RAMBUKWELLA v. UNITED NATIONAL PARTY AND OTHERS

027-SLLR-SLLR-2007-V-2-RAMBUKWELLA-v.-UNITED-NATIONAL-PARTY-AND-OTHERS.pdf


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Rambukwella v United National Party and others
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RAMBUKWELLAv
UNITED NATIONAL PARTY AND OTHERSSUPREME COURTSARATH N. SILVA, C.J.
JAYASINGHE, J. ANDDISSANAYAKE, J.
S.C. (EXPULSION) NO. 1/2006
Expulsion of a member of a recognised political party who is a Member ofParliament-Articles 3.3.(c), 3.3(d), 3.4.(d) and 9.7 of the Constitution; Validityof the expulsion in terms of proviso to Article 99 (I3)(a) of the Constitution;Procedural impropriety – Right to representation by an Attomey-at-Law -Section 41(2) of the Judicature Act No. 2 of 1978.
The petitioner was a Member of Parliament representing the UnitedNational Party which is a recognized political party. He successfullycontested the Parliamentary Elections held in the years 2000, 2001 and2004 as a nominee of the 1st respondent for the Kandy District. On13.01-2006 at a meeting of the Kandy District Balamandalaya of the Party,attended by the 2nd respondent as the leader of the U.N.P. and over 400party activists including Members of the Parliament, Members of theProvincial Council and other District level representatives, chaired by thepetitioner who made a speech and among other matters he had stated thus
– at this critical juncture in the affairs of the country peoples
representatives should join together setting aside political divisions tostrengthen the hand of the President to defeat the terrorism…."
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Few days after the said meeting he received letter dated 16.01.2006 from thePresident which referred to the statement made by the petitioner regardingcooperation with the Government across party barriers and the letter endedwith a request by the President to accept a Ministerial portfolio. On 25.01.2006the petitioner was appointed as the Minister of Policy Development andImplementation and was also appointed as the National Security and Defencespokesman of the Government.
Upon the acceptance of the Ministerial portfolio by the petitioner the WorkingCommittee of the party initiated the process of disciplinary action against thepetitioner. The petitioner pleaded that no explanations were called for from thepetitioner and that he was denied legal representation. Subsequently, he wasexpelled from the Party on a decision of the Working Committee.
Held:
The standard of review of a decision of expulsion should be akin to thatapplicable to the review of the actions of an authority empowered todecide on the rights of persons in Public Law. Such review comeswithin the rubric of Administrative Law.
Where a person has the right to be heard the provisions of section 41(2)of the Judicature Act will apply and such person is entitled to berepresented by an Attorney-at*Law. The Panel of Inquiry acted inbreach of the principles of natural justice in denying legalrepresentation to the petitioner.
Per S.N. Silva, C.J. –
"This court has consistently held that the member affected has a right to beheard in compliance with the principles of natural justice. The phrase*quazi judicial" has evolved through decisions of Courts to encompass anact which adversely affect the right of a person, bringing within the scopeof its exercise the duty to act judicially…".
In terms of section 41(2) of the Judicature Act No. 2 of 1978 the right torepresentation by an Attomey-at-Law can be denied only if there isexpress provisions by law to the contrary, the guidelines issued by thethen General Secretary cannot be considered as an express provisionof law.
Per S.N. Silva, C.J. –
A political party comes into existence as a matter of privatearrangement (contract) between persons who have the object of gainingpower at elections but the character of such Association alters to a certainextent after gaining recognition as a Political Party as provided in section 7of the Parliamentary Elections Act No. 1 of 1981. Thus a Political Partywhich commences as a private Association gains statutory recognition inreference to its Constitution with specific legal powers generally in regard
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to elections and it plays a vital role in the realm of DemocraticGovernance…"
APPLICATION in terms of Article 99(13)(a) of the Constitution challengingexpulsion from the United National Party.
Cases referred to:
Council of Civil Service Union and others v Minister for the Civil Service1985 AC 374.
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation1948 1 KB 223.
Edward v Bairstow 1956 AC 14.
Gamini Dissanayake v Kaleel 1993 2 SLR 135.
Jayatilake v Kaleel 1994 1 SLR 319.
Sarath Amunugama v Karu Jayasuriya 2000 1 SLR 173.
D.S. Wijesinghe, P.C. with Wijedasa Rajapakse, P.C., Upali Senaratne, KapiiaLiyanagamage and Kaushatya Molligoda for the petitioner.
K.N. Choksy, P.C., with Daya Pelpola for the 1st, 2nd and 3rd respondents.
C. Seneviratne, P.C., with Ronald Perera for 4th, 5th and 6th respondents.Ms. Indika Demuni de Silva D.S.G. for the 7th and 8th respondents.
Cur.adv. vult.
November 6, 2006.
SARATH N. SILVA, C.J.
The petitioner being a Member of Parliament has filed thisapplication in terms of Article 99(13)(a) of the Constitution, for adetermination that his expulsion from the 1st respondent, theUnited National Party (UNP), communicated to the SecretaryGeneral of Parliament being the 8th respondent and the petitionerby letters dated 10.8.2006, by the General Secretary of the UNP,being the 3rd respondent, is invalid and for a declaration that hecontinues to be and remains a Member of Parliament.
The petitioner has pleaded without contradiction by therespondents that he joined the Democratic United National Front(DUNF) in 1992 and successfully contested the Provincial CouncilElection for the Central Province and was appointed a Minister ofthe Provincial Council in 1994. In 1999 he contested the Provincial
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Council Election as a nominee of the UNP and although he was inremand custody throughout the period of campaign, he secured thehighest number of votes at that Election. Similarly, he successfullycontested the Parliamentary Elections held in the years 2000, 2001and 2004 as a nominee of the UNP for the Kandy District andsecured large numbers of preferential votes. He also served as aMinister in the Government of which the Leader of the UNP, the 2ndrespondent was the Prime Minister. At the Presidential Election ofNovember 2002, the petitioner was in charge of the electioncampaign in the Kandy District and the 2nd respondent secured asignificant majority of votes in that District.
As regard subsequent events, the petitioner has stated thatwhen the Budget was presented by the President, in December2005 considering the beneficial proposals, on several occasionsboth in and out of Parliament, he "praised" its contents in proof ofwhich he produced publication marked P3. The petitioner producedpublications dated 3.1.2006, 6.1.2006 and 11.1.2006 marked P4 inwhich it was specifically stated that he will be appointed a Ministerby the President.
On 13.1.2006, the 2nd respondent as the Leader of the UNPwas present at a meeting of the Kandy District Balamandalaya ofthe Party attended by over 400 Party activists including membersof Parliament, Members of the Provincial Council, PradeshiyaSabha's and other District level representatives, chaired by thepetitioner as the Kandy District President. The petitioner hasproduced a copy of the minutes of that meeting marked P5. A copyof the minutes had been sent by the District Manager annexed tohis letter dated 17.1.2006 to the General Secretary of the UNP(P5(a)), receipt of which was acknowledged by letter dated
of the Deputy General Secretary (P5b).
These minutes contain a record of the speech made by thepetitioner at the said meeting. Amongst other matters he had statedat this critical juncture in the affairs of the country, people'srepresentatives "should join together setting aside politicaldivisions to strengthen the hand of the President to defeat terrorismand find a political solution to ethnic issues whilst preserving thesovereignty of the People and the territorial integrity of the country.He stated that such a course of action would be in keeping with the
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repeated statements made by the 2nd respondent at thePresidential Election campaign that if he wins he would seek thecooperation of the SLFP and other parlies and would give themministerial appointments to seek a solution to the "nationalquestion."
The petitioner has pleaded that a few days after the saidmeeting he received letter dated 16.1.2006 (P6) from the Presidentwhich referred to statements made by the petitioner regardingcooperation in Government across party barriers and states thatsuch views have been expressed by other members of the UNPincluding its senior leadership. The letter ends with a request by thePresident to accept a Ministerial portfolio to advance the endeavourto establish peace. Thereafter on 25.1.2006, the petitioner wasappointed the Minister of Policy Development and Implementationand was also appointed as National Security and Defencespokesman of the Government of Sri Lanka, in which capacity heis yet functioning.
The acceptance of the Ministerial portfolio by the petitioner setin motion the process of disciplinary action against him. The stepsin this process and the specific grounds of challenge raised by thepetitioner would be dealt with hereafter. Quite apart from theselegal grounds, Counsel for the petitioner made a generalsubmission on the basis of the facts outlined above that have beenextensively pleaded and supported with contemporary documents,contents of which have not been refuted by the respondents, thatthe course of action taken by the petitioner was not shrouded insecrecy amounting to deception on his part. He made statementsin and outside Parliament which received wide publicity of hisintention to support the President for reasons that were statedculminating in the speech at the District Balamandalaya attendedby the Leader of the Party. The Leader who spoke after thepetitioner at the meeting did not censure or check him on theproposed course of action. The petitioner has specifically pleadedthat neither the 1st, 2nd and 3rd respondents north© Party WorkingCommittee sought his explanation as to the publicly declaredcourse of action announced by him. In these circumstancesCounsel submitted that disciplinary action was not warranted.Counsel for the 1st, 2nd and 3rd respondents submitted that it is
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not alleged that the petitioner is guilty of deception in relation to theLeader or the Party Working Committee. However, he submittedthat silence on the part of the 1st to 3rd respondents and the PartyWorking Committee cannot be construed as tacit approval of thepetitioner's conduct and the petitioner should have sought specificapproval for his proposed course of action. In the absence of whichhe is liable to disciplinary action in terms of the Constitution of theParty.
Although membership of the Party has a concomitant liability todisciplinary action in terms of the Constitution of the Party ascorrectly submitted by Counsel for the respondents, in deciding onthe validity of an expulsion, which has the further implication of theloss of the seat in Parliament, the overall conduct of the personsubject to such action has to be taken into account. The years ofdedicated service that resulted in electoral gains for the Party andthe attendant circumstances such as the repeated statements ofthe Leader of the Party that if he wins the Presidential Election, hewould offer Ministries to members of the SLFP and other parties,may be relevant in considering the validity of the impugnedexpulsion of the petitioner from the perspective that the decision isarbitrary and unreasonable. But, the main thrust of the petitioner'scase is directed at the legality perse of the expulsion, which has tobe dealt with first in the light of the process of disciplinary action towhich I would now advert.
As noted above the petitioner received an invitation from thePresident to accept a Ministerial Portfolio on 16.1.2006 (P6) and hewas appointed a Minister on 25.1.2006. On 26.1.2006 a person bythe name of Methsiri Paranavithana residing at New Mulleriyawahanded over a letter (P11) at the UNP Headquarters requesting thatdisciplinary action be taken against Mr. Mahinda Samarasingheand the petitioner being Members of Parliament elected on UNPnomination lists accepted Cabinet Portfolios committing a "clearviolation of the constitution, code of conduct and the policies andprinciples of the UNP." The 1st to 3rd respondents have producedmarked 3R4 an extract from the minutes of the Party WorkingCommittee held on the same day, the 26th January at 4.30 at whichthe complaint against the petitioner was tabled and a decisiontaken to appoint a disciplinary panel consisting of the 4th, 5th and
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6th respondents to inquire into the matter. The minute does notcontain any record of the discussion that took place at themeeting.
The 3rd respondent being the General Secretary of the Partysent letter dated 2.2.2006 (P7) to the petitioner stating that theParty Working Committee appointed a Panel of Inquiry consistingof the 4th, 5th and 6th respondents to inquire into "certain matters"relating to his "conduct as a member of the party" and that a furthercommunication would be addressed to the petitioner by the panel.
The Chairman of the Panel, the 4th respondent sent letter dated
(P8) to the petitioner calling for his explanation on thecomplaint of Methsiri Paranavithana, referred to above. Thepetitioner replied by letter dated 6.5.2006 (P12), having obtained acopy of the complaint, stating that appointment of the Panel ofInquiry is contrary to the Constitution of the UNP and that the Panelhas no jurisdiction to seek his explanation. Without prejudice to theplea on jurisdiction, he denied having violated Constitution asalleged by Paranavithana.
In the meanwhile, the said Paranavithana of New Mulleriyawamade another complaint by letter dated 4.4.2006 alleging thatMr. Mahinda Samarasinghe and the petitioner against whom hemade the previous complaint "now openly campaign for the PAwhilst promoting the Mahinda Chinthanaya, which is directly inconflict with the policies of the UNP1'. The complaint (P15) had alsobeen hand delivered at the Party Headquarters. The WorkingCommittee at its meeting on 7.4.2006 (3R5) decided to refer thiscomplaint as well to the Panel of Inquiry and the Chairman of thePanel by his letter dated 11.5.2006 called for the petitioner'sexplanation on his complaint (P14). The petitioner replied by letterdated 23.5.2006 (P16) on the same lines denying jurisdiction of thePanel. I would pause at this point, to note that the saidParanavithana from New Mulleriyawa appears to have been aready complainant, virtually at the door step of the PartyHeadquarters, hand delivering complaints that promptly got tabledat Working Committee meetings with a swift reference to a Panel ofInquiry without there being any record of the discussions that tookplace on the matter amongst the members of the Committee. Thecomplaints of Paranavithana that run into a few lines contain bald
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statements of matters that should have been within the knowledgeof the Working Committee.
Viewed from another perspective, considering that the petitionerwas himself a member of the Working Committee from 1990(paragraph 10 of the petition admitted by the respondents) andParanavithana was only a member of the Party (not an electedrepresentative or an office bearer of any one of the severalrepresentative bodies in the organizational structure of the Party),a question arises whether the members of the Working Committeehad to get activated against a colleague on a complaint of a meremember of the Party, in respect of matters in the public domainsince Paranavithana only relied on newspaper publicationsannexed to his letter to support his complaint.
Be that as it may, the next stage in the process, was the chargesheet issued on the petitioner by letter dated 16.6.2006 of theGeneral Secretary (P17). The letter states that the Panel of Inquiry"has not been satisfied with the explanation contained in thepetitioners letters P12 and P16 and has forwarded the chargesheet." The petitioner was requested to be present for an inquiry atthe Party Headquarters on 5.7.2006 at 4.00 p.m. It has to be notedthat the petitioner in his replies did not seek to explain the contentsof Paranavithana's letters sent to him by the Panel but raised thequestion as to the jurisdiction of the Panel to seek his explanation.Hence, there is no question of the Panel not being satisfied with theexplanation of the petitioner. The proper course of action wouldhave been for the Panel to have referred the question of jurisdictionraised by the petitioner to the Working Committee on whoseauthority the Panel acted. If such a course of action was taken thequestion of jurisdiction (power to decide) in the matter of takingdisciplinary action, that has loomed large in these proceedingswould have been at the least considered prior to the impugneddecision being taken. Counsel for the petitioner raised the furthermatter in this regard that as evident from the contents of P17 thecharge sheet had not emanated from the Disciplinary Committeewhich was appointed by the Working Committee (3R6) on
being the same day on which Paranavithana's complaintwas received at the Party Headquarters.
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To continue with the narrative of events, the petitionerreplied by letter dated 1.7.2006 (P18) requesting apostponement of the inquiry to enable him to make adequatearrangements and requesting that he be informed whether hecould have legal representation at the inquiry in view of theposition taken up by him in his letters i.e. with regard tojurisdiction. The General Secretary replied by letter dated
that the inquiry is postponed to 28.7.2006 at 4.00 p.m.and the letter specifically states as follows:
"Please note that legal representation is not permitted atthese inquiries."
Thereupon the petitioner sent letter dated 27.7.2006 (P20)stating that the attempt to hold a disciplinary inquiry before anillegally constituted Panel of Inquiry is a violation of theConstitution of the UNP and the prohibition against legalrepresentation is a violation of the principles of natural justiceand a denial of his legitimate rights and that he is firmlyconvinced that the inquiry will not be fair and as such he wouldnot be attending the inquiry. The next communication receivedby the petitioner is the letter of expulsion dated 10.8.2006(P21) which states that the Working Committee at its meetingon 8.8.2006 "having considered the Report of the DisciplinaryCommittee and the findings of the Panel of Inquiry decided thathe is guilty of all the charges included in the charge sheet.
The letter culminates as follows:
"Accordingly the working committee has found that you arein breach of Article 3.3(c), 3.3(d), 3.4(d) and 9.7 of theConstitution or any one or more of them. The WorkingCommittee unanimously decided to expel you forthwith fromUnited National Party."
Counsel for the petitioner contended that the sentencesetting out the finding of the Working Committee has two partsthat are inconsistent. The first part states that he is found to bein breach of the four Articles that have been specified. Thesecond part states that he is in breach of "anyone or more ofthem". It was submitted that the finding is nothing but a cursory
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citation of Articles of the Party Constitution and reflect a doubton the part of the Working Committee as to which of them havebeen breached by the petitioner. That, an expulsion carryingserious implications cannot be based on such a vague andimprecise finding as to the Articles of the Constitution thepetitioner is found to be in breach of.
Based on the foregoing the petitioner has raised thefollowing 3 grounds to establish the invalidity of the expulsion:
that in terms of Article 6.3(a) of the Constitution of theUNP the body empowered to take disciplinary action isthe National Executive Committee (NEC) and not theParty Working Committee which has taken the impugneddecision (P21).
that the Panel of Inquiry acted in breach of the principlesof natural justice in denying legal representation to thepetitioner which was necessary for the petitioner toestablish the absence of jurisdiction.
that the provisions of the Constitution cited as havingbeen breached by the petitioner and set out in thecharges do not in any event apply to him. Further that thefinding as contained in the impugned decision P21 thatthe petitioner has been found to be in breach of "anyoneor more" of specified Articles of the Constitution of theUNP is vague, and;
reveals that the Working Committee has misdirecteditself on the applicable provisions and ;
denied to the petitioner an opportunity of seekingreview from the Court as to the validity of a specificbreach;
The grounds urged by the petitioner seeking to invalidate thedecision to expel him, require a consideration of the nature ofthe power exercised by a Political party in expelling a memberhaving the consequence of that member losing hisParliamentary seat and the basis of the review of the validity
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of such decision of expulsion by this Court in terms of provisoto Article 99(13)(a) of the Constitution.
Mr. Choksy, P.C. for the respondents submitted that aPolitical Party is a private organization consisting of itsmembers who come together on the basis of a Constitution ofsuch Party. He persistently stated that the membership of aPolitical Party is akin to membership of a 'club' and theexpulsion of a member should be viewed from sameperspective of the expulsion of a member from a club or similarprivate organization, without introducing the high standard ofreview that apply in Public law. He submitted that therelationship between a member and a party is essentiallycontractual and a matter of Private Law.
On the other hand, Mr. Wijesinghe, P.C., for the petitionersubmitted that although the relationship between the memberand the Party may be contractual and a matter of private Law,the consequence of expulsion has a serious impact on therights of the member in that he loses the seat in Parliament towhich he has been lawfully declared elected upon thepreferential votes of the electoral district whom he represents.In view of the added and serious consequence of a decision ofexpulsion, it was submitted that the standard of review of thevalidity of such expulsion should be the same as that whichapplies to the review of validity of a decision of an authorityexercising power under Public Law.
The submission of Mr. Choksy, as to the basic nature of aPolitical Party being akin to that of a "club" and the relationshipbetween the members and the party being one of contract, asubject in realm of Private law, is correct. However there ismerit in Mr. Wijesinghe's submission that in the exercise of thepower of expulsion the matter transcends the realm of PrivateLaw and attracts the standard of review of the public law. APolitical Party comes into existence as a matter of privatearrangement (contract) between persons who have the objectof gaining political power at elections but the character of suchAssociation alters to a certain extent after gaining recognition
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as a Political Party, as provided in section 7 of theParliamentary Elections Act No. 1 of 1981. Section 7(4)(b)requires Secretary of a Political Party at the time of making anapplication for recognition to furnish to the Commissioner ofElections a copy of the Constitution of such Party and a list ofits office bearers. Thus, a Political Party which commences asa private Association gains statutory recognition in reference toits Constitution with specific legal powers generally in regard toElections and it plays a vital role in the realm of DemocraticGovernance.
Under the law as it stood prior to the present Constitution of1978 the expulsion of a member from a Political Party did nothave the consequence of such Member vacating his seat inParliament. Article 99 of the present Constitution, departedfrom the previous electoral system of "first past the postelections" to one of proportional representation, in terms ofwhich a Party is declared entitled to such number of Membersof Parliament in proportion to the votes gained by the Party inan Electoral District. In terms of Article 99(2) as it stood, theParty when submitting a nomination paper was also required toset out the names of the candidates in order of priority on thebasis of which the candidates were declared elected dependingon the proportion of votes gained by the Party. This system ofElections is generally described as the "List System" or “CrudeList System". Article 99(13) (a) in regard to expulsion of amember from a Party with the consequence of his vacating theseat in Parliament, with judicial review by this Court as to thevalidity of such expulsion, was introduced as a part of thissystem of Elections.
The Fourteenth Amendment to the Constitution, certified on24.5.1988 repealed Article 99 and substituted a new provisionwhich removed the power of the Party to indicate a priority ofcandidates in the nomination paper and empowered theelectors to indicate their preference of not more than 3candidates nominated by the same recognised political party.Thus the “List System" or "Crude List System", was replacedwith the "Preferential System" which is now operative.
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However, the provisions of Sub-Article 13(a) of the originalArticle 99 were included verbatim in the newly enacted Article99 as contained in the 14th Amendment. In view of the changeof the Electoral System effected by the Fourteenth Amendmentthe review of the validity of a decision of expulsion has to be, inmy view, now considered not only from the perspective Of avacation of the seat of the Member in Parliament but also fromthe perspective of the impact on the Electorate from which hewas declared on the basis of preferential votes cast in hisfavour. As a result of the expulsion by the Party the voterspreferred candidate is removed from his seat in Parliament andreplaced by a candidate who at the original election failed toobtain adequate preferential votes to gain election toParliament. In short the winning candidate is replaced by acandidate who has lost, as a result of the expulsion. Thus inconsequence of the expulsion not only the member loses hisseat in Parliament but also there is a subversion of thepreference indicated by the electors in exercising theirfranchise. In view of these far reaching consequences I aminclined to agree with the submission of Mr. Wijesinghe, thatthe standard of review of a decision of expulsion should be akinto that applicable to the review of the action of an authorityempowered to decide on the rights of persons in Public Law.Generally such review comes with the rubric of AdministrativeLaw.
In the case of "Council of Civil Service Union and others vMinister for the Civil Servicef1) Lord Diplock grouped thesegrounds of review at Public Law as illegality, irrationality,and procedural impropriety. He also referred to possiblefourth ground of proportionality being the standard of review incivil law countries in Europe. At 410 and 411 Lord Oiplockbriefly outlined the contents of these three grounds asfollows:
“By “illegality’' as a ground for judicial review I mean thatthe decision-maker must understand correctly the law thatregulates his decision making-power and must give effectto it. Whether he has or not is par excellence a justiciable
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question to be decided; in the event of dispute, by thosepersons, the judges, by whom the judicial power of thestate is exercisable.
By "irrationality" I mean what can by now be succinctlyreferred to as "Wednesbury unreasonableness"(Associated Provincial Picture Houses Ltd. v WednesburyCorporation(2). It applies to a decision which is sooutrageous in its defiance of logic or of accepted moralstandard that no sensible person who had applied his mindto the question to be decided could have arrived at itWhether a decision falls within this category is a questionthat judges by their training and experience should be wellequipped to answer; or else there would be somethingbadly wrong with our judicial system. To justify the court'sexercise of this role, resort I think is today no longerneeded to Viscount Radcliffe's ingenious explanation inEdwards v Bairstowi® of irrationality as a ground for acourt’s reversal of a decision by ascribing it to an inferredthough unidentifiable mistake of law by the decision-maker. "Irrationality" by now can stand upon its own feet asan accepted ground on which a decision may be attackedby judicial review.
I have described the third head as "proceduralimpropriety" rather than the failure to observe basic rulesof natural justice or failure to act with procedural fairnesstowards the person who will be affected by the decision.This is because susceptibility to judicial review under thishead covers also failure by an administrative tribunal toobserve procedural rules that are expressly laid down inthe legislative instrument by which its jurisdiction isconferred, even where such failure does not involve anydenial of natural justice…."
I am of the view that the foregoing statement of Lord Diplockwhich has been cited in all leading authorities on the subjectshould generally apply in deciding on the validity of anexpulsion in terms of Article 99(13)(a) of the Constitution
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considering it's far reaching consequences as set out above.
The grounds urged by the petitioner would be accordinglyconsidered from this perspective.
The first and third grounds which relate to lack of jurisdictionof the Party Working Committee to decide on the expulsion andthe misdirections with regard to the provisions of theConstitution of the Party in reference to which a breach is saidto have been established, pertain to illegality. The secondground of denial of legal representation relate to proceduralfairness and the petitioner has buttressed this ground inreference to a right of representation by an Attorney-at-Law ascontained in section 42(2) of the Judicature Act No. 2 of 1978.
I would first deal with the matter of illegality. In JudicialReview of Administrative Action — De Smith, Woolf and Jowell- 5th Ed. page 295 the basis of review on illegality is summedup as follows:
"The task for the courts in evatuating whether a decision isillegal is essentially one of construing the content andscope of the instrument conferring the power in order todetermine whether the decision falls within its "fourcorners."
In this instance the power of expulsion stems from theConstitution of the UNP to which the petitioner as a memberhas subscribed to. There the basis of review is to ascertainwhether the expulsion falls within the "four corners" of theConstitution of the Party which gains statutory recognition interms of section 7 of the Parliamentary Elections Act referredabove. The petitioner has contended that in terms of theConstitution of the UNP, produced marked P1, the power totake disciplinary action, including expulsion or suspension,against any individual member is vested in the NationalExecutive Committee (NEC) in terms of Article 6.3(a).Admittedly, the expulsion of the petitioner was at no stageconsidered by the NEC.
Mr. Choksy, in his submissions conceded that expulsion hasnot even been reported to the NEC. The petitioner has raised
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the objection as to the jurisdiction from his very first responsereferred to above on this premise. The decision as to expulsionhas been taken by the Party Working Committee, whichaccording to the petitioner consists of nominees of the PartyLeader. The complaint of the petitioner with regard to thecomposition of the Party Working Committee is not withoutmerit. In terms of Article 7 of the Constitution, the PartyWorking Committee consists of Office Bearers of the Party andnot exceeding 50 members of the NEC nominated by the PartyLeader. In terms of Articles 8.5 and 8.6 all Office Bearers of theUNP are nominated by the Leader and ratified at the AnnualConvention. Whereas the NEC is a more representative body interms of Article 6 of the Constitution.
The respondents submitted in their objections that thepowers, duties and responsibilities of the NEC have beenvested in the Working Committee by a Resolution of the NEC inAugust 2002, produced marked 3R3.
The petitioner has in his counter affidavit specifically statedthat the Resolution (3R3) as appearing on the face of thedocument itself was merely read at the meeting by one memberand translated to Tamil by another member 3R3 does not statethat it was seconded by any person or put to the vote of theNational Executive Committee, but it is merely recorded thatthe Party Leader being the then Prime Minister confirmed theResolution. Further the petitioner contended that power ofdisciplinary action resulting in expulsion of a member with suchserious consequences as noted above, cannot be delegated orvested in the Party Working Committee without any provision inthe Constitution for a delegation of such a power to the PartyWorking Committee.
Admittedly, Article 6 of the Constitution which deals withNEC does not empower the NEC to vest or delegate any of itspowers. However, the respondents rely on Article 7.15 includedin the chapter with regard to the Party Working Committeewhich states that the Committee will have the power to exercisethe powers, functions and duties vested in it by the NEC. Therespondents also relied on previous Judgments of this Court in
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the cases of Gamini Dissanayake v Kaleef4) and Jayatilake vKa/eeA5>. These expulsions appear to have been made underthe previous Constitution of the UNP. The petitioner submittedthat in that Constitution there is no specific provision similar toArticle 8(1) of the present Constitution, which provides forspecific delegation of powers to the Working Committee by theNEC. Further it is noted that although Fernando, J., in GaminiDissanayake's case observed that the minutes of the ExecutiveCommittee relied on to establish the vesting of power in theWorking Committee were "undoubtedly defective" (at 158) thepetitioner who obtained leave to reply even in their counteraffidavits did not claim that the Resolution had not beenpassed, instead they merely questioned the effect of thatResolution, by asserting that it did not enable the WorkingCommittee to exercise disciplinary power vested in theExecutive Committee. He further observed as follows:
7/ the petitioners were seriously contending that thisResolution had been proposed but not passed, thatallegation should have been made clearly specifically anddirectly." (at 158).
In this case too ex facie the Resolution is defective, sincethere is no person seconding it or the matter being discussedor put to the vote of NEC. Unlike in Gamini Dissanayake's casethe petitioner has questioned the jurisdiction of the WorkingCommittee from the very outset and in his counter affidavitspecifically stated that “the Resolution was not seconded orconsidered by the House."
In the circumstances the respondent had to adduce furthermaterial by way of the confirmation of the minutes whichappears to have been done in Jayatilake's case {supra). In theabsence of even such material considered to be adequate byKulatunga, J. (at 378), I have to accept the ground urged by thepetitioner as to the invalidity of the Resolution in so far as itrelates to the exercise of disciplinary power. There is furthersupport for such finding derived from provisions of article6.3(a), which not only empowers the NEC to take disciplinaryaction including expulsion or suspension and contains a further
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requirement that the NEC should report such action at the next“Annual Convention" of the Party, being the highest body in theorganizational structure of the Party. In this instance theWorking Committee has not even reported the decision to theNEC, being the body empowered with disciplinary power andas such the decision could never be communicated to the nextAnnual Convention of the Party being a mandatory requirementin terms of Article 6.3(a) of the Constitution.
The next ground is illegality urged by the petitioner inrespect of provisions of the constitution of the UNP which arealleged to have been breached by him so as to warrant theexpulsion. The decision of expulsion (P1) repeats the 5 chargescontained in the charge sheet P17, without reference to theparticular Articles of the Constitution in respect of each of thefive grounds. After the narration of the five grounds (P21)states as follows:
“Accordingly the Working Committee has found that youare in breach of Article 3.3(c), 3.3(d) and 9.7 of theConstitution of the party or any one or more of them."
The particular ground raised that the finding is vague andnot precise, is manifest. It is not possible for any person torelate the Articles of the Constitution which are stated, to thefive charges specified in the preceding section because of thequalification that the breach is of any one or more of them.Even assuming that this is merely an erratic expression andthat the petitioner could have come to the necessaryconclusion with reference to the charge sheet which cited theparticular Articles of the Constitution in respect of each charge,the petitioner contends that those provisions of the Constitutionwould not apply to him. The first charge in P17 is as follows:
“That on or about the 25th day of January 2006 whilstbeing a member of the United National Party and amember of Parliament of the United National Party for theKandy District, you have accepted, the office namely,Minister of Policy Development and Implementationunder the United Peoples Freedom Alliance Governmentwithout approval of the Working Committee of the United
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National Party and thereby you have violated Article 3.4(d)of the Constitution of the United National Party."
Article 3.4(d) which is alleged to have been breached ascontained in document P1 (Constitution) is as follows:
Where the member accepts office in theadministration formed by any other political party orpolitical alliance or political association or political groupor political body consequent upon an election toParliament or Provincial Council or Local Authority or in anadministration that comes into existence upon the changeof political control in Parliament or in a Provincial Councilor local authority during its term, without the approval ofthe Working Committee of the Party.B
The petitioner's submission has merit in that what isprohibited is only acceptance of office consequent upon anelection to Parliament or Provincial Council or Local Authorityor in an administration that comes into existence upon thechange of political control in Parliament or in a ‘ ProvincialCouncil or in a local authority during its term without theapproval of the Working Committee.
There is no reference to the assumption of office upon aPresidential Election. The petitioner did not accept an officeupon an election to Parliament. He continued to serve in theopposition and accepted office after the Presidential election onan invitation of the President in the circumstances referred to■ above. Therefore the conduct of the petitioner cannot possiblycome within the ambit of Article 3.4(d) of the Constitution asalleged in the charge sheet.
As regards the other charges 2 to 4 contained in the chargesheet (P17) it is stated in respect of each charge that theviolation is read with Article 9.7 of the Constitution.
This is a common feature of the charges 2. 3 and 4. Thepetitioner contends that article 9.7 cannot apply for him since itrelates to conduct of "any candidate". Article 9.7 as containedin P1 reads as follows:
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DAny candidate who fails to act in harmony with theprinciples, policy programme, constitution, rules, code ofconduct and standing orders of the party, shall be deemedto have violated the constitution and shall be subject todisciplinary action including expulsion.
It is clear that the reference here is to a candidate who failsto act in harmony with the principles, policy and the like, of theParty. This is included in Chapter 9, which relates toPresidential, Parliamentary and other elections. On thematerial alleged in the charge the impugned conduct of thepetitioner does not relate to the conduct as a candidate of theParty. The petitioner was certainly not a candidate at thePradeshiya Sabha election to which reference is made inrespect of the charges. Charge 5 is a consequential charge andcannot stand on its own. In the circumstances the ground ofchallenge based on the charge has also been established bythe petitioner.
The final ground of challenge relates to proceduralimpropriety. Mr. Wijesinghe contended that in the long line ofdecisions of this Court commencing from the decision ofGamini Dissanayake v Kaleel (supra), including the decision inSarath Amunugama v Karu Jayasuriyat6> at 173, this Court hasheld that there should be compliance with the principles ofnatural justice. This premise is conceded by the respondents.
The additional ground alleged in this case is that where aperson has the right to be heard, the provisions of section 41(2)of the Judicature Act will apply and such person is entitled to berepresented by an Attorney-at-law. Section 41(2) of theJudicature Act reads as follows:
"Every person who is a party to any proceeding before anyperson or tribunal exercising quasi judicial powers andevery person who has or claims to have the right to beheard before any such person or tribunal shall unlessotherwise expressly provided by law be entitled to berepresented by an attorney-at-law.M
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Mr. Choksy, contended with reference to the long title to theJudicature Act and the provisions of Article 105 of theConstitution that the contents of the sub-section should berestricted only to courts and other institutions of a judicialnature. On the other hand Mr. Wijesinghe submitted that theright of representation in courts and such other institutionsexercising judicial power is specificaffy covered by theprovisions of section 41(1) and this sub section (2) cited aboverefers to the exercise of quasi judicial power. The precedinganalysis reveals that the power of expulsion by a political partyin respect of a member, who holds seat in Parliament hasserious consequences in regard to the right of such memberand the exercise of franchise by the voters of the electoraldistrict who cast preferential votes in his favour. This Court hasconsistently held that the member affected has a right to beheard in compliance with the principles of natural justice.
The phrase "quasi judicial" has evolved through decisionsof Courts to encompass an act which adversely affect the rightof a person, bringing within the scope of its exercise the duty to
act judicially.
Wade and Forsyth in his work on Administrative Law 9th Ed.page 482 states as follows:
'The term quasi judicial accordingly came into vogue as anepithet for power which although administrative wererequired to be exercised as they were judicial i.e. inaccordance with natural justice."
Since the power of expulsion in relation to a member leadingto his vacating his seat in Parliament has to be exercised incompliance with the principles of natural justice.this would inmy view come within the ambit of a quasi judicial power. In thecircumstances the member would be entitled to be representedby an attorney-at-law at the inquiry which precedes suchdecision in terms of section 41(2) of the Judicature Act No. 2 of1978 cited above.
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The petitioner has specifically raised the question ofjurisdiction of the disciplinary panel and sought legalrepresentation. This request is in any event reasonableconsidering that the petitioner was objecting to the jurisdictionof the panel. The request for legal representation has beenrefused by the 3rd respondent being the General Secretary bydocument P10. The 4th, 5th and 6th respondents beingmembers of the Inquiry Panel have sought to justify thedecision on the basis of the guidelines for the conduct of thedisciplinary inquiries marked 4R1 dated 8.8.91 issued by thethen General Secretary Mr. B. Sirisena Cooray. In paragraph 11of this guideline it is stated "the member is not entitled to berepresented by lawyers." These guidelines appear to havebeen issued well before the several decisions by this Courtwhich require the compliance with the principles of naturaljustice. In terms of section 41(2) the right to representation byan attorney-at-law can be denied only if there is expressprovision by law to the contrary. The guidelines issued by thethen GenergJ Secretary cannot be considered an expressprovision of law by any stretch of imagination.
In the circumstances the petitioner is entitled to succeed onthis ground as well.
Since the petitioner has established the three grounds ofchallenges to the decision it is unnecessary to examine thefurther aspect of the reasonableness of the expulsion in thelight of the antecedent conduct of the petitioner referred to in atthe commencement of this judgment.
Accordingly, I allow this application and grant the petitionerthe relief prayed in prayers (c), (d), (e) and (f) of the prayer tothe Petition.
The application is allowed with costs.
JAYASINGHE, J.- I agree.
DISSANAYAKE, J.- I agree.
Application allowed.