v.LANKA SAMA SAMAJA PAKSHAYA & OTHERS
COURT OF APPEAL
J. A. N. DE SILVA. J. (P/CA)
RAJA FERNANDO, J.
FEBRUARY 14™, 15™, 16™ 2001
Provincial Council Elections Act 2 of 1988, S. 63 Expulsion of a memberfrom Constituent Party – Who should conduct the Inquiry ? Is it theCentral Committee or District Level Committee – Rules of Natural Justice.
The Petitioner is a member of the Sabaragamuwa Provincial Council, electedon the nomination list of the 4th Respondent (Peoples Alliance – R A.) Partybeing a member of the 1st Respondent Party (L.S.S.P).
The General Secretary of the L.S.S.R informed the General Secretary ofthe R A. that a decision has been taken to expel the Petitioner from theL.S.S.R (Is' Respondent Party) and from the Office of Member of the saidProvincial Council.
The Petitioner sought to challenge the expulsion on the grounds that therewas no intimation that he has been expelled from the 4th Respondent Party(R A.) or request by the Secretary of the Provincial Council to theCommissioner of Elections that he be expelled.
According to the contention of the 1st Respondent (L.S.S.P) Party theparty operates at 3 levels, viz: Local Sabha, District Committee andCentral Committee.
The Local Sabha is the grass root level organisation of the party. TheDistrict Committee composes of representatives elected by the Partymembers of the District. The Central Committee is the highest bodyof the Party and composes of representatives elected by the GeneralBody at the Party Convention.
All Party members and candidates of a District are bound by thedecisions of the District Committee and all party members andcandidates of the local Sabha are bound by the decisions of the LocalSabha.
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Where any party member commits a breach of discipline, the localSabha or the District Committee shall report such violation to theCentral Committee for purpose of awarding punishment.
Each party works under its Constitution and different parties adoptdifferent procedures with regard to matters of discipline within theparty as set out in their own Constitution.
An inquiry was held by the Kegalle District Committee, the Petitionerwas given an opportunity to show cause. There is no requirement thatthe Petitioner should have been given a second opportunity to explainat the level of the Central Committee.
The 1® Respondent Party has complied with the procedures laid downand the Petitioner has been offered an opportunity to show cause atthe District Committee level. The Central Committee has by ratifyingthe decision of the District Committee have themselves decided toexpel the Petitioner from the 1st Respondent Party.
APPLICATION under S.63 of the Provincial Councils Elections Act 2 of
Wijedasa Rajapakse with Kapila Liyanagamage. R. Dassanayake.
K. Ranasinghe for Petitioner.
Ms. Chamantha Weerakoon-Unamboowe. with Ms. Ayanthi Abeywickrema
and V. Ponnambalam for 2nd Respondent.
A. Gnanadasan D. S. G.. for 8th Respondent – Commissioner of Elections
and the Attorney General.
Cur, adu. uult.
February 22, 2001. (Reasons March 1, 2001)
RAJA FERNANDO, J.The Petitioner is a member of the Sabaragamuwa ProvincialCouncil having been elected on 6. 4. 1999 from the KegalleDistrict on the Nomination list of the 4th Respondent party beinga member of the 1st Respondent party.
On 30th November, 2000 petitioner has received a copy of aletter addressed to the 8th Respondent, The Commissionerof Elections, by the 6th Respondent which stated that the
Gunathllaka u. Lanka Sama Samaja Pakshaya & others
(Raja Flemando, J.)
2nd Respondent has informed the 6th Respondent that on7. 1. 2000 a decision has been taken to expel the petitionerfrom the 1st Respondent parly and from the office of member ofthe said provincial council. "P5”.
In this application filed under Section 63 of the ProvincialCouncils Elections Act No. 2 of 1988 the petitioner is seeking adeclaration from this Court:
that the expulsion by the Petitioner from the1st Respondent Party and/or from 4th Respondent Party isinvalid.
that the petitioner has not ceased to be a member of theSabaragamuwa Provincial Council.
that the petitioner continues to be and remains a memberof the Sabargamuwa Provincial Council.
The grounds on which the petitioner is seeking the abovereliefs are:
that the petitioner was not informed of any purportedcharges and/or allegations against him.
that there was no opportunity given to the petitioner toshow cause to any purported charge and/or allegation.
that the petitioner was not heard at all and therefore it iscontrary to the rules of natural justice.
At the hearing of this application Counsel for the Petitionersought to confine his application to the issue of expulsion of thePetitioner from the 1st Respondent Party as there is nointimation that he has been expelled from the 4th Respondentparty or request by the Secretary of the SabaragamuwaProvincial Council to the Commissioner of Elections that he beexpelled from the office of member of the Provincial Council.
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Therefore, the only matter for decision now before thisCourt is whether the expulsion of the Petitioner from theIs' Respondent party is valid.
The petitioner came to Court on the basis that he was amember of the lsl Respondent Party and that he was neverinformed of any charge or allegation against him. He was notgiven an opportunity to show cause and that he was not heardbefore a decision to expel him from the Is* Respondent Partywas taken. Therefore he contended that the decision to expelhim from the Is’ Respondent Party is contrary to the rules ofNatural Justice and the procedure set out in the PartyConstitution. Petitioner has produced marked "PI" theConstitution of the Is’ Respondent Party which governs therelationship between the Petitioner and the 1st Respondent Partywith regard to matters relating to the party.
In view of the above matters raised by the learned Counselthis Court has to examine the procedure laid down inthe constitution of the 1st Respondent party in dealing withdiscipline in the party and whether such procedure has beenfollowed by the Respondents in expelling the Petitioner fromthe 1st Respondent Party and whether the rules of NaturalJustice have been observed.
Whilst the petitioner stated in his affidavit that the Petitionerwas not informed of any charge and no opportunity was givenby the 1st Respondent Party to show cause. The 2nd Respondentfiled his objections together with an affidavit from one SirisenaRajapaksa a member of the Town Council of Kegallc from the1st Respondent Party marked "R2". According to the affidavitof Sirisena Rajapaksa, at a meeting of the Warakapola Branch(local) of the 1st Respondent Party the conduct of the Petitionerin not supporting the candidates recomended by the1st Respondent Party for the General Election held on10. 11.2000 was discussed and a decision was taken to reportthis matter to the District Committee to expel the Petitioner fromthe 1st Respondent Party and also from the SabaragamuwaProvincial Council.
Gunathllaka v. Lanka Sama Samaja Pakshaya.& others
(Raja Fernando, J.)
It is common ground that the petitioner was not present atthe above meeting of the Warakapola Branch (local) when theconduct of the petitioner was discussed, and hence had noopportunity to show cause before the Warakapola Branch(local).
Sirisena Rajapaksa further states in his affidavit that hewas present on 4. 11.2000 at the meeting of the Kegalle DistrictCommittee of the 181 Respondent Party at which the Petitionertoo was present and the report submitted by the WarakapolaBranch was taken up for discussion. At the District Committeemeeting the Petitioner was present and was afforded anopportunity to show cause against the decision of theWarakapola Branch but the Petitioner remained silent. At theconclusion of the discussion the decision of the WarakapolaBranch (local) was approved by the Kegalle District committeeunanimously and decided that the petitioner should be expelledfrom the Is' Respondent Party and from the SabaragamuwaProvincial Council. It was further decided that the decision ofthe Kegalle District Committee be conveyed to the GeneralSecretary of the 1st Respondent Party and through him to theParty.
The affidavit of the 2nd Respondent who is the Secretary ofthe lsl Respondent Party states that on the instructions of theCentral Committee of the Is' Respondent Party he required the“Locals" to inquire into and report on all party members of the“Locals" who failed, neglected or refused to support andcampaign for the election of the Party candidates on thenomination list of the 4lh Respondent Party at the Parliamentaryelections held on the 10th of November 2000.
Accordingly the Warakapola Local Branch had inquired intothe matter and reported that the petitioner had failed andrefused to support the party's candidates at the parliamentaryelection and that this was despite specific instructions issuedby the Is' Respondent Party. Further the local had decided thatthe Petitioner should be expelled from the 1st Respondent party
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and also from his position as member of the SabaragamuwaProvincial Council.
The said decision of the Warakapola Branch has beenconveyed to the Kegalle District Committee which has endorsedthe decision.
The Kegalle District Committee reported the said decisionto the Central Committee, and the Central Committee ratifiedthe said decision of the Kegalle District Committee.
There was no counter affidavit filed by the Petitioner denyingor contradicting the facts averred in the affidavits of the2nd Respondent or the affidavit of Sirisena Rajapakse filedtogether with the objections of the 2nd Respondent.
In the absence of a denial or contradiction of the avermentsin the affidavit of the 2nd Respondent and the affidavit of SirisenaRajapaksa this Court cannot reject the position taken up bythem that the petitioner was in fact given an opportunity to showcause against the decision to expel the petitioner from theIs' Respondent Party at the District committee meeting of theparty held on 4. 11. 2000 and that the Petitioner who waspresent at the meeting remained silent.
On the material placed before court this Court is satisfiedthat the Petitioner was given an opportunity to show causeagainst'his expulsion from the Is' Respondent Party at theKegalle District committee meeting held on 4th November 2000.
On this point the Court also observes that the petitioner innot disclosing to Court about the meeting of the Kegalle DistrictCommittee held on 4. 11. 2000 at which he was present wassuppressing material facts from Court.
The next matter for Court consideration is whether theprocedure followed by the 1st Respondent Party in expelling thePetitioner from the Party is the procedure laid down in the PartyConstitution of 1st Respondent Party.
Gunathtlaka v. Lanka Santa Samqja Pakshaya & others
(Raja Fernando, J.)
According to the constitution of the 1st Respondent Partymarked "PI" the party operates at three levels:
The “Local Sabha”
The District Committee
The Local sabha is the grass – root level organisation of theparty. The District Committee composes of representativeselected by the party members of the District. The CentralCommittee is the highest body of the Party and comprises ofrepresentatives elected by the general body at the Partyconvention.
According to the scheme set out in the constitution of thel5' Respondent Party unless otherwise directed by the CentralCommittee all party members and candidates must be membersof the “Local Sabha”. (Article 10)
All party members and candidates are bound by thedecision of the Central Committee.
All Party members and Candidates of the District arebound by the decisions of the. District Committee and all partymembers and candidates of the “Local sabha" are bound bythe decision of the “Local Sabha” (Articles 26, 27, 28).
With regard to disciplinary action Article 35 confers thepower of awarding punishment for violation of discipline byany party member to the Central Committee.
Article 36 states that where any party member commits abreach of discipline the “Local Sabha” or the District Committeeshall report such violation to the Central Committee for thepurpose of awarding punishment.
It is the contention of the Petitioner that the “Local Sabha"or the District Committee has no authority to take any
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disciplinary action against a party member and the only bodythat has the authority to take disciplinary action is the CentralCommittee and the Central Committee did not inform thePetitioner of any charge or give him an opportunity to show causeand hence the Order of expulsion of the Petitioner from the1st Respondent Party is invalid.
The Respondent contends that whilst the power ofimposing the punishment is left to the Central Committee thepower to inquire and report any violation of discipline by a partymember is vested with the "Local sabha” or the DistrictCommittee and that the District Committee of Kegalle did inquireinto the matter of violation of party discipline by the Petitioneron the directions given by the Central Committee and he wasafforded an opportunity to show cause. Thereafter they reportedto the Central Committee that the Petitioner has violated partydiscipline and the Central Committee has ratified the decisionof the District Committee and thus the award of the punishmentis the decision of the Central Committee.
It was further contended on behalf of the Respondent thatthere is no requirement under the constitution of theIs' Respondent Party that the inquiry into the breach ofdiscipline be carried out by the Central Committee itself: on thecontrary the party organisation is such that such inquiries areconducted by one’s own peers at the Local or District level. Inthis case an inquiry was held by the Kegalle District Committee,the Petitioner was given an opportunity to show cause, thereforethe procedure as set out in the 1st Respondent Party constitutionhas been complied with and there is no requirement that thePetitioner should have been given a second opportunity toexplain at the level of the Central Committee.
Each party works under its own constitution and differentparties adopt different procedures with regard to matters ofdiscipline within the party as set out in their own constitutions.
The Court can only decide as to whether the rules ofnatural justice have been observed and the party has acted interms of the procedure laid down in the constitution of the party
Gunathllaka v. Lanka Santa Samaja Pakshaya & others
(Raja Fernando, J.)
in question even though that procedure may be different from^iat of another party.
On the material before Court we are satisfied that theIs* Respondent party has complied with the procedure laiddown in their constitution with regard to violation of disciplineby the Petitioner and that he has been afforded an opportunityto show cause at the District Committee level. The Petitionerhas failed to offer any explanation or show cause and the CentralCommittee has by ratifying the decision of the District Councilto expel the Petitioner from the 1st Respondent Party havethemselves decided to expel the Petitioner from the1st Respondent Party. Hence we do not find any merit orsubstance in the submission of the Counsel for the petitionerthat no opportunity was afforded to the petitioner prior to hisexpulsion.
Accordingly we find that the expulsion of the Petitioner fromthe 1st Respondent Party is valid.
The petition of the Petitioner is dismissed with costs.
Due to the time constraints in the Provincial CouncilsElections Act No. 2 of 1988 the Order was delivered on22. 02. 2001 and the reasons for the order is given today
J. A. N. DE SILVA J. P/CA I agree.
KULATILAKE J. – I agree.