RAMAMOORTHY AND RAMESHWARAN v. DOUGLAS DEVANANDA AND OTHERS

032-SLLR-SLLR-1998-V-2-RAMAMOORTHY-AND-RAMESHWARAN-v.-DOUGLAS-DEVANANDA-AND-OTHERS.pdf


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RAMAMOORTHY AND RAMESHWARAN
v.DOUGLAS DEVANANDA AND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJ„
WIJETUNGE, J. ANDDR. BANDARANAYAKE, J.
S.C. SPL. NO. (E) 1 AND 2/97JULY 24 AND AUGUST 01, 1997.
Expulsion from political party – Article 99 (13) (a) of the Constitution – Chargesand the audi alteram partem rule – Failure to serve charge – sheet and call forexplanation – Termination of membership of Independent Group 2 in Parliament.
Held:
Expulsion from political party (EPDP) and termination of membership of theIndependent Group 2 of Parliament were invalid as there was failure to complywith the audi alteram partem rule. There was no charge – sheet served and noexplanation for alleged acts of misconduct was called for. A request by telephoneto come for an inquiry is totally inadequate.
The pledge given by members (of Independent Group 2) is a contract betweenthe parties for the purpose of the association to ensure conformity with partypolicies. Yet a fair hearing was a precondition to deprivation of rights or to theimposition of penalties and disabilities being an implied term of such contract.
Cases referred to:
Durayappah v. Fernando 69 NLR 265.
Amaradasa v. The Land Reform Commission 79 (1) NLR 505, 544.
John v. Rees (1970) Ch 345, 402.
Dissanayake v. Kaleel (1993) 2 Sri LR 135, 182, 234.
Cooper v. Wandsworth Board of Works (1863) 14 CB (NS) 180.
APPLICATIONS against expulsion from political party and termination of
membership of Parliamentary Group.*
»>
W. Abeykoon, PC with Chandrika Morawake and A. Rajeswary for petitioners.
D. Wickremanayake for 1st, 2nd and 15th respondents.
SC Ramamoorthy and Rameshwaran v. Douglas Devananda and Others
(G. P. S. de Silva, CJ.)279
U. Abdul Najeem for 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 14th respondents.
Dharmapala Senaratne for the 13th respondent.
Cur. adv. vult.
August 21, 1997
G. P. S. DE SILVA, CJ.
Applications Nos. (E) 1 and 2 of 1997 were heard together as thematerial facts are almost identical. The petitioner in applicationNo.1 (Mr. Ramamoorthy) is an elected Member of Parliament rep-resenting the electoral district of Jaffna as a candidate of the Inde-pendent Group No. 2 at the election held on 16.8.94. The petitionerin application No. 2 (Mr. Rameshwaran) is also a Member ofParliament representing the electoral district of Jaffna as a candidateof the Independent Group No. 2; he, however, came into Parliamentupon the resignation of another elected member of Parliament fromthe Independent Group No. 2. The petitioners are brothers and theyare members of the recognised political party known as the EelamPeople's Democratic Party (EPDP). They have invoked the jurisdictionof this court in terms of Article 99 (13) (a) of the Constitution seekinginter alia that their "expulsion" from the EPDP and the "termination"of their membership of the Independent Group No. 2 are "null andvoid".
Admittedly, the 1st respondent who is a Member of Parliament,the Secretary-General of the EPDP and the leader of theIndependent Group No. 2 addressed the letter P8 to the petitionersinforming them that they have been expelled from the EPDP with effectfrom 6.6.97. Similarly the 1st respondent by P9 dated 9.6.97 informedthe petitioners that he has terminated their membership of the Inde-pendent Group No. 2 of the electoral district of Jaffna.
P8 dated 6.6.97 reads as follows:
“1. On allegations and complaints received from members ofthe public, particularly from the people of the Islands of Jaffnaagainst you, I, in my capacity as Secretary-General of the EPDPand Leader of Independent Group No. 2 of the Electoral Districtof Jaffna, constituted a Committee of Inquiry consisting of Hon.M. Chandrakumar, MP, Hon. S. Thangavel MP and Hon. S.Sivathasan MP to inquire into these allegations and complaints andsubmit a report to me.
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The Committee of Inquiry has found you guilty of 3 out of 4 charges.The charges on which you have been found guilty are annexedhereto separately.
You have made disparaging remarks about our Party andits policy and about me in my role as Secretary-General of theEPDP and Leader of Independent Group No. 2. Your remarks havebeen reported in the undermentioned news papers and television.
"The Island" of 6th May, 1997
"Divaina" of 6th May, 1997
"The Midweek Mirror" of 7th May, 1997
"Dinamina" of 7th May, 1997
"Yukthiya" of 11th May, 1997
"Lakbima" of 11th May, 1997
"Divaina" of 13th May, 1997
"The Island" of 13th May, 1997
"Virakesari" of 14th May, 1997
"Daily News" of 26th May, 1997
"Sarinigar" of 22nd May, 4th June,. 1997
Interview-given to "MTV" Television on 7th May, 1997
Despite the wide publicity given to the publications referred toabove, you have not denied making the said remarks either to thesaid newspapers, the "MTV" television or to the party. In thesecircumstances there can be no doubt whatsoever that in fact thecontents of the newspaper articles and the interview given to "MTV"television correctly published your remarks.
The Central Committee of the EPDP which met to discuss yourremarks referred to above, has found you guilty of violating partydiscipline.
In these circumstances the Central Committee of EPDP hasdirected me to inform you that you have been expelled from theEPDP with effect from the date of this letter.
(9
Yours truly,
Sgd.
K.N. Douglas Devananda, MP., -Secretary-General, EPDP.
SC Ramamoorthy and Rameshwaran v. Douglas Devananda and Others
(G. P. S. de Silva, CJ.) 281
Copy to:1, Secretary-General of Parliament
2. Commissioner of Elections."
P8A sets out the charges referred to in P8. The charges againstthe petitioner in application No. 1 read as follows:
"The charges on which Hon. Rajendram Ramamoorthy, MP aliasSeelan had been found guilty"
On the explicit directions given by the Hon. RajendramRameshwaran, MP and the Hon. Rajendram Ramamoorthy, MP,some of the party cadres were compelled to work for RajendramRamanathan alias Raghu, brother of both Hon. Rameshwaran andHon. Ramamoorthy, their parents and their family members,attending to the following household activities and private businessactivities of Raghu:
cooking for the household of Raghu and parents
shallow water fishing
salting and drying of fish
drying of breehe de mer
cleaning of fishing boats
Party members who questioned regarding these arrangements weretold by Hon. Rameshwaran and Hon. Ramamoorthy that the fishingbusiness was being undertaken by them to generate funds for theEPDP. Party members who refused to carry out such tasks werephysically assaulted or otherwise punished by Hon. Rameshwaranand Hon. Ramamoorthy, on false charges of violating party rules.Several members of the party were kept in solitary confinementin a dark room for a varying number of days. Hon. Ramamoorthythus misused his position as an EPDP Member of Parliament.
Hon. Rajendram Ramamoorthy, MP alias Seelan and Nicholasalias Lingam, driver of Hon. Ramamoorthy, during the period June/July, 1995, had in the name of the EPDP, ordered fishermen ofAnalaitivu and Eluvaitivu, that they should henceforth sell all theircatch of crabs, prawns, lobsters, breech de mer and fish only toRajendram Ramanathan alias Raghu, brother of Hon. Ramamoorthyat prices fixed by Rajendram Ramanathan alias Raghu, these pricesbeing much lower than market prices. The fishermen were thus
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compelled to sell their catch at low prices for more than one year.Thus, Hon. R. Ramamoorthy, while being a Member of Parliamentbelonging to the EPDP misused his public position and deprivedthe fishermen of Analaitivu and Eluvaitivu of part of their legitimateearnings.
3. Hon. R. Rameshwaran, in September 1996, in his capacityas Member of Parliament and EPDP Organiser for the Islands hadoffered to transport to Colombo free of charge, packages of highquality seasoned tobacco belonging to individuals in Analaitivu, anddeliver to business establishments in Colombo specified by theowners. After Hon. R. Rameshwaran accepting the packages oftobacco in Analaitivu and transporting them out of Analaitivu, theowners heard nothing about their produce for some months. Whenthey contacted Hon. R. Rameshwaran, he directed them to contacthis brother Hon. R. Ramamoorthy in Colombo who was describedby Hon. R. Rameshwaran as the person in charge of delivery inColombo. When the individuals contacted Hon. R. Ramamoorthyin Colombo, he directed them to go over to an establishment, otherthan those specified by the owners, and to collect their dues. Whenthe owners of the tobacco went over to that establishment, theywere asked to pay a transportation charge of Rs. 800 per packageas against the normal charge of Rs. 300 per package. Furthermore,they found that their high quality tobacco had been replaced withlow quality tobacco in the packages. Everyone of the ownerssuffered financial loss.
This is a case of intentional cheating of innocent tobacco farmersby both Hon. R. Rameshwaran and Hon. R. Ramamoorthy, resultingin tarnishing the reputation of the EPDP".
The petitioner in application No. 2 was found guilty of 8 charges.Some of these charges were the same as the charges against thepetitioner in application No. 1. There is little doubt that the chargesagainst both petitioners were of a serious nature. As submitted byMr. Wikramanayake, for the 1st, 2nd and 15th respondents, theexpulsion from the EPDP was for two reasons. Firstly, the petitionerswere found guilty of charges set out in P8A. Secondly, the petitionerswere guilty of making "disparaging remarks" concerning the 1strespondent and the EPDP in newspapers and at an interview to theMTV.
SC Ramamoorthy and Rameshwaran v. Douglas Devanahda and Others
(G. P. S. de Silva, CJ.)283
The position of both the petitioners is that they were totally unawareof the charges and- the reasons for their expulsion from the EPDPuntil they ‘ received P8. The principal submission of Mr. Abeykoon forthe petitioners is that the expulsion from the EPDP and the terminationof the membership of the Independent Group No. 2 are invalid forwant of compliance with the audi alteram partem rule. It seems tome that this is the crucial issue that arises for consideration in bothapplications.
Mr. Wikremanayake strenuously contended in his oral and writtensubmissions that there was no violation of the audi alteram partemrule. Counsel urged that the petitioners were aware “not only of theallegations being made against them but also the nature and volumeof the evidence that was available". Mr. Wikremanayake referred usin particular to the following averments in the affidavit of the 1strespondent (paragraphs 31, 32 and 33) filed in application No. 2:
"31. by the beginning of May, 1997, it was clear from theinvestigations of the committee that the allegations against thepetitioner and his brother were serious and that there was a volumeof evidence against them. I state that thereafter on the 2nd May,1997 I telephoned the petitioner and his brother Ramamoorthy wholive in adjoining houses at Madiwela and informed them that it wasthe suggestion of the committee that a formal inquiry be held. Idid suggest to the petitioner and brother that in order to avoidembarrassment to themselves and the party they should considerwhether they should resign their membership in Parliament. I toldthem that if they did not wish to resign, they should come to myoffice at Layards Road, Colombo 5, on the following day so thatsteps necessary could be taken to initiate and conduct a formalinquiry.
I state that thereafter the petitioner and his brotherRamamoorthy divorced themselves completely from the party. From3rd May onwards, the two brothers did not attend the party's office,gave several interviews to the media including a television interviewmaking serious allegations against me, stating that I was dictatorial,stating that they were going to function as ‘Independents' inParliament supporting those who helped them in their legal prob-lems, alleging that anyone who opposed me would be eliminated,suggesting that their own lives were in danger because of me,
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that the EPDP had a killer squad which was opposed by them,claiming that they were opposed to the party policy of seeking aTamil-speaking regiment and that they would state without fear thatI was a racist even more cruel than Prabakaran. I annex heretomarked 1R17 to 1R27 newspapers relating to the said matters andtranslations 1R25-A and 1R27-A. A cassette recording of thetelevision interview is also available for examination by YourLordships Court.
When it was realised that the petitioner and his brotherwould not attend the party office for the purpose of a formal inquirybeing commenced, I asked the members of the Inquiring Committeeto submit a written report. That report, dated 20th May, 1997, wassubmitted for consideration to the members of the Central Com-mittee who were available. Of the 21 surviving members, there were(excluding the petitioner) 15 members who considered the reportand the conduct of the petitioner and his brother and unanimouslydecided that he should be expelled from the party. I was thendirected by the Central Committee to inform the petitioner and hisbrother Ramamoorthy that they had been expelled from the party.
I did this by the letter dated 6th June, 1997, which has been markedas P8. I herewith annex 5 affidavits from the Central CommitteeMembers and marked as 1R28-B, 1R28-C, 1R28-D and 1R28-E”.
Mr. Wikremanayake submitted that if this court accepts the positionas set out above, it follows that the petitioners were afforded anopportunity of “being heard" but that they had refused to avail them-selves of that opportunity. In the circumstances, there was nothingmore that the 1 st respondent could have done and there was sufficientcompliance with the audi alteram partem principle.
However, it is not disputed that no charge-sheet was served onthe petitioners. No explanation in regard to their alleged acts ofmisconduct was called for. As rightly submitted by Mr. Abeykoon, ifthe 1st respondent was in a position to have sent the petitioners P8and P9, what was the difficulty in serving a charge-sheet and callingfor an explanation? The question of holding a formal inquiry wouldarise only thereafter. A request to the petitioners on the telephoneto come for a “formal inquiry" is totally inadequate. It was far tooserious a matter to be dealt with in that informal manner. The factthat the petitioners were duly elected Members of Parliament and that
SC Ramamoorthy and Rameshwaran v. Douglas Devanapda and Others
(G. P. S. de Silva, CJ.) 285
they were the elected representatives of the people is a very relevantconsideration. What is more, the consequences of expulsion from theEPDP and the termination of membership of the Independent GroupNo. 2 are, "as complete as could be imagined", to use the wordsof the Privy Council in Durayappah v. Fernando, 69 NLR 265.(1> Asobserved by Sharvananda, J. (as he then was) in Amaradasa v. TheLand Reform Commission, 79 NLR (volume 1) 505 at 544<2) "It is ofthe utmost importance to uphold the right and indeed the duty of thecourts to ensure that powers are not exercised in breach or theprinciples of natural justice when the exercise of such powers impingeson the basic rights of citizens".
I now turn to the second ground of expulsion from the EPOPreferred to above. Mr. Wikremanayake strongly urged that there isno dispute in regard to the "disparaging" remarks made by thepetitioners concerning the 1st respondent and the EPDP in thenewspapers and in an interview to the MTV. The petitioners, however,have not admitted all the “news items" attributed to them. In any event,the authenticity, the correctness and the accuracy of the "news items"can be ascertained, and findings reached thereon, only at a fair inquiryafter adequate notice of the allegations has been given to the pe-titioners. H. W. R. Wade in his work on Administrative Law (6th editionat page 535) emphasizes the "basic principle" that "fair procedurecomes first and it is only after hearing both sides that the merits canbe properly considered". In this connection, it is well to bear in mindthe “dangers" expressed by Megarry, J. in John v. Rees (1970 ch.345 at 402)(3>. “As everybody who has anything to do with the lawwell knows, the path of the law is strewn with examples of open andshut cases which, somehow were not; of unanswerable charges which,in the event, were completely answered; of inexplicable conduct whichwas fully explained; of fixed and unalterable determinations that, bydiscussion, suffered , a change". Having regard to these principles, Ihold that there has been a failure to afford a fair opportunity to thepetitioners to correct or explain or contradict the alleged "disparagingremarks" concerning the 1st respondent and the EPDP.
Apart from P8, the other document which is challenged in theseproceedings is P9. The contents of P9 read as follows:
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■121, Park Road,Colombo 6,09.06.1997.
You have been duly informed that the EPDP of which you weremember has now expelled you from the party.
You contested the Parliamentary Election as a candidate of theIndependent Group No. 2 of the Electoral District of Jaffna of whichI was the leader. You would also recall that you gave an under-taking at the time of submission of nomination papers that youwill conduct yourself in accordance with all the stipulations in apledge signed by you. A copy of that pledge is annexed heretofor your easy reference.
In view of the fact that you have been expelled from the EPDPand have violated the pledge given by you, your conduct has leftme with no alternative but to terminate your membership of theIndependent Group No. 2 of the Electoral District, of Jaffna.
In view of the consequences that must necessarily flow, I amforwarding a copy of this letter to the Secretary-General ofParliament for necessary action.
Yours truly,
Sgd.
K. N. Doulgas Devananda, MP.,
Secretary-General, EPDPLeader, Independent Group No. 2Electoral District of Jaffna".
Copy to:1. Secretary-General of Parliament
Commissioner of Elections."
On a reading of P9 it would appear that there were two reasonsfor the termination of membership of the Independent Group No. 2.The first is the expulsion from the EPDP and the second reason isthe violation of the “pledge" given by the petitioners. I have alreadyconsidered the validity of the expulsion from the EPDP. I agree withthe submission of Mr. Wikremanayake that just as much as the party
SC Ramamoorthy and Rameshwaran v. Douglas Devananda and Others
(G. P. S. de Silva, CJ.) 287
constitution is an agreement or contract between persons for thepurpose of "association", the “pledge" is a contract between the partiesintended to ensure conformity with party policies. Fernando, J. inDissanayake v. Kaleel (1993) 2 SLR 135 at 182<4) exhaustivelyreviewed the cases and stated: “Although the rights in question aroseessentially from contract, a fair hearing was a. precondition todeprivation of rights or to the imposition of penalties and disabilitiesbeing an implied term of such contract. "In the words of Willes, J.in Cooper v. Wandsworth Board of Works (1863) 14 CB(NS) 180(s)". . . the rule is of universal application, and founded upon the plainestprinciples of justice". I accordingly hold that the termination of mem-bership of the petitioners of the Independent Group No. 2 on theground of alleged violation of the "pledge" is subject to the audi alterampartem rule, and there has been a failure to comply with it.
Mr. Wikremanayake relied strongly on the judgment of Kulatunga,J. in Dissanayake's case (supra) – The learned Judge, however, inthe course of his judgment clearly stated: "The right of a MP to reliefunder Article 99 (13) (a) is a legal right and forms part of hisconstitutional rights as a MP. If his complaint is that he has beenexpelled from the membership of his party in breach of the rules ofnatural justice, he will ordinarily be entitled to relief; and this courtmay not determine such expulsion to be valid unless there areoverwhelming reasons warranting such decision. Such decision wouldbe competent only in the most exceptional circumstances permittedby law and in furtherance of the public good the need for which shouldbe beyond doubt." at page 234 (The emphasis is mine). In consideringthe campaign carried on by the petitioners in that case between28.08.91 and 6.9.91 Kulatunga, J. took the view that it amounted toa threat to stable government in the country, a campaign that was“likely to confuse or inflame the public mind against the Head of theState, the government and the party in power. "The learned Judgeadded" . . . this case involves the interests of a party which has beenvoted into power by the electors and above all the interests of thepublic who are often the victims of such indisciplinedcontroversy. "No such weighty considerations are present in the ap-plications before us. I accordingly hold that strict compliance with theaudi alteram partem rule was a precondition to a valid expulsion fromthe party (EPDP) as well as the termination of the membership ofthe Independent Group No. 2 of the electoral district of Jaffna. Thisthe respondents have failed to do.
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For the reasons set out above, I determine that both P8 and P9are of no force or avail in law and that they are invalid.
In all the circumstances, I make no order as to costs of theseproceedings.
WIJETUNGA, J. – I agree.
BANDARANAYAKE, J. – I agree.
Expulsion from party and termination of membership declared invalid.