009-SLLR-SLLR-2001-V-3-GUNASIRI-v.-SRI-LANKA-MAHAJANA-PAKSHAYA-AND-OTHERS.pdf
GUNASIRI
v.
SRI LANKA MAHAJANA PAKSHAYA AND OTHERS
COURT OF APPEALJ.A.N. DE SILVA, J. (P/CA)
C.A. 617/2000SEPTEMBER 27™. 2000DECEMBER 4™, 2000
Expulsion from constituent party – Notice under S.10A (2) of the LocalAuthorities Elections Ordinance ■ Validity – Is expulsion from the peoplesAlliance automatic.
The Petitioner, Chairman of the Biyagama Pradeshiya Saba complainedthat, the Central Committee of the Is* Respondent constituent Party hasmade a decision to expel him from the party. Thereafter the 4th Respondentthe General Secretary of the Peoples Alliance had informed theCommissioner of Elections about the expulsion and requested to takenecessary steps, the Commissioner of Elections thereafter had given noticeunder S.10A (2) of the Local Authorities Elections Ordinance.
It was contended that the said Notice is ultra vires and S.10A (2) is notapplicable as there was no material to show that the Petitioner ceased tobe a member of the Peoples Alliance.
Held :
when a Member loses his Membership in one of the constituent partiesin terms of the Peoples Alliance Constitution, expulsion from thePeoples Alliance is automatic under its constitution.
APPLICATION for a Writ of Certiorari.
Wijedasa Rqjapakse with Kapila Llyanagamage for the Petitioner.
J. C. Wellamuna with Janaka Samarakoon for 1st, 2nd and 3rd. Respondents.
S. Gnanathansan, D. S. G., for 4 – 7th Respondents.
Cur. adv. uult.
CA
Gunaslrl v. Sri Lanka Maha/ana Pakshaya and others
(J. A. N. De Silva. J. PICA)'
47
May 30, 2001.
J. A. N. DE SILVA, J. (P/CA)
The petitioner who is the Chairman of the BiyagamaPradeshiya Sabha by this application complained to Court that,
The Central Committee of the 1st respondent party Sri LankaMahajana Pakshaya has made a decision to expel him fromthe party in violation of the principles of Natural Justice.
On the request of the 3rd respondent who is the GeneralSecretary of the 1st respondent party, the 4th respondent whois the General Secretary of the People’s Alliance has informedthe 5th respondent Commissioner of Elections about the saidpurported expulsion and requested to take necessary steps.
Accordingly the 6th respondent has given notice underSection 10A (2) of the Local Authorities Elections Ordinanceto the petitioner that he will publish a Gazette noticedeclaring that the petitioner has vacated his office.
The said notice of the 6th respondent is ultra vires andcontains an error on the face of it in view of the non-applicability of Section 10A (1) (a) of the said Ordinance tothe circumstances of the present case.
At the time of hearing the arguments the petitioner's Counselconfined himself to one issue viz whether the expulsion asshown in (P4) is valid inasmuch as the expulsion is from the SriLanka Mahajana Party the 1st respondent and not from thePeople’s Alliance.
The attention of Court was drawn to Section 10A(l)(a) ofthe Local Authorities Election’s Ordinance which reads thus.
“If the elections officer of the district in which a localauthority area is situated is satisfied that any person whosename has been included as a candidate for election as a memberof that local authority, in the nomination paper of a recognized
48
Sri Lanka Law Reports
(20011 3 Sri L.R.
party has ceased to be a member of that party, the electionsofficer shall subject to the provisions of subsection (2) by noticepublished in the gazette declare that such person.
has vacated his office of a member, if he has been.elected as
a member of that local authority."
Learned Counsel for the petitioner contended that in termsof the said provisions an election officer should be first satisfiedthat an elected member of a local authority has ceased to be amember of a recognized political party and that the said electedmember’s name was included in the nomination paper of thatrecognized political party at the relevant election before takingsteps in terms of the said provisions.
Admittedly the petitioner's name was included in thenomination paper of the People's Alliance at the lastlocal authorities election. He was elected and subsequentlyappointed as the Chairman of the Biyagama Pradeshiya Sabhafrom the People’s Alliance.
In the circumstances the 5,h and 6,h respondents, theElection Commissioner and the Returning Officer respectivelyhave to be satisfied themselves that the petitioner has ceased tobe a member of the People’s Alliance.
Learned Counsel for the petitioner submitted that theundated letter written by the General Secretary of the People’sAlliance to the 5lh and 6th respondents which is marked P4 doesnot state that the petitioner has ceased to be a member of thePeople’s Alliance. Counsel submitted that all what documentmarked "P4" says is that the General Secretary of the Sri LankaMahajana Pakshaya has informed the 4th respondent that theCentral Committee of the Sri Lanka Mahajana Pakshaya hasdecided to expel the petitioner from the said party and in thesecircumstances there was no material for the Returning Officerto be satisfied that the Petitioner has ceased to be a member ofthe People's Alliance. It was further contended that in theabsence of such material, the 6th respondent cannot act underthe provisions of Section lOAof the Local Authorities ElectionsOrdinance.
CA
Gunastrt v. Sri Lanka Mahafana Pakshaya and others
(J. A. N. De Silva. J. P/CA)'
49
Learned Counsel for the respondent submitted thatexpulsion in the instant case cannot be judged only withreference to P4. In the objections of the respondents they havetaken up the position that petitioner's expulsion from the SriLanka Mahajana Party would result in automatic expulsion fromthe People's Alliance under the People’s Alliance Constitution.Sri Lanka Mahajana Pakshaya is a constituent party of thePeople's Alliance. By virtue of being a member of the Sri LankaMahajana Pakshaya the petitioner becomes a member of thePeople's Alliance. There is no independent membership and ora contractual relationship between the petitioner and thePeople’s Alliance. In the context of the issues that are relevantfor this case the Constitution of both People’s Alliance and SriLanka Mahajana Pakshaya have to be examined. DeputySolicitor General submitted that all Constitutions of the partiesare registered with the Commissioner of Elections and theCommissioner is aware as to what action he should take in theevent a member is expelled from the party.
The petitioner has not produced the essential documentnamely the Constitution of the People’s Alliance to this Court.This application could be dismissed in limine on that groundalone for suppression of material facts. However this Court hadthe occasion to deal with a similar problem in case No.1571/2000 where People’s Alliance Constitution and theConstitution of the constituent parties were examined. I amsatisfied that when a member loses his membership in one ofthe constituent parties in terms of the People's AllianceConstitution, expulsion from the People’s Alliance is automaticunder its Constitution. The secretary of the People’s Alliancehas communicated with the Commissioner of Elections of thesaid expulsion. When one looks at P4 the caption of that letterseems to be misleading however the contents adequately informsthe Commissioner of an expulsion that results in the petitionerceasing to be a member of the People’s Alliance. The applicationof the petitioner is refused and the petition is dismissed withcosts.
Application dismissed.