe withdrawn expressly by revoking R2, and there is no abdicationof power by the NEC. He concedes that the power may even beimpliedly withdrawn in the event of NEC resuming the exercise ofpower see Huth v. Clerk (,10). Mr. Choksy contends that the powerof delegation in Rule 8 (3) (m) is express and unqualified and theCourt cannot by interpretation limit that power ; that in any event
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the power given by the said rule is by necessary implication verywide and is absolutely necessary for the proper functioning of theParty ; that it forms part of the contract between members of theParty which cannot be avoided unless it is contrary to public policyor the law. He argues that the petitioners cannot seek to vary it onthe ground of expediency or alleged fraud. Answering a question byCourt he said that the expulsion does not require ratification andhence R5 was unnecessary.
Mr. Choksy points to the fact that under Standing Order 13 theNEC comprises an unwieldly number of representatives drawn froma wide circle and includes ex-members of Parliament and Chairmanof Local Authorities who are members of the Party and representa-tives of Trade Unions etc., and it is inconvenient and impracticablefor the NEC to directly exercise disciplinary powers. It consists of2500 members who cannot be called upon to exercise their judgmentcollectively or otherwise.
Rule 8 (3) (m) requires the Leader of the Party to appoint theWorking Committee from the NEC the composition of which is fixedas follows :
Leader of the Party
Deputy Leader
All other office bearers of the NEC.,
and other members, not exceeding fifty. It is to be noted thereforethat the executive component of the NEC is included in thecomposition of the Working Committee ; and the Committee itself is" a microcosm " of the NEC to whom power may be delegatedeven in the absence of express provision. See the dicta of ViscountKilmuir LC in Vine's case. Under the UNP Constitution the WorkingCommittee exercises not only the powers delegated to it by the NEC,but also a variety of other powers such as –
to dissolve District Balamandalayas, Polling Division Organiza-tions or main Associations ; Rule 2A(4)
to approve the political rules of affiliated member Organiza-tions ; Rule 3 (e)
summoning of the Party Convention ; Rule 5 (a)
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appointment of Nomination Bords for elections ; Rule 9 (b)
selection of a candidate for any Presidential Election ;
Rule 9 (a)
determination of the number of persons to be represented inthe NEC among certain categories of representatives ; StandingOrder 13
certain powers in respect of the UNP Youth League and UNPWomen's Union ; Standing Orders 15 and 16
acquisition of property and utilization of Party funds ; StandingOrder 18
giving directions in the interpretation of the Constitution; StandingOrder 21.
All this shows that the Working Committee constitutes the core ofthe NEC and functions as a body that is singularly suited to becharged with the most vital powers and functions of the NEC includingthe exercise of disciplinary power but with its roots in the larger bodythe members of which are spread out country -wide.
CONCLUSION
Upon a consideration of the relevant authorities the submissionsof Counsel and all other matters, I am of the view that the WorkingCommittee has been lawfully empowered by R2 to exercisedisciplinary powers over members of the party and that there is nomerit in the objection to its jurisdiction ; I accept Mr. Choksy'ssubmissions and hold that the Committee has jurisdiction to takedisciplinary action against the petitioners.
INCONSISTENCY WITH THE PROVISIONS OF THE CONSTITU-TION OF SRI LANKA AND STATUTE LAW
This ground of challenge relates to the lawfulness of the groundsof expulsion set out in P1A which I have summarised earlier in thisjudgment. The broad grounds of expulsion are linked with two eventsnamely, the signing of the resolution P3B and the public campaign
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against the Executive Presidential System. According to therespondents, the said events coupled with the petitioners' conductin failing to first raise the issues within the Party organizationsrepresent a repudiation of the UNP Constitution and a flagrant breachof party displine and a cover for insulting the character, integrity andability of the Leader of the Party in his capacity as President of thecountry which eventually brought the Party and its Leadership todisrepute and held it up to public ridicule.
The petitioners take up the position that in respect of both eventsreferred to above their acts are protected by Article 4 (a) and (e)read with Article 93, 10, 14 (1)(a) and 38 of the Constitution andSection 3 of the Parliament (Powers and Privileges) Act (Cap. 383); that the grounds of expulsion derogate sovereignty, their freedomof thought, conscience, speech and expression and their privilegesas Members of Parliament assured by the aforesaid constitutionaland statutory provisions. They deny having repudiated the PartyConstitution and state that in any event the provisions of the PartyConstitution in particular Rules 7(3), 9(4) and 17(2) thereof reliedupon for the expulsion cannot override such protections, freedomsand privileges and accordingly the order of expulsion is invalid. Asregards the allegation that they failed to first raise the issues withinthe Party organizations, they state that there did not exist a measureof freedom to raise matters which would involve a curtailment ofPresidential powers.
Mr. de Silva, P.C. concedes the right to take disciplinary actionbut submits that expulsion (which has the consequence of loss ofMembership of Parliament) cannot be effected on grounds which arecontrary to the Constitution which is the paramount law ; contractualobligations are secondary norms. 'General Theory of Law and State'Kelsen (1961) 124, 137. Learned Counsel vehemently contended thatthe grounds of expulsion are based on alleged breaches of theprovisions of the UNP Constitution which strike at the very root ofthe fundamental postulates of the Constitution. He was particularlycritical of Rule 7(3) (obligation of government M.P. s to take directionsfrom the Party Leader or the Leader of the Parliamentary Party asto the conduct of matters in Parliament) ; Rule 9(g) (obligation ofM.P.s to conform to the principles, policy, programme, rules and codeof conduct and standing orders of the Party) and Rule 17(2) (obligationof M.P.s to vote in Parliament according to the Mandate of theParliamentary Party conveyed through the Whip of the Party).
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Dealing with the ground of expulsion based on the petitioners'conduct in signing the notice of resolution, learned Counsel referredus to 'Theory and Practice of Modern Government' Finer (1946)Vol. I 633-652 and submitted that the 'free mandate' theory discussedtherein and which is enshrined in some continental Constitutions isimplicit in our Constitution (Articles 4(a), (e) and 93); that accordinglya member is not bound by instructions ; and he cannot be penalisedfor anything done in Parliament. Signing the notice of resolution wasnot a breach of the UNP Constitution ; on the contrary it was theirduty to the nation under the Constitution of the Republic to give suchnotice (Article 38). Such notice is a "proceeding" in Parliament whichcannot be impeached outside the House for want of prior permissionfor it. The conduct of the petitioners in having signed it is similaryprotected by the provisions of Section 3 Parliament (Powers andPrivileges) Act; see also, Parliamentary Practice – Erskine May 19thEd. 87. Counsel conceded that if the sole motive for signing theresolution was to humiliate the Leader of the Party and mala fide,disciplinary action is competent ; but there ought be evidence ofsuch motive. He also submitted that if the emphasis in the chargeagainst them is signing the resolution with some members ofthe opposition, Article 38 is a complete answer.
As regards the campaign against the Executive PresidentialSystem, Counsel submitted that the Party is not irrevocablycommitted to continue that system ; that in any event the petitionerswere not seeking to abolish but to reform it by remedyinganomalies ; that any peaceful advocacy of change is a legitimateexercise of the freedoms guaranteed by Articles 10 and 14(1) (a) ofthe Constitution ; that even If it were a matter of Party Policy,the party cannot exercise an unqualified right of expulsion forcontravening .such policy but should consider disciplinary actionshort of expulsion ; that expulsion would be warranted only in thecase of serious conduct such as bribery or offences involving moralturpitude ; and that the campaign intended to reform the party ispermitted by the objects of the party contained in Rule 4(c) of itsConstitution namely, the promotion of the political education ofthe people and their political emancipation on the basis ofDemocratic Socialism. It was also submitted that the allegationthat the petitioners should have first raised these matters withinthe party assumes that there is a measure of freedom within theparty to raise such matters. Counsel argued that the UNP Constitution
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imposes a centralised system which negatives freedom ; and this isaggravated by the provisions which enables the Leader to enjoy fullpower ; that matters had reached a stage when no discussion waspossible and the action taken by the petitioners was logical and withintheir rights ; and that actions for reforming the party are also legitimateeven if the party were to thereby suffer disintergration. These rights,it was submitted, cannot be comprehended under party discipline.
Mr. de Silva P.C. cited Bromley London Borough Council v.G.L.C. (5) ; R. v. Waltham Forest L.B.C. ex p. Baxter m and ft v.Greenwhich L.B.C. ex p. Lovelace & Fay f8). In the Bromley casethe vires of a decision by the Council to reduce transport fares inLondon by way of honouring an election pledge by the Labour Partywas successfully challenged on the ground that it imposedan increased levy on rates on the tax payer. In Waltham Forest,a resolution of the Council was unsuccessfully challenged on thegroundthatit is vitiated byreason ofcertain Labourmembers
havingbeenpressurised tovote forit.In Lovelace'scase the
question was whether a decision to reduce the number of membersof the housing committee of the Council which resulted in removingfrom it certain Labour members who had voted against a proposalmoved by the majority is ultra vires the Council powers. The Courtupheld the decision. There are dicta in these cases to the effect thatmembers are not irrevocably bound to carry out the pre-announcedpolicies contained in the election manifesto, that they have a measureof freedom to 'decide what is immediatelyinthe interest ofthe rate-payers ;thatthey are notrequiredtoabdicate theirpersonal
responsibility in favour of group policy ; and that their right to votecannot be fettered by a decision in the nature of a punishment.
Learned Counsel criticised the judgment in Yapa Abeywardena v.Harsha Abeywardenea (11) wherein the view was expressed bySharvananda, CJ that a Member of Parliament is a mere cog in theParty wheel, that he can remain in the party on the Party's termsand that if he fails to strictly conform to directives or to supportthe Party in the House, he must resign or face expulsion from the.party. Counsel submitted that this decision should not be followed.
Mr. Choksy, P.C. drew our attention to R1 (Minutes of the WorkingCommittee meeting held on 06.09.91) which contains the originalresolution for the expulsion of the petitioners and said that they have
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been expelled from the Party not for the mere signing of the noticeof resolution under Article 38 of the Constitution or for exercisingtheir constitutional rights over the issue of the Executive PresidentialSystem but for infringing the Party Constitution, policy and disciplineby their conduct, to wit –
signing the resolution together with several members of theopposition without first raising it within the party organization;taking the allegations to the contrary and agitating them inpublic ; this is a breach of Rules 3(1) (d) and 17(6) of theUNP Constitution. Rule 3(1 )(d) imposes the obligation not totake part in political or other activities likely to conflict withParty Policy and the code of conduct and not to bring theparty to disrepute. Rule 17(6) requires members to first raisequestions of Party Policy within the Party Organization ;
breach of their pledge of loyalty to the party under Rule 17(1)and breach of their pledge given under Rule 9(d) to act inconformity with Party Policy and the code of conduct ;
taking the issue of the Executive Presidential System to thecountry and controverting it in public without first raising itwithin the Party Organization in breach of Rules 3(1 )(d) and17(6) ;
public campaign over both issues using uncontrolled languageand making it a cover to insult the character and integrityof the Leader of Party as the President of the country andbringing the Party and its Leadership into disrepute andholding it up to public ridicule, in breach of Rules 3(1 )(d) and17(1).
Mr. Choksy, P.C. proceeded to submit that assuming (but withoutconceding) their right under Article 38 to sign the notice of resolution,the requirement that the petitioners should exercise that right or theirright to publicly agitate the issue of Executive Presidential Systemin a manner compatible with their obligations to the party includingthe maintenance of party discipline (Rule 9(g)) is not contrary to theConstitution or other law or the authorities cited; that the failure tofirst raise the issues involved within the Party Organization is violativeof a basic norm of party discipline ; that such failure constitutes gross
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indiscipline justifying expulsion ; and that the conduct of the petitionersin applications Nos. 5 and 8 in deceiving the Cabinet of Ministerson 28.08.91 by joining with the other members of Cabinet to passa vote of confidence in the President constitutes gross deceit. Healso submitted that ’loyalty' within the meaning of Rule 17(1) the UNPConstitution means adherence to the Constitution and includesloyalty to the Party Leadership.
As regards Rule 7(3) which came in for heavy criticism byMr. de Silva, Mr. Choksy submitted that the petitioners have beenexpelled not for failing to take directions from the Leader as requiredby the rule but for their failure to first raise the allegations againstthe Leader within the Party Organizations. He argued that one cannotassume all the members of the UNP to be "yes" men ; that ifrepresentations are made in the appropriate manner the membersmay well consider changing the Leader.
As regards the contention that there was no freedom to raisematters within the party, Mr. Choksy argued that this is a baldstatement ; there is no proof that the petitioners had been harassedfor raising any matter ; nor have they stated that they tried to raisethe issues within the party. Counsel submitted that in the circum-stances the allegation that the petitioners failed to bring up matterswithin the party has not been rebutted. Counsel then conceded thathad the petitioners made any attempt to raise the issues before theparty and the* party had capriciously rejected the allegations or theproposals for reform, the petitioners would be entitled to raise thematters in public.
Mr. Choksy finally submitted that our Constitution confers primacyto the political party as against the individual M.P.; that the partycarries the mandate of the electors and in turn gives a mandate tothe M.P.. In the circumstances, the exercise of the rights of thepetitioners qua M.P.s is subordinate to the requirements of partydiscipline and their freedom to agitate matters in public is also similarlyconstrained by reason of their obligations to the party which they havefreely undertaken to honour.
Mr. Choksy relied on Waltham Forest L.B.C. case (Supra) in whichthe judgment of Sir John Donaldson MR refers to the whip systemapprovingly both in relation to local bodies and Parliament and further
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refers to Widdicomb report which states that the Whip system is nota matter for concern (674) ; it also refers to circumstances in whichthe requirement for consultation within the group would ensure partyunity without the councillors having to abdicate personal responsibility(676) Counsel submits that such consultation is vital to effectivegovernment. He also cited dicta from the decision in ex P. Lovelace(Supra) on group policy (517) and inevitable party constraints resultingfrom the existence of a party line or strategy to ensure cohesion (523).Staughton U has this to say with reference to the off-quoted speechof Edmund Burke to the electors of Bristol in 1774
" One may doubt whether after 200 years, that is wholly inaccord with the current political wisdom " (525)
In Dissanayake v. Sri Jayawardenapura University (,,) where astudent complained of the infringement by the Vice Chancellor of hisrights under Article 14(1)(a), this Court held that the right to thefreedom of speech is not absolute ; that students were bound byreasonable rules governing conduct ; and a student has the rightto peacefully express his views in an appropriate manner. Sharvananda,CJ said –
" A student may also exceed his constitutional right of speechand expression by adopting methods of expression that materiallyand substantially interferes with the Vice Chancellor's right to hisreputation. For nobody can use his freedom of speech orexpression as to injure another's reputation." (267).
Mr. Choksy sought to apply this decision by analogy to M.P.sand submitted that whilst their freedom of speech in public isconstrained by the requirements of party discipline, they also shouldbefore signing a notice of a resolution under Article 38, first raisethe matter within the party, which is the appropriate manner ofexercising the right consistently with their obligations to the party.
Mr. Choksy said that he relies on the judgment of this Court inAbeywardena's case (Supra) only on the principle that an M.P. owesan obligation to the party. He argued that the theory of party systemis the very soul of our Constitution. In support of this he first citedpassages from 'The Theory and Practice of Modern Government'Finer (1946) Vol. I 632-652. He submitted that unlike some continental
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Constitutions our Constitution does not contain any provision that anM.P. can vote according to his conscience ; and this is because itis based on the political party ; that Finer himself observed atp. 641 that the factor which today is of the most importance is thepolitical party. At p. 646 the author examines the effects of theproportional representation (P.R.) in Germany and observes that themethod of voting for a single representative among a number ofindividual competitors was abandoned and now the mandatory is, infact, nobody but the party ; that the party is obliged to control thecampaign and the nominations ; and that members are bound in thefirst place to the dictates of the party machine.
Mr. Choksy next referred us to the P. R. provisions contained inArticle 99 of our Constitution and to the provisions of ParliamentaryElections Act No. 1 of 1981 and drew our attention to the salientfeatures of the system provided thereunder, which are as follows
The system of electing individual members for constituencieshas been abolished.
Nomination papers are submitted not by the individualcandidates but by recognized political parties or independentgroups.
The Secretary of the recognized political party or the independ-ent group' is required to sign one nomination paper for anelectoral district setting out the names of the prescribed numberof candidates for such district.
At the election, parties and independent groups are representedby their agents.
Electors are required to vote for the party or the group of theirchoice. They may also express their preference for any threecandidates from the same party or group.
Votes polled by the party or the group would determine thenumber of members such party or group will be entitled to returnto Parliament from each electoral district.
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There is no provision for by-elections ; and the compositionof Parliament is fixed for 6 years ; any vacancy is filled bydeclaring elected the candidate from the same party or groupwhose name appears in the list on the nomination paper andwho has polled the next highest number of preferences. If thelist is exhausted, the party or the group nominates a memberto fill the vacancy.
On this basis Counsel submits that the party system is consti-tutionally stronger here than in the United Kingdom ; that the provisionfor voter preference for candidates does not affect the dominanceof the party and no provision has been enacted to dilute theobligation of M.P. s to the party.
In the teeth of Article 38 of the Constitution this Court cannot holdthat a Member of Parliament who belongs to the same political partyas the President who is also the Leader of that Party may not signa notice of resolution for the removal of such President ; and thatthe mere act of signing such notice will make him liable to disciplinaryaction by the party. Nor have we been called upon to consider sucha question. In my understanding, the petitioners have been expelledfor signing the notice together with the opposition without first raisingthe allegations within the party ; the ground of expulsion based ontheir conduct in campaigning against the Executive Presidency is notdirected against the freedom of speech, the allegation being that theydid so without first raising it within the party ; in* this connectionMr. Choksy very properly conceded that had the petitioners beencapriciously thwarted in attempting to raise the issues within the party,they would be entitled to agitate them in public. It follows that in sucha situation the petitioners would also be entitled to sign the resolutionfor the removal of the President without further constraint. In thecircumstances, there has been no violation of Article 38.
There has been no violation of their freedom of speech as allthat has been questioned is the propriety of the manner of exercisingsuch freedom ; as is evident from the language used by them someof which is per se defamatory, they have exceeded the bounds ofsuch freedom. There is, therefore, no violation of Article 14{1)(a). Thefreedom of conscience under Article 10 has not been infringedbecause " freedom of conscience “ therein connotes the right of aperson to entertain beliefs and doctrines concerning matters which
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are regarded by him as being conducive to his spiritual well-being.See Constitutional Law of India, Mahajan 6th Ed. 233 ; Rati Lai v.State of Bombay (,1Z). It does not connote the ordinary right whichevery individual has to make decisions or to support a system ofhis choice according to his conviction and judgment. This in factappears to be the right which the petitioners are asserting in theircampaign against the Executive Presidential System.
As regards the complaint that the expulsion violates Section 3 ofthe Parliament (Powers and Privileges) Act, Mr. de Silva contendsthat signing the resolution is a " proceeding “ in Parliament whichis protected by Section 3. He cited Erskine May ParliamentaryPractice p.87 where the author says that “ proceeding " is someformal action taken by the House which extends to the whole processby which it reaches a decision. He proceeds to give illustrations oneof which is, giving notice of a motion. In the instant case, what isin issue is not the giving of notice of a motion but the act of signingit which takes place at a point of time anterior to its delivery to theSpeaker. As such no proceeding in Parliament has been impeached.Even if, by a liberal construction, one were to construe it as aproceeding in Parliament, the petitioners have not been expelled forsigning the resolution but for doing so without first raising the matterwithin the party. As such there is no violation of rights relating toParliamentary privilege.
The question, therefore, is one of party discipline the needfor which is supported by the authorities cited and by commonsense. I agree with the submission that under our law the Party ispre-eminent and carries the mandate of the electors. Articles 4 (a)and 93 of the Constitution do not dilute the dominance of the party.It is true that Article 4(a) refers to " elected representatives of thePeople “ but this is subject to Article 99 which provides forproportional representation, which gives pre-eminence to the party.It is only if the party polls enough votes that its candidates may standa chance of election.
The UNP Constitution imposes obligations on all members oneof which is the undertaking to accept the principles, policy andprogramme and code of conduct of the party. The other importantobligation is not to engage in political or other activities likely to conflictwith the said undertaking. There is a further obligation not to bring
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the party into disrepute. Then there are special obligations on M.P.ssome of which are –
the duty to be bound by the directions of the Leader or theDeputy Leader regarding matters in Parliament ;
the duty to harmonize with the policy and code of conduct ofthe party ;
the duty to vote in Parliament according to the Mandate of theParliamentary Party conveyed through the party whip.
I can see no illegality in these arrangements for group action.How can any government or opposition function without disruptionif the conduct of M.P.s as a group cannot be regulated including inthe matter of voting in the House and each M.P. is free to do whateverhe pleases? How can the party fulfil its mandate given to it by theelectors? Can an individual M.P. who has been elected on the partyvote and policy be heard to say “ from today I am a free man, theparty and the group are secondary and are subordinate to me “?Can Parliamentary business be transacted without the party havingsome assurance as to how the M.P.s are going to vote? I see noevil in reasonable restrictions on the conduct of M.P.s in Parliamentbased on group action or in the obligation to harmonize with partypolicy or in the Whip system all of which have the effect of ensuringthe smooth functioning of Parliament itself and peace, order andgood government.
In this country the electors elect a government for six years afteran election which is often bitterly fought and in recent times inconditions of turmoil and death. It is then the duty of both theopposition and the government, owed to the people, to ensure asfar as possible, stable government. The Constitution has frozenparty composition in the House for the duration of Parliament andmade provision for vacation of seats where a Member of Parliamentceases by resignation, expulsion or otherwise to be a member ofthe recognized political party or independent group on whosenomination paper his name appeared at the time of his election toParliament. It is not our function to examine the wisdom of theseprovisions the object of which, I believe, is to achieve stability ofgovernment. Group action, party discipline and the Whip system are
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complimentary, if we declare these arrangements to be invalid wewould be making the Constitution unworkable and as Sir JohnDonaldson MR observed in Waltham Forest case (Supra) " Weshouldbe criticising the system operating in Parliament itself.”
This does not mean that a M.P. may never complain ofinterference with his rights by unlawful action or direction. As a matterof principle occasion for such complaint can arise ; but what thoseoccasions are and how a M.P. may assert his rights need not begone into here because each case will depend on its own facts andcircumstances. The rights of a M.P. are not incompatible with hisobligations to the party the object of which is to ensure cohesionand conjoint action ; inthatsense he may be described asa cog
in the party machine ;buthe isnot a life-less cog liableto be
subjected to unlawful or capricious orders or directions withoutremedy.
Mr. de Silva strenuously contends that paragraph 5 of the WorkingCommittee resolution contains a distinct ground of expulsion basedon the mere signingoftheresolution for the removalof the
President. I cannot agree.Thatparagraph should be readin the
light of paragraphs 7 and 11. Paragraph 5 states that the signingof the resolution together with several members of the opposition inParliament is an act of betrayal of the party membership and theconfidence placed by the people in the party and its leadership atsuccessive eledtions. Paragraph 6 relates to the vote of confidencein the President. Paragraph 7 reads –
“ And Whereas the aforesaid eight members have signed thesaid Notice of Resolution without any prior intimation to the partyor raising or discussing the same within the Party Organizationsor the Government Parliamentary Group."
Paragraphs 8, 9 and 10 relate to the campaign against the ExecutivePresidential System. Paragraph 11 is as follows
“ And Whereas the aforesaid acts have all been done by theeight members without first raising the said issues within theParty Organizations or the Government Parliamentary Group asis required by the Party Constitution and conventions “
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It would be seen that paragraphs 5 and 7 are narrative ofthe facts and the actual charge with reference to the resolution iscontained in paragraph 11 which alone cites the provision whichthe petitioners have breached namely, the Party Constitution andConventions. I am, therefore, satisfied that the ground of expulsionis the signing of the resolution without first raising it within the PartyOrganizations or the Government Parliamentary Group. This is putbeyond doubt by the minutes of the Working Committee meeting R1at which the 2nd respondent stated that at no time had any of thesemembers informed the party that they intended moving throughParliament to remove the Leader of Party from the Office of President.Nor had they made any charges against the President.
For the above reasons, I hold that the grounds on whichdisciplinary action has been taken against the petitioners are valid.The question whether their expulsion is lawful and whether suchpunishment is justified in respect of all of them will be consideredlater in this judgment.
BREACH OF THE RULES OF NATURAL JUSTICE
I have now reached the most difficult question in theseproceedings. Numerous decisions and authorities have been citednone of which is exactly in point because the combination of eventswith which we are here concerned is unique. This is no ordinaryexpulsion of members of a voluntary association trie like of whichis covered by precedent but an expulsion of the petitioners in thecontext of a resolution for removing the President from his Officecoupled with a sustained public campaign by the petitioners againstthe Executive Presidential System in the course of which they haveattacked the President and the Government. An attempt by thepetitioners to obtain an injunction from the District Couirt to restrainthe UNP from taking disciplinary action failed whereupon the partymoved swiftly and expelled them.
In their petition they complain that they have been expelled withoutany charges being served on them and without a hearing in breachof the party guidelines for conducting disciplinary inquiries (P9) ; thatthe said expulsion is vitiated by bias in that the President who isthe accuser and complainant presided over the deliberations of theDisciplinary Committee and the Working Committee ; and that the
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expulsion is mala fide in that (a) no disciplinary proceedings havebeen taken against the other members of the party who signed theresolution and (b) it is calculated to prevent them from taking judicialproceedings in the District Court and Higher Courts for the vindicationof their rights. During the argument, Mr. H. L. de Silva, P.C. submittedthat according to the proceedings of the Working Committee (R1),the Disciplinary Committee which recommended action against thepetitioners subsequently participated in the deliberations of the WorkingCommittee which decided to expel the petitioners, which is furtherevidence of bias ; and that the expulsion was a move by thesupporters of the President to scuttle the impeachment motion, whichis further evidence of mala fides.
In their objections the respondents have averred that the actionsand conduct of the petitioners were so manifestly and flagrantly inviolation of party discipline and policy and the Constitution of the Partyas to justify immediate expulsion. They further state that the guidelinesP9 have been issued for use by panels appointed by the WorkingCommittee for the purpose of conducting disciplinary inquiries wheresuch inquiries become necessary and for the general guidance ofsuch panels conducting investigations into matters of disputed factsarising upon complaints the truth of which has to verified. Therespondents deny the alleged violation of the rules of natural justiceand the allegation of mala fides.
Mr. de Silva'cited many cases relating to social clubs, trade unionsand voluntary associations in which decisions for the expulsion ofmembers have been struck down for want of a fair hearing. Hesubmitted that none of the exceptions to the audi alteram partemrule would apply to the petitioners. The rule that no man should becondemned without a fair hearing is too well settled and requires nodiscussion. As such it will be unnecessary to discuss the cases citedby learned Counsel. However, it would be relevant to quote a passagefrom the judgment in John v. Rees m cited by Mr. de Silva. Thiswas a case in which a resolution of the Labour Party, inter alia,suspending the activities of the Pembrokeshire Constituency LabourParty was challenged. Megarry J. quoting from his own judgmentin Fountains v. Chesterton (unreported) said (p. 1332) –
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" 'The ideas of natural justice' said Iredell J. 'are regulated by nofixed standard ; the ablest and the purest men have differed onthe subject' : Calder v. Bull(1,3). In Ridge v. Baldwin (,,4> LordHodson referred to a 'certain vagueness' in the term but rejectedthe view that because the requirements of natural justice dependedupon the circumstances of the case, this made natural justice sovague as to be inapplicable. He added : 'no one, I think, disputesthat three features of natural justice stand out – (1) the right tobe heard by an unbiased tribunal ; (2) the right to have noticeof charges of misconduct ; (3) the right to be heard in answerto those charges'. I do not think I shall go far wrong if I regard
these three features as constituting in all ordinary
circumstances an irreduciable minimum of the requirements ofnatural justice".
On the question whether a case is one in which the principles ofnatural justice apply Megarry J. said in Gaiman v. NationalAssociation for Mental Health (86>." It may be that there is no simpletest, but that there is a tendancy for the Court to apply the principlesto all powers of decision unless the circumstances suffice to excludethem."
AUDI ALTERAM PARTEM
Mr. Choksy submits the following propositions :
All the decisions cited by Mr. de Silva in which the Court hasset aside decisions for the failure to give a hearing are caseswhere there were disputed questions of fact. In each such casethe petitioner placed before Court or indicated additionalrelevant facts which were not known to the tribunal and, whichhe could have placed before the tribunal had he been givena hearing.
The right to a hearing is not an inveterate rule and dependson the facts and circumstances of the case and the groundson which disciplinary action has been taken.
If the matter which the petitioner says he could have placedbefore the tribunal for consideration is a question of law orinterpretation of statute or a rule or contract, all such matters
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are questions which the Court must decide. Therefore, the lackof hearing does not vitiate the decision because the Court isin a position to decide it.
Mr. Choksy referred to the following cases in support of theproposition at (1) above.
Innes Wylie m
Queen v. Saddler's Company ex p. Dinsdale (50)
Fisher v. Keane (46)
Labouchere v. Earl of Wharancliffe (A7)
D'Arcy v. Adamson (S2)
Graham v. Sinclair (53)
Lee v. Showmen's Guild t40)
Annamunthodo v. Oilfield Workers Trade Union <42>
Taylor v. National Union of Seamen (41)
I have examined these cases and the other cases cited by Mr. deSilva and find that Mr. Choksy's proposition is justified.
Counsel then proceeded to make submissions which may besummarised thus –
that a lack of hearing will not vitiate the expulsion because-
a hearing was a useless formality ;
the petitioner had no legitimate expectation of a hearing;
the Working Committee was under a duty to act speedilyin the interest of the party and was not fettered by naturaljustice in taking disciplinary action against the petitioners.
that in any event the issues involved being questions of lawresting on admitted facts, the Supreme Court will decide thoseissues in the exercise of its jurisdiction under the proviso toArticle 99 (13) (a) of the Constitution. This would adequatelycompensate for the lack of a hearing by the WorkingCommittee.
Before I consider the above submissions, it would be appropriateto consider the nature and scope of our jurisdiction under the provisoto Article 99 (13) (a) and the nature of the right invoked by thepetitioners. In terms of Article 99 (13) (a) a Member of Parliamentdoes not vacate his seat until after the expiry of one month from
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the date of his ceasing to be a member of the political party to whichhe belongs, by reason of his expulsion from the party. In this context,I think, the word ’ceasing' connotes de facto and not de jure cessationof the membership of his party. He, therefore, continues to retainhis status as M.P. on behalf of his party for the prescribed periodnotwithstanding the expulsion. If he fails to apply to this Court withinone month from the expulsion, he vacates his seat. If he applies andthe Court determines the expulsion to be invalid the seat does notbecome vacant in which event he would continue to hold office withouta break either in his status as a M.P. or as a member of his party.If, however, the Court determines the expulsion to be valid, then,the seat becomes vacant but from the date of the determination, andnot earlier.
The right of a M.P. to relief under Article 99 (13) (a) is a legalright and forms part of his constitutional rights as a M.P.. If hiscomplaint is that he has been expelled from the membership of hisparty in breach of the rules of natural justice, he will ordinarily beentitled to relief ; and this Court may not determine such expulsionto be valid unless there are overwhelming reasons warranting suchdecision. Such decision would be competent only in the mostexceptional circumstances permitted by law and in furtherance ofthe public good the need for which should be beyond doubt. As
Megarry J. said in Fountaine v. Chesterton (Supra) " if there
is any doubt, the applicability of the principles of natural justice willbe given the benefit of that doubt " (cited by Megarry J. in Johnv. Rees and the expulsion will be struck down.
Rule 8(3) of the UNP Constitution inter alia confers on the NECthe power to take disciplinary action against any member ” in amanner suitable in the circumstances of each case " and to imposeappropriate punishment. In terms of the delegation R2, the poweris exercised by the Working Committee. The rule permits the tribunalto adopt the procedure which is appropriate to each case ; but naturaljustice cannot be excluded in determining such procedure. It isevident from the party guidelines for the conduct of disciplinaryinquiries (P9) that the UNP itself had understood the need to conformto the rules of natural justice. The party cannot, even if it wishedto, stipulate for a power to condemn a man unheard Lee v. Showmen'sGuild «°>.
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It is common ground that the petitioners have been expelledwithout informing them of the charge or giving them an opportunityof being heard. The question then is, can such a procedure bejustified? Mr. Choksy addressed us at length on this question. Herelied on certain grounds of justification based on the subject matterof the proceedings. He also submitted that in the circumstances ofthis case the hearing by this Court is in substance the right toantecedent hearing and hence the petitioners cannot seek relief onthe ground that the Working Committee had not given them a hearing.
In R. v. Secretary of State for Environment ex p. Brent LondonBorough Council (79) Ackner U said –
" It is not possible to lay down rigid rules as to when principles
of natural justice are to apply, nor as to their scope and extent.
Everything depends on the subject matter."
The Court held that the Minister had acted wrongly in reducingBrent's entitlement to a grant without giving them a hearing. The Courtdeclined to hold that had a hearing been given the same decisionwould have been inevitable. In any event the Court was not preparedin the particular circumstances of the case to say that a hearing wouldhave been a useless formality. The test to be applied in such cases" is not whether there has been a breach of the rules of natural justicebut whether the procedure followed was unfair to the applicant. Ifit was unfair, then it cannot be argued that the decision should notbe struck down on the ground that it must have been the same ".'Administrative Law' David Foulkes 7th Ed. 302.
Glynn v. Keele University<6S) illustrates how the Court's approachis affected by the subject matter. The Vice Chancellor found anundergraduate guilty of being seen naked in the campus with otherstudents and fined him 510/- and excluded him from residence onthe campus for the remaining part of the academic year. No hearingwas given. The Court held that he had been denied natural justicebut refused relief exercising its discretion against the grant of aninjunction. The student did not deny his involvement in the incident.The Court observed that no question of fact was involved, that thepunishment on him was a proper one and he had suffered no injusticedespite the loss of an opportunity to mitigate the offence.
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In the instant case, if we hold that natural justice has been denied,we have no discretion to deny relief, unless we can do so on theanalogy of the Common Law principle applicable to actions that theCourt does not act in vain (Malloch v. Aberdeen Corporation (84).The remedy here being a constitutional right, I doubt whether thisCourt can exercise a discretion in granting relief and hence preferto decide this case on the assumption that there is no such discretion.
Malloch's case (Supra) concerned a teacher who was dismissedwithout a hearing. The House of Lords held that even though hisclaims were those of strict legal entitlement relating to the validityor the interpretation of the regulations in terms of which hewas dismissed, he had an arguable case and hence the requirementof a hearing was not a useless formality. Prof. Wade (AdministrativeLaw 6th Ed. p. 535) puts it thus –
"in the case of a discretionary administrative decision,
such as the dismissal of a teacher or the expulsion of a student,hearing his case will often soften the heart of the authority andalter their decision, even though it is clear from the outset thatpunitive action would be justified ".
Refering to this approach Lord Denning (Cinnamond v. BritishAirports Authority (83> said –
" But it only applies when there is a legitimate* expectation ofbeing heard. In cases where there is no legitimate expectationthere is no call for a hearing ".
Cinnamond's case relates to six mini-cab drivers. They had beenprosecuted on numerous occasions for loitering at the Airport andtouting for passengers. They persistently refused to pay fines andcontinued to loiter and tout for fares. The Airport Authority acting inthe exercise of statutory power prohibited them access to the Airportuntil further notice. It was held that there was no breach of the rulesof natural justice because they had no legitimate expectation of ahearing. Lord Denning observed that if they were ready tocomply with the rules they could have made representationsimmediately on receiving the prohibition ; but they did not do soand concluded thus :
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” The simple duty of the Airport Authority was to act fairlyand reasonably. It seems to me that it has acted fairly andreasonably ".
Shaw LJ observed that in view of the long history of contraventionsat the Airport the only way of dealing with the situation was byexcluding them altogether.
I shall now consider a case involving the expulsion of members• of an association where the Court found that the body exercising thatpower was under a duty to act with great speed and was not fetteredby the rules of natural justice. Gaiman v. National Association forMental Health (86). The association was a company limited by guar-antee. Some of its members were also members of the church ofScientology who did not believe in psychiatry for curing mental patients.For several years, there was a state of hostility between theScientologists and the Association. In their campaign the Scientologistspublished articles and held demonstrations. They described thepsyshiatrists as brutal, a terror, involved in personal gain, intolerantand fascist; one of them was described as the new Hitler in England; psychiatrist clinics were described as ” Death Camps.” TheScientologists then made a bid for power in the Association, to maketheir voice heard within the Association and to “ make a splash.”On 7th November they submitted nomination papers for election tooffice at an Annual General Meeting scheduled for the 12th of thatmonth. On the* 10th the Council decided to terminate the membershipof 302 members “ known or reasonably suspected of beingScientologists ” by requesting them to resign under Article 7(B)whereupon subject to a right of appeal they ceased to be membersof the Association. They sought declarations and injunctions againstthe expulsion.
Megarry J. said that he was not concerned with the merits of theviews held by psychiatrists or scientologists and added –
° I am concerned with an entirely different and much narrowerquestion, namely, the right of the Council of the Association touse Article 7(B) to exclude from the Association those who areknown or reasonably suspected of being Scientologists. It isbeyond question that Scientologists have for long been attackingthe Association in a variety of ways. The attacks have been
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virulent, and like the sentiments, the language, I think, speaks foritself. I need say no more about it than that much of it cannotbe described as moderate and reasoned argument designedto convert those who hold what are conceived to be erroneousviews " (p. 374).
He held that, in the circumstances, Article 7 (B) excludes naturaljustice ; the Council was under a duty to exercise their powersin what they bona fide believe to be in the interest of theCorporation ; this includes a duty to act with great speed unfetteredby natural justice. He observed that a member had no absoluteright of membership but that it was subject to bona fide termination.If he were wrong, in that view he thought that the injunctions shouldbe refused as a matter of discretion.
Mr. Choksy's final submission on this part of the case relates tothe possibility of excluding the need for a hearing, in limited cases,where there is statutory provision for subsequent review. Theproposition is that a statutory right for an administrative appeal oreven full judicial review on the merits is sufficient to negative theimplied duty to hear before the original decision is made, providedthat there is no serious detriment to the person affected or there isalso a paramount need for prompt action ; this is not meant to beadopted as a general rule ; but if in particular the initial decision isprovisional in the sense that it does not take effect until the expiryof a prescribed period for objections, the opportunity* thus affordedto an aggrived person is in substance a right to an antecedent hearing.De Smith's Judicial Review of Administrative Action 4th Ed. 193-194.
Mr. de Silva contends that this Court should not lightly assumethat hearing was a useless formality or speculate on how the WorkingCommittee might have acted if they heard the petitioners ; and thatif the respondents acted fairly they would not have resorted tosummary expulsion of the petitioners. He urged us to bear in mindthat by reason of the procedure adopted, the petitioners have beendeprived of an irreplaceable right. He cited the following passage fromJohn v. Rees w (1969) 2 WLR 1294, 1335 Megarry J. said :
“the path of the law is strewn with examples of open
and shut cases which, somehow, were not; of answerable chargeswhich, in any event, were completely answered ; of inexplicable
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conduct which was fully explained ; of fixed and unalterable
determinations that, by discussions, suffered a change."
I appreciate that it is not possible to come to a finding on thecontentions advanced before us on a piece-meal approach withreference to this authority or the other. In my view our decision restson an application of more then one principle, cumulatively, to thefacts and circumstances of this case bearing also in mind the legalsafeguards to which the petitioners are entitled. In this respect,Mr. Choksy drew our attention to the averments contained in thepetition and contended that all the grounds of challenge to theexpulsion are legal grounds based on the provisions of theConstitution or statute law and the intepretation of the UNPConstitution and the determination of the contractual obligations ofthe petitioners to the party ; that the basic facts of signing theresolution and conducting a campaign against the ExecutivePresidential System are admitted ; that their expulsion has not takeneffect and its validity is yet to be decided by this Court ; and thatthe conduct of the petitioners established by the evidence includingthe documentary evidence before this Court completely justifies thedecision to expel them from the party without a hearing. This bringsme to an examination of the evidence relating to the conduct of thepetitioners.
The Speaker's communication of the notice of the resolution tothe President on 28.08.91 was the beginning of a serious crisis inthe government. In R6, the Leader of the Opposition is reported tohave told the press that she had secret talks with UNP M.P.s overa period of time about the resolution ; petitioners deny this and henceR6 cannot be held against them even if they had failed to publisha contradiction thereof in the press. However, the resolution itselfcould not have come about suddenly without some secret planningby the petitioners while they remained as fully committed membersof the party. Even after the resolution had been delivered to theSpeaker, the petitioners Nos. 5 and 8 were secretive and pretendedto join the other members of the Cabinet in passing a vote ofconfidence in the President. No explanation acceptable to this Courthas been adduced justifying such conduct and I agree with Mr. Choksythat these two petitioners are thereby guilty of gross misconduct. Thetwo Ministers then resigned from the Cabinet. The petitioners Nos.6 and 7 followed suit having resigned from the posts of State Minister
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and Project Minister respectively. Thereafter all the petitioners launcheda joint public campaign.
R3A to R3G and R4A to R4L clearly show the campaign carriedon between 28.08.91 and 06.09.91, prior to the impugned expulsion.As stated earlier in this judgment, during this period the petitionersnot only campaigned against the Executive Presidential Systembut also discussed in public the various allegations contained inthe resolution against the President. There is no constitutionalprovision which permits such a procedure. In America, The HouseJudiciary Committee recommends impeachment by the Houseand trial by the Senate on charges supported by " clear andconvincing " evidence. 'American Constitutional Law' 2nd Ed. LaurenceH. Tribe p. 292. Under our law the proper procedure is for Parliamentto first pass the resolution by a two third majority after whichthe Speaker refers it to this Court for inquiry and report. In thecircumstances, the conduct of the petitioners including seniorParliamentarians in disclosing in public the serious allegationscontained in the resolution cannot be construed as being bona fide,and gives credence to the allegation that they used the resolutionas a cover to cause insult and injury to the character, integrity andability of the Leader of the Party in his capacity as President of thecountry. Such contumacious conduct constitutes indiscipline inthe party unrelated to the exercise of constitutional rights. One doesnot look into the Party Constitution to see whether it is covered byexpress provision.
There were daily Press Conferences conducted by the petitionersled by petitioners Nos. 4, 5 and 8. Some of them have been attendedby all the petitioners. There was also regular statements issued tothe media. Almost daily they assured the public that they had 47UNP M.P.s with them. On 31.08.91 at a news conference attendedby all the petitioners, petitioner No. 4 spoke of the “ degenerationof the UNP and democracy " while the petitioner No. 8 chargedthat the telephones of Ministers were being unlawfully tapped by thegovernment (R3F) ; on the same day the petitioner No. 8 allegedthat the President was suffering from '' dictatorship mania " andexhorted the people to save democracy (R4B) ; on 01.09.91 thepetitioner No. 4 in a media statement said that the President wasrunning a “ one man show “ (an allegation which has been repeatedregularly) and at a news conference the petitioners Nos. 5 and 8
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compared the President to the Emperor without cloths who wishedevery-body else to say that he was in fine garments, meaning thatthe President lived on flattery ; the petitioner No. 4 referred to the" autocratic dictatorial 11 rule under Premadasa (R3A, R3B) ; on
when the petitioner No.8 visited the Education Ministry afterresignation, he told the officials that the President was underminingthe Ministers using Secretaries as spies (R4E) ; on 03.09.91 therewas a news conference at which the petitioner No. 4 alleged thatthe IPKF had been sent back to placate the LTTE after giving armsand money to the LTTE to attack the IPKF ; also that when thereis a war there is a grand Gam Udawa Celebration ; the petitionerNo. 5 suggested that the government encouraged gambling andthat Cabinet Ministers had been close associates of Jo Sim anddisplayed photographs said to be of some Cabinet Ministers posingwith Jo Sim (R3C and R4G) ; on 05.09.91 the petitioner No. 4 madea speech at a temple religious ceremony and said that the Presidentpretended to govern justly (R4L).
As Megarry J. observed in Gaiman's case (Supra) I am myselfnot concerned with " the merits of the views “ held by the UNP andthe petitioners, (described in the Press as "rebels"). I am concernedwith the right of the Working Committee to have proceeded againstthe petitioners without a hearing. As in Gaiman's case here too theattacks have been " virulent" and “ much of it cannot be describedas being moderate and reasoned argument designed to convertthose who hold’what are conceived to be erroneous views." Mr.Choksy submitted that in Gaiman's case the Scientologists had beenmaking representations for several years ; here they launched acampaign without any prior discussion within the party. I would addthat in Gaiman's case there was no threat to stable government inthe country; nor was there any campaign which was likely to confuseor inflame the public mind against the Head of a State, the governmentand the party in power. The interests involved in that case were thoseof the Mental Health Association whereas this case involves theinterests of a party which has been voted into power by the electorsand above all the interests of the public who are often the victimsof such indisciplined controversy.
Well before the impugned expulsion, 116 UNP M.P.s had informedthe speaker that they would not support the resolution (R15) andexpressed confidence in the President (R16). Some of them
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complained that their signatures had been obtained on the notice ofresolution by deceipt and misrepresentation. The petitioners allegethat undue influence had been brought to bear on M.P.s to preventthem from voting for the resolution. I am not concerned with themerits of these allegations. What is relevant is that by 03.09.91 itwas known that the division in the party was 8 against 116. Undauntedby it, the petitioners had informed the media that they would holdpublic meetings throughout the country commencing on 05.09.91(R3C-R3F).
On 05.09.91 the petitioners filed actions in the District Courtpraying, inter alia, for an injunction to restrain the Working Committeeand/or the NEC from taking disciplinary action against them asmembers of the party (P4). Mr. Choksy submits that thereby theyhoped to tie the hands of the party and be free to continue withtheir campaign unfettered by disciplinary action. The District Courtdeclined relief whereupon the Working Committee expelled them. Iam satisfied that the Working Committee, acting in the interests ofthe party, had no choice but to act with speed and take disciplinaryaction against the petitioners without giving them a hearing. Fromall the circumstances, it does not appear that the petitioners had anyserious intention of appearing before the Working Committee or theNEC for the purpose of explaining their conduct. On the other handtheir object was to legally restrain those bodies pending a judicialdetermination of the dispute. I do not mean to blame them for seekingsuch relief. The point I make is that if the petitioners themselveswere not prepared to submit to the party councils, then, there is noforce in their complaint that the Working Committee had failed to givethem a hearing. I hold that the Working Committee acted fairly andreasonably in taking disciplinary proceedings against the petitionersin the way it did. I
I am also of the view that the petitioners' rights were not materiallyaffected by the order of expulsion. I have earlier explained the stateof their rights pending the determination of this Court. All the issueshere relate to legal matters arising upon admitted facts. In thecircumstances, the subsequent hearing by this Court is in substancethe right to an antecedent hearing. Mr. de Silva submitted that hada hearing been given, the petitioners could have explained to theWorking Committee why they failed to first raise the issues beforethe Party Organizations ; their explanation to this Court is that they
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were not free to discuss matters within the party ; but this is baldstatement and I see no injustice caused to the petitioners in beingdeprived of an opportunity to give an explanation before the workingCommittee, in the particular circumstances of this case. I hold thatthere has been no violation of the rules of natural justice.
BIAS AND MALA FIDES
There is a wealth of authority on the traditional concept of 'bias';as such it is unnecessary to discuss the many decisions cited byCounsel. Suffice it to observe that these decisions relate to Courtsand other tribunals exercising judicial or quasi judicial power examplesof the latter being licensing justices in local bodies and authoritiesin public institutions or trade unions vested with quasi judicial power.The situations in which 'bias' arises may be summed up as follows:-
Licensing justices : bias results where particular justices havingfunctioned as a Committee thereafter display an obvious interestin the making of the final decision e.g. by retaining Counselto oppose the application on their behalf. They also either sitas Judges or are present with the Judges at the final hearing.
The presence of an interested person with the tribunal e.g.accuser, the person who made the original decision comingup for consideration by the tribunal or the Solicitor who conductedthe case.' Such situations may arise in connection with adismissal, suspension of office or other punishment of astatutory employee or the removal of the authority to engagein a trade e.g. supplying milk to a statutory board.
The Judge having some interest or connection with a partyor the subject matter which affects his impartiality or detach-ment. Examples of orders vitiated by such bias are a convictionof an accused by a Court or a fair rent order in respect ofa house made by the Rent Assessment Committee.
The two broad tests of 'bias' are (a) the real likelihood of bias(often arising by a breach of the rule 'nemo judex in causa sua' and(b) reasonable suspicion of bias (arising by a breach of the principle'Justice should manifestly be seen to be done'). Lord Widgery CJsaid-
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11 Those two tests are often overlapping, and it may be thatone is appropriate to one situation and another is appropriate toanother situation."
R. v. Altrincham Justices ex p Pennington (106).
Mr. de Silva sees no room for relaxing the above rules in theirapplication to the case before us and submits that the decision ofthe Working Committee is vitiated by reason of the presence of thePresident who is the accuser and the participation of the DisciplinaryCommittee in the final decision. Mr. Choksy submits that these rulescannot be generally applied to all quasi judicial bodies with the samerigour and that a distinction should be made between professionaldisciplinary tribunals which bear a closer resemblance to Courtsand other bodies. In R. v. Leicestershire Fire Authority ex pThompson <100) Griffiths J. said –
" Clearly, when one is dealing with a quasi judicial body, therehas to be some degree of flexibility and there may be exceptionalcircumstances in which it will not be right to apply the rule in itsfull rigour."
There are certain forms of conduct which do not necessarilyconstitute bias. Examples are (a) mere general interest in the objectto be pursued by a tribunal e.g. in the case of a business association,
the interest- which a tribunal may have in the- discharge of itsfunctions having regard to the object or purpose of the body e.g.the interest of the Medical Council in dealing with improper conductin the profession. Judicial Review of Administrative Tribunals in SouthAfrica L.A. Rose Innes 176, 177. S. A. de Smith (Judicial Reviewof Administrative Action 4th Ed.) refers to the element of personalhostility or friction which may form the history of the expulsion ofa member of a voluntary association and states –
“ The ground of expulsion may be opposition to the declaredpolicies of the association. The rules of the association permit thecommittee to act, in a sense, as Judges in their own cause. Theexpelled member will not, therefore, succeed in having thedecision set aside by the Courts merely by demonstrating that thecommittee were not, or were not likely to be, impartial towardshim " (p. 264).
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Dealing with special problems in the administration of internaldiscipline in certain bodies and associations de Smith observes thatthe decision makers can hardly insulate themselves from the generalethos of their organization ; they are likely to have firm views abouttheir affairs and will often be familiar with the issues before theyenter upon adjudication. He therefore suggests that the rule as tobias must be tempered with realism for instance by requiring evidenceof actual bias rather than mere likelihood of bias before a decisionis set aside by a Court (p. 256).
Mr. Choksy submits that one of the objects of the UNP underRule 4(a) of its Constitution is to gain power at elections ; that thisincludes remaining in power for carrying out its programme ofwork ; and that the interest for maintaining cohesion in the party andthe interest in party policy including the continuance of the ExecutivePresidential System is not bias ; the members of the Party Councilsincluding the 2nd respondent are entitled to such interests ; that therewas nothing wrong in the members of the Disciplinary Committee inparticipating in the deliberations of the Working Committee ; that atthe meetings they did not go into the merits of the resolution butexpelled the petitioners on account their actions without first raisingthe issues within the party ; and that the presence of the Presidentwithout participation does not violate the decision of the WorkingCommittee.
On the alleged mala fides, Mr. Choksy submits that there wasnothing wrong in taking proceedings against the petitioners soon afterthe order of the District Judge as it was necessary to act urgentlyin the interest of the party and to prevent confusion which thepetitioners sought to create in the country in breach of their partyobligations. Replying to the complaint that disciplinary action has beentaken only against the petitioners, the respondents state that noaction was necessary after joint action was taken by 116 M.P.s inR15 and R16. However, the allegations against three of them havebeen referred to the Disciplinary Committee for consideration andrecommendation to the Working Committee.
Having considered the submissions of Counsel for the parties inthe light of authorities and the evidence, I hold that the decision ofthe Working Committee (P1A) is not vitiated by bias or mala fides.
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EXPULSION; IS IT WARRANTED?
Mr. Choksy submits that the conduct of the petitioners subsequentto their expulsion confirms the view that their conduct prior to thatconstitutes gross misconduct. In the statement of facts, I have referredto the fact that as from 10.09.91 they proceeded to hold publicmeetings in the major towns in the country. I shall refer to someof these meetings for another purpose. On the question of theappropriateness of the expulsion, I am of the view that it is justifiedsolely on the ground of their conduct prior to the expulsion.
I have indicated earlier that the duty of the party should beconstrued not in the narrow sense of its political interests but in thecontext of its larger duty to the people as their repository of theirmandate to ensure stable government in the country irrespective ofany differences of opinion which may exist in a democratic set up.It is the people who have to bear brunt of all upheavals, economic,social and political. Left to themselves they are perhaps content toawait the next election to resolve issues such as the ExecutivePresidential System. Even if members of the party wish to raise suchissues prematurely they should do so peacefully as has been in factdone when the Sri Lanka Freedom Party met the President in 1989(P16) and subsequently in the deliberations of the All PartyConference. These petitioners have engaged the public on the issuesin breach of party obligations and in a manner likely to disruptnormalcy in the country. There is nothing to mitigate their conductand the order of expulsion is logical and justified. It seems to methat the petitioners are attempting to do the impossible i.e. to revoltagainst the party and the government as non members may do andyet to retain their seats as M.P. s under the party label. That waspossible prior to 1978 when members were free to cross the floorbut not under the present Constitution. On the facts of this case,I am of the view that the remedy of expulsion befits the mischiefunleashed by the petitioners.
The evidence shows that all the petitioners have acted conjointlyeach of them playing a vital role, whatever be its magnitude. All ofthem have attended joint press conferences and provided moralsupport to their leadership. None of them has urged any reason fortreating him more leniently and I see none ; I hold that the expulsionof each petitioner is justified.
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The subsequent conduct of the petitioners not only affirms theirguilt but also establishes mala tides on their part. They have aconstitutional remedy against their expulsion. Whilst availing of thatremedy they went round the country. During their campaign theywere generally not adducing facts or arguments but hurling accusa-tions or insults.
As a meeting on 10.09.91 the petitioner No. 5 said that they hadbrought down the President from his throne to the steps of the oldParliament (R10C). On 22.09.91 the petitioner No. 4 alleged that theLTTE had been given anti aircraft guns without Cabinet sanction(R10G). On 29.09.91 the same petitioners compared the Presidentto 'Bokassa' said to be a dictator in Central Africa (R10I). On 27.10.91he said that the UNP is shattered and the country is facing a terrorworse than the JVP (R20). At a meeting on 29.10.91 the petitionerNo. 5 announced the formation of a new party (R20A).
In their petition, the petitioners made serious allegations of apersonal nature against the District Judge of Colombo arising fromthe judicial order (P6) whereby the petitioners' applications forinjunctive relief were refused. At the hearing, this Court pointed outto the fact that these are not allegations within our purview ; alsothat the District Judge is not a party to these proceedings and hencenot in a position to defend himself. Having consulted the petitioner,Mr. de Silva very properly agreed to withdraw these allegations butwithout prejudice to the position taken by the petitioners. I agree withthe order proposed by my brother Fernando J. for expunging theoffending passages in the averments from these proceedings.
CONCLUSION
For the foregoing reasons, I determine that the expulsion of eachof the eight petitioners in these applications (Special) Nos. 4-11/91was valid. In the result I dismiss their applications. These proceedingshave raised constitutional questions of public or general importancefor the resolution of which the parties have contributed. In thecircumstances, I make no order as to costs ; each party will bearhis costs.
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WADUGODAPITIYA J.
I have had the benefit of reading the judgments of my brothersMark Fernando J. and Kulatunga J. They have narrated in quite somedetail, the facts pertaining to these eight applications and the eventsthat led up to the filing of these applications. In both judgments thenarration is comprehensive and accurate, and I must say that I havenothing to add.
I have also considered very carefully, the reasoning and theconclusions in both judgments and would agree with those of mybrother Kulatunga J. In the result, I would determine that, upon aconsideration of all the material presented before us, the expulsionof the petitioners S.C. (Special) Nos : 4/91, 5/91, 6/91, 7/91, 8/91,9/91, 10/91 and 11/91 was valid. I accordingly dismiss all eightapplications.
There is no other matter that needs to be mentioned. That is thefact that all eight petitioners referred to above made very seriousallegations in their petitions against the District Judge of Colomboin connection with the unsuccessful actions filed in the District Courtof Colombo on 5.9.91. At the hearing, Learned President's Counselappearing for the petitioners was informed by Court that theallegations of partiality made by the petitioners against the DistrictJudge of Colombo were obviously irrelevant to these proceedings ;that this Court is not called upon to make a determination in thatrespect, and that, in any event, the District Judge of Colombo hasnot been made a party to these proceedings. After consulting thepetitioners Learned President's Counsel agreed to withdraw theoffending passages in the pleadings without prejudice to the rightsof the petitioners to persue the matter elsewhere. I am in entireagreement with what has been stated on this matter by my brothersMark Fernando J. and Kulatunga J. and would myself direct theRegistrar to expunge the offending passages from the record.
I make no order as to costs. Each party will bear his own costs.
Expulsion of all eightpetitioners upheld.